Commonwealth of Australia v Yarmirr [1999] FCA 1668

COMMON LAW NATIVE TITLE 12 Mabo v The State of Queensland [No 2] (1992) 175 CLR 1 established that, on the acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to that land, and that where native title rights and interests in or in relation to that land existed at the time, the common law recognises those rights and interests as a burden on the radical title. Brennan J (at 57) said the term "native title" conveniently describes the interests and rights of indigenous inhabitants in land, whether communal group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants. In expressing their agreement with the reasons of Brennan J, Mason CJ and McHugh J (at 15) noted that six members of the Court were in agreement: " that the common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws and customs to their traditional lands..." 13 The common law principles recognised by Mabo [No 2] have been considered and applied in subsequent decisions by the High Court: see Western Australia v The Commonwealth (1995) 183 CLR 373 (the Native Title Case) at 452, 492; North Ganalanja Aboriginal Community v Queensland (1996) 185 CLR 595 (the Waanyi Case) at 613; The Wik Peoples v State of Queensland (1996) 187 CLR 1 at 84 - 85, 100, 129, 135, 175 - 176, 213; Fejo v Northern Territory of Australia (1998) 195 CLR 96 at 126 - 128 and 146 - 147 and Yanner v Eaton (1999) 166 ALR 258 at 268, 277 - 278 and 298. 14 Brennan J in Mabo [No 2] said (at 48): "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. If the land were desert and uninhabited, truly a terra nullius, the Crown would take an absolute beneficial title (an allodial title) to the land for the reason given by Stephen CJ in Attorney-General (NSW) v Brown: there would be no other proprietor. But if the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognized by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land. Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants. The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant. The English legal system accommodated the recognition of rights and interests derived from occupation of land in a territory over which sovereignty was acquired by conquest without the necessity of a Crown grant." 15 The concepts of native title recognised by the common law do not constitute a title which is an institution of the common law. In Fejo Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said (at 128): "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." 16 It follows that the existence and content of native title is a question of fact, to be ascertained by evidence as to the laws and customs of the indigenous inhabitants, on a case by case basis: Mabo [No 2] at 58 and 61, the Native Title Case at 452 and Wik at 169. Native title is therefore "highly fact specific" (a description of Australian native title used by the majority of the Court of Appeal of New Zealand in McRitchie v The Taranaki Fish and Game Council [1999] 2 NZLR 139 at 147). 17 In Wik, Gummow J, citing Mabo [No 2], said (at 169): "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." (Footnotes omitted) 18 In discussing the nature and incidents of native title in Mabo [No 2], Brennan J made the following general observations. 19 First, as native title, though recognised by the common law, is not an institution of the common law, it is not alienable by the common law. His Honour said (at 59): "Its alienability is dependent on the laws from which it is derived. If alienation of a right or interest in land is a mere matter of the custom observed by the indigenous inhabitants, not provided for by law enforced by a sovereign power, there is no machinery which can enforce the rights of the alienee … and, subject to an important qualification, the only title dependent on custom which the common law will recognize is one which is consistent with the common law … 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." 20 Brennan J went on to observe that many clans or groups of indigenous people have been physically separated from their traditional lands and have lost their connection with it. However, (at 59 - 60): "Where a clan or group has continued to acknowledge the laws and, (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, 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." 21 Secondly, native title, being recognised by the common law, 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. Recognition, however, is dependent on the native title arising under the laws and customs of the indigenous inhabitants not being so repugnant to natural justice, equity and good conscience that judicial sanctions must be withheld (at 59). His Honour had earlier observed (at 43) that recognition by the common law of rights and interests in land of indigenous inhabitants of a settled colony would be precluded if the recognition were to "fracture a skeletal principle of our legal system". 22 Thirdly, where an indigenous people (including a clan or group) as a community, are in possession, or are entitled to possession, of land under a proprietary native title, that communal title enures for the benefit of the community as a whole and for the subgroups and individuals within it who have particular rights and interests in the community's lands (at 61 - 62). 23 Where native title survived the Crown's acquisition of sovereignty and radical title, it nevertheless was liable to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title. Brennan J in Mabo [No 2] (at 69) said: "Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (e.g., authorities to prospect for minerals)." 24 Deane and Gaudron JJ (at 110) said: "The personal rights conferred by common law native title do not constitute an estate or interest in the land itself. They are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession." 25 Expressions to a similar effect were made in the joint judgment of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ in the Native Title Case (at 439), leading their Honours to observe at (452 - 453) that: "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." 26 In Fejo, Kirby J (at 151) referred to "the inherently fragile native title right, susceptible to extinguishment or defeasance…". Fejo confirmed that native title is extinguished by a grant in fee simple because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any rights or interests in land which together make up native title. Further, the Court held that once native title had been extinguished, it was necessarily at an end, and could not revive if and when the land came to be held again by the Crown. In their joint judgment Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said (at 128): "As Brennan J pointed out in Mabo [No 2] the conclusion that native title has been extinguished by a later grant of freehold to the land is a result that follows not from identifying some intention in the party making the later grant but because of the effect that that later grant has on the rights which together constitute native title. The rights of native title are rights and interests that relate to the use of the land by the holders of the native title. For present purposes let it be assumed that those rights may encompass a right to hunt, to gather or to fish, a right to conduct ceremonies on the land, a right to maintain the land in a particular state or other like rights and interests. They are rights that are inconsistent with the rights of a holder of an estate in fee simple. Subject to whatever qualifications may be imposed by statute or the common law, or by reservation or grant, the holder of an estate in fee simple may use the land as he or she sees fit and may exclude any and everyone from access to the land. It follows that, as there was no reservation or qualification on the grant that was made to Benham in 1882, that grant was wholly inconsistent with the existence thereafter of any right of native title." 27 Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the acts of the executive in exercise of powers conferred upon it: Mabo [No 2] at 63 - 64 per Brennan J, 110, 111 per Deane and Gaudron JJ, and 195 - 196 per Toohey J. As Brennan CJ observed in Wik (at 84 - 85), such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title. 28 A law or executive act of the first kind which, although it creates no rights inconsistent with native title, but is claimed to extinguish native title, will not have that effect "unless there be a clear and plain intention to do so": Mabo [No 2] at 64, 111 and 196, and Wik at 85. Such an inquiry is not to be conducted by inquiry into the state of mind of the legislators or of the executive officer, but from the words of the relevant law or from the nature of the executive act and the power supporting it. The test of intention to extinguish is an objective test. 29 In cases of the second kind, Brennan CJ, citing from his judgment in Mabo [No 2] (at 68) and the Native Title Case (at 422), said in Wik that a law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the actual intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title. It should be added that, even in this situation, the exercise of power must be in terms that "clearly, plainly and distinctly" create rights that are inconsistent with the continued exercise of native title rights and interests (see Wik at 171 and Yanner at 289 per Gummow J). Where the exercise is made under statutory authority, the statute authorises the creation of rights which have this effect: see Mabo [No 2] at 63. 30 In relation to the third category, Brennan CJ said (at 85 - 86) the Crown acquires a full beneficial ownership that extinguishes native title. This may occur by acquisition, by or under a statute, in which case the question is simply whether the power of acquisition has been validly exercised. Alternatively, the Crown, without statutory authority, may have acquired beneficial ownership simply by appropriating land in which no interest has been alienated by the Crown. In the latter case, the appropriation of the land gives rise to the Crown's beneficial ownership only when the land is actually used for some purpose inconsistent with the continued enjoyment of native title, for example by building a school, or a court house, or laying a pipeline. Brennan CJ noted that the mere reservation of land for the intended purpose, which does not create third party rights over the land, does not alter the legal interests in the land; but the Crown's exercise of its sovereign power to use unalienated land for its own purposes extinguishes, partially or wholly, native title interests in or over the land used. 31 In Wik, the question was whether pastoral leases issued under the Land Act 1910 and the Land Act 1962 of Queensland necessarily had the consequence that native title in the land the subject of the leases was extinguished. Toohey, Gaudron, Gummow and Kirby JJ in separate judgments each held that, as the leases did not confer rights of exclusive possession of the areas on the grantees, the grants of the leases did not necessarily extinguish all incidents of native title in respect of the areas. The point of departure between those judges who comprised the majority, and Brennan CJ, Dawson and McHugh JJ who dissented, concerned the nature of the rights granted by the pastoral lease. The minority concluded that the lessees under the pastoral leases had a right of exclusive possession, at least from the moment when the leases were granted. The minority held that the right of exclusive possession was inconsistent with the continued right of the holders of native title to enjoy that title (at 86, 100 and 167). 32 However, all of the members of the Court in Wik were in agreement as to the manner in which inconsistency was to be judged. Brennan CJ, with whom Dawson and McHugh JJ agreed, said (at 86): "The question is not whether the Governor in Council intended to exhibit an intention to extinguish native title but whether the right to exclusive possession conferred by the leases on the pastoral lessees was inconsistent with the continued right of the holders of native title to enjoy that title." 33 Brennan CJ rejected a test of inconsistency in the practical enjoyment of the respective rights. His Honour said (at 87): "To postulate a test of inconsistency not between rights but between the manner of their exercise would be to deny the law's capacity to determine the priority of rights over or in respect of the same parcel of land. The law would be incapable of settling a dispute between the holders of the inconsistent rights prior to their exercise, to the prejudice of that peaceful resolution of disputes which reduces any tendency to self-help…. The question of extinguishment of native title by a grant of inconsistent rights is - and must be - resolved as a matter of law, not of fact. 34 Toohey J said (at 126): "Inconsistency can only be determined, in the present context, by identifying what native title rights in the system of rights and interests upon which the appellants rely are asserted in relation to the land contained in the pastoral leases. This cannot be done by some general statement: it must 'focus specifically on the traditions, customs and practices of the particular aboriginal group claiming the right'. Those rights are then measured against the rights conferred on the grantees of the pastoral leases; to the extent of any inconsistency the latter prevail." 35 In the postscript to his judgment, added with the concurrence of the other members of the majority, Toohey J said (at 132 - 133): "…the rights and obligations of each grantee depend upon the terms of the grant of the pastoral lease and upon the statute which authorised it…. Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established. If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield to that extent, to the rights of the grantees." 36 Gaudron J (at 135) said: "By way of alternative, the appellants argued that if pastoral leases did confer rights of exclusive possession, native title rights were not extinguished because those rights were not exercised either pursuant to the Mitchellton Pastoral Leases or the Holroyd Pastoral Lease. The respondents and supporting interveners replied to this contention by asserting that it was the grant, not the exercise, of a right of exclusive possession which operated to extinguish native title rights. In this they were undoubtedly correct. As Deane J and I pointed out in Mabo v Queensland [No 2] native title rights 'are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right of exclusive possession' or other inconsistent dealings with the land by the Crown." 37 Gummow J (at 185) said that the test of inconsistency: "… requires a comparison between the legal nature and incidents of the existing right and of the statutory right. The question is whether the respective incidents thereof are such that the existing right cannot be exercised without abrogating the statutory right. If it cannot, then by necessary implication, the statute extinguishes the existing right." 38 Kirby J (at 238) accepted as established by Mabo [No 2] the theory about extinguishment and impairment which he described (at 221) as follows: "The inconsistency of incident test: That once the Crown's ultimate or radical title was converted, by the exercise of sovereignty into an estate or interest in land, the question became whether that estate or interest, of its legal character, was inconsistent with the continuance of native title in the land. The question is not whether the estate or interest had been exercised, in fact, in a way that was incompatible with the exercise of native title rights, but whether it was legally capable of being so exercised. The issue was one of a legal theory, not detailed evidence." 39 In the result, all seven judges adopted an "inconsistency of incidents test", succinctly expressed by Kirby J in the passage just cited. 40 The inconsistency of incidents test approved by the members of the Court in Wik was applied in Fejo at 126 and 154. 41 The inconsistency of incidents tests formulated in Wik enables a determination as to whether inconsistency, and extinguishment, occurs at the time of the grant. That test however requires one qualification by way of addition. The grant may confer or impose on the grantee a power or condition to be exercised or performed in the future and which, until exercised or performed, has no immediate legal effect in terms of inconsistency: see Mabo [No 2] at 166 per Gaudron J. In Wik, Gummow J (at 203) instanced conditions in pastoral leases requiring improvements to the land under which the construction of an airstrip and dams in compliance with the conditions could, at the time of the performance of the conditions, bring about an abrogation of native title. See also Yanner v Eaton at 289. Inconsistency arising in this situation may conveniently be described as operational inconsistency.

NATIVE TITLE ACT 1993 42 The NTA is Parliament's response to the decision of the High Court in Mabo [No 2]. Its substantive provisions were held to be valid in the Native Title Case, save only for s 12. The preamble to the NTA notes that the High Court has: "…held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, according to their laws and customs, to their traditional lands." 43 The word "land" is defined in s 253, and does not include waters. The preamble correctly recognises that the Mabo decision was concerned with land and not with offshore areas. The preamble also says that considerations taken into account by Parliament in enacting the NTA included that: "It is particularly important to ensure that the native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common laws of Australia need to be significantly supplemented." 44 Section 3 sets out the main objects of the NTA, the first of these being: "To provide for the recognition and protection of native title." 45 Section 5 provides that the NTA binds the Crown in the right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island. Section 6 provides that the NTA extends to each external territory, to the coastal sea of Australia and to each external territory, and to any waters over which Australia asserts sovereign rights under the SSLA. "Coastal sea" by s 253 of the NTA has the meaning given by subs 15B(4) of the Acts Interpretation Act 1901 (Cth) namely, 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 sea-bed and subsoil beneath, any such sea. 46 Sections 10 and 11 reflect the first of the objects of the NTA. Section 10 provides that native title is recognised and protected in accordance with the NTA, and s 11 provides that native title is not to be extinguished contrary to the NTA. In the Native Title Case (at 453) Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ said: "The first of the enacted objects of the Native Title Act is ' to provide for the recognition and protection of native title' (s3(a)). This object is achieved by a statutory declaration (s 11(1)) that native title 'is not able to be extinguished contrary to this Act.' The protection given to native title by this provision removes its vulnerability to defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title. By that prima facie sterilisation, s 11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code. Conformity with the code is essential to the effective extinguishment or impairment of native title. The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title." 47 Section 13 provides, as previously noted, that an application may be made under Part 3 for a determination of native title in relation to an area for which there is no approved determination of native title; or for the revocation or variation of an approved determination. Part 3 deals with procedural aspects of making an application for the determination of native title. Section 225 provides that a determination of native title is a determination whether or not native title exists in relation to a particular area of land or waters, and if it does exist, prescribes matters which the determination must specify. 48 "Native title" is one of the key concepts defined in s 223 as follows: "(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." 49 Subsections 223(3), (3A) and (4) make provision for circumstances where native title rights and interests have been converted or replaced by statutory rights and interests. 50 In the Native Title Case (at 452) the majority said: "The common law concept of 'native title' is incorporated into the definition contained in s 223(1) of the Act." 51 The definition, however, goes further than Mabo [No 2], as it incorporates communal group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to waters. The Explanatory Memorandum, Part B, which accompanied the Native Title Bill 1993 said at 76 - 77: "Clause 1 of the definition uses terms similar to those used by the High Court of Australia in Mabo in defining native title. This definition is not a codification of the common law. Subsection 2 provides an example of the type of rights and interests that might comprise native title. In accordance with the High Court's decision, the use of the word 'traditional' in reference to laws and customs in this definition, is not to be interpreted as meaning that the laws and customs must be the same as those that were in existence at the time of European settlement." 52 The application of the concepts discussed in Mabo [No 2] in relation to land to offshore waters is, to say the least, not easy, particularly having regard to the territorial limits of the areas over which sovereignty was acquired at the time of first European settlement: see R v Keyn (1876) 2 Ex D 63. Further, in water where the tides ebb and flow and living creatures move from place to place, notions of occupation and possession are difficult to apply. However, the NTA does not discriminate in the provisions of ss 3, 10 and 13, and Part 3, between native title in onshore and offshore areas. 53 The construction of s 223 itself is not without difficulty. Expressions used in paras 223(1)(a), (b) and (c) have close similarity to passages appearing in the judgment of Brennan J in Mabo [No 2] at 57 - 59, but to understand the meaning and content of those passages it is necessary to go beyond those pages in the judgment. It is not possible to understand the concept of native title rights and interests that may be the subject of a determination under s 225 by reading s 223(1) as a stand-alone definition. Nowhere in s 223(1) is there any express reference to the notion of extinguishment of native title, yet questions of extinguishment by legislative or executive action are of central importance in determining whether native title rights and interests exist. The imprecision of the described characteristics of native title in paras 223(1)(a), (b) and (c) adds to the difficulty of understanding of s 223(1). 54 Section 223(1) is a compendious description of native title and native title rights and interests, to be understood against the background of the common law concept of native title as declared by the High Court. And the Act must be "read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title": the Waanyi Case at 614 - 615. 55 The common law rights and interests defined by s 223(1) are rights and interests "of Aboriginal peoples or Torres Strait Islanders in relation to land or waters …". The definition is descriptive of rights and interests in existence. It is not descriptive of rights and interests that were once held and have since lapsed or been extinguished. In our opinion, it is for this reason unnecessary for the definition to refer to these topics. If, in a claim by persons who apply under s 13 and Part 3, it appears that rights and interests claimed have lapsed, or been extinguished by legislation or executive action, the claim must fail for that reason. 56 For there to be native title there must be in existence communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters where those rights and interests have the characteristics described in paras 223(1)(a), (b) and (c). 57 Paragraph 223(1)(a) refers generally to the requirement identified by Brennan J in Mabo [No 2] (at 57 and 58) that native title has its origin in, and is given its content by, "the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants" of an area. Section 223(1)(b) refers generally to the requirement identified by Brennan J (at 59) that native title rights and interests which the common law (and now the NTA) recognises are rights and interests that reflect a connection with the land (or waters). See also Yanner at 269 - 270. These two requirements are considered together by Brennan J in Mabo [No 2] in proposition 6 in his summary at 70, indicating the close relationship and interrelationship of the two. Within these two paragraphs, the requirements that the rights and interests be presently possessed under traditional laws acknowledged, and traditional customs observed, comprehend these elements: first, that those possessing the rights and interests will have the ancestral connection and recognition required by the laws and customs to be members of the indigenous people; and, secondly, that the indigenous peoples have substantially maintained their connection with land by acknowledgment and observance of their laws and customs, so far as that is practicable. 58 The content of the required characteristic of native title described by para 223(1)(c) is not apparent from reading the section, or indeed the NTA. In Mabo [No 2], steps in the reasoning by which it was held that the common law in Australia recognised the native title of the Meriam people, included the following, appearing in the summary of Brennan J at 69 - 70, namely: (a) that on the acquisition of sovereignty, the Crown acquired a radical title to the land in that part of Australia; (b) that native title to the land survived the Crown's acquisition of sovereignty and radical title; and (c) that the native title was exposed to extinguishment; but, in the case of the Murray Islands, extinguishment had not occurred. In addition to these major steps, other considerations important to the recognition of particular rights and interests that might be revealed in a case by evidence as to the traditional laws acknowledged by, and customs observed by, the indigenous people were identified by Brennan J. In particular, his Honour (at 43) said: "However, recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system." 59 Furthermore, (at 61) his Honour said that native title will not be protected by legal remedies where the rights and interests disclosed by the evidence are founded on laws and customs of the indigenous people that are: "so repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld." 60 Recognition by the common law will be withheld in respect of rights and interests of a kind that offend these principles. 61 If para 223(1)(c) is considered in isolation, it might be thought to comprehend the need to satisfy both the major steps and the other considerations for recognition identified by Brennan J. However, we think that the better construction of para 223(1)(c) is that it only comprehends the other considerations, and not the major steps in the reasoning of the Mabo decision. Of the major steps, the fact of the enactment of the NTA gives recognition and protection to native title. The NTA is an expression of legislative intent to recognise and confirm that native title survived the acquisition of sovereignty and constitutes a burden on the radical title of the Crown. Those points no longer remain matters that call for consideration in the definition of native title and native title rights and interests. The requirement that the rights and interests not be extinguished is already encompassed in the opening lines of s 223(1). (In expressing this view of the construction of s 223(1) we respectfully disagree with Moynihan J in Eaton v Yanner; ex parte Eaton (Queensland Court of Appeal, unreported, 27 February 1998) who held that non-extinguishment was a threshold requirement imposed by paras 223(1)(a) and (c) of the NTA.) 62 In addition to those characteristics described in paras 223(1)(a) and (b), the characteristic of existing rights and interests of Aboriginal peoples or Torres Strait Islanders made necessary by para 223(1)(c), is that the rights and interests be of a kind that the common law will recognise. So construed, rights and interests of Aboriginal peoples or Torres Strait Islanders that fracture a skeletal principle of the Australian legal system, or are contrary to natural justice equity and good conscience will not be recognised, nor will other rights and interests that are contrary to established principles of the common law of Australia. Paragraph 223(1)(c) is not, however, concerned with how and when the common law was applied by prerogative act of the Crown or by legislation to any particular territorial area of Australia: the paragraph applies generally to rights and interests asserted by Aboriginal peoples or Torres Strait Islanders in respect of any area within the territorial scope of the NTA as stated in s 6. The NTA is drawn on the assumption that by 1993, in one manner or another, the Crown in the right of the Commonwealth had acquired sovereignty over the whole of the area to which the NTA would apply. We agree with Olney J (at 550) that s 6, coupled with the recognition of native title accorded by s 10, namely recognition "in accordance with this Act", supports the proposition that the legislative intent was to provide a statutory basis for recognition offshore. 63 In Mabo [No 2], the date of acquisition of sovereignty of the Murray Islands was treated as important, as it was at this date that the rights and interests then possessed under the traditional laws acknowledged by, and the customs observed by, the indigenous inhabitants became a burden on the radical title of the Crown. On the construction which we place on s 223, the date of acquisition of sovereignty over the area in respect of which native title is asserted is not an issue comprehended by the definition of s 223. The fact of acquisition of sovereignty over the settled lands of Australia was essential to the reasoning leading to the conclusion that the common law of Australia recognised native title; but now that the concept of native title is recognised by the NTA, the fact of acquisition of sovereignty, and the precise date thereof, is not a matter that requires to be further established. The date of acquisition of sovereignty in Mabo [No 2], was also an important fact, as it was in Wik, as it was the commencement date from which to consider whether legislation or executive action might have extinguished native title. However, for that purpose, the date was merely an evidentiary fact relevant to extinguishment, not an issue essential in the determination of the nature and content of the native title rights and interests. 64 As a matter of theory, native title as it existed at the date of the acquisition of sovereignty burdened the radical title of the Crown, and the nature and extent of that burden would fall to be ascertained according to the nature and content of the rights and interests at that date. Thus it can be argued that the date of acquisition of sovereignty remains central to the determination of native title. However, from a practical viewpoint, the particular date is not of importance. Mabo [No 2] (at 70, 110 and 192) recognises that laws and customs of indigenous people may undergo change subsequent to the acquisition of sovereignty, and the means of enjoyment of native title rights and interests can change with the times (e.g. to permit the hunting of estuarine crocodiles with the use of an outboard motor: Yanner at 277). 65 The important requirement discussed in Mabo [No 2] is that the native title rights and interests which the common law protects are those of the indigenous people possessed under traditional laws acknowledged by traditional customs observed by them. The fundamental requirement is not that the rights and interests were acknowledged and observed at any particular date, but that they follow from the acknowledgment of traditional laws and the observance of traditional customs. The meaning of "traditional" is that which is "handed down by tradition" and "tradition" is "the handing down of statements, beliefs, legends, customs, etc. from generation to generation, especially by word of mouth or by practice": The Macquarie Dictionary, 3rd ed. 66 In most cases where the date of acquisition of sovereignty was coincidental with, or preceded, first European contact in a particular area, there will be no reason to doubt that the rights and interests of the indigenous inhabitants, so long as they reflect the laws acknowledged and customs observed, were rights and interests possessed under traditional laws and customs. The present claim is exceptional in that regard because of contact at earlier times between the indigenous peoples of that area and the Macassan traders. This fact has given rise to a question whether customs observed in earlier times relating to alleged trading activities by Aboriginal people in that area may not have been traditional, but that is an argument that is in no way dependent on the date of acquisition of sovereignty over all or any particular part of the claimed area. In Mabo [No 2], Toohey J at 192 said: "Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist." 67 The definition of native title in s 223(1) does not direct attention to whether the rights and interests in question were possessed at any particular time in the past. The definition requires only that the rights and interests are (presently) possessed under the traditional laws acknowledged and the traditional customs observed. This simplification overcomes complications of proof that would exist if the definition made it necessary to ascertain the date of acquisition of sovereignty of the area of land or water in question, and the situation prevailing in the community at that time, as well as ascertaining the present situation. The point is sufficiently dealt with in the definition by the requirements that the laws and customs be "traditional". In claims for determination of native title, that requirement will usually be met by showing that the laws acknowledged by, and customs observed by, the claimants predated first European contact - regardless of the precise date of the acquisition of sovereignty. 68 If para 223(1)(c) had the meaning and effect contended for by the Commonwealth in relation to offshore claims, the NTA would have failed dismally to achieve the aim stated on page 1 of Part A, of the Explanatory Memorandum, which accompanied the Native Title Bill 1993, namely, that: "To facilitate certainty, the Commonwealth has provided a straightforward mechanism to determine whether or not native title exists and what the rights and interests are that comprise the native title." 69 A consideration of the judgments in New South Wales v The Commonwealth (1975) 135 CLR 337 (the SSLA Case), A. Raptis and Son v South Australia (1977) 138 CLR 346, and the arguments in this case as to the dates upon which sovereignty was acquired over the offshore areas under claim, demonstrates that the ascertainment of the dates of acquisition of sovereignty in claims over areas of offshore waters is unbelievably complex. The proliferation of possible dates for the acquisition of different offshore zones only adds to the complexity. A further undesirable consequence would follow, as the arguments here of the Commonwealth and the Territory demonstrate, that fundamental questions as to the limits of the Territory (or a State) in the vicinity of bays and gulfs would have to be determined, as immensely complicated collateral issues, to enable the date of acquisition of sovereignty of particular areas of water to be determined. 70 In extending concepts discussed in Mabo [No 2] to waters, Parliament in the NTA has sought to avoid complexities of that nature by extending the Act to all waters covered by the very broad application provisions of s 6, and has specified, in the definition in s 223(1), only the minimal characteristics that rights and interests presently possessed by Aboriginal peoples or Torres Strait Islanders must meet to be entitled to protection under the NTA. Those minimal characteristics find expression in paras 223(1)(a), (b) and (c). To apply those provisions, it is not necessary to determine the actual date of the acquisition of sovereignty of each and every part of the area under claim. We agree with Olney J that it is not necessary to determine the precise limits of the Territory, nor do we think that, on our approach to the operation of the NTA, it is necessary to determine the precise dates upon which acquisition of sovereignty occurred in respect of the offshore areas. However, it is necessary for our purposes to describe in a general way the relevant maritime zones in order to demonstrate that the present claim fell within the provisions of s 6 as we have construed it.

RELEVANT MARITIME STATUTORY DEFINITIONS 71 It is important, for our purposes, to bear in mind the precise terms of the relevant maritime statutory definitions. It will be convenient to refer to their terms at this point as necessary background in our consideration of the arguments here, especially in considering the Commonwealth's argument and the responses to it. 72 Section 6 of the NTA provides, as previously mentioned, that the NTA "extends [inter alia] to the coastal sea of Australia …". 73 The "coastal sea" is relevantly defined in s 15B(4) of the Acts Interpretation Act 1901 (Cth) (a provision inserted in 1976) to mean: "(i) the territorial sea of Australia; and (ii) the sea on the landward side of the territorial sea of Australia and not within the limits of … an internal Territory; and includes the airspace over, and the sea-bed and subsoil beneath, any such sea; … ." 74 Section 6 of the NTA further provides that the NTA also "extends … to any waters over which Australia asserts sovereign rights under the [SSLA]". We refer to these rights below. 75 The statutory definitions of "land" and "waters" in s 253 of the NTA should be mentioned. In the absence of any contrary intention, it is there provided that "land" includes the airspace over, or subsoil under, land, but does not include "waters". "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)). 76 Section 253 of the NTA also provides that an "offshore place" means "any land or waters" to which the NTA extends, other than land or waters in an onshore place. An "onshore place" is defined as "land or waters within the limits of a State or Territory" to where the NTA extends.

