The Commonwealth v Yarmirr

The Commonwealth v Yarmirr - [2001] HCA 56 - HCA 2001 case summary — Zoe

[41]

The application for determination of native title was made under the Act as it stood before the amendments made by the Native Title Amendment Act 1998 (Cth) came into force. It was common ground that the amendments have no application in the present matter. There are several provisions of the Act to which reference should be made at this point.
First, it is necessary to notice the territorial application of the Act. Section 6 provides that the Act extends to each external Territory of the Commonwealth and "to the coastal sea of Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973". "Coastal sea" has the meaning it is given by s 15B(4) of the Acts Interpretation Act 1901 (Cth)[5] and thus, in relation to Australia, means the territorial sea of Australia and the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory. By s 6 of the Seas and Submerged Lands Act 1973 (Cth) it was declared and enacted that sovereignty in respect of the "territorial sea of Australia"[6] and "in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth". Section 7 of the Seas and Submerged Lands Act, as originally enacted, empowered the Governor‑General from time to time, by Proclamation, to declare, not inconsistently with Section II of Part I of the Convention on the Territorial Sea and the Contiguous Zone done at Geneva on 29 April 1958, the limits of the whole or any part of the territorial sea. (In 1994 the Seas and Submerged Lands Act was amended to take account of, and refer to, the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982[7].) By s 11, it was declared and enacted that the sovereign rights of Australia as a coastal state in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth.
It must next be noted that the objects of the Act include providing for "the recognition and protection of native title"[8]. In so far as the Act provides for protection of native title it can be seen as supplementing the rights and interests of native title holders under the common law of Australia and thus, in this way at least, giving effect to one of the purposes of the Act recorded in its preamble. Section 11(1) of the Act and its provision that native title is not able to be extinguished contrary to the Act is, perhaps, the most important of the Act's protection provisions[9]. It is of the first importance, however, to recognise that it is in the Act that the rights and interests which are claimed by the claimants must find reflection. The relevant starting point for determining the controversies in the present matters is the Act.
It is also necessary to notice some of what the Act refers to in the heading to Div 2 of Pt 15 as "Key concepts", especially those of "native title" and "native title rights and interests". Section 223 provides:

[68]

It is, of course, important to notice that the native title rights and interests with which the Act deals are rights and interests in relation to land or water. Those rights and interests may have some or all of the features which a common lawyer might recognise as a species of property. Neither the use of the word "title" nor the fact that the rights and interests include some rights and interests in relation to land should, however, be seen as necessarily requiring identification of the rights and interests as what the common law traditionally recognised as items of "real property". Still less do those facts necessarily require analysis of the content of those rights and interests according to those features which the common law would traditionally identify as necessary or sufficient to constitute "property".
Exactly how the common law uses the word "property" is not without its own difficulties[19]. As was pointed out in Yanner v Eaton[20], property can be used as a description of a legal relationship with a thing, referring "to a degree of power that is recognised in law as power permissibly exercised over the thing". It can also be seen as consisting primarily in control over access to something[21]. But as was also pointed out in Yanner[22], there are limits to the use of "property" as an analytical tool.
Even if difficulties about the meaning of the word "property" were resolved, it would be wrong to start consideration of a claim under the Act for determination of native title from an a priori assumption that the only rights and interests with which the Act is concerned are rights and interests of a kind which the common law would traditionally classify as rights of property or interests in property. That is not to say, however, that native title rights and interests may not have such characteristics. The question is where to begin the inquiry.
The relevant starting point is the question of fact posed by the Act: what are the rights and interests in relation to land or waters which are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples? It is not necessary, at least at that point of the inquiry, to ask whether each claimed right and interest has qualities of the kind described by Lord Wilberforce in National Provincial Bank Ltd v Ainsworth[23], namely, being "definable, identifiable by third parties, capable in its nature of assumption by third parties, and hav[ing] some degree of permanence or stability".
Nor is it necessary to identify a claimed right or interest as one which carries with it, or is supported by, some enforceable means of excluding from its enjoyment those who are not its holders. The reference to rights and interests enjoyed under traditional laws and customs invites attention to how (presumably as a matter of traditional law) breach of the right and interest might be dealt with, but it also invites attention to how (as a matter of custom) the right and interest is observed. The latter element of the inquiry seems directed more to identifying practices that are regarded as socially acceptable, rather than looking to whether the practices were supported or enforced through a system for the organised imposition of sanctions by the relevant community. Again, therefore, no a priori assumption can or should be made that the only kinds of rights and interests referred to in par (a) of s 223(1) are rights and interests that were supported by some communally organised and enforced system of sanctions.
The primary judge determined that the landward boundary of the sea which was subject to the identified native title rights and interests was, in relation to the sea, the mean high‑water mark (and therefore includes the sea in the inter‑tidal zone) but in relation to the sea‑bed was the mean low‑water mark (and therefore does not include the sea‑bed in the inter‑tidal zone).
These areas straddle a number of different, and in some cases overlapping, maritime zones although the whole area is embraced by what are now the seaward limits of the 12 nautical mile territorial sea. The whole of the area is, therefore, within the area to which the Act's operation is extended by s 6.
Detailed consideration of the legal status of the seas and sea‑bed in the claimed area would require reference to many different steps taken first by Imperial, then later colonial, and still later State and federal executive and legislative authorities. Not all of these matters need, however, be noticed and their consideration can be deferred.
Against this background it is convenient to turn to consider first the appeal by the Commonwealth.

[70]

The Commonwealth submitted that "[i]t has long been a principle of English common law that the limits of each county and of the realm lie at low‑water mark". This principle, it was submitted, was recognised in R v Keyn[24], accepted and applied by this Court in New South Wales v The Commonwealth ("the Seas and Submerged Lands Case")[25] and accepted and applied by the Supreme Court of Canada in Re Offshore Mineral Rights of British Columbia[26].
It is convenient to begin examination of the asserted principle with the decision in Keyn if only because of the prominence given to it in the argument of the present matters and in the Seas and Submerged Lands Case and the Canadian cases to which reference has been made. The question reserved in Keyn, for consideration of the Court for Crown Cases Reserved, was whether the Central Criminal Court had jurisdiction to try a charge of manslaughter against the Master of the German vessel Franconia. The Franconia had collided with the British vessel Strathclyde at a point within three miles of the shore of England. The Strathclyde sank. The victim of