AUSTRALIAN NATIVE TITLE FISHING RIGHTS CASES 77 Since Mabo was decided, several State Supreme Courts have considered native title fishing rights. 78 In Mason v Tritton (1994) 34 NSWLR 572, a member of an Aboriginal community was charged under New South Wales fisheries legislation with having more than the permitted quantity of abalone in his possession. He argued a defence by virtue of a claimed traditional right to fish, claiming that this right constituted a native title recognised at common law under the Mabo principles. 79 In the Court of Appeal of the Supreme Court of New South Wales, Priestley JA (with the agreement of Gleeson CJ) said (at 600): "... the best way for common law native title claims to be pursued will be through the provisions and procedures of the [NTA]. For example, s 223(2) puts beyond doubt the inclusion of hunting, gathering or fishing rights and interests within the meaning of native title. So far as I am aware there is no Australian decision directly deciding that this is the case at common law. It may be that in the absence of statute, judicial decision would in due course have reached this position. The [NTA] puts an end to possible argument about the matter, at least in cases brought under the Act." 80 But, his Honour went on to hold that the appeal failed because the appellant had not established either (1) that he was biologically descended from any Aboriginal group dating back to just before the establishment of the common law in Australia, which group observed a system of rules relating either to fishing generally, or to abalone in particular, on any specific part of the coast; or (2) that in diving for abalone, he was doing so either in the assertion of, or pursuant to, a system of rules which he recognised and to which he adhered (at 602 - 604). 81 Kirby P (at 580 - 582) considered the concept of fishing "as a usufructuary right to the use, possession and occupation of land". His Honour said (at 580 - 581): "At least where what is claimed by the description 'right to fish' is dependent upon the Aboriginal native title to the communal use, possession and occupation of the submerged lands, there is, in the common law of Australia as now understood, no bar to the recognition of those rights. Of course, submerged land will be used, possessed and occupied in a manner different from, but nonetheless consistent with, such use, possession and occupation of dry land. Th term 'usufructuary right', as asserted by the appellant, commonly conveys the entitlement of an individual to use, and take benefit from, land belonging to another. A usufructuary is one who has the use and reaps the profit of anything. The term extends to one who has the temporary use and reaps the fruits or profits of an estate, benefice, office etc, legally belonging to another or others. An example of the United States formulation may be found in the following extract from Marshall v Marshall 735 SW 2d 587 (1987) at 598: 'A 'usufruct' is the right of using and enjoying and receiving the profits of property that belongs to another, and a 'usufructuary' is a person who has the usufruct or right of enjoying anything in which he has no proprietary interest." 82 His Honour continued (at 581): "... where Brennan J in Mabo speaks of the ability of the common law of Australia to recognise and protect usufructuary rights, his Honour is there clearly enough referring to the fact that native title to the use, possession and occupation of land is normally held by a community. An individual's right to derivative use and benefit of that land is capable of protection in a manner analogous to the protection traditionally afforded to a usufructuary right. I leave aside consideration of a fall-back argument that the Crown's residual enticement to land within the territory in which it is sovereign is sufficient use, possession and occupation of land for the purposes of the recognition of a native title claim based upon a communal usufructuary right." 83 After referring to Brennan J's discussion of proprietary and community interest and title, Kirby P added (at 582): "In a very real sense, usufructuary rights such as fishing and hunting rights or practices provide evidence of a wider proprietary interest, which may become the subject of an Aboriginal community's native title claim. Such fishing and hunting rights, in my view, provide real evidence of an Aboriginal community's 'connexion with' the land." 84 Kirby P said (at 584): "In order to establish a successful common law claim for native title of the kind asserted here, within the rules established by Mabo, the evidence must be sufficient to demonstrate: (1) that traditional laws and customs extending to the 'right to fish' were exercised by an Aboriginal community immediately before the Crown claimed sovereignty over the territory. For New South Wales, that time will be taken as 7 February 1788: see Castles, An Australian Legal History, (1982) Sydney, LBC, at 24-25; (2) that the appellant is an indigenous person and is a biological descendant of that original Aboriginal community; (3) that the appellant and the intermediate descendants had, subject to the general propositions outlined above, continued, uninterrupted, to observe the relevant traditional laws and customs; and (4) that the appellant's activity or conduct in fishing for abalone was an exercise of those traditional laws and customs." 85 Kirby P held that the evidence failed to establish ingredient (4) (see 594 - 595). 86 His Honour held that the fisheries legislation had not extinguished native title. Kirby P said (at 592 - 593): "The history of the Fisheries and Oyster Farms Act 1935 and its accompanying Regulation establishes a regime of control of the New South Wales fisheries in a manner amounting to stringent regulation, but not extinguishment, of any otherwise established proprietary right. No doubt stringent regulation may reach the point where the ordinary rights and privileges associated with property are so curtailed that proprietary rights can no longer be enjoyed. Whether that is the case is ultimately a question of fact. It is not, in my opinion, the case here. In the ordinary case, control and regulation of the rights and privileges associated with property ownership is consistent with continued property ownership. Indeed, civilised societies demand that proprietary rights and interests be highly regulated. I do not take it to be the intent of the High Court in Mabo that successful claimants to a form of native title should then be able to remove themselves from the ordinary regulatory mechanisms of Australian society. In the particular context of this case, the control and the regulation of fishing activity applies to all those who fish, regardless of the nature of the fishing right which they severally purport to exercise." 87 Mason v Tritton was considered by Heenan J in the Supreme Court of Western Australia in Sutton v Derschaw (1995) 82 A Crim R 318, where his Honour (at 324) agreed with Kirby P that " 'a right to fish' based upon traditional laws and customs is a recognisable form of native title defended by the common law of Australia". An appeal to the Full Court was dismissed (see Derschaw, Clifton & Murphy (1996) 90 A Crim R 9). 88 Mason v Tritton was further considered, and applied, by Underwood J in the Supreme Court of Tasmania in Dillon v Davies (1998) 156 ALR 142 at 145 - 147, in an unsuccessful motion for review of a decision of a magistrate that the applicant had taken undersize abalone, without a licence, contrary to State legislation, in the D'Entrecasteaux Channel. 89 The observations of Kirby P at 593, above, were followed by Wheeler J (with the general agreement of Kennedy J) in Wilkes v Johnson [1999] WASCA 74 at paras 77, 80.

THE LEGAL STATUS OF THE MARITIME ZONES CLAIMED 90 A description should be given of the relevant maritime zones in the claimed and adjacent areas, and their evolution, in order to provide the context in which to consider the application of the relevant provisions of the NTA to the claims the subject of the application for a determination of native title.

(e) The complete description of the area the subject of the determination 91 The area was fully described in a schedule to his Honour's orders as follows: "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). (c) All geographic co-ordinates are expressed in terms of the Australian Geodetic Datum as proclaimed in the Australian Government Gazette of 6 October 1966."

(f) The limits of the Territory in the region of the area claimed 92 The claimed area lies between 132° and 133°30' East longitude and within the outer boundaries of the twelve nautical mile limit of the territorial sea. 93 The Letters Patent issued to Captain Phillip and read by him at Sydney in February 1788 defined the western limit of New South Wales as 135° East longitude. In 1824, Captain Bremer landed at Port Essington and at Melville and Bathurst Islands, taking possession, in the name of King George IV, of "the north coast of New Holland or Australia, contained between ... 129° and 135° East ..., with all Bays, Rivers, Harbours, Creeks etc. in and all the Islands laying off ...". Governor Darling's commission, proclaimed in December 1825, extended these western limits, substituting 129° East. (For a short period in 1846, a separate colony of Northern Australia was detached from New South Wales, but this is not significant for present purposes.) 94 By Letters Patent dated 6 July 1863, the boundary of South Australia was extended by annexing to that Colony "so much of ... [the] Colony of New South Wales ... as lies to the northward of [26°] ... south ... and between [129°] and [138°] ... east, together with the bays and gulfs therein, and all and every the islands adjacent to any part of the mainland within such limits as aforesaid, with their rights, members and appurtenances ...". (Emphasis added). This description, unique in that it embraced not only the land mass but also the "bays and gulfs", was repeated in s 7 of the Northern Territory Surrender Act 1907 (SA). By ss 4 and 6 of the Northern Territory Acceptance Act 1910 (Cth) (which came into force on 1 January 1911), the territory surrendered in those terms was declared to be accepted as the limits of the Territory. See generally as to the limits of the Territory, M H McLelland, "Colonial and State Boundaries in Australia" (1971) 45 ALJ 671 at 672 - 673, 677 - 678. 95 It follows, as Olney J, correctly in our opinion, held (at 551 - 552), that the "bays and gulfs" and the adjacent islands are within the limits of the Territory. The question then arises as to what, in fact and in law, is comprehended within the description "bays and gulfs" for present purposes. Before addressing this issue, some details should be given (by way of background) of the grant to the Arnhem Land Aboriginal Land Trust, the area of which was excluded from the claim.

(g) The area of the grant to the Arnhem Land Aboriginal Land Trust and its relationship to the claimed area 96 The application for determination of native title, as ultimately propounded before Olney J, was made on behalf of the Mandilarri-Ildugij, Mangalara, Murran, Gadura-Minaga and Ngaynjaharr peoples ("the claimant group"). The claimed area was described (generally) as the seas in the Croker Island region of the Territory; that is, the seas which adjoin Croker Island, Manburrwa (Oxley Island), Gurrmurl (New Year Island), Gurrbalud (Lawson Island), Injurranggan (McCluer Island), Wurrulja (Grant Island), and other related islands, and a portion of the mainland extending between De Courcy Head and the commencement of the Cobourg Marine Park near Guialung Point. The claim included the sea-bed and any lands or reefs within its boundaries. 97 However, there was expressly excluded from the claim, the lands and reefs in Arnhem Land which had already been granted for the benefit of the Aboriginal people pursuant to the Land Rights Act. A deed of grant of Crown land dated 30 May 1980 made under the Land Rights Act granted to the Arnhem Land Aboriginal Land Trust ("the Land Trust") an estate in fee simple in the above mentioned islands, which were within the boundaries described in Schedule 1 of the Land Rights Act and described as "Arnhem Land (Islands)". This description encompassed an area exceeding the outer boundaries of the claimed area, so that all of these islands are excluded from the claim; but the question remained for Olney J whether the title of the Land Trust, in relation to the islands, terminated at the high, or low, water mark. 98 The deed of grant of these Islands does not directly describe the seaward limits of the land granted; but, as his Honour correctly in our view held (at 545 - 546), it does so indirectly: the deed of grant describes the area by reference to Compiled Plan 4182; and that Plan refers to "Arnhem Land (Islands) ... being all those islands above low water mark…". The Arnhem Land land grant also identified its boundary by reference to the low water mark. His Honour held, correctly we think, that the land of the inter-tidal zone was thus excluded from the claim, but the question remained for his Honour whether the waters of that zone might be claimed (at 546). We will return to this specific question. Before doing this, reference should be made to the descriptions of the region by cartographers and geographers.

(h) The geography of the claimed area described by the Australia Directories and Australian Pilots

(i) 1863 Directory 99 It appears that the first official description of the claimed area is in the Australia Directory 1863. However, before giving its description, the Hydrographic Office, Admiralty, London, entered the caveat, in an "advertisement" in its Directory, that "as … many parts of the coasts yet remain imperfectly surveyed, this work must necessarily be considered incomplete, and will yet afford frequent occasion for revision and amendment". 100 According to this Directory, "Mountnorris Bay" extends from Cape Cockburn north-west twenty-five miles to Cape Croker and is about twenty-three miles in depth; immediately within Cape Cockburn is "Malay Bay", which is four miles wide and six miles deep; from Malay Bay the south-east shore of Mountnorris Bay "trends" south-west by south thirteen miles to the bight of the bay; and the northern portion of the western shore of Mountnorris Bay is formed by the east side of Croker Island. 101 "Bowen Strait" is described thus: "From the bight of Mountnorris Bay the shore takes a N.W. direction 12 miles to a projection, with a shoal extending 4 miles to the north-eastward, on the west side of which is a bay [unnamed] forming the southern entrance of Bowen Strait, separating Croker Island from the main-land; this strait is 11 miles long, 2 miles broad, and carries from 4˝ to 7 fathoms water." 102 In describing Croker Island ("21 miles long … and from 2 to 5 miles broad"), Palm Bay is mentioned ("4 miles wide and nearly 3 miles deep"). The Directory also notes that the northern end of Croker Island "forms a bay [not named], extending S.W. by W 6 miles from the cape to a low point, from which a reef … projects … to the north-westward …". (This bay is shown on the map annexed to these reasons as "Somerville Bay".) 103 This Directory also identifies several isles or islets in the area, i.e. Valentia Isle, Copeland Islet, Darch Isle, Templer and Cowlard Islets; New Year Isle is described as "the north-easternmost of a number of small islands lying off Mountnorris Bay"; and descriptions are also given of Oxley Isle, McCleur Isle, and Grant Isle.

(ii) 1905 Directory 104 Here, Mountnorris Bay is now described as between Cape Cockburn and the south extreme of Croker Island. Malay Bay is described as between Cape Cockburn and Annesley Point, and three miles across. Bowen Strait is said to separate Croker Island from the mainland and to be twenty miles in length and one to four miles in breadth. 105 Croker Island is described as twenty-three miles in length and from two to six miles in breadth. It is said that "the north-west of Croker Island forms a bay extending 9 miles from [Cape Croker] to a low point, from which a reef, with an islet on it, projects two miles to the north-westward [i.e. Somerville Bay]. From this point the coast, fronted by reefs, trends south-westward 6 miles to Palm Bay". Palm Bay is said to be three miles in extent. In the description of Croker Island, there is a reference to "two bays on the east side, between 8 and 12 miles from the south point of the island, each being nearly 3 miles across …". (The former is now shown as Mission Bay on the map annexed to these reasons.)

(iii) 1948 Pilot (as corrected to July 1954) 106 In its description of Croker Island, the following appears: "There are two bays on the eastern side of Croker Island [one northern, the other southern]. Mission Bay is entered between a point about 9˝ miles southward of Cape Croker and a point nearly 3 miles farther southward; … there is a Methodist Mission station here …". 107 According to this Pilot, on the northern side of Croker Island, south-westward of Cape Croker, there is "a wide bay which has not been thoroughly examined …". (i.e. Somerville Bay). Palm Bay is again mentioned.

(iv) 1972 Pilot 108 This states that Mountnorris Bay "is entered between Cape Cockburn and Point David, the S extremity of Croker Island, 16˝ miles W, and has not been fully surveyed". According to this edition of the Pilot, Malay Bay, on the east side of Mountnorris Bay, is entered between Cape Cockburn and Annesley Point, four miles south-south-west.

(v) 1992 Pilot 109 According to this version, Cape Croker lies eleven miles north of Mission Bay, which is situated in the middle of the east coast of Croker Island; the Bay is entered between a point on the north and a point three miles south-south-east; Minjilang Aboriginal Centre is situated at the head of the Bay. As in 1972, it is stated that Mountnorris Bay is entered between Cape Cockburn and Point David, the southern extremity of Croker Island sixteen and a half miles west, and has not been fully surveyed. Malay Bay is again mentioned.

(i) The significance, for present purposes, of the reference to "bays and gulfs" in the 1863 Letters Patent and in subsequent legislation 110 As noted, the definition of the limits of the Territory in these Letters Patent, and in the subsequent enactments, included the phrase "together with the bays and gulfs therein" (therein being a reference to "so much of the said colony … as lies" etc.). A similar reference to "bays and gulfs" is found in the constating instrument for South Australia, but no such reference is found in constating instruments for the other colonies. The significance of these words in the South Australian Letters Patent of 1836 was considered by the High Court of Australia in Raptis, above, essentially in this context: The Fisheries Act 1971 (SA) prohibited a person from fishing in defined waters, which included Investigator Strait, unless licensed by the State. The plaintiff caught fish in Investigator Strait, more than three miles from the shore, without a State licence. The fish were seized by State fisheries officers. The plaintiff sued the State, claiming declaratory relief and damages for unlawful seizure. It contended that, upon the true construction of the Letters Patent, the waters were not within State territorial limits. A majority (Barwick CJ, Gibbs, Stephen and Jacobs JJ; Mason and Murphy JJ dissenting), upheld the plaintiff's contention that Investigator Strait was not part of St. Vincent's Gulf, and thus not within the limits of the State; and the State's argument, that Kangaroo Island was part of the closure of a gulf which included the waters of Investigator Strait, was rejected. 111 As we have said, the issues in Raptis were extremely complicated. The case well illustrated the uncertainties, in municipal and international law, inherent in the concept of a "bay" and the difficulties involved in attempting to apply the concept to a particular maritime zone. These uncertainties and difficulties must also be confronted in the present case. For this reason, it is necessary for us to refer to the reasoning of the majority in Raptis in some detail, noting that the Territory's Letters Patent were, in the relevant respects, in the same terms as South Australia's. 112 The terms of the SA 1836 Letters Patent (after specifying boundaries by their degrees of Latitude and Longitude) were: "… including therein all and every the Bays and Gulfs thereof together with [Kangaroo] Island and all and every the Islands adjacent to [it] or to that part of the mainland of the said Province." 113 In Raptis, the plaintiff accepted that the northern reaches of St. Vincent's Gulf was part of the State's territory; so that the question for determination was what was the extent of these waters; in other words, what were the lines marking the entrance to the Gulf? 114 On behalf of the State, it was argued that its territory included enclosed waters, or inland waters, or waters "within the jaws of the land"; and the mention of "Bays and Gulfs" in the constating instrument put the status of St. Vincent's Gulf and Spencer Gulf beyond doubt, but did not exclude from colonial territory any other waters of the seas within the jaws of the land which would not be excluded under the common law rules. Thus, the State contended, Investigator Strait was part of St. Vincent's Gulf. Alternatively, the State submitted that the Strait was an arm of the sea within defined headlands, and thus part of the internal waters at common law; at common law, bays and gulfs were part of the realm; there was no limitation as to the size of a bay or a gulf, nor any visual requirement; and a headland to headland approach should be adopted. The State further argued that the common law principles are also consistent with international law: the headland to headland approach had been adopted by the TSC. 115 As we have seen, the majority could not accept these arguments. 116 Barwick CJ, preferring to decide the question exclusively by the construction of the constating instruments, concluded that the waters of the gulfs "within closing lines conventionally drawn" were within the State's area (at 352). His Honour noted that both Flinders and Baudin had differentiated between the two Gulfs, Investigator Strait, Kangaroo Island and Backstairs (Colbert) Passage (at 352); and the references to gulfs, to Kangaroo Island specifically as such, and the existence of such a navigable waterway as the Backstairs Passage "all point conclusively to the inclusion in the territories to form part of the colony of two gulfs and Kangaroo Island as an offshore island" (at 352 - 353). His Honour also agreed with the reasons of Stephen J (see below). 117 Gibbs J held that it was impossible to construe the reference to "Bays and Gulfs" as meaning no more than that the shores of the bays and gulfs form the boundaries of the Province. Their waters became part of its territory (at 359); and this was so, whether or not they would have been so regarded under the rules of the common law or the rules of international law (at 360). The Crown may exercise its prerogative power to extend its territory on land or at sea, and, as an act of State, this cannot be challenged in the courts; moreover, a statute declaring land or water to be territory of the Crown is conclusive (at 360). It was unnecessary here to distinguish between bays and gulfs, since both are indentations of the sea into the land. It may be accepted that Kangaroo Island "may not unnaturally be regarded as a prolongation of Fleurieu Peninsula"; yet, having regard to the historical and geographical material, the opinions of geographers and cartographers and the facts that Kangaroo Island was large in size, capable of maintaining some population, and situated a considerable distance from the mainland, from which it was separated by waters which are deep and navigable, it was difficult to treat the island "as a mere appendage to the shore … so that [it] cannot be regarded as in effect a part of the mainland … no point on [it] marks the entrance to either or both gulfs". His Honour found that Kangaroo Island was in no way comparable with the small and insubstantial islands off the coast of Louisiana (see United States v Louisiana (1969) 394 US 11), or with those Queensland islands that are separated from the mainland by narrow, shifting, sandy bars and "may rightly be regarded as an integral part of the land" (at 363 - 364). A conclusive consideration was the circumstance that geographers and cartographers "have been at one in treating Investigator Strait as a separate body of water from that of the two gulfs" (at 364). 118 Stephen J adopted a "multifactoral" approach as an accurate description of the modern common law on the question of what bays are internal waters; that is, the multifactoral approach taken in the North Atlantic Coast Fisheries Arbitration (1910) Reports of International Arbitral Awards, Vol XI, 167 at 199 and approved by Atkin LJ in The Fagernes (1927) P 311 at 325, which takes into account - "… all the individual circumstances …, the relation of [the suggested bay's] width to the length of the penetration inland, the possibility and the necessity of its being defended by the State in whose territory it is indented; the special value which it has for the industry of the inhabitants of its shores; the distance which it is secluded from the highways of nations on the open sea and other circumstances not possible to enumerate in general." 119 The above passage revealed that there is "no absolute test" but where "geography is a major consideration … usage and history also play a part…" (at 377); so that the references to gulfs in the constating instruments "should not be understood as including the waters of Investigator Strait as a part of Gulf St. Vincent" (at 373). His Honour referred to the size and significance of the channel named Backstairs Passage by Flinders, navigable by the largest vessels, and about seven miles wide at its narrowest point. His Honour noted that none of the navigators or explorers ever appeared to fail to distinguish between the two gulfs on the one hand and Investigator Strait on the other: and the express references in the Letters Patent to Kangaroo Island as an entity distinct from the colonial mainland "goes far to disqualifying it as a mere extension to the mainland" (at 373). 120 Stephen J also referred with approval (at 377) to the opinion of Hosking J in Adams v Bay of Islands County [1916] NZLR 65 (at 71) that "[t]he size and configuration of the bay may decide the question on sight … . If … doubtful, then acts of administration and other historical facts showing proprietorship may be decisive". His Honour noted (at 377) the observation of Windeyer J in Ferguson v Union Steamship Co. of New Zealand Ltd (1969) 119 CLR 191 (at 201) that it hardly seems possible to say that Emu Bay, on the Northern Tasmanian coast, "as a whole is within the [jaws of the land] … [which] expression [Windeyer J took] to refer to defined promontories or headlands enclosing a narrow entrance to an arm or inlet of the sea". 121 Stephen J concluded (at 378) that, given the sort of coastline in question in Raptis, there was little likelihood of difference in result, in the case of any particular coastal feature, whether there be applied to it the modern common law approach or, simply, the words of the constating instrument. However (as Gibbs J had already noted (at 365)) Stephen J added (at 378) that, in either case, a most careful and detailed consideration of each feature of the coastline, its geography, history and usage, which might be thought likely to qualify as a bay would have to be undertaken (as was done by O'Connor J in Post Office v Estuary Radio Ltd (1967) 1 WLR 847) before it could be concluded whether or not it, in fact, enclosed internal waters. 122 Jacobs J held that "it was permissible not only to examine the coastal configurations and apply the words to them, but also to have regard to the accepted descriptions of the time" (at 391). Citing the accounts of the precinct given by Flinders and by the Australian Directory (1830; 1853), his Honour said the opinions of cartographers contemporary with the statute and Letters Patent were of "primary significance" (at 393). His Honour concluded (at 393) that the understanding of Crown cartographers at the time of the Letters Patent was that the entrance to St. Vincent's Gulf was a line from Troubridge Point to Cape Jervis, and this should be accepted as the entrance to one of the bodies of water referred to in the Letters Patent. 123 The approach taken in Raptis is plainly relevant here. 124 In the present case, Olney J (at 552 - 557) referred fully to the reasoning of the majority in Raptis, having earlier cited the majority decision in the SSLA Case, above, that the boundaries of the former Australian colonies ended at the low water mark. His Honour said (at 552): "The depiction of the limit of the Northern Territory on the Commonwealth map is based upon the description of Mountnorris Bay in The Australia Directory of 1863 as extending 'from cape Cockburn NW 25 miles to cape Croker, and is about 23 miles in depth'. It is said in support of this proposition that it is clear from the decision in Raptis that it is relevant to consider the understanding of the geography of the area by contemporary geographers and cartographers and that in the absence of some contrary indication, that perception will normally be determinative. But I do not think the two citations from Raptis referred to in the Commonwealth submission, but not quoted, support such a firm view." 125 Olney J continued (at 557): "Having regard to the physical features of the mainland and Croker Island shown on the Commonwealth map, particularly the size and configuration of the area of sea on the eastern side of Croker Island which is shown on the Commonwealth map as being within the geographical limits of the Northern Territory (including those areas identified on the map as Mountnorris Bay and Malay Bay) it is not possible to say that any part of that area falls within the jaws of the land and subject to what is said below concerning Mission Bay, it is not possible to define any promontories or headlands which enclose a narrow entrance to an arm of the sea. The same comments apply with equal force to the areas of Somerville Bay and Palm Bay. Nor has there been any historical circumstance established by the evidence which might have any bearing on the matter in question." 126 Turning to Mission Bay, his Honour observed (at 557 - 558): "The status of Mission Bay is not readily capable of determination on the material before the Court. No detailed consideration of relevant features of the coastline was undertaken. A rough calculation based on the 1:250,000 scale map tendered in evidence (Exhibit Com 17) suggests that at its narrowest, the entrance to the bay is about 2.5 km wide; its maximum width to the west of the entrance is a little less than 2 km and its length within the entrance is about 4.5 km. The bay is adjacent to the main living area on the island (Minjilang) and its shores were the original site of the mission from which the bay takes its current name. Although there is no historical material of the nature which was regarded as important in Raptis, it may reasonably be said that the waters landward of a line joining the points on the north and south sides of the entrance to the bay constitute an arm of the sea enclosed by a narrow entrance and therefore within the territory of the Northern Territory, but I am unable to define the extent of those waters more precisely." 127 Although not strictly necessary for his decision, his Honour then concluded (at 558) that - "… consistent with the judgments of the High Court in Raptis and the [SSLA] Case, the territorial limits of 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." 128 It appears that, apart from Raptis, the only Australian case to consider the meaning of "bays and gulfs" in the Territory constating instruments was an earlier (unreported) decision of Wells J in the Territory Supreme Court in 1937 in Haruo Kitakoka v Commonwealth (Supreme Court of Northern Territory, Wells J, No. 14 of 1937), an action arising out of the seizure of a pearling vessel by the Territory Administration at a spot in or near the waters of Boucaut Bay, which is situated on the Territory's northern coast, adjacent to Arnhem Land. At that time, the status of Arnhem Land had been proclaimed by the Territory Administration as a reserve for Aboriginals. The vessel was purportedly seized pursuant to s 19AA of the Aboriginals Ordinance 1918 - 1937 (NT). The Ordinance authorised seizure and forfeiture of a vessel in which a person (the person not being an authorised person (etc.) or an aboriginal) enters "the territorial waters adjacent to a reserve for aboriginals". There being no statutory definition of "territorial waters", Wells J considered various sources, municipal and international, and (at 250 - 251) concluded that: "… the words 'territorial waters' mean and include two separate classes of waters: (a) a marginal belt of water adjacent to the sea shore, the extent of which has not yet been determined at international law, but which under British law may now be taken to be definitely accepted as three nautical miles from low-water mark; and the nature of the dominion over which is still undetermined both at international law and under British law; and (b) the waters of bays, gulfs, estuaries, rivers and creeks of the type which under the common law of England were regarded as part of the realm of England and subject to the full and complete sovereignty of the Crown." 129 As to (a), his Honour noted a claim to a marginal belt of territorial waters made by the Commonwealth in 1929 to the League of Nations Committee for the Progressive Codification of International Law. The claim was limited to three nautical miles, measured from the line of mean low water spring tides, following the sinuosities of the coast. Wells J, noting that there had then been no international agreement on such a belt, said that the Commonwealth's claim is - "… in conformity with the view on the subject expressed by the Courts and with the established practice of British diplomacy, and … should be adopted as the proper delimitation of the extent of the marginal belt forming part of the 'territorial waters' referred to in S. 19AA of the Aboriginals Ordinance." 130 With respect to (b), above, Wells J cited the Commonwealth's reply in 1929 to the Hague Committee in regard to "bays" whose coasts belong to one State as follows: "In front of bays, the base line should be a line drawn across the bay at the point nearest to the entrance or mouth where the breadth does not exceed six miles. But if States were generally agreed that the line should be drawn at the nearest point where the breadth does not exceed ten miles, the Commonwealth Government would be prepared to consider such a rule. There are certain historic bays whose width exceeds six or even ten miles which are regarded by general acquiescence as territorial waters. In these cases, the coastal belt of territorial waters is measured from a base line drawn across the bay at the point so recognized as being the limits of national territory." 131 Applying a multifactoral test, his Honour held that Boucaut Bay could be described as no more than "a long curvature of the coast with an open face" and thus not a "territorial bay" within (b), above. 132 Wells J went on to reject an argument by the Administration that the effect of the reference to "bays and gulfs" in the legislative enactments was to bring all bays and gulfs, of whatever extent and configuration, within the "historic bay" doctrine. His Honour said that the words "bays and gulfs" - "… are equally capable of the more restricted meaning of bays and gulfs which would at common law be regarded as part of the King's dominions. When we look at the surrounding circumstances, I think it clear that they were in fact used in this restricted sense. I do not think it is reasonable to attach a wider meaning to the words which appear in the Letters Patent of 1863 than to the same words appearing in Captain Bremer's form of taking possession. It has already been noted that when Captain Bremer took possession of this new territory it became part of the existing Colony of New South Wales, the coastal limitations of which were admittedly subject to the common law rules as to the territoriality of bays, and it is very difficult to imagine the British Crown creating the anomalous position which would have been brought about by the addition to New South Wales of territory whose coastal limitations were to be determined on an entirely different basis. I think it may be taken to be an historical fact, also, that for some time prior to the issue of the Letters Patent of 1863 Great Britain had accepted, in her diplomatic practice, the principle of delimiting territorial bays within narrow limits." 133 Given the examination of the principles and practice of international law in Raptis and in Haruo Kitakoka, in order to address the specific issues that arise with respect to the limits of the Territory, including its "bays and gulfs", and its maritime zones, it will be necessary at this point to refer, by way of further background, to the action taken by the Commonwealth, both legislative and executive, in respect of its maritime zones, internationally, municipally and federally, subsequent to the Hague Conference in 1930.

(j) The action taken by the Commonwealth in respect of Australia's maritime zones 1930 - 1994 134 In 1936, consistently with its earlier reply to the Hague Committee, the Commonwealth listed bays in Australia having headlands more than six miles apart. In the Territory, Van Dieman Gulf, Buckingham Bay and Blue Mud Bay were listed; Van Dieman Gulf was also then nominated as an "historical" bay (see A H Charteris, Chapters in International Law (Law School, University of Sydney, 1940) at 99; W R Edeson, "The Validity of Australia's Possible Maritime Historical Claims in International Law"(1974) 48 ALJ 295 at 296). 135 Since then, the Commonwealth has, on a number of occasions, made claims with respect to territory under the laws of the sea which is relevant for our purposes as follows.

(i) The TSC 1958 (ratified by Australia 1963) 136 In 1963, Australia formally ratified the TSC. Its provisions concerning sovereignty over the territorial sea, and the drawing of baselines, together with its reservation of the right of innocent passage and its definition of a "bay", should be noticed as follows: · The sovereignty of a State was declared to extend beyond its land territory and its internal waters, to a belt of sea adjacent to its coast described as "the territorial sea" (Art 1(1)) (although its width was not then specified). This sovereignty was to be exercised subject to the provisions of the TSC and to other rules of international law (Art 1(2)). The sovereignty extended to the airspace over the territorial sea as well as to its bed and subsoil (Art 2). · The normal baseline for measuring the breadth of the territorial sea was the low water line along the coast as marked on large-scale charts officially recognised by the coastal State (Art 3). · But in localities where the coast line was deeply indented and cut into, or if there was a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea was measured (Art 4(1)). The drawing of such baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must have been sufficiently closely linked to the land domain to be subject to the regime of internal waters (Art 4(2)). · Waters on the landward side of the baseline formed part of the internal waters of the State (Art 5(1)). Where the establishment of a straight baseline had the effect of enclosing, as internal waters, areas which previously had been considered as part of the territorial sea or of the high seas, a right of innocent passage, as provided in Arts 14 - 23, existed in those waters (Art 5(2)). · (Art 14(2) provided that "passage" meant navigation through the territorial sea for the purpose either of traversing that sea without entering internal waters, or of proceeding to internal waters, or of making for the high seas from internal waters. Article 14(3) provided that passage includes stopping and anchoring, but only in so far as the same were incidental to ordinary navigation or are rendered necessary by force majeure or distress. (It may be noted here that Australia had earlier accepted a right of innocent passage - see par IX of the Commonwealth's 1929 Memorandum, which is reproduced in Charteris, op. cit at 100.)) · A "bay" was described as "a well-marked indentation whose penetration was in such proportion to the width of its mouth as to contain landlocked waters and constituted more than a mere curvature of the coast"; an indentation was not, however, to be regarded as a "bay" unless its area was as large as, or larger than, that of a semi-circle whose diameter was a line drawn across the mouth of that indentation (Art 7(2)); for the purpose of measurement, the area of an indentation was that lying between the low water mark around the shore of the indentation and a line joining the low water marks of its natural entrance point (Art 7(3)). If the distance between the low water marks of the natural entrance points of a bay did not exceed twenty-four miles, a closing line may be drawn between these two low water marks, and the waters enclosed thereby were to be considered as internal waters (Art 7(4)). If the distance exceeded twenty-four miles, a straight baseline of twenty-four miles was to be drawn within the bay in such a manner as to enclose the maximum area of water that was possible with a line of that length (Art 7(5)). However, the foregoing did not apply to "historic" bays, or in any case where the straight baseline system provided in Art 4 was applied (Art 7(6)). 137 The operation of the TSC was considered by Mason J in Raptis (although his Honour dissented in the outcome). His Honour said (at 385) that speaking generally, the TSC worked no radical change and could be taken to express the relevant requirements of international law at the time. In considering the provisions of Art 4, Mason J noted that, earlier, a straight baseline of fifty-one kilometres drawn across a bay or gulf in the Anglo-Norwegian Fisheries Case (1951) 1 ICJ Rep 116, was upheld on the footing that the coast was deeply indented and fringed by islands, reliance being placed on the geographical configuration of the coast, the vital interests of the population, and the immemorial character of the claims.

(ii) Proclamation of a nine mile fishing zone beyond the three mile territorial sea in 1967 138 In Raptis, Mason J (at 388) noted Australia's claim to sovereignty over the waters in question in Raptis, referring, inter alia, to a statement on 31 October 1967 by the Hon. N H Bowen QC, Attorney-General for the Commonwealth (see Commonwealth Parliamentary Debates, Vol 57 (31 October 1967) at 2444 - 2445). Mr Bowen had then stated that Australia's three mile territorial sea and twelve mile fishing zone would thenceforth be measured from baselines drawn in accordance with the TSC (see Edeson, op. cit. at 297). Accordingly, in 1967, Australia's nine mile fishing zone extended beyond the three mile territorial sea - the "declared fishing zone" pursuant to the Fisheries Act 1952 (Cth) as then amended (see Bonser v La Macchia, at 216).

(iii) The SSLA 139 The TSC was referred to in the original preamble to the SSLA. The SSLA extended to the Territory (s 4). Its validity was upheld, by a majority, in the SSLA Case. This Act was later amended (see below) but reference should be made to some of its original provisions, particularly those concerning sovereignty over Australia's territorial sea, as follows: · Part II of the SSLA dealt with sovereignty and sovereign rights. It was declared that "the sovereignty in respect of the territorial sea [of Australia] 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" (s 6). The Governor-General may, from time to time, by Proclamation, declare, not inconsistently with Section II of Part I of the TSC (dealing with the limits of the territorial sea), the limits of the whole or any part of the territorial sea, and in particular, determine either or both (a) the breadth of the territorial sea; (b) the baseline from which that breadth is to be measured (s 7). The Governor-General may, by Proclamation, declare a bay to be an historic bay or waters to be historic waters and define their limits (s 8). The sovereignty in respect of the internal waters of Australia (i.e. any waters of the sea on the landward side of the baseline of the territorial sea) so far as they extended from time to time, and in respect of their airspace and the sea-bed and subsoil, was vested in and exercisable by the Crown in right of the Commonwealth (s 10). · Nothing in Part II of the SSLA was to affect sovereignty or sovereign rights in respect of any waters (and airspace, sea-bed and subsoil) of the sea that were waters of or within any bay, gulf, river etc. and (a) were, on 1 January 1901, within the limits of a State; and (b) remained within the limits of the State (s 14). (While (a), above, may have been satisfied here, (b), above, was not, so that s 14 could not have applied to the Territory.) · Part II did not limit or exclude the operation of any law of the Commonwealth or of a Territory then in force (s 16(a)). (By an amendment made in 1980 (see below), as part of the package of legislation giving effect to the Offshore Constitutional Settlement, soon after the grant of Self-Government in 1978, the Territory was excluded from the reference to the law of a Territory in s 16(a).) · Part II did not limit or exclude the operation of any law of a State then in force except so far as the law was expressed to vest or make exercisable any sovereignty or sovereign rights otherwise than as provided by Part II (s 16(b)). (By the 1980 amendment, a law of the Territory was also included in s 16(b) (see below).) 140 By a further amendment in 1980, the following was added to s 16: "(2) A law of a State or of the Northern Territory shall not be taken to be within the words of exception in paragraph (b) of subsection (1): (a) by reason that the law makes provision with respect to, or touching or concerning, any sea-bed or subsoil that is declared by Division 1 to be within the sovereignty of the Crown in right of the Commonwealth, or the living or non-living resources of any such sea-bed or subsoil, if proprietary rights in respect of that sea-bed or subsoil have become vested in the Crown in right of the State or of the Northern Territory, as the case may be, by or under a law of the Commonwealth; or (b) by reason that the law makes provision with respect to, or touching or concerning, any sea-bed or subsoil referred to in Division 1 or Division 2 but in respect of which paragraph (a) does not apply, or the living or non-living resources of any such sea-bed or subsoil, if the law is otherwise within powers with respect to particular matters that are conferred on the legislature of the State or of the Northern Territory, as the case may be, by the Coastal Waters (State Powers) Act 1980 or the Coastal Waters (Northern Territory Powers) Act 1980."

(iv) Acts Interpretation Act 1901 (Cth) 141 Section 15B was inserted in the Acts Interpretation Act 1901 (Cth) in 1976. 142 In general, the section provides that except so far as the contrary intention appears, the provisions of every Act, whether passed before or after the commencement of s 15B, shall be taken to have effect in, and in relation to, the coastal sea of Australia as if the coastal sea of Australia were part of Australia. 143 Section 15B(4) defines "coastal sea" in relation to Australia as (i) the territorial sea of Australia; and (ii) 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 sea-bed and subsoil beneath, any such sea.

(v) The Offshore Constitutional Settlement 144 The Coastal Waters (Northern Territory Powers) Act 1980 (Cth) ("the CW(NTP)A"), which came into operation on 1 January 1982, was an element of the Offshore Constitutional Settlement. It extended the Territory's legislative powers in, and in relation to, "coastal waters", that is (a) the part or parts of the territorial sea of Australia (ascertained consistently with the SSLA) within the Territory's "adjacent area" as described in Schedule 2 to the Petroleum (Submerged Lands) Act 1967 (Cth) ("the P(SL)A"); and (b) any sea that is on the landward side of any part of the territorial sea of Australia and is within the "adjacent area" but not within the limits of the Territory. The description of "adjacent area" in Schedule 2 to the P(SL)A included the following: "… thence easterly along the parallel of Latitude 9° 25' South to its intersection by the meridian of Longitude 129° 38' East, thence north-easterly along the geodesic to a point of Latitude 8° 53' South, Longitude 133° 21' East…". As the map annexed to these reasons indicates, the claimed area lies approximately between Longitude 132° and 133° 30' East and between Latitude 10° 30' and 11° 30' South. Thus the northern boundary of the claimed area lies well to the south of the northern boundary of the "adjacent area". 145 The extension of legislative powers provided for by the CW(NTP)A included laws applying in or in relation to the sea-bed and subsoil beneath, and airspace above, the Territory's coastal waters (s 5(a)); together with laws with respect to fisheries in Australian waters beyond the outer limits of the coastal waters of the Territory, being laws applying to or in relation to those fisheries only to the extent to which they are, under an arrangement to which the Commonwealth and the Territory are parties, to be managed in accordance with laws of the Territory (s 5(c)). Nothing in the CW(NTP)A affected 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 the TSC relating to the innocent passage of ships (s 6). Further, nothing in the CW(NTP)A was to be taken to extend the limits of the Territory (s 7(a)). 146 (The Territory exercised this legislative power enacting the Offshore Waters (Application of Territory Laws) Act 1985 (NT). This Act provided (s 3(1)) that the laws of the Territory (i) have effect in, and in relation to, the coastal waters of the Territory; and (ii) apply to and in relation to an act done or omitted to be done at a place within those waters.) 147 The Coastal Waters (Northern Territory Title) Act 1980 (Cth) ("CW(NTT)A"), which came into operation on 14 February 1983, also had its origins in the Constitutional Settlement. It vested in the Territory proprietary rights and title in respect of the sea-bed beneath the coastal waters of the Territory (s 4(1)). The vesting was subject to any right or title to the property in the sea-bed of any person (including the Commonwealth) subsisting immediately before the date of commencement of the 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 SSLA (s 4(2)(a)). Nothing in the CW(NTT)A affected 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 the TSC relating to the innocent passage of ships (s 6). Further, nothing in the CW(NTT)A was to be taken to extend the limits of the Territory (s 7(a)).

(vi) Proclamation of baselines in 1983 148 By Proclamation of the Governor-General made in 1983 pursuant to s 7(1) of the SSLA, with effect from 14 February 1983, the part of the territorial sea inner limit baseline constituted by straight lines drawn pursuant to Art 4 of the TSC was determined. The map annexed to these reasons depicts the baseline in the subject area. (It will be noted that New Years Island lies between the baseline and the twelve nautical mile limit.) 149 The Proclamation described the manner of measurement of the baseline in this way: "2. Subject to clauses 5, 6 and 7, the baseline from which the breadth of that part of the territorial sea adjacent to the mainland of Australia is to be measured is the line constituted by the following lines: (a) the low-water line along the coast, except where that low-water line is landward of a line referred to in paragraph (b), (c) or (d); (b) in the case of each river that flows directly into the sea on that coast, a straight line drawn across the mouth of the river between points on the respective low-tide lines of its banks, except where the line is landward of a line referred to in paragraph (c) or (d); (c) in the case of each bay on that coast, a straight line drawn between the respective low-water marks of the natural entrance points of the bay, except where the line is landward of, or identical with, a line referred to in paragraph (d); (d) the straight lines joining each of the points on the low-water line of the coast that are on or closest to the points of latitude and longitude specified in Column 2 of an item in Table 1 (being points of latitude and longitude determined by reference to the Australian Geodetic Datum)." 150 The Proclamation defined a "bay" thus: "(2) For the purposes of this Schedule - (a) subject to paragraphs (b) and (c), an indentation is a bay if the distance between the low-water marks of the natural entrance points of the indentation does not exceed 24 miles; (b) an indentation having one mouth is not a bay if the area of the indentation is less than that of the semi-circle whose diameter is a line drawn across the mouth of the indentation; (c) an indentation which, because of the presence of islands, has more than one mouth is not a bay if the area of the indentation is less than that of the semi-circle drawn on a line as long as the sum total of the lengths of the lines across the different mouths; (d) the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water marks of its natural entrance points, islands within the indentation being included as if they were part of the water areas of the indentation."

(vii) The three mile breadth of the territorial sea in municipal and international law in 1983 151 As has been noted, neither the TSC nor the SSLA specified the breadth of the territorial sea. However, in 1969, the High Court of Australia held that the territorial sea off the coast recognised by international law lay at three nautical miles from the low water mark at the time of Federation (see Bonser v La Macchia (1969) 122 CLR 177 per Barwick CJ at 190 - 192). 152 Later, in the SSLA Case, Mason J said (at 461 - 462): "The old common law doctrine that the narrow seas around England were within the territorial sovereignty of the King, expressed in the treatise De Jure Maris attributed to Hale, supported by Selden and asserted in Chitty on the Prerogatives of the Crown, if it ever had validity, was pronounced to be obsolete by Viscount Haldane L.C., speaking for the Judicial Committee, in Attorney-General (British Columbia) v. Attorney-General (Canada) ((1914) AC 153 at 174 - 175). In its place there came into existence in British municipal law the concept of the territorial sea having its origins in, and owing much of its development and elaboration to, international law." 153 His Honour went on to say (at 465): "… the territorial sea is a distinct concept which owes its origin, development and elaboration to international law and … it has been incorporated into British municipal law not as a supplement to the old notion of territorial sovereignty, but quite independently of it." 154 As will appear, the reasons of Viscount Haldane in the British Columbia Case are, in several areas, important for our purposes. The passage in the judgment of Viscount Haldane (at 174 - 175) mentioned by Mason J was as follows: "... the three-mile limit is something very different from the 'narrow seas' limit discussed by the older authorities, such as Selden and Hale, a principle which may safely be said to be now obsolete. The doctrine of the zone comprised in the former limit owes its origin to comparatively modern authorities on public international law. Its meaning is still in controversy. The questions raised thereby affect not only the Empire generally but also the rights of foreign nations as against the Crown, and of the subjects of the Crown as against other nations in foreign territorial waters. Until the Powers have adequately discussed and agreed on the meaning of the doctrine at a Conference, it is not desirable that any municipal tribunal should pronounce on it. It is not improbable that in connection with the subject of trawling the topic may be examined at such a Conference. Until then the conflict of judicial opinion which arose in Reg. v. Keyn is not likely to be satisfactorily settled, nor is a conclusion likely to be reached on the question whether the shore below low water mark to within three miles of the coast forms part of the territory of the Crown or is merely subject to special powers necessary for protective and police purposes. The obscurity of the whole topic is made plain in the judgment of Cockburn C.J. in that case. But apart from these difficulties, there is the decisive consideration that the question is not one which belongs to the domain of municipal law alone."

(viii) The LOSC 1982 - 1994 155 The Third UN Conference on the Law of the Sea was convened in 1973. As has been seen, in 1982 the Conference reached agreement on the text. The relevant aspects of the text are considered below. In 1994, a supplementary agreement was reached to which Australia agreed to be bound in October 1994 (see Brian R Opeskin, "The Law of the Sea", in Blay, Piotrowicz & Tsamenyi, Eds, Public International Law: An Australian Perspective (Oxford University Press, 1997) at 328).

(ix) Extension of Australia's territorial sea from three to twelve miles in 1990 156 In November 1990, the Commonwealth announced, consistently with the LOSC, that it intended to extend Australia's territorial sea from three to twelve nautical miles. A Proclamation was issued under s 7 of the SSLA, dated 9 November 1990, extending the territorial sea to twelve nautical miles. But, Australian sovereignty, like that of all coastal States, was nonetheless subject to the right of ships of all States to innocent passage through the territorial sea. This is further considered below (see, e.g., Brian R Opeskin and Donald R Rothwell, "Australia's Territorial Sea: International and Federal Implications of Its Extension to 12 Miles" (1991) 22 Ocean Development and International Law 395 at 395 - 397).

(x) The material provisions of the LOSC and its nexus with amendments to the SSLA in 1994 157 The LOSC was picked up in amendments made to the SSLA in 1994, when the Convention came into force. The Preamble to the SSLA now refers to the LOSC, and a new interpretation provision (s 3(1)) now picks up references to the Convention as meaning the 1982 LOSC, which is relevantly contained in a Schedule to the SSLA. Some of the provisions of the LOSC dealing with sovereignty over the territorial sea, the breadth of that sea, baselines, the right of innocent passage and the concept of a "bay", are presently material. They are to the following effect: · 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 (Art 2(1)). This sovereignty, which extends to airspace as well to the bed and subsoil (Art 2(2)), is exercised subject to the Convention and to other rules of international law (Art 2(3)). · Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding twelve nautical miles, measured from baselines determined in accordance with the Convention (Art 3). · The normal baseline for measuring the breadth of the territorial sea remains as under TSC the low-water line along the coast as marked on large-scale charts officially recognised by the coastal State (Art 5). · Straight baselines are dealt with by Art 7 in relevantly the same terms as Art 4 of the 1958 Convention (see above). However, provision is now also made for a combination of methods (Art 14). · Internal waters are dealt with by Art 8 in the same way as Art 4 of the earlier Convention (see above). · The provisions with respect to bays (Art 10) are the same as the previous version (Art 7, see above). · Innocent passage is dealt with (Arts 17 - 21) more elaborately than before, but to similar effect. Now, passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal state if, inter alia, any fishing activity is engaged in by that ship (Art 19(2)(i)). 158 (It should be mentioned that provision is made in Part V of the LOSC for the specific legal regime of the exclusive economic zone beyond (up to 200 nautical miles) and adjacent to the territorial sea. This need not be elaborated here since the claimed area lies within the twelve nautical mile limit.) 159 To revert to the provisions of the SSLA, as now amended, it should be noted that the provisions dealing with the territorial sea (ss 5 - 10) remain in the same terms as before, although, as has been seen, the LOSC rather than the TSC has now been incorporated. 160 In its present form, the SSLA retains the earlier savings provision (s 14). An amendment, affecting the Territory, has been made to the provision saving other laws (s 16), as has already been noticed.

(k) What waters, if any, fall within the description "bays" used in the Territory's constating instruments and are thus within the limits of the Territory? 161 The foregoing summary of Australia's various acts of State (federal, municipal and international) taken in relation to the waters, sea-bed and subsoil of the subject region is an important part of the context in which the question whether the waters of the areas described as "bays" in the Directories and Pilots were, in point of legal analysis, "bays" within the meaning of the Letters Patent and the later enactments, and thus within territorial limits.

"Historic bays" 162 The first potential aspect to arise is whether any of these waters constitutes an "historic" bay. 163 We have seen that, until 1958, no international community consensus could be reached on an exact dimension for bay closing lines. Nonetheless, most States agreed in general on the necessity for some limitation. This trend toward a maximum width doctrine led over time to the parallel development of the entirely new concept of the "historic" bay (see Gayl S Westerman, The Juridical Bay (Oxford University Press, 1987) at 28). The term is used to designate a bay which is treated as historical waters, but which would not have that character were it not for the existence of an historic title. To qualify, a coastal nation must have traditionally asserted and maintained dominion with the acquiescence of foreign nations. Three factors are significant: (1) the claiming nation must have exercised authority over the area; (2) that exercise must have been continuous; and (3) foreign States must have acquiesced in the exercise of authority (Westerman, op. cit.). Some publicists have mooted a fourth factor, of "vital interests", i.e. vital strategic or economic interests (see "The Juridical Regime of Historic Waters, Including Historic Bays" in United Nations [1962] Yearbook of the International Law Commission, Vol II 1 at 6 and following; South Australian Historic Bays Issue, Report of the Commonwealth/South Australian Committee at 6 and following; Stuart Kaye, "The South Australian Historic Bays: An Assessment" (1995) 17 Adel LR 269 at 281). 164 It must be said at once that it is difficult to accept, in respect of any of the suggested "bays" in the area claimed, that the existence of these factors, or any of them as indicating the existence of an "historic bay", has been demonstrated on the sparse evidence adduced in these proceedings (see Kaye, above, at 281 - 282). 165 Moreover, it will be recalled that, by s 8(a) of the SSLA, where the Governor-General is satisfied that a bay is an historic bay, he may, by Proclamation, declare it to be an historic bay, and shall, by the same or another Proclamation, define the seaward limits of that bay. It appears that only one Proclamation of "historic" bays under s 8 of the SSLA has been made and that concerned four bays in South Australia (see Commonwealth Gazette, No. S57, 31 March 1987). In the absence of any Proclamation under s 8, there is no basis, in our view, for a claim that any of the "bays" in the subject area, including Mission Bay, or their waters, was "historic".

"Juridical bays" 166 The next question is whether any of the suggested "bays" were juridical bays within the meaning of the Territory's constating instruments, i.e. whether under the rules of the common law at the material time or under the relevant rules of international law as incorporated by statute into Australian municipal law. 167 The legal issue should be approached upon the footing that the common law and international rules concerning bays are not linked to the name or concept of a bay: explorers have often applied the term "bays" to parts of coasts which are no more than gentle curvatures, possibly because the individual was unfamiliar with the strict geographical meaning of the term (see Westerman, op. cit. at 80). 168 It is further appropriate, in our view, to approach this issue, in the first instance at least, as Gibbs J and Stephen J did in Raptis, by having regard to the common law and international law rules as they stood at the relevant time, in this case in the early period of this century, being the time of enactment (1910) of the Territory's ultimate constating instrument. 169 Coincidentally, this was when the Permanent Court of Arbitration at the Hague decided the North Atlantic Coast Fisheries Case. It will be recalled that Stephen J expressed the opinion in Raptis that the "multifactoral" approach enunciated in this Award was to be followed. 170 In the North Atlantic Case, the majority in the Tribunal there said (at 198): "The Tribunal is unable to understand the term 'bays' … in other than its geographic sense, by which a bay is to be considered as an indentation of the coast, bearing a configuration of a particular character easy to determine specifically, but difficult to describe generally …." 171 It was thus held (at 199) that in the case of a bay "the [traditional] three marine miles are to be measured from a straight line drawn across the body of water at the place where it ceases to have the configuration and characteristics of a bay". 172 The Tribunal went on (at 199) to state, as we have seen (at par 118 above), what Stephen J said in Raptis (at 377) a test which "although expressed in the context of international law, describes accurately enough the modern common law approach to the question of what bays are internal waters". 173 The Tribunal felt that the so-called ten mile limit was representative of the practice of enough States in 1910 to warrant its use as a delimitation, if not a rule. The Tribunal said (at 199): "In every bay … the limits of exclusion shall be drawn three miles seaward from a straight line across the bay in the part nearest the entrance … where the width does not exceed ten miles." 174 See also, generally, Westerman, op. cit. at 62 - 63. 175 We propose next to turn to each of the suggested "bays" mentioned in the contemporary description given by the Australian Directory 1905 and to apply the North Atlantic Case criteria with a view to determining which, if any, should be considered a juridical bay. We will follow the order of topographical features adopted in the Directory.

"Mountnorris Bay" 176 As has been seen, these waters were described in the Directory as "between cape Cockburn and the south extreme Croker island" (later identified as Point David and later stated to be a distance of sixteen and a half miles West, i.e. more than the ten mile traditional guideline). 177 It will be convenient now to consider each of the North Atlantic Case factors in turn, bearing in mind always, the prefatory reference by that Tribunal to "all the individual circumstances". · "[T]he relation of its width to the length of penetration inland" 178 The width of this bay, sixteen and a half miles, exceeded the ten mile limit, but also appears to exceed its depth by a significant margin. It can only be said to have any "penetration inland" in a notional or artificial sense. · "[T]he possibility and the necessity of its being defended by the State …" 179 There was no evidence of this element here. · "[T]he special value which it has for the industry of the inhabitants of its shores …" 180 There was, of course, general evidence of fishing in the area; but there was no suggestion that the waters of "Mountnorris Bay" were particularly significant in the sense of having the special value contemplated by the Tribunal. · "[T]he distance which it is secured from the highways of nations on the open sea …" 181 It appears that some degree of seclusion might have existed; but the use made of Bowen Strait tends perhaps to contradict this. · "[O]ther circumstances …" 182 There are circumstances here which tend to contradict the suggestion that this precinct should be regarded as a juridical bay. 183 In the first place, Australia has made no international claim in that behalf. By 1910, Australia had commenced, but had not yet completed, the process of achieving, by international recognition, the status of competence to exercise rights that by the law of nations "are appurtenant to, or attributes of, sovereignty" (per Windeyer J in Bonser v La Macchia, above, at 224). That process was at least practically completed, for the Commonwealth, by the time of the Statute of Westminster (Imp), adopted by the Statute of Westminster Adoption Act 1942 (Cth) (see, generally, Sue v Hill (1999) 163 ALR 648). Important steps along the way were the Imperial Conference of 1926 (see Sue v Hill, above, per Gleeson CJ, Gummow and Hayne JJ at 669) and Australia's independent participation in the work of the Hague Committee in 1929, as previously mentioned (see the SSLA Case, above, Sir Maurice Byers QC, Commonwealth Solicitor-General, in argument at 341). Looking at the present question as at 1910, it appears that the Imperial Crown had made no claim internationally that any specific part of the subject precinct constituted a "bay". Looking at the matter now with the benefit of hindsight from the Commonwealth's perspective, we can say that Australia made no such claim either. As has been noted, the width of this bay exceeded the contemporary ten mile guideline. 184 Secondly, the requisite detail was not tendered. It is true that the 1905 Directory contained some topographical description of the precinct of "Mountnorris Bay". Reference was made to sandy beaches on its south-east shore. Hills on its western side were described. There was a statement that "… from the bight of the bay, the western side is encumbered with shoals extending 4 miles off, well into the bay". But, in our opinion, there was neither sufficient evidence here, nor, to pick up the language of Stephen J in Raptis (at 378), no such careful and detailed consideration of the coastline as that undertaken by O'Connor J in Post Office v Estuary Radio Ltd, so as to permit a conclusion that "Mountnorris Bay" was, in fact, enclosed internal waters, that is, a juridical bay. In our opinion, Olney J was correct in holding that the precinct was not a "bay" for the purposes of the Territory's constating instrument. 185 At the same time, it should be borne in mind that, since the drawing of the baseline in 1983, although these waters were not, by virtue of its constating instruments, within the Territory's territorial area, they were located to the landward side of the baseline drawn pursuant to s 7(1) of the SSLA. Thus, for both municipal and international purposes, they were notionally internal, albeit not enclosed, waters. 186 Although the foregoing has focussed upon the position under the rules of international law as they stood at the beginning of this century, we would not have arrived at a different conclusion on the present questions if these matters were to be looked at as at a later date, e.g. at the time of either of the UN Conventions (the TSC or the LOSC) or even later. It will be recalled that in Raptis, Mason J was of the view (at 385) that the TSC was "a codification of pre-existing rules; it works no radical departure from them". Moreover, it will be remembered that the LOSC dealt with "bays" in the same way as the TSC. It is true that both Conventions extended the possibility of a closing line of up to twenty-four miles, but otherwise, the test remained substantially the same (see Land, Island and Maritime Frontier Case (1992) ICJ Rep. 351; R R Churchill and A V Lowe, The Law of the Sea, 3rd ed. (Manchester University Press, 1999) at 42).

"Malay Bay" 187 The 1905 Directory stated that these waters are "between cape Cockburn and Annesley Point, [and] is 3 miles across [and thus within the 10 mile guideline]; the latter has a reef extending three-quarters of a mile off. Malay Bay affords good anchorage in 3 to 5 fathoms". 188 As to the relation of its width to the length of penetration inland, there is no mention of length in the 1905 Directory. The 1948 - 1954 Pilot stated that the suggested bay "is entered between Cape Cockburn and Annesley point, about 4 miles southward; a reef extends [one] mile northward from the latter. Malay bay affords good anchorage for small vessels in depths of from 3 to 4 fathoms …". 189 No specific defence element emerged in the evidence, except perhaps its value as a good anchorage for small vessels. Apart from the generalised fishing evidence mentioned, no special value for the local inhabitants that is specific to this section of the precinct was indicated in the evidence. On the other hand, an impression of some degree of seclusion from the highways of nations on the open sea may be gained, if only through visual impressions derived from the Commonwealth map in evidence, annexed to these reasons. 190 The issue of juridical bay is more difficult here than in the case of Mountnorris Bay. The indications that we have are few, and some appear to be equivocal. Again, there is an absence of relevant detail necessary to form a conclusion that this is both a geographic and juridical bay. Significantly, Australia has not formally claimed this specific status for it, although in argument the Commonwealth Solicitor-General was prepared to accept that Malay Bay could be treated as a juridical bay. 191 On the whole, we are again, not persuaded that his Honour erred in declining to conclude, on the sparse material available, that these were enclosed waters. Here also, from 1983, these were internal waters both domestically and internationally, although not enclosed.

"Bowen Strait" 192 The 1905 Directory stated that Bowen Strait "separates Croker Island from the mainland, is about 20 miles in length, one to 4 miles in breadth, and is stated to have 3Ľ to 7 fathoms water, and to be encumbered with shoals … [and] is reported to be available for vessels of 15 feet draft …". 193 As Gibbs J noted in Raptis (at 360), it seems unnecessary to distinguish between bays and gulfs, or it may be added, straits and channels, for the purposes of determining the present kind of issue. "Strait" is not a term of art and it is not defined in any of the relevant UN Conventions. Its ordinary meaning describes a narrow natural passage or arm of water connecting two larger bodies of water (see Churchill and Lowe, op. cit. at 102). But on any approach, in order to be treated as part of the Territory, assuming the other requisite elements were demonstrated, an appropriate closing line would need to be drawn. At least at the northern end of the Strait, this would be a contentious and difficult exercise; certainly no obvious points of reference for this purpose are indicated. In argument, a closing line between Danger Point and Darmari Point was suggested, but no obvious closing line is indicated from the chart. 194 There was evidence that parts of the Strait are relatively narrow and that parts are relatively shallow. But there was also evidence of historical use of these waters by the Macassans and of the carriage of cargo through these waters, leading to the establishment of a customs house in 1885, together with evidence of contemporary use of the Strait as a safe passage in bad weather. The latter kind of use may be seen as providing a possible analogy with the majority holding in Raptis that the waters of Investigator Strait were not within State territorial limits. But the fundamental difficulty in accepting a contention that Bowen Strait fell within territorial limits is the absence here of detailed evidence of the kind mentioned by Stephen J in Raptis (at 378). For that reason alone, and whether the question is considered under the Letters Patent or under earlier or modern rules of international law or of the common law, there was not sufficient information in evidence here to warrant the conclusion that the waters of this Strait were part of the Territory. Again, at the same time by virtue of the location of the SSLA baseline, these are to be regarded as Territory internal waters, even if they are not enclosed.

"Somerville Bay" 195 Olney J was not satisfied that these waters were within Territorial limits (at 557 - 558). We agree with his Honour. It will be recalled that the 1905 Directory stated that "the north-west end of Croker island forms a bay extending 9 miles from the cape to a low point…"; and that in the Pilot (1948) this area was described as "a wide bay which has not been thoroughly examined…". The suggested closing line is within the ten mile limit and it may be going too far to describe this section of coastline as a "mere curvature", but there are several indications that counter the suggestion that these waters should be regarded as "enclosed" and thus a juridical bay: the necessary relationship of width to the length of "penetration inland" appears to be wanting; there is no special defence or trade element peculiar to this part of Croker Island; and the area cannot be said to be "secured from the highways of nations on the open sea". Moreover, there is absent the detailed information required to persuade a court that these are, in truth, enclosed waters. Once more, this precinct lies to the landward side of the baseline.

"Palm Bay" 196 His Honour was likewise not satisfied here that these waters were within Territorial limits (at 557 - 558). The 1905 Directory spoke of "Palm bay" as "3 miles in extent, affording in the south-east monsoon, good anchorage in from 4 to 5 fathoms. The shore is foul to the distance of one mile, and the two points between which the bay lies have rocky spits …". We are not persuaded that his Honour erred in his approach. These waters are similar to those of Somerville Bay, and for similar reasons, should not be treated as enclosed.

"Mission Bay" 197 As we have said, his Honour (at 557 - 558) did hold that the waters of Mission Bay were within Territorial limits, although in his view there was insufficient material to define the extent of those waters with any precision, beyond referring to "a line joining the points on the north and south sides of the entrance to the bay". 198 The 1905 Directory mentioned two bays on the east side of Croker Island, stating that "the northern bay [i.e. "Mission Bay"] has the most water, having from 4 to 7 fathoms …". The 1948 - 1954 Pilot referred to the Methodist Mission station there. The 1992 Pilot stated that Mission Bay "is entered between a point, backed by a 28m high red sand hill, on the N and a point 3 miles SSE, both these points are fringed by reefs. Minjilang Aboriginal centre is situated at the head of the bay … Anchorage can be obtained in Mission Bay during the NW Monsoon, in depths from 5 to 13m …". 199 We agree with the primary Judge that there are indications here which point to a demonstration of enclosed territorial waters. Although we do not have any measurement of the length of penetration inland, it does appear to exceed the width of three miles. The location of the Mission station earlier, and the presence now of the Aboriginal Centre at the head of the bay reflect the special significance which the local inhabitants might be reasonably expected to attribute to their local waters in this particular precinct. Moreover, the anchorage provides a measure of seclusion. 200 Yet, again, as his Honour noted, we lack the detailed information needed to form a judgment where a closing line might be located. We are not persuaded that Olney J erred in any of his conclusions in this connection.

(l) The intertidal zone or foreshore 201 At common law, the intertidal zone is treated as the shore or foreshore, that is to say, the land lying between the ordinary flux and reflux of the tide between the mean high water mark and the mean low water mark of ordinary tides occurring between the spring and neap (i.e. ordinary) tides, which is alternatively covered and left dry by the flux and reflux of the tide (see e.g. A-G v Chambers [1854] 43 ER 486; Bowen v Minister for Urban Affairs (1996) 90 LGERA 368 per Bannon J at 369). The public right to fish, and ancillary rights (e.g. bait-digging, the taking of shell-fish or worms) may be exercised on the foreshore (see Anderson v Alnwick DC [1993] 3 All ER 613; Adair v National Trust [1998] NI 33). 202 As noted, the application before Olney J excluded land and reefs already granted under the Land Rights Act, but the question remained for his Honour whether the waters of the intertidal zone were also excluded from the claim, bearing in mind that the land so granted extended to the low water mark, i.e. the normal low water baseline. His Honour referred to the statutory definition of "waters" in s 253 of the NTA. It will be recalled that this definition, which is extensive, 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 waters mentioned in (a). Of the application of this definition in the present context his Honour said (at 546): "On a literal application of the definition a claim in relation to 'waters' would relate to either the sea etc or to the sea-bed etc but not both. It may be because of this perceived problem that the application expressly refers to the 'seas and sea-beds' in the defined area. If it is legitimate to treat the sea-bed separately from the sea which covers it, (and the definition suggests that it is) then it would appear to be open to claim a determination in respect of the sea of the intertidal zone of the islands without making a similar claim in respect of the sea-bed of that zone (that is the land of the intertidal zone when it is covered by the sea). The application as originally framed, in seeking a determination in relation to all of the sea within the claimed area, extends to the waters of the intertidal zone." 203 We agree. Such an outcome accords with the terms of the Land Grants and also with the position at common law in any event.

(m) The waters in the area claimed are "waters" within s 6 of the NTA 204 Having regard to the way in which the Commonwealth's appeal, and the responses to it, were argued, we have found it necessary to consider the evolution of each of the maritime zones in the area claimed. However, by the time the NTA came into operation, the whole of the area claimed clearly lay within the twelve mile limit over which, as his Honour held (at 547), Australia asserted sovereignty under the SSLA, with the consequence that the waters claimed were "waters" within the meaning of s 6.

THE NATURE OF THE PUBLIC RIGHT TO FISH IN TIDAL WATERS 205 The common law principles with respect to the public right to fish in tidal waters, including the foreshore, are important background for the purpose of analysing the particular claim of native title made in these proceedings. For our purposes, these principles were authoritatively considered by the High Court of Australia in Harper v Minister for Sea Fisheries (1989) 168 CLR 314. 206 In Harper, Brennan J (with the general agreement of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) referred (at 329) to the explanation by Viscount Haldane in the British Columbia Case in speaking (at 170) of the law of England, as applicable also in British Columbia). That is, that since the decision of the House of Lords in Malcomson v O'Dea [1863] 11 ER 1155 "it has been unquestioned law that since Magna Charta no new exclusive fishery could be created by Royal grant in tidal waters, and that no public right of fishing in such waters, then existing, can be taken away without competent legislation". Brennan J further referred (at 329) to the statement of common law principle in the British Columbia Case (at 171) that: "[I]n the tidal waters, whether on the foreshore or in creeks, estuaries, and tidal rivers, the public have the right to fish, and by reason of the provisions of Magna Charta 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". 207 Brennan J said (at 329 - 330): "[These] were tidal waters. Accordingly, the right of the owner of the soil over which the waters flow (whether the owner be the Crown or not) to enjoy the exclusive right of fishing in those waters or to grant such a right to another as a profit ŕ prendre is qualified by the paramount right to fish vested in the public…. In Malcomson v O'Dea, it was held that, after Magna Charta, the Crown, in whom the title to the bed of tidal navigable rivers was vested, was precluded from granting a private right of fishery, the right of fishery being in the public. The law so stated was followed in Neill v. Duke of Devonshire. And in Lord Fitzhardinge v. Purcell, although Parker J. held that the Crown might grant title to the bed of the sea or of a tidal navigable river to a subject, his Lordship held that no such grant can operate to the detriment of the public right of fishing. The existence of a public right to fish in tidal waters was accepted by Stephen and Jacobs JJ. in [the SSLA Case]." 208 Brennan J went on to explain the potential abrogation or regulation of the right to fish (at 330): "But 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: …. Although there is authority for the view that the public right of fishing is sustained by the Crown's title to the sub-soil … the competence of a State legislature to make laws regulating a right of fishing in such waters is not dependent upon the State's possession of a proprietary right in the bed of the seas or rivers over which such waters flow. Lord Herschell pointed out that 'there is a broad distinction between proprietary rights and legislative jurisdiction' …." 209 Brennan J then considered the effect of the statutory prohibition there in question (at 332): "Regulation 44(1)(o) prohibits any person from taking in State fishing waters more than ten abalone in any one day unless he is the holder of a subsisting commercial abalone licence; and reg. 44(1)(ra) prohibits the holder of a commercial abalone licence to take in State fishing waters more than the quantity of abalone specified as the quantity that may be taken by the holder of the licence. That quantity is specified in the licence in accordance with reg. 19AB. Regulation 44(3) makes any failure to comply with the Regulations an offence. The public right of fishing for abalone in State fishing waters is thus abrogated and private statutory rights to take abalone in limited quantities are conferred on the holders of commercial and non-commercial abalone licences. The Regulations thus control the exploitation of a finite resource in order to preserve its existence. They seek to achieve this end by imposing a general prohibition on exploitation followed by the grant of licences for the taking of limited quantities of abalone. The only compensation, if compensation it be, derived by the public for loss of the right of fishing for abalone consists in the amounts required to be paid by holders to obtain abalone licences under the Regulations." 210 Mason CJ, Deane and Gaudron JJ, after expressing their general agreement with Brennan J, said (at 325): "Under [the] licensing system, the general public is deprived of the right of unfettered exploitation of the Tasmanian abalone fisheries. What was formerly in the public domain is converted into the exclusive but controlled preserve of those who hold licences. The right of commercial exploitation of a public resource for personal profit has become a privilege confined to those who hold commercial licences. This privilege can be compared to a profit ŕ prendre. In truth, however, it is an entitlement of a new kind created as part of a system for preserving a limited public natural resource in a society which is coming to recognize that, in so far as such resources are concerned, to fail to protect may destroy and to preserve the right of everyone to take what he or she will may eventually deprive that right of all content." 211 In explaining the nature of the public right to fish, Olney J (at 593) referred, correctly in our opinion, to the explanation of the position at common law given by Burchett J in Minister for Primary Industries and Energy v Davey (1993) 47 FCR 151 at 168 where Harper and the English authorities were followed (see also Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 at 584 - 585). 212 It is one thing to accept, as the High Court did in Harper, that the English common law right in each member of the public to fish in tidal waters has been received into Australia, but some of the privileges in this area acknowledged by English common law are a different thing, and were not applicable to our local conditions, and thus were not received here. We have in mind in particular the privileges attached to a common of piscary or, something similar, rights arising from the grant of a several or exclusive fishery. Neither concept, in our view, was capable of adaptation in Australia. In Yanner, Gleeson CJ, Gaudron, Kirby and Hayne JJ referred (at 267) to - "… rights (such as warren and piscary) which never made the journey from England to Australia."

THE NATURE OF THE PUBLIC RIGHT AT COMMON LAW TO NAVIGATE IN TIDAL WATERS AND IN THE HIGH SEAS 213 The common law principles which uphold a right in the public to navigate in tidal waters and in the high seas constitute another important contextual factor when considering the specific native title claim made here. 214 In the British Columbia Case, Viscount Haldane said (at 169): "... 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 crystallized 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 patrić no doubt regarded itself bound to protect the subject in 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 recognized as establishing a legal right enforceable in the Courts." 215 In the SSLA Case, Stephen J (at 421) noted that "the Crown's ownership of the foreshore, whilst proprietary, is subject to public right of navigation and of fishing". 216 In this connection, Olney J said (at 593): "The common law … 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: Halsbury's Laws of England (4th ed. 1977), vol 18, par 604. This right evolved before Magna Carta and is therefore a right distinct in its origin from the right of innocent passage in international law." 217 We agree. Thus, in Gann v Free Fishers of Whistable (1865) 11 HLC 192, it was held that the grant of an oyster bed in an arm of the sea below low water mark was presumed to have been made before Magna Carta, but was nonetheless subject to the public right of navigation, as that public right also pre-dated Magna Carta. As that public right included the right to anchor, no toll could be charged by the owner of the oyster bed upon ships anchoring there. Lord Westbury LC said (at 209): "Anterior to Magna Carta, by which such grants [of several or exclusive fishery] were prohibited, a several fishery in an arm of the sea or navigable river, might have been granted by the Crown to a subject. The present fishery of the Respondents must be taken to have been so granted. And the grant might include a portion of the soil for the purpose of the fishery. But this, like every other grant, whenever made must have been subject to the public right of navigation …". 218 Likewise, in Lord Fitzhardinge v. Purcell [1908] 2 Ch 139, after holding that the bed of the sea, "so far as it is vested in the Crown, and a fortiori the beds of tidal navigable rivers can be granted by the Crown to the subject", Parker J said (at 167) that: "It is true that no grant by the Crown of part of the bed of the sea or the bed of a tidal navigable river can or ever could operate to extinguish or curtail the public right of navigation and rights ancillary thereto, except possibly in connection with such rights as anchorage when there is some consideration moving from the grantee to the public. It is also true that no such grant can, since Magna Charta, operate to the detriment of the public right of fishing." 219 We turn next to consider the specific claims made on behalf of the claimant group which his Honour rejected, now the subject of their appeal.

THE CLAIMED RIGHT OF "OWNERSHIP" OF THE SEA AREA 220 In rejecting this claim as a matter of principle, his Honour said (at 576 - 577): "Native title can only be understood as a combination of rights and interests. Unless 'ownership' is described by reference to the incidents which attach to it, the term adds nothing to understanding the nature of the claim except to indicate that the rights and interests in question attach to a particular group of people. For example, when witnesses spoke of certain land and sea being 'my country' or 'Mandilarri-Ildugij country' they identified the right holders and in ordinary parlance may be understood as saying 'I own that country' or 'The Mandilarri-Ildugij yuwurrumu owns that country'. Statements of that kind, in the absence of anything else, do not seem to be an assertion of the type of dominion over the country that might normally be associated with ownership in its most absolute form. In Mabo (No 2) Brennan J (at 75) thought that it may be confusing to describe the title of the Meriam people as conferring 'ownership', a term which he said connotes an estate in fee simple or at least an estate of freehold. It would be equally confusing to ascribe the right of ownership to an area of sea and sea-bed. To understand 'ownership' in the present context it will be necessary to consider in detail what Toohey J described in Mabo (No 2) at 207 as 'the abstract bundle of rights' that are said to be enjoyed by reason of the connection of ownership." 221 (In the following paragraphs, the primary Judge considered the claims to exclusive possession, to use and control resources etc. We refer to his consideration below.) 222 Earlier in his reasons, his Honour had said (at 576) that there was nothing in the evidence to explain what the claimant group understood "the connection of ownership" to encompass unless it be the aggregation of separate rights which are asserted in respect of the claimed area; and that the term "ownership" was first used by counsel, and not by a witness. 223 We are not persuaded to disturb a finding of this kind by the trial Judge, based as it was upon his interpretation of generally expressed statements made by witnesses in giving evidence of their beliefs in this complex area: the process of interpretation required here would involve a consideration of more than a few statements taken in isolation, and would involve an understanding, from the evidence, of the relevant cultural dimensions inherent in this issue. The primary Judge has a significant advantage in this aspect of the process. But, in any event, as we have earlier indicated, we agree in principle with his Honour's approach that the application for a determination of native title should, in truth, be viewed as a claim made in respect of a combination of rights and interests. Furthermore, even if an abstract claim of "ownership" of these waters were in principle open, it is difficult to accept that any such right could have survived wholly intact given the complex and far-reaching regime of legislative and administrative action in place in this zone at both the domestic and international levels (including the fishery legislation to be mentioned below). But it is unnecessary for us to pursue possible extinguishment issues in this connection. As a question of evidence and in principle, a claim to "own" the "sea country" was correctly dismissed by the trial Judge.

THE CLAIMED RIGHT TO EXCLUSIVE POSSESSION, OCCUPATION, USE AND ENJOYMENT 224 His Honour dealt with the claim to exclusive possession, occupation, use and enjoyment at 577 - 585. 225 Olney J said (at 580 - 581): "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. In pre-contact times this may well have been an exclusive right in the sense that other Aboriginal groups could be expected to respect the laws and customs of the applicants. But whether there was ever an occasion in pre-contact times for the applicants' ancestors to assert this particular right, 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. The very nature of the sea renders it inappropriate to attempt to strictly apply concepts such as possession and occupation which are readily capable of being understood in relation to land. There is a clear distinction between possession and occupation on the one hand and use and enjoyment on the other. The claimed right of senior clan members to grant permission is limited to allowing non-members to use and enjoy the country, not to possess or occupy it. That members of a yuwurrumu claim the right of free access to the estate of the yuwurrumu is beyond question although there is some evidence that even that right is exercised with some circumspection… ." 226 His Honour went on to say it seemed (at 582) that "the binding effect of the traditional requirement to seek permission to go on to another's country is one which applies only to Aboriginal people". 227 The primary Judge held (at 585) that the claim, that by their traditional laws and customs, the applicants "enjoy[ed] exclusive possession, occupation, use and enjoyment of the waters of the claimed area is not one that is supported by the evidence." 228 His Honour concluded (at 585): "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." 229 In now challenging these conclusions, counsel for the claimant group took us to the oral testimony given at the trial and, in substance, asked us to interpret that evidence differently. Counsel accepted that we had not seen or heard the witnesses or seen the areas then identified, but counsel submitted that since there has been no challenge to the vast bulk of the evidence, this Court is fully able to draw the appropriate inferences. Reliance was placed upon the decision of the High Court in SRA v Earthline (1999) 160 ALR 588. 230 We have difficulty accepting these submissions. 231 It is true that in assessing the applicants' evidence, his Honour said (at 560) that "[f]or the most part, [it] is unchallenged". Olney J said that Mary Yarmirr's - "knowledge and understanding of the [applicants'] culture and traditions … is clearly all embracing … [S]he spoke with considerable eloquence and her sincerity was both patent and compelling. As her evidence touched upon virtually every aspect of the case, frequent reference will be made to it, and relied upon, in what follows". 232 His Honour noted that another senior member, Charlie Wardaga, was able to convey an understanding of his traditions and culture and that the evidence of the other Aboriginal witnesses was substantially consistent with that of the senior claimants, so that the Court could "accept [their] evidence as credible". But his Honour added (at 560): "That is not to say that it necessarily establishes all of the claims made on behalf of the applicants, but rather their evidence, particularly that relating to the oral history and traditions of the claimant groups and of genealogical connections and family relationships, can be relied upon with some confidence." 233 SRA v Earthline, above, may, in our view, be distinguished here. Gaudron, Gummow and Hayne JJ there noted (at 589) that in Devries v Australian National Railways Commission (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ, in a frequently cited passage, had observed (at 479) that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside "because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact"; and if that finding "depends to any substantial degree" on the credibility of the witness, it must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable". 234 Gaudron, Gummow and Hayne JJ also noted in Earthline (at 589) that Deane and Dawson JJ had pointed out in Devries (at 480) that "no short exhaustive formula, such as "glaringly improbable", meets every case". 235 In Earthline, a new trial was ordered, essentially upon the footing (as explained at 590) described by Jacobs J in Agbaba v Winter (1977) 51 ALJR 503 (at 508) that primary findings based on credibility of witnesses might be displaced "where in a complex pattern of events incontrovertible evidence can only be fitted into the pattern if a different view of the credibility of a witness is taken by the [appellate] court". 236 In our opinion, the present case is not relevantly of this kind at all. It can be accepted that the primary Judge made findings in accordance with the unchallenged evidence, with respect to the oral history and traditions of the claimant group, and their genealogical connections and family relationships, and that these findings are not challenged. (This evidence was not controverted: presumably it was incontrovertible.) But the applicants' evidence of their specific claims, i.e. the matter which is presently relevant, was truly contentious. Ultimately, it was rejected by his Honour. In his rejection, the primary Judge did not, and did not need to, reflect upon the creditworthiness of the testimony of any of the applicants' witnesses in this regard. Rather, his Honour's approach was to analyse and interpret the evidence as a whole, and then to conclude that, in truth, it demonstrated no more than the existence of a permission system in favour of non-members associated with use and enjoyment of the waters of the claimed area, principally in the form of fishing, hunting and gathering. That is to say, there was, on his Honour's approach, no basis in the evidence for the drawing of any inference of the existence of a permission or other system concerning something quite different from this use and enjoyment, namely, the exclusive occupation or possession of sea country. 237 Counsel for the claimant group took us to the detail of the evidence which, they contended, justified a finding of the existence of a system of permission from which an inference of the existence of a traditional custom conferring a right of exclusive possession should then be drawn. We are not, however, at all persuaded that the evidence revealed any basis for such an inference. On the contrary, our reading of that evidence of which several illustrations are given by his Honour at 577 - 585, only served to reinforce his Honour's conclusion expressed at 585 set out above, with which we entirely agree. 238 Again, for completeness, we should mention that, even if an appropriate factual basis had been laid for this claim, it is difficult to understand how it could have survived the legislative and administrative action we have mentioned. In all the circumstances, we need not finally pursue these potential extinguishment issues here. However, we should add that we agree with the primary Judge that recognition of a claim for exclusive possession of the sea area should, in any event, have been denied here, because it would, to use the language of Brennan J in Mabo (No 2) (at 43), "fracture a skeletal principle of our legal system". In our view, to recognise such a claim would contradict first, the right of innocent passage allowed by international law rules which have been acknowledged by Australia both internationally and in the municipal legislation we have mentioned; and secondly, the common law public rights to fish, and to navigate, in the territorial sea and adjacent tidal waters. 239 It is true that the common law right to fish is, as Brennan J noted in Harper (at 330), "freely amenable to abrogation or regulation by a competent legislature"; and that legislatures have exercised such powers to an extent, but not to the point of absolute extinguishment; so that at least some public fishing rights remain unimpaired at common law, together with, as mentioned, the public right to navigate. A power to exclude members of the public as now claimed would, in our opinion, contradict these common law principles which, along with the right of innocent passage, are, we think, of sufficient importance to warrant their characterisation as "skeletal" in the sense meant by Brennan J. It must follow, as Olney J held, that recognition of such an exclusive claim could not be accepted by the common law. 240 Counsel for the claimant group also referred in argument to the grant to the Territory Administration under s 12(1) of the Aboriginal Land Act (NT) of the power to "close the seas adjoining and within 2 kilometres of Aboriginal land…". But the independent grant of such a statutory power to the Executive cannot, in our opinion, be relied on here in the quite different context of a judicial determination of common law recognised title. In any event, by s 20 of the Aboriginal Land Act, the exercise of the power under s 12(1) does not prevent the bona fide transit of a vessel.

THE CLAIM TO EXCLUDE OTHERS FROM ACCESS TO THE AREA FOR MINING 241 This aspect of the appeal is inextricably linked with the claim for exclusive possession. For similar reasons, we agree with his Honour in this regard also.

THE CLAIM OF THE RIGHT TO USE AND CONTROL RESOURCES 242 Before the primary Judge, the claimant group contended that they had the right to hunt, fish and gather food, and material within the claimed area, and to prevent others from doing so. They claimed exclusive ownership of the living marine organisms found permanently, or from time to time, within the claimed area. His Honour found (at 586) that, in accordance with their traditional laws and customs, the claimants fished in these waters, caught turtle and dugong and collected oysters and crustacea. But these claims were viewed by his Honour (at 586), correctly we think, as an extension of the claimed right to control access to the area. 243 As the primary Judge then said (at 586): "In a practical sense, control over use of resources is exercised by controlling who goes into the claimed area. It must necessarily follow that the right of control over the resources … is co-extensive with the right to control access." 244 We agree with the primary Judge's characterisation, and with its consequences here. 245 It should be added that in respect of the resources of the subsoil, his Honour said (at 586), and we agree, that there was no evidence to support any traditional claim to their use and control.

THE CLAIM OF THE RIGHT TO TRADE IN THE AREA'S RESOURCES 246 The primary Judge found (at 586 - 587) that there was evidence that in the past the group's ancestors engaged in a form of trade, constituted by the exchange of goods, with the Macassan trepangers. But his Honour held (at 587) that, whilst the objects of the trade were resources of the waters and land, the claimed "right to trade" was not a right or interest in relation to the waters or land; nor should the goods traded be characterised as "subsistence resources" derived from either the land or the sea. 247 In their challenge to these conclusions, counsel for the claimant group invited us to reject his Honour's approach to the history of the relationship between the group's ancestors and the Macassans in particular. Since their submission was developed at some length, it is not practicable to attempt to summarise it here. But we should refer to the concluding section of the written submission as follows: "3.44 Given present understanding of Aboriginal land and sea tenure in northern Australia, it is difficult to accept the adequacy of a view of history that concludes that a relationship lasting for almost two hundred years between the applicants' forbears and the Macassans was predicated on nothing more substantial than were the occasional brief meeting with groups of strangers such [as] Flinders and his men. The applicants did not present this view, nor does the historical evidence support it. The reasonable inference to draw from the evidence, consistently with that relating to permission to enter sea-country and exploit its resources, is that the applicants and their forbears traded in those resources. The very existence of conflict … is suggestive of perceived infringement of traditional law and custom. Accordingly, their conduct demonstrated their perception of a right to trade in accordance with their traditional law, in resources of their sea-country." 248 Earlier in their written submission, counsel for the claimant group had said: "3.1 … His Honour … acknowledged that there was 'some evidence' of a 'form of trade' … but dismissed it as not involving 'a right or interest in relation to the waters or land' … . His Honour also viewed the evidence in the light of the likelihood that the Macassans took trepang with the consent of the native title holders. He concluded that the Macassans imposed their activities by force of numbers at some unrecorded point of history … much in the way that Europeans did by force of arms. This analysis ignores the perspective of native title holders and the possibility that they saw themselves as engaging in trade, in accordance with their law." 249 The submission then referred to trade by Charlie Wardaga and Andrew Yarmirr with the Croker Island mission in turtle meat, dugong and fish. Counsel argued: "Viewed in isolation, this evidence may not have been significant: … . However, it needs to be seen in the context of the other relevant material. His Honour is dismissive of this evidence, consistently with his views as to exclusivity of possession, of which this right is an integral part." 250 It may well be right, as the argument runs, and as seems logical, to view the right to trade as "an integral part", or integral aspect, of a right to exclusive possession. But it is difficult to see how such a right to trade could continue to be sustained in the light of his Honour's conclusion, with which we agree, that no exclusive possessory right was demonstrated. 251 But even if the matter is viewed more broadly, the issues sought to be canvassed in counsel's submission were essentially factual in character. It is true that they raise issues of fact that have both primary and secondary aspects. But we are not, in any event, persuaded that any error has been demonstrated in the complexion put upon the historical events in question by the primary Judge, given especially the finding, with which we concur, of an absence of any exclusive entitlement to possession of the area. As a matter of experience in practical affairs, as well as for logical reasons, if it be accepted that the claimant community had no right to occupy these waters to the exclusion of all others, it is difficult to envisage how, in accordance with a traditional custom, the group could assert, and effectively assert, a right to trade in the area's resources. In this connection, in Mabo (No 2), Brennan J said (at 51): "If it be necessary to categorize an interest in land as proprietary in order that it survive a change in sovereignty, the interest possessed by a community that is in exclusive possession of land falls into that category. Whether or not land is owned by individual members of a community, a community which asserts and asserts effectively that none but its members has any right to occupy or use the land has an interest in the land that must be proprietary in nature: there is no other proprietor." (Emphasis added) 252 Although Brennan J was there speaking of a claim to proprietary interest in land, we think that his Honour's approach may, in principle, be applied also to a claim (as here) to a proprietary interest in resources. 253 Even if, contrary to our view, these complications of principle could be put to one side, the group was confronted with obvious difficulties of proof in seeking to prove title to resources of the kind in question, given their diversity of specific character and location in a relatively large area of sea. 254 Having examined the evidence now relied on for the claimant group, examples of which were given by the primary Judge at 586 - 588, we can find no appealable error in his Honour's decision to reject this claim. 255 Although not now strictly necessary for us to consider, it should be mentioned that any final consideration of a claim of a right to fish, hunt and gather within these waters for the purposes of trade, would need to take into account the impact of relevant respective fishing legislative regimes of South Australia, the Territory and the Commonwealth. The various forms of applicable fisheries legislation and administrative action thereunder, which clearly had at least the potential to affect a claim by any person to fish or hunt in these waters, were summarised by the primary Judge (at 594 - 599). We need not repeat that summary here. It will suffice for us to say that, by this means, any right of the public to fish for commercial purposes, and any such traditional right, were at least regulated and possibly wholly or partially extinguished, by statute or executive act or both. In the case of the native right, s 211 of the NTA would, as his Honour held, operate. But, significantly for present purposes, s 211 does not purport to confer any right to trade. Rather, s 211 achieves the outcome that a law of the Commonwealth, a State or a Territory (which would otherwise prohibit or restrict a "class of activity" (including fishing)) will not operate, in the prescribed circumstances, so as to prohibit or restrict that activity. However, as s 211(2)(a) relevantly stipulates, this effective "preservation" of rights has application only for the purpose of satisfying personal, domestic or non-commercial communal needs. 1

THE COMMONWEALTH'S CONTENTION THAT ANY NATIVE TITLE RIGHTS OR INTERESTS SHOULD BE REGARDED AS "MERGED" IN THE COMMON LAW PUBLIC RIGHTS TO FISH AND TO NAVIGATE 256 In our opinion, this contention, upon ultimate analysis, rested in assertion only - there is no authority to support it. The argument is that native title rights or interests "must be regarded as having been subsumed into" the public rights to fish and to navigate. This "process", the argument runs, is "analogous to that involved in the doctrine of merger, by which lesser common law rights merge with greater ones". 257 We cannot accept this argument. Merger is a technical doctrine of the common law. As we have noted, native title is not an institution of the common law, notwithstanding that, in certain circumstances, the common law recognises it. But the process of recognition cannot be allowed to pick up technical rules such as merger. These rules are peculiar to the common law; and they have no necessary, or other, connection with the "highly fact specific" customary title in question here.

THE COMMONWEALTH'S CONTENTION THAT NO NATIVE TITLE EXISTED IN THE NORTH-EAST AND EASTERN REGION OF THE CLAIMED AREA 258 On behalf of the Commonwealth, it is contended that there was no, or no sufficient, evidence of traditional occupation or use by the claimant group in this region. It follows, the argument runs, that his Honour erred in determining that native title existed in this part of the area claimed; specifically that is, the primary Judge erred, it is said, in determining that such title existed anywhere to the east of the line drawn on the annexed map as follows: (a) start from a point on the boundary line of the claimed area located due north of the eastern most point on New Year Island; (b) proceed south to the eastern most point of New Year Island; (c) proceed to the eastern most point of McCluer Island at the low water mark; and (d) finally proceed to De Courcy Head. 259 In fixing the north-east and eastern boundaries of the area in which native title was determined to exist, his Honour noted (at 574 - 575) that there was "no direct evidence" as to (a) the extent seaward to which the claimant group and their ancestors travelled to pursue their fishing and hunting activities; or (b) the relationship which the boundary of the area claimed bears to the areas used. But, the primary Judge held (at 575), there were a number of facts "from which reasonable inferences can be drawn" as follows: "About 30 km east of Croker Island there is a line of islands running more or less north and south, they being Oxley, Lawson and Grant Islands. There is evidence that Grant Island has a source of water and that in earlier times was inhabited. It is fair to assume that people travelled the sea between these islands and Croker Island and that they fished the sea. New Year Island is a further 30 km or so north-east of Grant Island and McCluer Island is about halfway between the two. Charlie Wardaga's evidence concerning New Year Island is compelling testimony of a traditional connection with New Year Island and I accept his claim that the reef just to the north of it is part of Mangalara country. It will be recalled that Flinders saw human footprints on the shore of New Year Island in 1803. The eastern boundary of the claimed area appears to be a reasonable representation of the limit to which the sea in that area would have been used." 260 In relation to these and other boundaries of the claimed area, His Honour said (at 575): "In these circumstances, in the absence of any contradictory evidence or challenge to the credit of the witnesses, I draw the inference that the waters within the outer boundary of the claimed area comprise either the whole or part of the sea country of one or other of the several yuwurrumus of the Croker Island community." 261 In outline, the Commonwealth's contention is as follows: the test used by his Honour was to assess whether there was evidence of use of the claimed area. The Commonwealth accepts that use of an area is a necessary factor in determining whether native title exists. On the other hand, the argument goes, the failure of the native title claimants to continue to use an area would be a clear indicator that they no longer had the requisite connection to that area to maintain native title. The Commonwealth further accepts, as his Honour held (at 574), that "[t]here is abundant evidence that members of the Croker Island community use waters within the claimed area to catch fish, hunt for and catch turtle and dugong and collect oysters and crustacea" (at least in areas close to shore). But the Commonwealth does not accept that the evidence indicates such use of all portions of the claimed area; in particular, the contention goes, there is no evidence that the waters to the north and east of New Year Island are, or have ever been, so used: Mr Charlie Wardaga, the senior Aboriginal spokesman for that region, did not claim them as his, instead indicating that they were "for Government", and could be used by Aboriginals or by white people. The Commonwealth accepts that the trial Judge is entitled to draw "reasonable inferences" from the evidence in determining whether the boundaries of the claim correlate to the "areas used". But, so it submits, the inferences drawn by his Honour in accepting the north-eastern and eastern boundaries of the claimed area, were not only not reasonable, they were not, it is said, open on the evidence and indeed, it is suggested, were to the contrary. 262 On behalf of the Commonwealth, reliance is placed, in particular, upon Mr Wardaga's evidence (described below) to the effect that he had never slept on New Year Island; that it was visited primarily for spiritual reasons on rare day trips from McCluer Island; that food was obtained and eaten on McCluer Island, and not on New Year Island. Moreover, the Commonwealth says, Flinder's discovery of a footprint on New Year Island in 1803 does not itself speak of use of the seas to the north and east of the island. 263 In submitting that there was no evidence to ground a determination in the precinct in question, the Commonwealth contends that, at trial, the claimant group actually presented two bases for native title rights over the claimed area: first, there was the claim premised upon a connection to the area built upon use (through fishing, hunting and navigation) and spiritual beliefs. In this respect, the Commonwealth says, the evidence revealed that fishing and hunting primarily took place from the beach and in the relatively shallow waters ("balu"), which does not include the ocean ("birrina"), although there was evidence of dropping a line over the back of a boat when travelling between places. There was also evidence of certain areas near the shore or islands in the claimed area having spiritual significance to the applicants. Secondly, on a more conceptual basis, the claimant group's sea country extended seaward "as far as the naked eye can see" (even if, according to the Commonwealth's contention, the area was not used and had no spiritual significance). 264 Olney J said (at 570) that the evidence "is not specific as to the extent of the sea country". His Honour referred (at 570 - 572) to evidence by Mary Yarmirr in this connection and said (at 572): "[This evidence] appear[s] to be of general application although it is difficult to reconcile the two concepts of sea country extending on the one hand to the balu (which presumably includes the whole of the balu) and on the other, as far as the eye can see. The problem is compounded by the absence of any evidence as to how far away the horizon would appear to a person 'sitting down on the beach or standing up'. Nor is there any evidence, such as hydrographic maps, which might help to identify the several zones described by Mary Yarmirr in the waters around Croker and the adjacent islands." 265 On behalf of the Commonwealth, as mentioned, reliance is placed upon evidence taken on New Year Island, the most north-easterly island in the claimed area from Mr Wardaga, in which, it is said, he indicated that the sea to the south and west of the island belonged to his clan but that the sea to the north and east was "for Government". His evidence, in chief, now relied on by the Commonwealth was as follows: "Can we camp here overnight? --- No, only McCluer. Long time ago we been come canoe here. We never sleep here, me and my father. We never sleep here. You can go back to McCluer Island. You can get that turtle from McCluer Island and cook him there, but not here …. All right. And what about fishing? Can you catch fish here? --- You can get that fish. What about these old people here now? Come there big boat. I can see two boat here near Nick. Get the fish. Fish you can't say, no, you can't get that fish. That for like everybody, that one, everybody, like Aborigine and white people. They can use him, that one. Can use it? --- Mm. All right. Now, what about reef fish? Can you get reef fish here? --- Reef here. You get it. Yes. Now, you say this is your country here, Charlie. Which way is McCluer from here? Which way is McCluer? --- Here. You are pointing over to the back of you here to the south and the west. This sea, the sea going to McCluer from here, is that anybody's sea country? --- Eh? Is that somebody's sea country? This is between here and McCluer? --- Yes. I been tell you about that story. You know that story. You told me, but I want you to tell everybody else? --- That like little tide, you know, little water. Little water for Aborigine. For Aborigine, that one. Government - you see that outside over there? Outside? --- Yes, outside. That for Government, that one. All right. You are pointing to the north and to the east at about 40 degrees. You say that is outside and that is Government? --- Outside Government, but that tide, he come in like that, here another island here, come in like that, in another island here, like poke it, you know. That is number 4, Oxley. And whose country are those islands? You are tapping your chest. And whose country is the water between those islands? --- That's my water. That is your water? --- My water. He go to Cape Croker." (Passages emphasised in the Commonwealth's submission). 266 We have examined the detail of the evidence relied upon by the Commonwealth, but we cannot accept the Commonwealth's contention. 267 As has been noted, the Commonwealth does not seek a new trial on this aspect; instead, it urges that another inference, different from that drawn by his Honour, should be drawn by the appellate bench. There are obvious difficulties in accepting this as an appropriate course. The main one is the relative advantages plainly enjoyed by a trial Judge in litigation where, as here, the issues depend substantially upon the explication to the Court of the elements of a complete oral tradition. An important consideration here is that in the process of explication, it can be difficult for a witness to convey meaning in a language which is not a primary one, a matter mentioned by his Honour (at 560). Specifically, on the present point, as the trial Judge noted (at 574), at least one witness was confused by the form of the cross-examiner's question. In such circumstances, in particular, the trial Judge must be in a better position than an appeal court to understand the significant nuances of the testimony given. Of course, if the factual finding under appeal is of the kind described in Devries or in Earthline, above, it will justify appellate intervention. But that is not this case. True, the precise location of the eastern boundary was, as his Honour said, not the subject of specific or direct evidence. Yet, in his view, there was evidence, albeit generalised, from which a boundary might be inferred. The question then was essentially one of fact and degree, a matter for the Judge to determine on all the relevant material, complex as it was, before him. Having been now taken to the detail of that material, we are not persuaded that his Honour's inference was the wrong one.

ORDERS ON THE APPEALS 268 In the result, in our opinion, both appeals fail. 269 On the question of costs, each side has had a measure of success, and of failure. In the circumstances, it is appropriate that there be no order for the costs of either appeal.

270 The formal orders we propose are: 1. Appeals dismissed. 2. No orders for the costs of the appeals.

I certify that the preceding two hundred and seventy (270) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Justice Beaumont & Justice von Doussa.

NORTHERN TERRITORY DISTRICT REGISTRY DG 6005 of 1998

NT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION

AND: THE NORTHERN TERRITORY OF AUSTRALIA AND OTHERS

(e) Exclusive possession, occupation, use and enjoyment 7

(i) Recognition, Extinguishment and Other Related Issues 8

5. NATIVE TITLE RIGHTS AND INTERESTS - THE TERRITORIAL SEA 36

(iii) Sovereignty and Jurisdiction - the territoriality principle 68

(e) Native Title and Crown Sovereignty in respect of the territorial sea 73

6. NATIVE TITLE RIGHTS AND INTERESTS - INTERNAL WATERS 79

(c) Inconsistency between native title and common law rights 93

8. NATIVE TITLE TO AN EXCLUSIVE OR SEVERAL FISHERY 97

The fisheries legislation 139 Extinguishment cases 142

1. INTRODUCTION 271 The present matter involves two appeals against the judgment and orders of the primary Judge (Olney J) pursuant to which his Honour, exercising the jurisdiction conferred on the Court under s 81 of the Native Title Act 1993 (Cth) ("the NTA"), made a determination of native title: see Yarmirr v Northern Territory (1998) 82 FCR 533 and Yarmirr v The Northern Territory [1999] FCA 1185 (Olney J, supplementary reasons, 4 September 1998). The matter before Olney J and the appeals are governed by the NTA prior to its amendment by the Native Title Amendment Act 1998 (Cth). 272 The determination of Olney J was that native title exists in the sea and seabed in certain offshore areas in the vicinity of Croker Island in the Northern Territory ("the claimed area"). The native title is held by the Aboriginal peoples who are the yuwummuru (patrilineal estate group) members of the Mandilarri-Ildugij, Mangalara, Murran, Gadura-Minaga and Ngaynjaharr clans ("the claimant group"). 273 The claimed area excluded lands to the low water mark and reefs in Arnhem Land which had been granted under a deed of grant dated 30 May 1980 to the Arnhem Aboriginal Land Trust for the benefit of the Aboriginal people pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act") but included the seas (including the seabed) which adjoin Croker Island, Manburrwa (Oxley Island), Gurrmurl (New Years Island), Gurrbalud (Lawson Island), Injurranggan (McCluer Island), Wurrulja (Grant Island), and other related islands, and also adjoin a portion of the mainland extending between De Courcy Head and the commencement of the Cobourg Marine Park near Guialung Point. 274 Olney J rejected the claim of exclusive possession in respect of the claimed area but determined that the claimant group was entitled, in accordance with traditional law and customs, to: · fish, hunt and gather within the claimed area to satisfy personal and communal needs; · have access to and travel within the claimed area for those purposes and for the purpose of observing or protecting cultural, ritual and spiritual laws and customs. 275 The Commonwealth of Australia, supported by the Northern Territory and the other respondents ("the fishing industry parties") at the trial (who I compendiously refer to as "the respondents"), has appealed against the determination primarily on the ground that native title in the offshore areas claimed is not recognised or protected under Australian law. Save for a challenge by the Commonwealth to any native title in an area to the north-east of New Year Island the respondents do not challenge the findings of fact on which the non-exclusive native title, that Olney J determined exists and is possessed by the claimant group, was based. The claimant group has appealed against his Honour's rejection of the claim to exclusive possession of the claimed area.
2. THE ISSUES BEFORE THE PRIMARY JUDGE 276 It is appropriate, at the outset, to summarise the conclusions reached by Olney J on the major issues determined by him. (a) Native title offshore 277 Olney J rejected the Commonwealth's contention that native title is not capable of being recognised and protected under the NTA in respect of the sea, seabed, subsoil and airspace above the seas and reefs beyond the limits of the Northern Territory. His Honour construed the NTA, and in particular s 223(1)(c), as not confining native title to the onshore areas where the common law of Australia applies (82 FCR 547-551). 278 His Honour (82 FCR 550) stated: "In confirming the application of the Native Title Act in relation to the coastal sea and extending its effects to all waters over which Australia asserts sovereign rights Parliament has indicated a specific intention to recognise that native title rights, if proved, are capable of recognition in relation to those seas and waters. Section 6, coupled with recognition of native title accorded by s 10, namely recognition 'in accordance with this Act,' supports the proposition that the legislative intention was to provide a statutory basis for recognition offshore. Indeed, consistent with the established learning on the subject, the only way in which Australian law can apply to an offshore area is by legislative enactment." (b) The limits of the Northern Territory 279 Although it was unnecessary for Olney J to determine this issue as a result of his conclusion that native title in offshore waters, if proved, is a statutory title under the NTA, his Honour (82 FCR 558) found that the territorial limits of the Northern Territory within the claimed area included the waters of Mission Bay but otherwise extended to, but not beyond, the mean low water mark of the coast line of the islands in the claimed area and the mainland adjoining that area. (c) The claimant group's "sea country" 280 Olney J (82 FCR 574 - 575) stated: "There is abundant evidence that members of the Croker Island community use waters within the claimed area to catch fish, hunt for and catch turtle and dugong and collect oysters and crustacea, both for personal consumption and for use in relation to ceremonial activities. Some senior applicants have personal experience of travelling to the more remote islands in the claimed area. There is credible oral history of the ancestors of the present members of the community having done likewise." 281 His Honour was prepared to infer that, in the absence of contradictory evidence or challenge to the credit of the witnesses, the waters within the claimed area comprised either the whole or part of the sea country of one or other of the several yuwurrumus comprising the claimant group. (d) Ownership 282 Olney J (82 FCR 576) rejected the claim to "ownership" saying: "Native title can only be understood as a combination of rights and interests. Unless 'ownership' is described by reference to the incidents which attach to it, the term adds nothing to understanding the nature of the claim except to indicate that the rights and interests in question attach to a particular group of people. For example, when witnesses spoke of certain land and sea being 'my country' or 'Mandilarri-Ildugij country' they identified the right holders and in ordinary parlance may be understood as saying 'I own that country' or 'The Mandilarri-Ildugij yuwurrumu owns that country'. Statements of that kind, in the absence of anything else, do not seem to be an assertion of the type of dominion over the country that might normally be associated with ownership in its most absolute form."

(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.

(a) Blackstone 578 Support for the Blackstone approach to a native title right is contained in the judgments in Mabo of Brennan J (at 34-35) and Deane and Gaudron JJ (at 79). Utilising, inter alia, Blackstone's theory of the adaptation of the common law to the circumstances of a new colony, their Honour's concluded that the Crown's radical title under the common law is burdened by pre-existing native title. It seems to be entirely consistent with that reasoning that the prima facie right of the public to fish, as with the Crown's radical title, be subject to pre-existing native title rights to a several fishery. 579 The passage from Blackstone relied upon in Mabo, was cited with approval by Lord Watson, delivering the judgment of the Privy Council in Cooper v Stuart (1889) 14 App Cas 286 at 291-292. Lord Watson observed that in circumstances where the colonial powers had not legislated for the particular application of the English common law or statute, the law of England must prevail, until it is abrogated or modified by ordinance or statute, 'in so far as it is reasonably applicable to the circumstances of the colony' or 'insofar as [the] law could be justly and conveniently applied to [the colonies]'. See also The Lauderdale Peerage (1885) 10 App Cas 692 at 745-746 per Lord Blackburn. 580 Although English common law rules were applied in the American states (see Adams v Pease (1818) 2 Conn 481; Loreman v Benson (1860) 8 Mich 18 and Scott v Wilson (1825) 3 NH 321) in some jurisdictions the common law was modified to be made "convenient and adapted to the circumstances of the country" (see for example Morris's Lessee v Vanderen (1782) 1 Dall 64 per McKean CJ at 66). 581 In Australia, the passage in Blackstone was accepted as applying where it was "impracticable to adopt British law to meet the exigencies of colonial society": see for example Rex v Farrell (1831) 1 Legge 5 at 16-17 per Dowling J. Nevertheless, courts have been reluctant to take the step of refusing to import common law principles: see generally Castles, "The Reception and Status of English Law in Australia" (1963) 2 Adelaide Law Review 1 at 9. However, it is accepted that importation of a particular principle of the common law as part of the law of a newly settled colony can be refused if there is some "solid ground" to establish that the principle is inapplicable to the conditions there: see Leong v Chye [1955] AC 648 at 665. By way of example it was recently noted in Yanner v Eaton at 267 that rights such as "warren" and "piscary" had "never made the journey from England to Australia". 582 In State Government Insurance Commission v Trigwell (1979) 142 CLR 617 Gibbs J (at 625) citing Blackstone, affirmed the decision of Delohery v Permanent Trustee Co of NSW (1904) 1 CLR 283 at 310-311 in which it was held that: "…in considering whether a particular rule of law was introduced into a colony on its settlement, the question is not whether the law is a beneficial or convenient one, but whether its administration or application was practicable having regard to the conditions existing in the colony." 583 Gibbs J further stated (at 626): "The reasons for the [common law] rule are then less important than the nature of the rule itself, and the rule will only be held not to have been imported into the territory if there is some 'solid ground' to establish that it was inapplicable to the conditions there: Leong v Chye … As Professor Castles has pointed out in an article entitled 'The reception and Status of English Law in Australia' … in practice the Australian courts have been disinclined to take into account special local conditions in deciding whether the general principles of unenacted law should apply. The cases in which a principle of the common law has been held inapplicable to a settled colony are relatively few … The presumption, at least, is that the entire fabric of the common law, not shreds and patches of it, was carried with them by the colonists to the newly occupied territory." 584 Similarly, Mason J (at 634) stated: "It is a well-established principle that, in settled colonies, so much of the common law of England is introduced as is applicable to the situation of the colonists and the condition of the colony (see Halsbury's Laws of England, 4th ed., vol. 6, p. 589; Cooper v. Stuart). The applicability of the law in question depends not upon whether the court considers the law suitable or beneficial for the colony, but upon whether the law is capable of application in the colony (Delohery v. Permanent Trustee Co. of N.S.W.)." 585 In Dugan v Mirror Newspapers (1978) 142 CLR 583 at 589-590 Gibbs J, after citing Blackstone, warned against determining the applicability of a rule of the common law to an infant colony by reference to 'modern notions'. His Honour (at 591) stated that such a course would 'lead to a dangerous uncertainty as to matters of fundamental principle' and continued: "The words 'suitable or unsuitable' in this context may be liable to mislead, and I would prefer to state the test as being whether the law could reasonably be applied in the conditions of the colony. A law will fail to meet that test if it relates to 'matters and exigencies peculiar to the local condition of England." (Nelan v Downes (1917) 23 CLR 546 at 551) 586 Accepting the caution expressed in the cases about adjustment of the common law to the "conditions" in the newly settled colony, the actual decision in Mabo affords "solid ground" for concluding that the public right to fish in an area of waters in newly settled colonies is to be subject to any pre-existing native title right or interest in a several fishery that met the conditions laid down in Mabo for its recognition. In such circumstances, consistently with the reasoning and decision in Mabo, the common law right of the public to fish could not "practicably", "reasonably" or "justly and conveniently" be exercised or applied in the area of a pre-existing Aboriginal several fishery. Thus, the common law imported into the area of the tidal waters of the colony, or into the area of the territorial sea over which Australia has sovereignty, adjusts so that the public right to fish in those areas is subject to and qualified by any pre-existing native title rights to a several fishery. However, these conclusions assume that exclusion of the public right to fish in the area of a several fishery does not fracture a skeletal principle of the common law. Although the Commonwealth contends, correctly in my view, that the protection of private rights of fishery prior to Magna Carta can have no application in Australia in the same way as they had no application in British Columbia (Attorney-General (British Columbia) v Attorney-General (Canada) at 170-171) the Blackstone approach can overcome that difficulty. In that regard the more basic question is whether a helpful analogy can be drawn between pre-existing native title to a several fishery and pre-existing private rights by prescription or custom to a several fishery notwithstanding that each right is qualitatively quite different. 587 The primary similarity between prescription and custom prior to Magna Carta is that both require evidence of continuous user or possession. The primary distinction between the two concepts is that a claim for an interest by prescription is personal, whereas a claim by custom is local in nature: see Halsbury's Laws of England (4th ed) Vol 12 at [403]-[404]. Some cases suggest that prescription at common law also differs from custom in that it is based on a presumed grant before the time of legal memory, but since lost or destroyed: see Lockwood v Wood (1844) 6 QB 50 at 64-65 per Tindal CJ. 588 In De Jure Maris, Lord Hale stated that a subject could acquire an exclusive interest in the sea in two ways (see ch 5). The first was by way of Crown charter or grant, and the second: "…is that which is acquired or acquirable to a subject by custom or prescription; and I think it very clear, that the subject may by custom and usage or prescription have the true propriety and interest of many of these several maritime interests, which we have before stated to be prima facie belonging to the king." 589 In Blundell v Catterall, Holroyd J at 294 accepted that an exclusive fishery could be created by custom prior to the Magna Carta: "By the common law, all the King's subjects have in general a right of passage over the sea with their ships, boats, and other vessels, for the purposes of navigation, commerce, trade, and intercourse, and also in navigable rivers; and they have also, prima facie, a common of fishery there; but they may be excluded from the latter right, though not now by charter, at least by immemorial custom or prescription." 590 Viscount Haldane LC, delivering judgment for the Privy Council in Attorney-General (British Columbia) was equivocal about the basis of exclusive fishing rights referring to the passage in De Jure Maris. Viscount Haldane LC said (at 170-1): "This passage refers to certain special cases of which instances are to be found in well-known English decisions where separate and exclusive rights of fishing in tidal waters have been recognized as the property of the owner of the soil. In all such cases, the proof of the existence and enjoyment of the right has of necessity gone further back than the date of the Magna Charta. The origin of these rare exceptions to the public right is lost in the darkness of the past as completely as the origin of the right itself." 591 Nevertheless, there are cases which presume that a several fishery could only have been created by grant from the Crown prior to the Magna Carta, and therefore must be proven on the basis of prescription: see Neill v Duke of Devonshire at 158 per Lord O'Hagan, Malcomson v O'Dea at 618 per Willes J and Neill v Allen (1859) Ir 9 CL 132 at 141-142 per Pigot CB. 592 Whilst it may be an open question as to whether the right of the public to fish was subject to pre-existing custom as well as prescription, I am satisfied that either constitutes an appropriate analogy with pre-existing native title to a several fishery to exclude the prima facie public right to fish in the area of the several fishery at the date sovereignty is acquired by the Crown over internal waters or the territorial sea. Unlike a several fishery, whether established by prescription or custom, native title is recognised by the common law as burdening the Crown's radical title or sovereign rights. As such, I can see no reason why it should not be recognised by the common law as having paramountcy over the public right to fish in the same way as a several fishery established by custom or prescription prior to Magna Carta. Under the Blackstone approach, and for the purposes of the analogy, the relevant date is the date of the acquisition of sovereignty, rather than 1215 which plainly can have no relevance to the colonies. 593 Recognition of the paramountcy of a several fishery established by the customary laws of the indigenous people has received some consideration in the New Zealand, Canadian and United States decisions that were relied upon by the Commonwealth. (b) The New Zealand cases 594 In New Zealand, judicial recognition of an exclusive Maori fishery in tidal waters dates back to the Kauwaeranga case (Native Land Court, 3 December 1870, Chief Judge Fenton; reported in (1984) 14 Victoria University of Wellington Law Review 227). In that case, certain Maori claimants applied to the Native Land Court for a certificate of title to part of the New Zealand foreshore area which was claimed to have been possessed and used exclusively by the claimants and their ancestors for generations for fishing with stake nets and as a private ground for gathering shellfish. 595 After reviewing the authorities and the process by which New Zealand became a British colony, Chief Judge Fenton came to consider whether the claimants had any right, interest or title in the foreshore, and if so, whether the cession of sovereignty to England by virtue of the Treaty of Waitangi had the effect of destroying any such right, interest or title. Chief Judge Fenton (at 240) held that although the claimants had proved "consistent and exclusive use of the locus in quo…from time immemorial" the evidence did not support "a claim in the natives to the foreshore of sufficient value to be turned into an absolute freehold in the soil" (at 244). However, in reliance upon the Second Article of the Treaty of Waitangi, which expressly confirmed and guaranteed certain Aboriginal rights including "…undisturbed possession of their Lands…[and] Fisheries", Chief Justice Fenton granted an "exclusive right of fishing" to the claimants, stating (at 245): "…that there can be no failure of justice if the natives have secured to them the full, exclusive, and undisturbed possession of all the rights and privileges over the locus in quo which they or their ancestors have ever exercised;" 596 Chief Judge Fenton, in considering whether the recognition of an exclusive fishery would be inconsistent with the public right of fishing in tidal waters as recognised by the common law of England and incorporated into New Zealand law, observed (at 243) that in England: "…there are numerous instances of private holdings of maritime properties, such as oyster-beds, right of fishing with stake-nets, right of carrying away sand and shells, and even of cutting seaweed below low-water mark, and others, resembling the right under investigation." 597 Quoting from Lord Hale's De Jure Maris, Chief Judge Fenton emphasised (at 243-244) that (prior to Magna Carta) subjects could gain an interest in a fishery, whether attached or unattached to the soil, by "custom and usage or prescription" and stated: "…accepting the principle that all properties, rights, privileges, or easements of this character are held to be derived from the King, for prima facie they are all his, yet immemorial several use having been proved, the Courts will presume the grant. And in our case the title is older, for the ownership was before the King, and the King confirmed and promised to maintain it." 598 Accordingly, Chief Judge Fenton held that the recognition of an exclusive Maori fishery was not inconsistent with the public right to fish. In coming to this conclusion in Kauwaeranga, Chief Judge Fenton plainly regarded the Treaty of Waitangi as effective to create rights and obligations in the sense that the "King confirmed and promised to maintain" the rights conferred by the Treaty. Subsequently, it has been accepted in New Zealand that the rights and obligations in the Treaty of Waitangi do not have that effect and are not a direct source of legal rights and obligations: see Wi Parata v Bishop of Wellington (1877) 3 NZ Jur R (NS) SC 72, 78; Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308, 325. Notwithstanding that difficulty, the reasoning of Chief Judge Fenton in Kauwaeranga can be independently supported by the decision in R v Symonds (1847) NZ PCC 387, where the Supreme Court recognised the continuity of native title at common law subject to the Crown's exclusive right to extinguish it. The Court regarded the Treaty of Waitangi as declaratory and thereby confirming existing native rights at common law: see Symonds at 390. Thus, although the decision to grant the exclusive fishery in Kauwaeranga could not now be accepted as a legal right flowing from the Treaty it can nevertheless be supported on the reasoning in R v Symonds as a pre-existing native right at common law which is not subordinated to the public right to fish. 599 Kauwaeranga has been cited with approval in a number of New Zealand decisions: see Re The Bed of the Wanganui River [1955] NZLR 419 at 447; Re Ninety Mile Beach [1963] NZLR 461 at 471; Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 at 686-7; Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188; Te Runanga o Muriwhenua Inc v Attorney-General [1990] 2 NZLR 641 at 655. In Te Runanga at 655 Cooke P (at 655) cited Kauwaeranga as authority for the "survival of sea fishing rights". 600 However, some cases have questioned the capacity of the common law to recognise an exclusive fishery as a native title right. In Waipapkura v Hempton (1914) 33 NZLR 1065, Stout CJ said (at 1071-1072): "In the tidal waters - and the fishing in this case was in this area - all can fish unless a specially defined right has been given to some of the King's subjects which excludes others. It may be, to put the case the strongest possible way for the Maoris, that the Treaty of Waitangi meant to give such an exclusive right to the Maoris, but if it meant to do so no legislation has been passed conferring the right, and in the absence of such both Wi Parata v The Bishop of Wellington and Nireaha Tamaki v Baker are authorities for saying that until given by statute no such right can be enforced … Therefore, so far as sea fisheries are concerned…there must, in our opinion, be some legislative provision made before the Court can recognize the private rights, if any, of Maoris to fish in the sea or in tidal waters." 601 This passage is clearly inconsistent with Chief Judge Fenton's judgment in Kauwaeranga. However, it is also clearly inconsistent with R v Symonds, which accepted the common law's recognition of native title in New Zealand until extinguished by the Crown. The continuity of a native title right to fish until it is extinguished by statute has been confirmed in the more recent case of Te Weehi in which Williamson J (at 687-692) declined to follow the decision in Waipapkura. Further, in Te Runanga (at 654) Cooke P described the decision in Waipapkura as "dubious authority" especially after the subsequent exposition by the Privy Council in Amodu Tijani v The Secretary Southern Nigeria [1921] 2 AC 399 of the principle of preservation of native title after cession of sovereignty. 602 The question of the recognition of a Maori several fishery was raised directly in Keepa v Inspector of Fisheries [1965] NZLR 322 in which the recognition of the exclusive fishery in Kauwaeranga was disapproved. The claimants in Keepa, having earlier failed to establish their native ownership of the foreshore in a previous decision of the Court, claimed that they were entitled to take fish from a particular portion of the foreshore by reason of their existing Maori fishing rights, without liability for prosecution under the Fisheries Act 1908. Hardie Boys J rejected this claim on two bases. The first basis was that the grant of a freehold order for land bordering the foreshore established the Crown as owner of the foreshore, extinguishing any customary Maori fishing rights that may have been attached to the land. Hardie Boys J based this finding on comments of FB Adams J in Weepu, who concluded, despite abundant authority to the contrary, that fishing rights were an incident of ownership of the soil, and all rights of fisheries must be regarded as incidents of title to the land. Hardie Boys J in Keepa followed this view without further comment. However, as Williamson J pointed out in Te Weehi (at 690) this ground for the judgment is incorrect, based on the clear authority which recognises that a several fishery over the foreshore does not necessarily carry the soil underneath: see Attorney-General v Emerson [1891] AC 649 at 654 per Lord Herschell and Duke of Somerset v Fogwell (1826) 5 B & C 875. Williamson J noted that it was the exclusivity of the right claimed that appeared to trouble the Courts in Keepa and Waipakura. However, he expressed no further opinion on this as the claim in Te Weehi did not involve any exclusive rights. 603 The second basis upon which Hardie Boys J rejected the claim in Keepa was that the claim would exclude the right of the Crown and other persons to fish in the area, thus constituting an exclusive right. Hardie Boys J explained this in the following terms (at 328): "… the right claimed here must be a claim to a fishing right, over what is now held to be Crown land, held and to be enjoyed exclusively by these two tribes - excluding even the right of the Crown and the subjects of the Crown to enjoy the like right of fishing; it is not merely exemption from prosecution that is involved in the claim: the exemption from prosecution arises, if at all, from a right which must as a matter of history be an exclusive right that makes all others trespassers. That is a claim completely incompatible with the Crown's prerogative rights and completely lacking statutory authority notwithstanding s 77(2) of the Fisheries Act." 604 No attempt was made to explain why such a claim is inconsistent with the Crown's prerogative rights which, as was made clear in R v Symonds and in Mabo, included an exclusive right to extinguish native title. Further, as has already been explained, an exclusive fishery is not a right to exclusive possession and does not exclude the right to navigate. Consequently, the suggestion of trespass is also misconceived. Hardie Boys J also stated the following about the decision in Kauwaeranga (at 329): "Although Chief Justice Fenton in his Kauwaeranga judgment seemed to regard tidal mudflats as included within the term 'fishery' in the Treaty, it is to be noted that he purported to grant native fishing rights on the tidal mudflats of the Thames. If they already were fishing rights vested in the tribes and protected by the Treaty, he would not have required to extricate himself from his difficulties in contemplating the consequences of granting freehold foreshore titles to Maoris by doing anything more than to declare that the fishing rights already existed" 605 Hardie Boys J was incorrect in concluding that Chief Judge Fenton did not recognise existing Maori fishing rights of the claimants. Chief Judge Fenton recognised exclusive fishing rights that had been in existence since time immemorial and therefore were paramount over the common law public right to fish. 606 The observation of Hardie Boys J that, if Chief Judge Fenton had recognised and declared existing fishing rights, "he would not have required to extricate himself from his difficulties in contemplating the consequences of granting freehold foreshore titles to Maoris" also requires further examination. As Hardie Boys J was (of the now incorrect) view that fishing rights were an incident of ownership of the soil, he presumed that recognition of fishing rights necessarily passes title over the foreshore to the claimants. In making these remarks, Hardie Boys J referred to the judgment of North J in In re Ninety Mile Beach, where North J stated in a discussion of Chief Judge Fenton's judgment in Kauwaeranga (at 471): "In the end the Chief Judge extricated himself from his difficulties by purporting to grant the Natives fishing rights in respect of the foreshore but he denied them freehold orders." 607 However, the discussion by North J (at 471) of Chief Judge Fenton's "erudite" judgment and also by TA Gresson J (at 479), did not suggest any disagreement with the decision of the Native Land Court in Kauwaeranga to decline to grant rights in respect of the foreshore but to grant exclusive fishing rights. 608 Most recently in McRitchie v Taranaki Fish and Game Council (1999) 2 NZLR 139 at 158 Thomas J, although in dissent in the result on a different point, stated of the above cases: "Williamson J's decision reversed the restrictive approach of earlier Courts which the judiciary now bear with ignominy and discomfiture. The earliest cases such as R v Symonds (1847) NZPCC 387; the Kauwaeranga case (1870) reported in (1984) 14 VUWLR 227; and Re 'The London and Whittaker Claims Act 1871' (1872) NZ 2 CA 41, were benevolent in recognising customary rights unless they had been destroyed by statute. But they were followed by a series of cases which withheld recognition of such rights unless they had been confirmed by statute. The departure began with the unsatisfactory decision in Wi Parata v The Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72, and was followed this century by Waipapakura v Hempton (1914) 33 NZLR 1065; Inspector of Fisheries v Ihai Weepu [1956] 920; and Keepa v Inspector of Fisheries [1965] NZLR 322. But Te Weehi is now universally celebrated as a landmark decision and a key turning point in jurisprudence in this area, and it would be disappointing if the authority and spirit of that case is not perpetuated." 609 In my view the reasoning of the Chief Judge Fenton in Kauwaeranga is consistent with the conditions laid down in Mabo for recognition of native title and is to be preferred to the more general observations made in Waipapkura and Keepa that native title rights to an exclusive fishery can only be conferred by legislation. Thus, although the question of a native title right to an exclusive fishery may still be awaiting an authoritative determination in New Zealand, the reasoning in Keepa and Weepu does not persuade me that such an entitlement cannot be recognised by the common law. 610 In his article on "Aboriginal Rights, Magna Carta and Exclusive Rights to Fisheries in the Waters of Upper Canada" (1998) 23 Queen's Law Journal 301 at 349 Mark Walters suggests that the Kauwaeranga case supports the following line of reasoning: "…the common law recognizes a public fishing right in tidal waters and it denies the validity of Crown grants of exclusive fisheries after the reign of Henry II, but it also recognizes the continuity of Aboriginal rights, and if, as a matter of fact, an exclusive Aboriginal fishery already existed at the time British sovereignty was asserted and English law was introduced, then, as a matter of common law, that fishery was not extinguished or modified by the public right, but continued in force and was capable of confirmation by the Crown by prerogative instrument. This approach is sound because, as seen, the public fishing right was, at common law, only a prima facie right rebuttable by proof of a lawful several fishery. In England, a several fishery supported by usage or Crown grant dating from the reign of Henry II rebutted the public right. In colonial territories, however, this sort of requirement is meaningless. In a legal sense, any exclusive fishing right exercised just prior to the Crown's assertion of sovereignty is, as Kauwaeranga states, 'older' than that (or any other) date of legal memory because it pre-dates the arrival of the Crown and of English law. Thus, the principle of continuity gives exclusive native fisheries a lawful foundation - a common law foothold - sufficient to rebut the prima facie public right." 611 Walters' reasoning in respect of a native title claim to an exclusive fishery is consistent with the conditions laid down in Mabo for the recognition by the common law of such a claim.

(c) Aboriginal Fishing Rights in Canadian Law 612 The Commonwealth placed strong reliance on several Canadian decisions in support of its contention that an exclusive native title right to fish would not be recognised by the common law as it conflicts with the public right to fish. The Canadian cases relied upon mainly relate to challenges by indigenous persons to the validity of government regulations controlling their traditional fishing rights. The regulations were said to infringe the Aboriginal "rights" protected by s 35(1) of the 1982 Canadian Constitution which provides: "The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognised and affirmed." 613 An Aboriginal "right" relates to an activity that is an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right: see R v Van der Peet at 310. 614 There are few Canadian cases that have dealt specifically with the question of the recognition of exclusive Aboriginal fisheries. In R v Nikal [1996] 1 SCR 1013 and R v Lewis (1996) 133 DLR (4th) 700 exclusive Aboriginal fisheries were asserted in respect of fisheries in rivers. The cases do not concern exclusive fisheries in existence prior to European settlement, but relate to fisheries which the Aboriginal appellants asserted were granted by reserve commissioners. In both cases the Supreme Court held that it was not the policy of the Crown to grant exclusive fishing rights to Aboriginal people as part of reserves - the policy permitted them to exercise their right to fish, but did not accord them any special status. In the course of the judgments in these cases, the Supreme Court stated that the Aboriginal fishing rights asserted could not be exclusive, as they must be subject to the public right of fishing (and navigation). However, these comments were made on the basis that the appellants were arguing that the Crown had granted exclusive fisheries to them, and as discussed above, it is clear that since the Magna Carta exclusive fisheries cannot be granted other than by statute. 615 Other Canadian cases that have dealt with the issue of Aboriginal fishing rights are of a rather different nature. Generally, they involve a challenge to government regulations controlling Aboriginal fishing rights. For example, R v Sparrow [1990] 1 SCR 1075 involved a challenge to a regulation, under which the Aboriginal appellant was charged, which limited the way in which a right to fish for food under an Indian food fishing licence could be exercised. In R v Gladstone (1996) 137 DLR (4th) 648, a regulation was challenged that prohibited the sale of fish caught without the authority of a specific licence. In R v Van der Peet, the regulation which was challenged prohibited the sale of fish caught under an Indian food fish licence. The challenged regulation in R v Adams (1996) 138 DLR (4th) 657 prohibited all fishing without a licence, as did the regulation in R v Cote (1996) 138 DLR (4th) 385. 616 These cases were ultimately concerned with the constitutional validity of government regulations controlling Aboriginal fishing rights. In that context, the question of whether an Aboriginal group had an exclusive fishery did not arise - rather, the focus was on determining whether the regulations infringed Aboriginal rights, and if so, whether the infringement could be justified. Aboriginal rights to fish were therefore discussed and defined in this limited context which was explained in R v Sparrow by Dickson CJC and La Forest J writing for a unanimous court. First, it was held that the Aboriginal claimant must show that he or she was acting pursuant to an Aboriginal right. Second, the Court must determine whether this right is an "existing" right or whether it has been extinguished. Third, the Court must determine whether that right has been so interfered with as to represent a prima facie infringement of s 35(1). Finally, the Court must determine whether this prima facie interference was justified. In R v Sparrow the right in question was characterised as an Aboriginal right to fish for food purposes and for social and ceremonial activities. There was no suggestion in R v Sparrow that the Aboriginal right to fish for food was claimed as an exclusive right. 617 Referring to the decision of the Supreme Court in Jack v The Queen, the court in R v Sparrow confirmed the following guidelines for allocating the priorities in a fishery for the purpose of determining whether the regulations were justified: (i) conservation; (ii) Indian fishing; (iii) non-Indian commercial fishing; and (iv) non-Indian sports fishing. Thus, after valid conservation measures, the first priority is to be given to Indian food fishing rights. The Court said the following about the significance of giving the Aboriginal right to fish for food priority in this way (at 414): "If, in a given year, conservation needs required a reduction in the number of fish to be caught such that the number equalled the number required for food by the Indians, then all the fish available after conservation would go to the Indians according to the constitutional nature of the fishing right. If, more realistically, there were still fish after the Indian food requirements were met, then the brunt of conservation measures would be borne by the practices of sport fishing and commercial fishing." 618 The appellants in R v Gladstone were convicted at trial of attempting to sell herring spawn on kelp not caught under the authority of a specific licence, contrary to British Columbia fishery regulations. The appellants' primary defence was that the fishery regulations unjustifiably infringed their Aboriginal rights as recognised and affirmed by s 35(1) of the Constitution. The Aboriginal right that was asserted by the appellants, and accepted by the majority of the Court, was the right to exchange herring spawn on kelp for money, on a scale characterised as commercial. The Court alternatively characterised this right as a right to fish commercially. Accordingly, the appellants were not claiming an exclusive right to fish in tidal waters, or an underlying claim to the soil, but merely a right midway on the spectrum of Aboriginal rights, to harvest herring spawn on kelp in certain areas for commercial purposes. 619 In the context of determining whether or not the appellant's Aboriginal right to fish survived the justification test in s 35(1) of the Canadian Constitution, Lamer CJC (at 673) affirmed the priorities articulated in R v Sparrow for determining whether government actions infringing Aboriginal rights can be justified. However, Lamer CJC held that where an Aboriginal right to fish has no internal limitation (such as a right to fish commercially; cf a right to fish for sustenance, which is limited to food needed to sustain the group), that right should be limited so that it does not become an exclusive right. Lamer CJC held that whilst such rights should be given priority, such priority is something less than exclusive. In that context Lamer CJC (at 679) considered the effect of s 35(1) on the public right to fish in tidal waters: "It should also be noted that the Aboriginal rights recognized and affirmed by s 35(1) exist within a legal context in which, since the time of the Magna Carta, there has been a common law right to fish in tidal waters that can only be abrogated by the enactment of competent legislation: …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. [I]t has been unquestioned law that since Magna Carta no new exclusive fishery could be created by Royal grant in tidal waters, and that no public right of fishing in such waters, then existing, can be taken away without competent legislation. [Attorney-General for British Columbia v. Attorney-General of Canada, [1914] A.C. 153 at pp. 169-70, 15 D.L.R. 308 (J.C.P.C.), per Viscount Haldane.] While the elevation of common law Aboriginal rights to constitutional status obviously has an impact on the public's common law rights to fish in tidal waters, it was surely not intended that, by the enactment of s 35(1), those common law rights would be extinguished in cases where an Aboriginal right to harvest fish commercially existed. As was contemplated by Sparrow, in the occasional years where conservation concerns drastically limit the availability of fish, satisfying Aboriginal rights to fish for food, social and ceremonial purposes may involve, in that year, abrogating the common law right of public access to the fishery; however, it was not contemplated by Sparrow that the recognition and affirmation of Aboriginal rights should result in the common law right of public access in the fishery ceasing to exist with respect to all those fisheries in respect of which exist an Aboriginal right to sell fish commercially. As a common law, not constitutional right, the right of public access to the fishery must clearly be second in priority to Aboriginal rights; however, the recognition of Aboriginal rights should not be interpreted as extinguishing the right of public access to the fishery. That this should not be the case becomes particularly clear when it is remembered that, as was noted above, the existence of Aboriginal rights varies amongst different Aboriginal peoples, with the result that the notion of priority applies not only between Aboriginals and other Canadians, but also between those Aboriginal peoples who have an Aboriginal right to use the fishery and those who do not. For Aboriginal peoples like the Sheshaht Opetchesaht and the Sto:lo, the fact that they were unable to demonstrate that their Aboriginal rights include the right to sell fish on a commercial basis should not mean, if another Aboriginal group is able to establish such a right, that the rights they hold in common with other Canadians - to participate in the commercial fishery - are eliminated. This could not have been intended by the enactment of s.35(1)." 620 I have set out the reasoning in some detail as the Commonwealth contends that R v Gladstone confirms its contention that any native title right to an exclusive fishery is subordinated to the public right to fish and as a consequence would not be recognised by the common law. However, the Court in R v Gladstone was not concerned with a claim or right to an exclusive fishery or with the question of whether the common law can recognise native title to an exclusive fishery. R v Gladstone was concerned with the disinclination of the court to give such priority to Aboriginal commercial fishing rights in the justification test required for determining validity under s 35(1) of the Canadian Constitution that the public right to fish is thereby negated. 621 Similarly, R v Van der Peet provides little assistance in the present context in relation to the potential recognition of exclusive Aboriginal fisheries. The primary issue determined in that case was whether the commercial fishing right asserted was an existing Aboriginal right under s 35(1). 622 The Canadian cases, but in particular R v Gladstone, are at best for present purposes confirmatory of the importance to be attributed to the long established public right to fish that, since Magna Carta, could only be abrogated by legislation where the right exists. As none of the cases considered an Aboriginal claim to an exclusive fishery they cannot be treated as determining whether the public right to fish is or is not to be subordinated to an Aboriginal native title right or interest to an exclusive fishery or, put another way, whether the public right to fish exists in the area of an exclusive or several Aboriginal fishery. 623 The Canadian cases establish that, as a result of s 35(1) of the Canadian Constitution, if a non-exclusive Aboriginal right to fish is regulated, in determining the justification of the regulation, the right will generally take priority over all interests except conservation but not so as to confer exclusivity in practice. Thus, where a non-exclusive Aboriginal right to fish has no internal limitation (such as a right to fish commercially) it will be more susceptible to regulation. Further, it was only recently in R v Delgamuukw that the Canadian courts accepted a claim of Aboriginal title conferring rights of exclusive occupancy of the lands in question. Thus, notwithstanding extensive litigation in Canada over the nature and extent of the protection given to Aboriginal rights by s 35(1) of the Constitution, the courts have not been required to consider, let alone determine, a claim akin to an exclusive fishery. 624 Finally, the different Canadian context in respect of Aboriginal title and rights litigation limits the utility of the Canadian decisions on native title in Australia. Whilst the decisions can be of considerable assistance as to the manner in which evidentiary, procedural and some definitional questions might be approached, the Canadian constitutional context results in the utility of the cases diminishing when they are sought to be relied upon on substantive issues relating to common law recognition of native title in Australia. (d) United States cases 625 The Commonwealth also relied on decisions in the United States rejecting native title claims to exclusive use of parts of the sea. However those cases are also of limited utility in the Australian context as they are primarily founded upon the federal paramountcy doctrine under which the United States government, rather than the States, had paramount rights in, and exclusive sovereignty in respect of, the territorial sea and its solum. Thus, State property interests in the territorial sea could not be recognised by reason of the doctrine. 626 The Supreme Court of the United States in United States v Texas 339 US 707 (1950) held that any claim Texas had to property rights in respect of the sea beyond the low water mark was so subordinated to the rights of federal sovereignty as to follow that sovereignty. Thus, property rights had coalesced and united in the national sovereign. 627 On the same basis unextinguished native title property interests in respect of the sea were held to be inconsistent with the paramount federal sovereignty and rights over the sea: see Inupait Community of the Arctic Slope v United States 548 F Supp 182 (1982); Native Village of Eyak v Trawler Diane Marie Inc 154 F3d 1090 (9th Cir 1998). In Eyak the 9th Circuit Court of Appeals accepted that, although limited assertions of Aboriginal subsistence rights may exist concurrently with a federal paramount interest in the sea without undermining that interest (Village of Gambell v Hodel 869 F2d 1273 (9th Cir 1989), an assertion of exclusive rights of use, occupancy, fishing and exploiting of the waters was repugnant to the paramountcy doctrine and could not be granted. 628 As unextinguished native title is recognised by the common law in Australia to burden the Crown's radical title or sovereign rights in respect of the sea the paramountcy doctrine operating in the United States, as such, appears to be inapplicable to a native title claim in Australia. Any doubt on that issue is resolved by the enactment of the NTA, which recognises and protects native title established to exist in the territorial sea. Thus, the concept of inherent inconsistency between a claim to native title, which is in the nature of a property or exclusive interest, and federal paramountcy in respect of the territorial sea is not applicable in Australia. (e) Conclusions 629 The authorities establish that a several fishery is subject to, and does not conflict with, the rights of innocent passage and of navigation. Therefore, a several fishery does not conflict with the skeletal principle of freedom of the seas. Further, as explained, Australia's sovereignty in respect of the territorial sea entitled Australia to exercise exclusive sovereign rights in respect of fishing in that area. Thus, native title can burden the Crown's sovereign rights by a several fishery in much the same manner as a several fishery established by prescription or custom "burdened", or put more accurately, limited the Crown's prerogative rights prior to Magna Carta. 630 For the reasons set out a native title right to a several fishery in respect of a discrete area of waters, whilst inconsistent with the common law right of the public to fish, does not fracture any skeletal principle of it or of the legal system and is not so repugnant to natural justice, equity or good conscience that it ought not be recognised. As explained above, inconsistency was inherent in the common law's recognition of native title and is not, of itself, a ground for refusing recognition. The adaptability of the common law to enable it to recognise a pre-existing native title and the established exceptions to the public right to fish, resulting in it being described as a "prima facie" right rather than an absolute or unqualified right, lead me to conclude that recognition by the common law of a native title right to an exclusive fishery if proved, accords with the conditions laid down in Mabo for the recognition by the common law of native title rights and interests. Accordingly, I do not accept that principle or public policy mandate non-recognition by the common law of native title to a several fishery. 631 Finally, the Commonwealth contended that native title rights cannot be greater than or exceed the Crown's sovereign rights. As the Crown has not had the right to grant a several fishery since the Magna Carta the Commonwealth contends that its sovereign rights cannot be burdened by a native title several fishery it has no power to grant. There are several answers to the contention. As the Crown has exclusive sovereign rights in respect of fishing in the territorial sea, native title, by merely burdening the rights, does not exceed those rights. Further, native title is not granted; it is a pre-existing right which is recognised by the common law. As native title is a burden upon the sovereign rights acquired by the Crown no question arises as to the Crown's capacity to grant a native title several fishery which having survived the change of sovereignty, continues to exist as a right recognised by the common law in Australia. Thus, even if there was no power to grant a several fishery at common law that is no reason for the common law to refuse to recognise a native title several fishery as surviving and thereafter burdening the Crown's sovereign rights. 632 For present purposes I need go no further than conclude that, contrary to the view expressed by Olney J the common law can recognise a native title right to or interest in a several or exclusive fishery in the claimed area, if proved. 9. APPELLATE CAUTION 633 The trial commenced at Croker Island on 22 April 1997. After evidence was heard at various sites on the Island and on several adjacent islands during 1997. The trial concluded in Darwin on 23 April 1998 after extensive written oral submissions. The trial was conducted in a manner which took account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders and without the Court being bound by technicalities, legal forms or rules of evidence: see s 82 of the NTA. 634 A number of Aboriginal witnesses gave evidence on more than one occasion, and at more than one place, with cross-examination being delayed until after the evidence in chief of all such witnesses had been completed save for some limited exceptions. Nineteen Aboriginal witnesses gave evidence during the sittings at Croker Island. It is clear from evidence referred to in his Honour's reasons, and also evidence referred to by the parties during the course of the appeal, that, without fault on anyone's part, a number of the Aboriginal witnesses had some difficulty in being able to communicate to the Court the evidence they wished to give. The applicants also called a linguist and two anthropologists. The applicants put in evidence and relied upon a variety of documents including published articles and commentaries in respect of observations made by explorers and others in the late 19th and early 20th Century. 635 The Northern Territory called one witness who was the then acting deputy director, fisheries division, in the Northern Territory, Department of Primary Industries and Fisheries and tendered a number of exhibits. The Commonwealth did not call any witnesses but relied upon several witness statements which were tendered without objection and on a considerable volume of documentary material. The fishing industry parties called three witnesses and tendered a number of witness statements, without objection, as well as other exhibits. 636 Olney J (82 FCR 560-563) said the evidence adduced on behalf of the claimant group was for the most part, unchallenged. His Honour accepted the evidence of the Aboriginal witnesses as credible, particularly that relating to the oral history and traditions of the claimant group and of genealogical connections and family relationships. Olney J said that evidence can be relied upon with some confidence. Olney J also observed that the anthropological evidence relied upon by the claimant group was virtually unchallenged and served the very useful purpose of providing the contextual background upon which the oral testimony of the claimant group's witnesses can be better understood. Subject to certain reservations, which are not presently relevant, Olney J said the anthropologist's report provided an informative background to the oral testimony of the other witnesses and assisted the Court's understanding of the cultural significance of much of that evidence. 637 Although there may have been little dispute as to the facts as the primary facts were not in dispute, there is nevertheless a need for appellate caution before a different view is taken of the trial Judge's evaluation of the facts. As was said by Lord Hoffman (with the agreement of all other members of the House of Lords) in Biogen Inc v Medeva plc [1997] RPC at 145: "The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation." 638 See also Esso Australia v Commissioner of Taxation (1998) 84 FCR 541 at 544. 639 In the present case there is the added difficulty that the trial Judge's evaluation of the facts is premised upon a plethora of factors which influenced his understanding and impressions of: · the evidence given by the Aboriginal witnesses at various locations; · the extensive documentary material; · the relationship between that evidence and material and the sites to which they relate. 640 The above matters resulted in the trial Judge in the present case being in a situation of unique advantage over an appellate Court in his evaluation of the facts. In these circumstances the respondents have an onerous task in persuading the appellate court that the trial Judge has "failed to use or palpably misused his advantage": see Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 and SRA v Earthline (1999) 160 ALR 588 at 589. 641 I have approached the issues arising in the present appeal with these considerations in mind. 10. NATIVE TITLE TO SEA COUNTRY 642 His Honour made the following findings (82 FCR 563-564) which were uncontroversial, in relation to the system of native title: "The applicants' system of native title has four components: · The estate - the primary spatial unit in which estate groups have native title rights and interests. · The estate group - all those people with native title rights and interests in an estate. · The incidents of title - the native title rights and interests that are held in an estate. · The mechanism of succession - the process by which estate groups threatened by extinction gain new right-holders. An estate is usually made up of a single continuous tract of land and sea but it may have separate smaller tracts as well. No distinction is made between the sea and land components of an estate but as a matter of convenience the sea component of an estate is referred to as the 'sea country' of the relevant estate group. The boundaries of the sea country of an estate are relatively well marked along the shoreline but at sea there is less concern with their exact location. The seaward extent of an estate has no measurable dimension to it but is said to extend as far as the eye can see. Each estate is normally associated with a single group of people, who trace or claim descent through the male line, known as a yuwurrumu. An estate is commonly referred to by the name of the right-holding yuwurrumu. The estate group includes all people who have rights and interests in an estate. These rights and interests are derived from several sources and vary in their significance and strength. Rights from yuwurrumu membership are acquired automatically by birth and are inalienable. They are the most important rights in an estate." 643 Although each estate is normally associated with a single group of people who trace or claim descent through the male line, known as a yuwurrumu, Olney J (82 FCR 565-566) discussed the manner in which succession and rights by way of gift or exchange can give rise to claims of some right in respect of areas which are part of an estate of a different yuwurrumu. 644 Olney J (82 FCR 566-588) outlined the particular portions of the claimed area which formed part of the estates of the yuwurrumu's represented by the applicants and stated that he was prepared to draw the inference: "…that the ancestors of the applicant groups were the indigenous inhabitants of the islands within the boundaries of the claimed area and of the mainland adjacent to the claimed area since a time prior to the first European contact with the area and in particular since prior to the acquisition of sovereignty in 1824 and that those ancestors and their descendants have inhabited the islands and adjacent mainland continuously ever since." 645 In explaining his approach to the communal claim by the claimant group his Honour said (82 FCR 569-570): "Although each estate group asserts traditional rights in respect of discrete areas of land and sea, the members of the several estate groups regard themselves as a single community (hereafter referred to as the Croker Island community) and bring this application on that basis rather than as separate groups or as individuals claiming native title rights and interests in relation to their respective estates. Such an approach was adopted in the declaration made in Mabo (No 2) and is clearly contemplated by the reference in s 223(1) of the Native Title Act to 'the communal, group or individual rights and interests of Aboriginal peoples...'. In Mabo (No 2), Brennan J observed (at 62) that a communal native title enures for the benefit of the community as a whole and for the subgroups and individuals within it who have particular rights and interests in the community's lands." 646 Whilst an issue will usually arise as to the definition of the "community" entitled to possess native title, essentially that is a question of fact. His Honour's decision (82 FCR 569-570) that the claimant group was a "single community" descended from the original inhabitants was plainly open to him on the evidence. 647 His Honour considered the extent of the sea country in respect of which native title rights and interests were claimed (82 FCR 574-575): "There is abundant evidence that members of the Croker Island community use waters within the claimed area to catch fish, hunt for and catch turtle and dugong and collect oysters and crustacea, both for personal consumption and for use in relation to ceremonial activities. Some senior applicants have personal experience of travelling to the more remote islands in the claimed area. There is credible oral history of the ancestors of the present members of the community having done likewise. There is however no direct evidence of the extent seaward to which the applicants and their ancestors have travelled to pursue these activities, and more particularly there is no direct evidence as to what relationship the boundary of the claimed area bears to the areas used. There are however a number of facts from which reasonable inferences can be drawn." 648 His Honour concluded (82 FCR 575): "The western boundary of the claimed area has been fixed arbitrarily, it being the boundary of the Cobourg Marine Park. It is in close proximity to the western coastline of Croker Island. The estates of some of the claimant yuwurrumus extend to Cobourg Peninsula immediately across Bowen Strait from their Croker Island country. There is no doubt that traditionally the relevant groups would have made extensive use of the waters of Bowen Strait both for travel and for fishing. Although the distances are somewhat greater, the same considerations apply in relation to the sea between the southern boundary of the claimed area (which follows the mainland coast from near Guialung Point to De Courcy Head) and the southern portion of the eastern side of Croker Island. About 30 kilometres east of Croker Island there is a line of islands running more or less north and south, they being Oxley, Lawson and Grant Islands. There is evidence that Grant Island has a source of water and that in earlier times was inhabited. It is fair to assume that people travelled the sea between these islands and Croker Island and that they fished the sea. New Year Island is a further 30 kilometres or so north-east of Grant Island and McCluer Island is about halfway between the two. Charlie Wardaga's evidence concerning New Year Island is compelling testimony of a traditional connection with New Year Island and I accept his claim that the reef just to the north of it is part of Mangalara country. It will be recalled that Flinders saw human footprints on the shore of New Year Island in 1803. The eastern boundary of the claimed area appears to be a reasonable representation of the limit to which the sea in that area would have been used. The western portion of the northern boundary of the claimed area comes within about two kilometres of Darmarl Point and passes just to the north of Malajuyi Lablab. It also encloses Somerville Bay. Having regard to Mary Yarmirr's evidence it appears to be a reasonable representation of the extent of the sea country of the Mandilarri-Ildugij yuwurrumu in that area. The balance of the northern boundary whilst no doubt fixed quite arbitrarily, nevertheless appears to be reasonably consistent with the evidence and the other factors to which reference has been made. In these circumstances, in the absence of any contradictory evidence or challenge to the credit of the witnesses, I draw the inference that the waters within the outer boundary of the claimed area comprise either the whole or part of the sea country of one or other of the several yuwurrumus of the Croker Island community." 649 The conclusion that the waters within the outer boundary of the claimed area are within the sea country of one or other of the several yuwurrumu's of the Croker Island community appears to follow from his Honour's acceptance that those boundaries fairly reflect the extent seaward to which the claimant group and their ancestors have travelled to pursue the specific traditional activities within the claimed area that were said to found the native title rights and interests claimed. The Commonwealth challenged his Honour's determination that native title exists in areas to the north and east of New Year's Island, inter alia, on the ground that the evidence did not warrant that finding. 650 There are a number of difficulties with his Honour's approach to the sea country claimed by the claimant group. In order to determine a community's native title claim to land or waters the Court must first determine the content, nature and incidents of that title at the date upon which sovereignty was acquired by the Crown in respect of the particular area of land or waters, as it was only at that date that the common law recognised that pre-existing native title burdened the Crown's radical title or sovereign rights in respect of that area. 651 As explained earlier, Olney J was required to determine the relevant native title rights and interests possessed by the claimant group in respect of different parts of the claimed area at 1824, 1863, 1930 and 1990. The native title rights and interests possessed in accordance with traditional laws and customs of the relevant community at the relevant dates burdened the sovereign rights of the Crown in respect of internal waters and the territorial sea. In that context the changing traditional connection of the claimant group to a particular area of waters or sea prior to the relevant date can result in the content, nature and incidents of the native title that might eventually burden the Crown's sovereign rights also changing depending upon the date as at which that issue is to be determined. However, once the native title rights and interests that burden the Crown's sovereign rights at the relevant date are ascertained the issue then becomes whether those rights or interests still burden the Crown's sovereign rights in respect of the particular area of waters or sea. 652 Olney J concluded (82 FCR 591) that, on the view he had taken, the native title of the claimant group in the present case was a statutory title that "only existed since the Native Title Act came into force on 1 January 1994". Nevertheless, his Honour's view was also that the "whole basis of native title is founded on the exercise of traditional laws and customs from a time before the advent of non-Aboriginal interference" which he determined to be 1824. Accordingly, that became the date selected by his Honour as the date at which any pre-existing native title of the claimant group (from which the statutory title was derived) was to be determined (82 FCR 568, 580, 583, 593). The task that was undertaken by his Honour can be identified from his earlier statements (82 FCR 551, 568) that: · the traditional laws and customs of the Aboriginal peoples and Torres Strait Islanders are the laws and customs that have their origins in Aboriginal society as it existed "prior to the advent of non-Aboriginal interference with that culture and social organisation"; and · the task of the Court was to identify those traditional laws and customs prior to European settlement and determine if they are "currently acknowledged and observed". 653 I would add that the approach of his Honour on this issue was not contentious as the trial was apparently conducted on the basis that if native title to the sea was recognised by the common law or under the NTA, the appropriate time for recognition was when the Crown acquired sovereignty over the Northern Territory, which was accepted to be 1824. However, in the course of the submissions during the appeal a number of more recent dates of recognition were suggested by the parties. 654 The conceptual basis for the approach taken on this issue by the parties and his Honour at trial is not easy to follow. Plainly, 1824 would be the relevant date for determining the date upon which native title burdened the Crown's radical title to land to the low water mark in the claimed area. But, as already explained, the Crown had neither radical title or sovereign rights in respect of any of the bays or gulfs or the territorial sea or its solum within the claimed area, at that date. Accordingly, the conditions laid down in Mabo for recognition of native title by the common law could not be met in respect of Mission Bay or the territorial sea within the claimed area as at 1824, being the date selected by Olney J. 655 One possibility that might have supported 1824 as the relevant date, which was briefly touched upon in argument, was that the relevant laws and customs relating to the sea were acknowledged and observed on land where the common law applied, albeit that they were enjoyed or exercised in the sea. The difficulty with that approach is that it doesn't overcome the requirement that the recognition of native title by the common law and under the NTA, is based upon that title burdening the Crown's radical title or sovereign rights in the area claimed to be the subject of native title. Also, the suggested basis for recognition would constitute recognition of the laws and customs in respect of the sea, rather than of the traditional connection with the sea, which is based on those laws and customs. 656 Further even if, contrary to my view, his Honour's conclusion that native title in respect of the sea was a statutory right first created under Australian law by the enactment of the NTA was correct, the relevant date for determining the nature and incidents of that native title would have been 1 January 1994 (the date of commencement of the NTA) rather than 1824. 657 As the inquiry made in the present case by his Honour was made as to the content, nature and incidents of native title in respect of the whole of the claimed area as at 1824 it must follow that his Honour erred in law in not separately considering and determining the native title that burdened the Crown's sovereignty in respect of the internal waters as at 1824, Mission Bay as at 1863, the three mile territorial sea as at 1930 and the twelve mile territorial sea as at 1990. Although Olney J said (82 FCR 570) that the unchallenged evidence of the senior yuwurrumu members was that the basis of their claims in respect of traditional rights and interests was identified as sourced in "Aboriginal law", understandably in the circumstances, his Honour focused on the traditional laws and customs, and the native title based thereon, which was possessed under that law in respect of the claimed area as at 1824, rather than as at the four different dates required by law in respect of the four areas to which those dates are applicable. His Honour also approached the issue of the present day native title possessed by the claimant group solely by reference to whether those same traditional laws and customs were still acknowledged or observed, rather than by reference to any loss of traditional connection with areas in respect of which native title was possessed by the claimant group. However, as his Honour did not conduct his initial inquiry at the correct dates it is unnecessary to consider whether the importance he attached to present day observance and acknowledgment of the earlier laws and customs might have led him into error. 658 Accordingly, it is necessary to remit the matter to Olney J for further hearing on these issues. Of course, although a number of the dates are recent it is only the traditional connection maintained with the waters since those dates that can found native title. Essentially, that is a question of fact upon which further evidence may be called. It may well be that his Honour might arrive at the same result but, if so, the result will have been arrived at by the requisite questions being addressed. 659 A further difficulty arises in respect of the global approach taken to the native title claim of the claimant group in respect of its sea country. As the sea is not capable of being occupied or possessed native title based upon occupation or possession cannot be determined in respect of the sea. Thus, the approach of the courts in Mabo and Ward to a claim for native title based on occupation or possession cannot be applied in respect of the sea. The sea is used or enjoyed rather than possessed or occupied. To the extent that the use or enjoyment is in accordance with traditional laws and customs of the relevant community, it is capable of giving rise to the traditional connection that founds a claim for native title rights and interests in the sea under s 223(1) of the NTA which I have found can include an exclusive or non-exclusive fishery. In a particular case the fishing, hunting, gathering, cultural, spiritual, travelling and other traditional uses or enjoyment of the sea may be such that they are sufficiently extensive throughout the claimed area that the Court, as the arbiter of fact, might conclude that use or enjoyment for the various purposes is not appropriately determined as a separate use or enjoyment of discrete parts of the claimed area; rather, the use and enjoyment, and the native title rights and interests founded upon it, might more appropriately be determined in favour of all of the activities throughout the claimed area. In any particular case that determination will be a question of fact. 660 Olney J, in considering the sea country claimed (82 FCR 570-575), recognised that the evidence was not specific as to the extent of that country. His Honour commented upon the difficulties involved in the boundaries of the sea country being fixed by reference to the traditional response of the claimant group that their sea country extends "as far as the eyes can see". If his Honour had ascertained the boundaries by reference to that criterion I would have grave doubts as to the validity of that conclusion. Whilst boundaries of sea country fixed in that way might satisfy the conditions in s 223(1)(a) and (b) of the NTA I doubt that they could satisfy the requirement that the boundaries of any right and interest claimed in that way be recognised by the common law for the purposes of s 223(1)(c). The reason for that conclusion is my earlier observation that native title does not recognise and protect traditional law or customs; rather it recognises and protects native title founded upon use or enjoyment, whether economic, social, cultural or spiritual, of the sea in accordance with traditional law and customs. A sea boundary based only upon traditional law or custom, rather than traditional use or enjoyment based on law or custom is unlikely to be recognised as founding a native title right and interest to the area claimed in accordance with the conditions laid down for recognition of native title in Mabo or in accordance with s 223(1)(c). 661 However, a fair reading of his Honour's reasons for determining the boundaries within the claimed area does not support the view that they were fixed by reference to the evidence of the claimant group that they were entitled to sea country "as far as the eye can see". His Honour's conclusions (82 FCR 574-575) concerning the extent of the sea country may be summarised as follows. 662 There is abundant evidence that members of the claimant group use waters within the claimed area to catch fish and hunt and gather other foods for personal consumption and for use in relation to ceremonial activities. Senior applicants still travel to the more remote islands in the claimed area for ceremonial activities and their ancestors have done likewise. However, there is no direct evidence of the extent seaward to which the applicants and their ancestors have travelled to pursue those activities, and more particularly, there is no direct evidence to what relationship the boundary of the claimed area has to the areas used. 663 His Honour, after considering a number of matters which related to the extent to which the sea within the claimed area "would have been used", concluded (82 FCR 575) that he would draw the inference: "…that the waters within the outer boundary of the claimed area comprise either the whole or part of the sea country of one or other of the several yuwummuru's of the Croker Island community." 664 The Commonwealth pointed to the paucity of evidence that would support his Honour's conclusion in respect of the area within the claimed area north-east of New Year Island. There was substantial force in the Commonwealth contentions. However, his Honour did not arrive at his conclusion on the basis of any particular evidence concerning use in relation to that area. His Honour pointed out that there was "no direct evidence" of the extent seaward to which the applicants and their ancestors have travelled to pursue their activities. He then undertook an evaluation of all of the evidence before him to determine the inferences he was prepared to draw as to the likely extent of the traditional use of the sea country claimed by the claimant group. I am satisfied that the inferences drawn by his Honour from the evidence and other material before him were reasonably open on that evidence and ought not to be disturbed by an appellate court's evaluation of the material. The relevant findings were based upon how the claim was approached by the parties before his Honour and upon his Honour's inferences as to the extent to which the claimed area would have been used in respect of all of the various activities to which his Honour referred. Accordingly, the decision of his Honour was one of fact based on use and appears to have been arrived at on the basis that the use was sufficiently general in respect of the various traditional activities to arrive at a determination of non-exclusive native title rights and interests in respect of all the various uses throughout the whole of the claimed area. 665 As his Honour arrived at his conclusions based upon a finding that the critical date for determining native title in respect of the whole of the claimed area was 1824 the matter must be remitted to his Honour for further consideration by reference to the different dates applicable to a claim of native title in respect of different parts of the claimed area. But for that error by his Honour, and subject to my observations concerning the possibility of exclusive use of parts of the claimed area, I would not otherwise have interfered with his Honour's determination in respect of a non-exclusive native title right to have access to the sea and the seabed throughout the whole of the claimed area for the fishing, hunting, gathering and cultural and spiritual purposes identified in the determination. 666 However, that still leaves the question of whether his Honour was in error in determining that the claimant group was entitled only to non-exclusive, rather than exclusive, rights. 11. EXCLUSIVE RIGHTS AND INTERESTS 667 His Honour (82 FCR 575-577) rejected the claimed right of ownership primarily on the basis that the terminology of "ownership", or equivalent terms used by witnesses such as their reference to the sea as "their" sea country, added "nothing to understanding the nature of the claim except to indicate that the rights and interests in question attach to a particular group of people". His Honour then turned to consider separately the constituent parts of the bundle of rights said to constitute the rights and interests claimed including the right to exclusive possession. This right was not expressly claimed as such but, rather, was said to be the consequence of the claimed rights associated with the right to be recognised as traditional owners of the estate, the right to make decisions about all aspects of the estate, the right of free access to the estate, the right to control the use of and access to the sustenance and other resources of the estate and the right to close of areas of the estate and to decide when they should be reopened. After referring to evidence where, in recent years, yuwurrumu members had been consulted in respect of decisions to be made on specific topics, notably oil exploration, tourism and commercial fishing, Olney J observed (82 FCR 580): "All of the uses or proposed uses of the sea country under claim to which reference has been made arise out of events which have occurred since European contact and relate to the use of the country for purposes other than those which took place prior to 1824. The only evidence concerning non-Aboriginal use of the claimed area prior to European contact relates to the activities of the Macassans to which some reference has been made in the historical overview and which will be the subject of closer scrutiny when the question of trade is discussed. 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. In pre-contact times this may well have been an exclusive right in the sense that other Aboriginal groups could be expected to respect the laws and customs of the applicants. But whether there was ever an occasion in pre-contact times for the applicants' ancestors to assert this particular right, as distinct from the right to control who may come upon their country (which is discussed below), is not a matter upon which there is any evidence before the Court. The very nature of the sea renders it inappropriate to attempt to strictly apply concepts such as possession and occupation which are readily capable of being understood in relation to land. There is a clear distinction between possession and occupation on the one hand and use and enjoyment on the other. The claimed right of senior clan members to grant permission is limited to allowing non-members to use and enjoy the country, not to possess or occupy it." 668 Although Olney J accepted that under traditional law Aboriginal persons were required to gain a yuwurrumu's permission to enter upon its estate he said (82 FCR 582): "It would seem however that the binding effect of the traditional requirement to seek permission to go on to another's country is one which applies only to Aboriginal people." 669 After referring to certain evidence his Honour said (82 FCR 583): "The evidence supports the conclusion that according to the traditional laws and customs of the Croker Island community Aboriginal people, including Aboriginal people who are not part of the Croker Island community, before going on to the estate of a yuwurrumu to which they do not belong, should first seek and obtain the permission of the yuwurrumu whose estate they wish to enter." 670 Olney J referred to certain instances where permission was not sought on every occasion and said (82 FCR 584): "The general thrust of the foregoing confirms the view expressed earlier that the traditional laws and customs which relate to the use of country apply to Aboriginal people rather than to non-Aboriginals, although Charlie Wardaga seems to have a different view." 671 Olney J then referred to the evidence of Charlie Wardaga (82 FCR 585): "Doing the best I can, I understand the witness to be saying that a non-Aboriginal person who did not know of the traditional Aboriginal law, and thus would be unaware of the need to seek permission from the clan owner, should be allowed to pass through. I do not regard the assertion 'Balanda he got no brain' as being advanced as a general proposition in the literal sense but rather that for the most part balanda (apart from 'this bloke here and this bloke here') would have no knowledge (expressed as 'no brain' or 'no mind') of the Aboriginal traditional law relating to passing through country belonging to a particular clan or yuwurrumu. The claim that by their traditional laws and customs the applicants enjoy exclusive possession, occupation, use and enjoyment of the waters of the claimed area is not one that is supported by the evidence. 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." 672 Although his Honour found that the permission was only required or sought before fishing, hunting or gathering on another's country, only as between the Aboriginal persons, later in his reasons in discussing the claimed right to trade, his Honour accepted that in pre-contact times the Macassans sought and received permission to take trepang from the waters around the islands. His Honour made the following finding concerning the permission sought by the Macassans (82 FCR 588): "This evidence suggests no more than that the Macassans sought and received permission to take trepang from the waters around the islands. It falls short of establishing that the applicants' forbears had traded with the Macassans. Further, the evidence relates only to the gathering of trepang and not any of the sustenance resources of the sea. In view of the turbulent relationship which is said to have existed between the Macassans and the indigenous people in the early part of the 19th century and the large numbers of praus and crew that visited the area each year the likelihood that the Macassans' presence in the area was as the result of having first obtained the consent of the indigenous people would seem to be remote." 673 Considerable criticism was directed by counsel for the claimant group at the suggested artificiality of a distinction being drawn between permission to enter upon sea country as between Aboriginal persons and as between Aboriginal and non-Aboriginal persons in order to ascertain whether there was a requirement to seek permission in pre-contact times. It was contended that the evidence clearly demonstrated that the traditional customs and laws relating to permission have continued to be acknowledged and observed by the claimant group up to the present time. However, plainly the requirement could not be enforced or asserted effectively against non-Aboriginal persons who were unaware of it or rejected any such entitlement. Accordingly, so it was contended, during that period one would expect that laws and customs would only be able to be enforced as between Aboriginal persons. Given the subsequent difficulty in enforcing native title rights against the colonisers or the Macassans in the normal course, one might expect that a claim of a traditional law or custom to control access or require permission in respect of Aboriginal lands or waters may only be able to be tested against how those laws and customs were acknowledged or observed by the claimant group at and since the date of sovereignty. 674 In the present case the only non Aboriginal persons who relevantly entered upon the sea country of the claimant group prior to European contact were the Macassans whom his Honour found (82 FCR 588) had "sought and received permission to take trepang form the waters around the islands". His Honour made the further finding that in view of the turbulent relationship between the Macassans and indigenous people in the early part of the 19th Century it was unlikely that the Macassans' presence in the area was as a result of having first obtained the consent of the indigenous people. The effect of those findings appears to be that as at 1824, when the Macassans came to take trepang from waters immediately around the islands they sought and received permission to do so, it would appear, in accordance with the traditional laws and customs of the indigenous community. However, it is unlikely that permission was sought or received in respect of presence in or travel through other parts of the claimed area. 675 I am troubled by the distinction drawn by his Honour between accepting a requirement for permission as between Aboriginal people but not as between Aboriginal and non-Aboriginal people. Much of the difficulty in the present case concerning this particular question has arisen from the global claim put forward by the claimant group to control access to the whole of the sea within the claimed area. As explained earlier, the common law would not recognise that claim as it would prevent exercise of the right of innocent passage and of the right of navigation throughout the claimed area. Indeed it would appear that "rights" of navigation and passage were being exercised by the Macassans. Any native title claims to exclusivity in the claimed area that do not impede those rights are likely to be claims for rights and interests based on traditional use and enjoyment of the sea in particular and defined areas. In that regard it did not appear to be in dispute that there was substantial traditional use by the claimant group of the sea areas adjacent to the foreshore and that when the Macassans used those areas to take trepang they sought permission to do so. 676 It is sufficient for present purposes to say that I respectfully agree that his Honour was correct in rejecting the claims of ownership, exclusive possession and the right to control access or to have permission for all those who enter the area claimed by the claimant group, as such claims conflict with the rights of innocent passage and of navigation and therefore would not be recognised by the common law. 677 Although I am of the view that there is some force in the submissions of counsel for the claimant group that his Honour failed to draw a clear distinction between acknowledgment and observance by the claimant group of traditional laws and customs and enforcement by that group or acknowledgment and observance by others of the laws and customs it is unnecessary to finally determine whether any such failure by his Honour led him into error in drawing a distinction between a requirement for permission as between Aboriginal groups but no such requirement as between Aboriginal and non Aboriginal persons. On a remitter that matter would only arise for consideration in the context of a claim derived from a specific traditional use or enjoyment (eg a several fishery) in a particular area which does not appear to have been the basis on which the matter had proceeded before Olney J. Accordingly, it is undesirable to pursue these matters further. 12. SPECIFIC RIGHTS 678 His Honour made the following specific findings concerning the other rights claimed by the claimant group.

Right to use and control resources 679 His Honour rejected the claimed right to use and control resources as, in effect, an extension of the claimed right to control access to the claimed area. Olney J said (82 FCR 586): "In a practical sense, control over use of resources is exercised by controlling who goes into the claimed area. It must necessarily follow that the right of control over the resources of the claimed area is co-extensive with the right to control access. There is no evidence to support any traditional claim to the use and control of any of the resources of the subsoil of the claimed area."

Right to trade 680 The claimed right to trade was also rejected (82 FCR 586-588) on the basis that the evidence did not support the claim that the applicants enjoyed a native title right or interest to trade in the resources of the claimed area. Right to protect places of importance 681 His Honour made the following finding (82 FCR 588-589): "The right to speak for country or a site will normally entail a corresponding duty to 'look after' or protect that country or site. There is therefore little difference between the claim described by Peterson and Devitt and that sought in the proposed determination. The evidence discloses that there are, within the claimed area, a number of places which are of particular significance to the relevant yuwurrumu members. A number of these sites are said to be 'dangerous' in the sense that according to Aboriginal tradition they may in some circumstances produce sickness, cyclones, intense rain or waterspouts. In their report (pp 22-23) Peterson and Devitt write: 'There are strict and complex rules of access and behaviour at many of these dangerous sites which, if observed properly, will protect visitors and others from supernatural danger. It is the duty of the senior yuwurrumu male to ensure people are aware of these rules and behaviours and, to protect both them and others from the dire consequences that can flow from inappropriate behaviour. Actions that may create problems include: approaching sites inappropriately dressed or from the wrong direction; physically disturbing or damaging them; unauthorised entry; disposing of meat, fatty substances, blood or other polluting material in water near sites; even pointing with an extended finger at certain sites may bring a supernatural harm upon a person. Some of these dangers can be avoided if people are correctly introduced to the particular sites or areas so that they are 'known' by the ancestral spirits and thus protected from harm.' The claimed right to protect places of importance is clearly a claim in relation to the relevant area of sea and seabed. The evidence contains many references to sites of the type described. The right as claimed (and the corresponding duty) is capable of enforcement only to the extent that those who enjoy the right are capable of having and controlling access to the relevant estate. The evidence establishes beyond doubt that according to the traditional laws and customs of the several yuwurrumus which comprise the Croker Island community, yuwurrumu members have rights and obligations in relation to sites within the claimed area which they are required to protect from unauthorised and inappropriate use. By reason of those rights, they have a connection with the sea and seabed in question."

Right to safeguard cultural knowledge 682 His Honour said (82 FCR 590): "But the right and duty according to traditional law and custom to safeguard that knowledge can only be classed as a 'right or interest in relation to land or waters' to the extent that the exercise of the right and duty involves the physical presence of relevant persons on or at the estate or site in question. If however, the need to safeguard the cultural knowledge associated with a site in the claimed area requires, for example, a senior yuwurrumu member to visit the site with those who it is his obligation to teach the culture, then the safeguarding of the cultural knowledge could fairly be said to be a right in relation to the site, and thus in relation to land or waters."

Right to Minerals 683 Olney J rejected the claim of the right to control the use by others of the resources of the claimed area which encompassed a right to all the resources existing within the seabed and sub soil including minerals located on or below the seabed. His Honour said (82 FCR 600): "However, as there is no evidence to suggest that any traditional law or traditional custom of the Croker Island community relates to the acquisition or use of, or to trading in, any minerals that may exist or be found on or in the seabed or subsoil of the waters of the claimed area there can be no basis for a determination that would recognise native title in such minerals." 684 In any event Olney J concluded (82 FCR 601) that the legislation set out by him led to the conclusion that: "…the Crown has by the exercise of its undoubted legislative powers appropriated to itself an interest in the minerals in question which amounts to the full beneficial ownership thereof. It necessarily follows that no native title rights in the minerals could have survived the acquisition." Conclusions 685 His Honour's conclusions on the claimed rights (82 FCR 593-594) were: "What has been established is the existence of traditional laws acknowledged, and traditional customs observed, whereby the applicant community has continuously since prior to any non-Aboriginal intervention used the waters of the claimed area for the purpose of hunting, fishing and gathering to provide for the sustenance of the members of the community and for other purposes associated with the community's ritual and spiritual obligations and practices. Members of the community have also used, and continue to use, the waters for the purpose of passage from place to place and for the preservation of their cultural and spiritual beliefs and practices. As between the several component subgroups which comprise the overall community, the traditional laws and customs of the community require that on occasions permission of the senior members of one subgroup will be required before members of another subgroup or Aboriginals from other areas enter upon to hunt, fish or gather within the waters over which the firstmentioned subgroup enjoys rights." 686 A number of submissions were made in respect of each of the above matters. As the matter is to be remitted, strictly it is not necessary to deal with those submissions. Putting to one side his Honour's approach on issues of principle, which have been referred to in the course of these reasons, in so far as the findings of his Honour related to facts or inferences his Honour was prepared to draw from those facts I am not satisfied that it has been demonstrated that his Honour erred in his findings, subject to the problem of approaching them only as at 1824. However, each of these matters may need to be reconsidered on any remitter as the global approach of the claimant group resulted in the claims being claims to be entitled to the exercise of each of the claimed native title right or interests throughout the claimed area. If, on a remitter, specific rights are claimed on a more limited basis those claims will have to be considered on the basis of the evidence then before the Court.

13 EXTINGUISHMENT ISSUES The trial judge's decision 687 His Honour stated, correctly in my view, the principles governing recognition of native title and extinguishment (82 FCR 590) as follows: "At the time of writing this judgment the full meaning of the concept of extinguishment in the law of native title remains to be determined but on the authorities as they presently stand, several propositions relevant to this proceeding appear to be beyond debate. First, the common law will not recognise a native title which has been extinguished. … Second, the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the legislature or the executive. … Thirdly, a clear and plain intention to extinguish native title 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. Fourthly, if inconsistency is held to exist between the rights and interests conferred by native title and rights and interests conferred under statutory grants, the native title rights and interests must yield, to the extent of the inconsistency, to the rights of the grantee. … Fifthly, extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established, … and sixthly, a native title right which confers a mere usufruct may leave room for other persons to use the land either contemporaneously or from time to time." 688 Olney J (82 FCR 591) rejected the submission that native title only exists as from the date it is recognised under the common law, observing that the whole basis of native title is founded on the exercise of traditional laws and customs from the time before the advent of non-Aboriginal interference. His Honour contrasted the usual case, such as that which arose in Mabo where the native title rights of the Meriam people were capable of being enforced under the common law since sovereignty was exercised, with the situation in respect of the Croker island community which was only able to enforce native title rights (on the view taken by Olney J) to the claimed area since 1 January 1994 when the NTA came into effect. However, his Honour observed that in neither case could it be said that native title did not exist before those critical dates. His Honour said (82 FCR 591): "The former colonies and later the States and Commonwealth exercised sovereign rights over the sea adjacent to Australia long before the Native Title Act provided the opportunity for the recognition of native title below the low water mark and if in the exercise of such rights there have been legislative or executive acts which are inconsistent with the continued right to enjoy native title rights, there would seem to be no reason to say other than that to the extent of any inconsistency the native title rights have been extinguished. And it would be consistent with principle that any questions relating to inconsistency and extinguishment should be judged by the same tests as are explained in the judgments in Mabo (No 2) and Wik." 689 The main issue relating to extinguishment considered by his Honour related to whether fishing legislation extinguished the native title rights and interests claimed. The context in which that question was to be considered, being the non-exclusive use of the claimed area, was stated by Olney J (82 FCR 593-594) as follows: "[use of the] waters of the claimed area for the purpose of hunting, fishing and gathering to provide for the sustenance of the members of the community and for other purposes associated with the community's ritual and spiritual obligations and practices. Members of the community have also used, and continue to use, the waters for the purpose of passage from place to place and for the preservation of their cultural and spiritual beliefs and practices." 690 After outlining the State, territory and Commonwealth legislation governing fishing, inter alia, in the claimed area at different times his Honour concluded (82 FCR 598-599): "The relevance of the history of legislative and administrative regulation of fishing in the claimed area must be judged in the context first of the common law recognition of the public right to fish and in relation to the nature and extent of the native title rights and interests of the claimants as established by the evidence. Ultimately, the question that must be asked is whether the legislative and administrative acts display a clear and plain intention to extinguish such rights as the common law recognises which the applicants have shown to be of the rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the Croker Island community in relation to the waters of the claimed area by which laws and customs they have a connection with those waters. The first response must be that as the common law does not recognise the existence of exclusive fishing rights in relation to the sea, the question of extinguishment is one that must be answered in the context of a claim to a non-exclusive right. Another aspect of the question is to determine to what extent, if any, the native title of the applicants must yield to the rights and interests of third parties created by, or established under, the legislative and administrative regime which has applied in the claimed area for over a century. As the early South Australian legislation did not apply to 'any Aboriginal native taking fish for his own use' no question of an intention to extinguish a non-exclusive native title right to fish for sustenance or cultural purposes can arise. Nor did the legislation create any third party rights which would prevail over such native title rights. Although the early Northern Territory legislation did not specifically preserve the rights of Aboriginals, the scheme of both the fishing and pearling ordinances was purely one of regulation. The same can be said of the Commonwealth and the later Northern Territory legislation. Nothing about the history of the legislative and administrative control of fishing in relation to the claimed area is indicative of an intention to extinguish a non-exclusive, non-commercial native title nor to create inconsistent third party rights. The native title rights which have been established by the evidence are capable of co-existence with the regulatory systems that have applied, and continue to apply, in the claimed area." 691 His Honour referred to s 211 of the NTA and concluded (82 FCR 600): "The net result of all of the foregoing is that native title rights have been, and are now, regulated, but not extinguished, by prior legislative enactments or administrative action. However, 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." 692 His Honour rejected the claimant group's entitlement to a proposed determination that fishing licences granted under the Fisheries Act cannot authorise persons to enter into the claimed area. Olney J concluded that, as the licences do not grant exclusive rights to the licensees, they could not affect the non-exclusive native title rights of the applicants or the claimant group. His Honour said (82 FCR 600): "Furthermore, s 12(3) of the Validation of Titles and Actions Act 1994 (NT) provides that all existing fishing rights under Northern Territory law prevail over other public or private fishing rights. The applicants are not entitled to the determination sought in paragraph (f). Nor are they entitled to the determination sought in paragraph (g). The public right to enter the coastal waters of the Northern Territory (which includes virtually the whole of the claimed area) is confirmed by s 13(1)(c) of the Validation of Titles and Actions Act 1994 (NT). Furthermore, the determination sought would contradict a well-established common law right. The applicants do not enjoy the right to control access to the claimed area, and are not entitled to exclude the public from it." 693 The respondents do not seek to challenge his Honour's conclusion that the non-exclusive native title rights he found to exist were not extinguished by the fisheries legislation. However, the respondents did submit that the fisheries legislation would lead to either non-recognition or extinguishment of any exclusive or commercial native title rights in respect of fishing. Extinguishment prior to recognition 694 The Commonwealth submitted that native title can be extinguished prior to its recognition. Thus where a legislative regime, in place in respect of the sea prior to the acquisition of sovereignty, is inconsistent with the continued existence of native title then the inconsistent regime will result in the common law not recognising the existence of native title thereafter. Accordingly, so it is said, when sovereignty is subsequently acquired in respect of the sea, there is no native title to be recognised upon the change in sovereignty. 695 The example given was that native title rights offshore could not include rights with respect to minerals on or below the seabed where all property rights in respect of the minerals had been vested by legislation in the Crown before sovereignty was acquired in respect of the seabed. Thus, so it is contended, in such cases there is non-recognition rather than extinguishment, of native title. The non-recognition is said to limit the incidents of native title capable of recognition by excluding those incidents that are inconsistent with any statutory regime applying prior to the date of sovereignty. The Commonwealth argues that the extinguished rights "have simply never been recognised and still cannot be". An incidental aspect of the Commonwealth's submission was that there was a lower threshold for non-recognition than for extinguishment. 696 The situation postulated by the Commonwealth could not have arisen in cases such as Mabo, whether by legislation or otherwise, as inconsistent sovereign acts in respect of land only occurred after the change of sovereignty and therefore can only operate to extinguish the native title already burdening the Crown's radical title to the land. However, the situation postulated arises directly in the present case as legislation could be, and was, validly passed regulating fishing in the territorial sea prior to the acquisition of sovereignty in respect of the sea. 697 The Commonwealth's submission misconceives the conceptual basis for recognition of native title. That basis is the recognition by the common law of the survival of pre-existing native title after the change in sovereignty by it burdening the Crown's radical title or sovereign rights as from that date. Prior to the acquisition of sovereignty native title is a "perception of socially constituted fact": see Yanner at [37] and [38]. Upon recognition of native title by the common law after the acquisition of sovereignty it also comprises "assortments of artificially defined jural right". As extinguishment relates to inconsistent legal rights and is therefore a question of law (Yanner at [106] and [107], Wik at 85-88, 126 and 233-238 and Fejo at 126-127 and 154-155), extinguishment will be of the "jural right" which only comes into existence, as such, upon its recognition by the common law as a right burdening the Crown's sovereign rights. Thus, prior to the existence of the "right", legislation may operate to prohibit certain traditional activities but cannot operate to extinguish the "right" to engage in the activities as the "right" does not come into existence as a legally enforceable or protected entitlement until it is recognised, as such, by the common law. Accordingly, extinguishment can only arise by reason of legislative or executive acts operative at or after the date sovereignty is acquired. 698 Thus, a prior legislative regime might be relevant, for example, if it is relied upon to establish as a matter of fact how it came about that the traditional customs and laws on which native title is allegedly based had been abandoned by the date of the change in sovereignty. On the other hand the traditional laws and customs may have continued to be acknowledged and observed irrespective of the legislative regime in place prior to the date upon which sovereignty is acquired. 699 It follows from the foregoing that the fisheries legislation that is directly relevant to the issue of non-recognition or extinguishment is the legislation in force in respect of the claimed area at and since the dates on which sovereignty was acquired in respect of the various parts of that area. If the legislation in force at the date of the acquisition of sovereignty is inconsistent with the enjoyment of native title, the native title may not be recognised by the common law on the ground that the claim will not satisfy s 223(1)(c) of the NTA. If the inconsistent legislation was enacted after the acquisition of sovereignty it may operate to extinguish the relevant native title on the ground that it will not satisfy s 223(1)(c). In that context the same test will apply to non-recognition and extinguishment. 700 No determination of native title rights or interests to an exclusive or commercial fishery has yet been made. Accordingly, the factual and legal findings that are necessary to establish the ambit of any native title right or interest in respect of an exclusive or commercial fishery, which must be placed against the statutory rights which are said to abrogate or extinguish it (Yanner at [109]), have also yet to be made. However, as the issue of extinguishment has been extensively argued and may arise on any remitter in respect of a several fishery, including commercial exploration of such a fishery it is appropriate to briefly state my views on the extinguishment of any such right or interest by reason of the fisheries legislation or licences issued pursuant to that legislation. The fisheries legislation 701 It is appropriate to commence with a summary of the main elements of the fisheries legislation which is set out in detail in the written submissions of the Commonwealth and the Northern Territory and was summarised by his Honour at 82 FCR 594-598. 702 Although South Australian fisheries legislation applied to regulate fishing in respect of parts of the claimed area as early as 1872 the first comprehensive scheme of regulation was under the Fisheries Act 1904 (SA). The Act prohibited the taking of fish for sale or barter without a licence and provided for annual licences to take fish for sale or barter upon payment of a fee. The Governor was empowered to close off areas from the taking of fish. Subject to the exercise of the power to close off areas or to declare "…any waters to be reserved within which only Aboriginal natives shall be allowed to fish" and the exemption from the provisions of the Act of "any Aboriginal native taking fish for his own use", licences prescribed under the Act contained no restriction as to the areas within which the licence holder might fish. 703 The scheme established by the 1904 Act was, in substance, repeated in subsequent Northern Territory legislation after the surrender of the Northern Territory to the Commonwealth in 1911. However, the Northern Territory legislation did not contain any special provisions regarding traditional Aboriginal fishing until the Fish and Fisheries Act 1979 (NT). 704 Subsequent fisheries legislation became increasingly complex as legislatures sought to balance conservation concerns with the development and optimal exploitation of offshore fisheries. The Fisheries Ordinance 1911 (NT) provided for fishing licences for a period of six to twelve months to take fish for the purpose of trade but not from waters closed off to the taking of fish. There was a prohibition of fishing for the purpose of trade or from taking pearls, pearl-shell or trepang from the sea without a licence. 705 The 1911 ordinance remained in place until repealed by the Fisheries Ordinance 1949 (NT). Under that ordinance annual licences were issued for the taking of fish for the purposes of trade and annual trepang licences were also issued. The taking of fish for sale without a licence from any part of the sea within a distance of three miles from any part of the coast of the Northern Territory and any bay, estuary or other inlet of the sea was prohibited. The Fisheries Ordinance 1965 (NT) implemented a similar scheme. 706 Although the forms prescribed for commercial fishing licences made provision for the area in which the licensee was entitled to fish to be confined, during the period from 1960 to the enactment of the Fisheries Ordinance 1972 (NT), the licences issued did not contain restrictions as to the location in which fishing could take place in waters off the coast of the Northern Territory. 707 The Fisheries Ordinance 1972 (NT) heralded a more sophisticated approach to the regulation of fishing off the coast of the Northern Territory. The number of categories of licences increased and provision was made for certain species of fish to be declared to be "controlled species". 708 Following the conferral of self government on the Northern Territory in 1978 the Fish and Fisheries Act 1979 (NT) established an even more comprehensive scheme for the regulation of fishing off the coast of the Northern Territory. The 1979 Act implemented the government's policy "to develop the fishing industry as a major economic base for the Territory" and to provide a more flexible system which reflected the needs of the industry. Licences remained annual but the Act provided for the issue of licences in a number of classes. Provision was also made for licences to be subject to limitations and conditions including as to the area in which the licence could take effect. Although conditions imposed in licences at different times related the method of fishing or species which could be the subject of fishing, the licences did not specifically limit the rights of the licensee to fish by defining any specific areas in which fishing might or might not occur. The Fisheries Act 1979 (NT) re-introduced special provision for the use of waters by Aboriginal people "in accordance with Aboriginal tradition". 709 The Fisheries Act 1988 (NT) provided for different licences to be granted for "inshore" areas (within two nautical miles of the high water mark) and "offshore" areas (between the two nautical mile boundary and the outer limit of the Australian Fishing Zone). The 1988 Act, which repealed the 1979 Act, is presently in force in the Northern Territory with the consequence that any native title rights and interests relating to an exclusive or commercial fishery will, subject to the NTA, be governed by the provisions of the 1988 Act. The 1988 Act built on the principles concerning managed fisheries introduced in the 1979 Act. Licences could be granted for a maximum of five years and may be subject to conditions, including conditions relating to areas, species, quantities, methods and use or non-use of specific fishing gear. In general, the Act prohibited the taking of fish or aquatic life, other than for subsistence or personal use, without a licence. The 1988 Act provided for fishery management areas and locally managed fisheries. 710 Various managed fisheries, up to three nautical miles from the low water mark or the baselines, were declared under the Fisheries Regulation 1992 (NT). The regulations provided for various categories of licences, including Aboriginal Coastal Licences which may be issued to a member of a community granted land under the Land Rights Act who is permanently resident on the land. The regulations prohibited persons, without lawful authority, from interfering with a vessel or fishing gear being used for fishing, and from hindering or obstructing a person fishing pursuant to a licence. 711 The Commonwealth also enacted laws with respect to fisheries. The first general fisheries legislation enacted by the Commonwealth was the Fisheries Act 1952 (Cth) which remained in force until repealed by the Fisheries Management Act 1991 (Cth). The 1952 Act provided for a proclamation of the Governor-General declaring waters to be proclaimed waters for the purposes of the Act. The Act provided for the Minister to prohibit the taking of fish in proclaimed waters without a licence. As a result of the proclamation made on 30 November 1954 the proclaimed waters embraced some of the waters in the claimed area. The Act provided for the granting of licences to take fish in proclaimed waters subject to conditions specified in the licence. The proclaimed waters completely surrounded the coast but did not include waters within the territorial limits of a State and, from 7 February 1956, also did not include waters within the territorial limits of the Northern Territory. Objectives of the Act included conservation and management of fisheries to achieve the optimum utilisation of the living resources within the proclaimed waters. A 1973 amendment to the Act provided that it was a defence to a prosecution if a person had not taken fish for trading or manufacturing purposes. 712 The Fisheries Management Act 1991 (Cth) replaced the 1952 Act and substantially continued the previous scheme but with greater emphasis upon plans of management. The 1991 Act created a number of specific offences including prohibition upon engaging in commercial fishing without a fishing concession or a permit authorising the activity. The Act does not apply to recreational fishing. 713 Under the fisheries legislation currently in place joint Commonwealth and Northern Territory fisheries Authorities were established. It is unnecessary, for present purposes, to outline the detail of the scheme of managed fisheries and the role of the Authorities. 714 It is plain that since 1872 fishing in the claimed area has been extensively regulated. The basic feature of the regulation was the prohibition of commercial fishing in offshore areas without a licence. It is in that context that the question of a claim to an exclusive or commercial fishery must be considered. Extinguishment cases 715 The High Court considered extinguishment of native title rights and interests in Mabo, the Native Title Act case, Wik, Fejo and, most recently, in Yanner. The basic principles governing extinguishment, which were stated and applied by Olney J (82 FCR 590 and 598-600), are uncontroversial. As explained above, the respondents do not challenge his Honour's conclusions; rather, they contend that the native title rights claimed, but not accepted by Olney J, to an exclusive or commercial fishery in the claimed area were extinguished by the fisheries legislation and the licences granted thereunder. 716 The relationship between a statutory regulatory regime and native title arose directly for decision in Yanner. Prior to Yanner, the effect of a statutory regulatory regime on the continued existence of native title had not directly arisen for decision by the High Court. However, in Mabo Brennan J (at 64) stated: "A clear and plain intention to extinguish native title 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." 717 Yanner concerned the appellant's exercise or enjoyment of a native title right to hunt estuarine crocodiles in accordance with his community's traditional laws and customs. The appellant was charged with having taken fauna (ie. estuarine crocodiles) without being a holder of a licence, permit, certificate or other authority as required under s 54(1)(a) of the Fauna Conservation Act 1974 (Qld) ("the Fauna Act"). 718 In the Magistrates' Court, the appellant successfully argued that s 54(1) of the Fauna Act was inconsistent with s 211(2) of the Native Title Act and, as a consequence, s 109 of the Constitution rendered s 54(1) invalid to the extent of the inconsistency. The Queensland Court of Appeal (McPherson JA and Moynihan J, Fitzgerald P dissenting) held that the appellant's native title right to hunt estuarine crocodiles had been extinguished by s 7(1) of the Fauna Act and, accordingly, the Native Title Act had no application. Section 7(1) of the Fauna Act provided that all fauna, with the exception of fauna taken or kept otherwise than in contravention of the Act during an open season with respect to that fauna, is the property of the Crown and under the control of the Queensland Fauna Authority. 719 The appellant subsequently appealed to the High Court. The majority of the High Court (Gleeson CJ, Gaudron, Kirby, Hayne and Gummow JJ) upheld the appeal on the basis that s 7(1) of the Fauna Act did not extinguish, but merely regulated, the appellant's native title rights or interests to hunt estuarine crocodiles with the consequence that, as a result of the operation of s 211(2) of the Native Title Act and s 109 of the Constitution, the Fauna Act did not prohibit or restrict the appellant from exercising his native title rights and interests to hunt or fish for the crocodiles he had taken for the purpose of satisfying personal, domestic or non-commercial communal needs. The minority (McHugh and Callinan JJ) were of the view that s 7(1) of the Fauna Act did extinguish the appellant's native title rights and, as a consequence, the Native Title Act had no application. 720 Gleeson CJ, Gaudron, Kirby and Hayne JJ delivered a joint judgment. Their Honours were of the view that the statutory vesting of property in the Crown by virtue of s 7(1) of the Fauna Act did not vest absolute ownership in fauna covered by the Act in the Crown. Rather, the Honours concluded (at [30]) that "[t]he property which the Fauna Act and its predecessors vested in the Crown was … no more than the aggregate of the various rights of control by the Executive that the legislation created". As the relevant rights did not amount to full and beneficial ownership of the fauna, the Fauna Act did not extinguish the native title right to hunt crocodiles that the Magistrate had found was possessed by the appellant. 721 In relation to the regulatory regime, Gleeson CJ, Gaudron, Kirby and Hayne JJ (at [37]-[38]) stated: "It is unnecessary to decide whether the creation of property rights of the kind the respondent contended had been created by the Fauna Act would be inconsistent with the continued existence of native title rights. It is sufficient to say that regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists. No doubt, of course, regulation may shade into prohibition and the line between the two may be difficult to discern. Similarly, it may not always be easy to say whether the creation of statutory rights or interests before the enactment of the Racial Discrimination Act (Cth) and the Native Title Act was consistent with the continued existence of native title rights and interests. … But in deciding whether an alleged inconsistency is made out, it will usually be necessary to keep in mind that native title rights and interests not only find their origin in Aboriginal law and custom, they reflect connection with the land. … …Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal peoples, 'You may not hunt or fish without a permit', does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing. Not only did the respondent not contend that such a law severed the connection, s 211 of the Native Title Act assumes that it does not. Section 211 provides that a law which 'prohibits or restricts persons' from hunting or fishing 'other than in accordance with a licence, permit or other instrument granted or issued to them under the law', does not prohibit or restrict the pursuit of that activity in certain circumstances where native title exists. By doing so, the section necessarily assumes that a conditional prohibition of the kind described does not affect the existence of the native title rights and interests in relation to which the activity is pursued." 722 Gummow J arrived at the same result as Gleeson CJ, Gaudron, Kirby and Hayne JJ. His Honour ([60] and [108]) said that for extinguishment of any native title rights to hunt and fish to be effective, it was unnecessary that the statutory regime and the overall native title rights and interests of the appellant be wholly inconsistent; rather, the issue involved examining the extent of the inconsistency. 723 Gummow J (at [109]) said: "Factual findings are necessary to establish the ambit of the native title right as defined by the traditional laws and customs of the indigenous community. The ambit of the native title right is a finding of law. This must then be placed against the statutory rights which are said to abrogate it. The question to be asked in each case is whether the statutory right necessarily curtails the exercise of the native title right such that the conclusion of abrogation is compelled, or whether to some extent the title survives, or whether there is no inconsistency at all. Indeed, statute may regulate the exercise of the native title right without in any degree abrogating it." 724 In explaining why the Fauna Act did not abrogate the appellant's native title right to hunt or fish his Honour (at [115]) said: "The exercise of the native title right to hunt was a matter within the control of the appellant's indigenous community. The legislative regulation of that control, by requiring an indigenous person to obtain a permit under the Fauna Act in order to exercise the privilege to hunt, did not abrogate the native title right. Rather, the regulation was consistent with the continued existence of that right." 725 The majority decision in Yanner, that a statutory regulation of the way in which native title is enjoyed does not sever connection with the land or deny the continued existence of native title rights and interests, is consistent with the earlier consideration of that issue by Kirby P in Mason v Tritton. His Honour (at 592-593), in considering the effect of a State regulatory regime on the native title right to fish, said: "The history of the Fisheries and Oyster Farms Act 1935 and its accompanying Regulations established a regime of control of the New South Wales fisheries in a manner amounting to stringent regulation, but not extinguishment, of any otherwise established proprietary right. No doubt stringent regulation may reach the point where the ordinary rights and privileges associated with property ownership is inconsistent with continued property ownership. Indeed, civilised societies demand that proprietary rights and interests be highly regulated. I do not take it to be the intent of the High Court in Mabo that successful claimants to a form of native title should then be able to remove themselves from the ordinary regulatory mechanisms of Australian society. In the particular context of this case, the control and the regulation of fishing activity applies to all those who fish, regardless of the nature of the fishing right which they severally purport to exercise." 726 Wilkes v Johnsen [1999] WASCA 74 is another recent decision in which consideration was given to the effect on native title fishing rights of State regulatory laws restricting persons from carrying on fishing activities. The appellant had been convicted in the Court of Petty Sessions of two offences under the Fisheries Resources Management Act 1994 (WA). The offences involved being in possession of totally protected fish (eight undersized marron) under the Act and Regulations. 727 On appeal to the Full Court of the Supreme Court of Western Australia (Kennedy and Wheeler JJ, White J dissenting), the appellant successfully argued, among other things, that if a native title right to fish or hunt for marron exists, it is neither extinguished, in whole or in part, nor otherwise regulated by the FRMA. 728 Wheeler J (with whom Kennedy J agreed) [76] said: "It is conceivable that very restrictive regulation of a number of aspects of native title may eventually lead to extinguishment of title, although it is to be noted that only the 'general nature of the connexion' must be maintained, and the customs must be observed 'so far as practicable'. It may on some future occasion be necessary to consider whether legislation which is in form regulatory will really effect an extinguishment. However, that is not this case. The [Act] is directed to sustainable exploitation of fish resources rather than prohibition of all or most fishing … and it expressly acknowledges Aboriginal traditional fishing for some purposes…" 729 The appellant in McRitchie v Taranaki Fish and Game Council (1999) 2 NZLR 139 fished for trout in the Mangawhero river on authority from his indigenous community ("hapu"). He was subsequently charged under s 26ZI(1)(a) of the Conservation Act 1987 (NZ) which declared it an offence to take sports fish (in this case, trout) from any fresh water without holding a licence authorising the holder to fish for sports fish. Richardson P, who delivered judgment for the Court of Appeal (with Thomas J dissenting), agreed (at 153) with the High Court that the legislative history demonstrated "beyond doubt that the appellant and his hapu did not have a Maori fishing right to take trout in the Mangawhero river". Importantly, their Honours found that the terms of the legislation precluded attaching Maori fishing rights to imported species of fish. As trout were an imported species, they were and had always been part of a separate regime exclusively controlled by legislation, and the only fishing rights which existed were those available under those legislative provisions. Conclusions 730 Under the fisheries legislation the scheme of regulation has not been one of general prohibition. Rather, it has been a prohibition, primarily on commercial fishing or fishing for particular species of fish, without a licence. Accordingly, the regulation relates to the way in which any native title rights, including rights to commercial fishing, are or may be enjoyed or exercised, and is not inconsistent with their continued existence. Plainly, the requirement not to fish without a licence or permit does not, of itself, sever any part of the connection of the claimant group with the claimed area. The regulatory regime, as such, does not operate totally or partially to extinguish a native title claim to an exclusive or commercial fishery in the claimed area. 731 A separate question arises in relation to a claim to an exclusive or several fishery which would preclude the holder of a licence under the legislation from fishing in the area of the exclusive fishery. Ultimately, that issue will have to be considered in the context of the precise ambit of that claim, if proved. However, there are a number of reasons why the granting of licences is unlikely to totally or partially extinguish a native title right in respect of a several fishery. First, having regard to the nature, scope and purpose of the fisheries legislation, fishing pursuant to a licence is, in substance, in the nature of the exercise of a statutory privilege. The privilege is in the form of relief from the consequences of the statutory prohibition, rather than a conferral of a positive right of entry onto specific land or into specific waters to fish. Such a "privilege" was said by Mason CJ, Deane and Gaudron JJ (at 325) in Harper v Minister for Sea Fisheries to be an entitlement of a new kind: "…created as part of a system for preserving a limited public natural resource in a society which is coming to recognize that, in so far as such resources are concerned, to fail to protect may destroy and to preserve the right of everyone to take what he or she will may eventually deprive that right of all content." 732 Secondly, as a fishing licence does not specifically authorise fishing in any particular part of the claimed area, it is difficult to conclude that the legislation or licences issued thereunder reveal a clear and plain intention, expressly or by necessary implication, to extinguish native title rights. Neither the legislation nor the licences "clearly, plainly and distinctly" authorise the doing of an act which is physically inconsistent with the continuance of native title rights. The expression "clearly and distinctly" emphasises the burden borne by a party seeking to establish the extinguishment of subsisting rights, not by express legislative provision but by necessary implication: see Wik at 185 and Yanner at [10] per Gummow J. 733 Thirdly, as Gummow J observed in Wik (at 185), the question is whether the respective incidents of the native title right are such that it cannot be exercised without abrogating a statutory right. Generally, under the legislation power has been conferred to close off areas from fishing or to exclude, from the exercise of the entitlement to fish under a licence, any particular area. Excluded areas may be areas the subject of a native title right to an exclusive or several fishery. The fact that no such closures have occurred to date is more likely to be referable to the absence of recognition of enforceable or protected native title rights rather than to any intention to deny the existence of such rights, if proved. In Yanner, Gummow J in considering the issue of operational inconsistency drew an analogy with the decision in Commonwealth v Western Australia (1999) 160 ALR 638 which concerned whether inconsistency under s 109 of the Constitution arose where certain mining exploration licences granted under State legislation with respect to land were declared in respect of a defence practice area in Western Australia under Commonwealth legislation. His Honour observed [at 111] that inconsistency was "not inevitable" as: "The Minister for Mines could have granted the licences under the State law on terms which prevented the licensees from being on the relevant land at any time during the conduct of defence operations." 734 It may be said in the present case that licences granted under the fisheries legislation could have been, and now can be, granted on terms that prevented the licensees from fishing in the area of an exclusive fishery. 735 Finally, until very recently licences under the legislation were, in general, conditional annual licences to engage in regulated fishing activities in offshore waters. Such licences do not suggest any intention to sever or interfere with the traditional connection of the claimant group concerning any exclusive or several fishery in the claimed area. 736 For the foregoing reasons, in my view the fisheries legislation and the licences granted thereunder do not appear to operate to extinguish a native title right or interest, if proved, to an exclusive or commercial fishery in any particular part of the claimed area. I have expressed my conclusion in qualified terms, as a determinative answer to the issue of extinguishment can only be given in the context of a native title claim to an exclusive or commercial fishery in a particular part of the claimed area. Further, in the light of my conclusion, it is unnecessary to consider whether the Validation of Titles and Acts Act 1994 (NT) or the Validation (Native Title Act) 1999 (NT) might affect any determination that may be made on a remitter: cf Olney J at 82 FCR 600. Conclusions 737 For the above reasons I would dismiss the appeal of the Commonwealth, allow the appeal of the claimant group and remit the matter for further hearing by Olney J. As the claimant group has succeeded on the Commonwealth's appeal and has been partially successful on its appeal I would order that the Commonwealth pay one half of the claimant group's taxed costs of and incidental to the appeal and the cross appeal. I certify that the preceding four hundred and sixty-seven (467) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

DG 6005 of 1998 Counsel for the Appellant: D Bennett QC with M Perry and S Lloyd

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the First Respondent: J Basten QC with R Howie

Solicitor for the First Respondent: Northern Land Council

Counsel for the Second Respondent: T Pauling QC with R Webb

Solicitors for the Second Respondent: Solicitor for the Northern Territory

Counsel for the Third to Seventh Respondents: G Hiley QC with N Henwood

Solicitor for the Third to Seventh Respondents: Cridlands

For the Eighth Respondent: No appearance

DG 6006 of 1998 Counsel for the Appellant: J Basten QC with R Howie

Solicitor for the Appellant: Northern Land Council

Counsel for the First Respondent: T Pauling QC with R Webb

Solicitor for the First Respondent: Solicitor for the Northern Territory

Counsel for the Second Respondent: D Bennett QC with M Perry and S Lloyd

Solicitors for the Second Respondent: Australian Government Solicitor

Counsel for the Third to Seventh Respondents: G Hiley QC with N Henwood

Solicitor for the Third to Seventh Respondents: Cridlands

For the Eighth and Ninth Respondent: No appearance

Dates of Hearing: 24, 25, 26, 27 and 28 May 1999

Date of Judgment: 3 December 1999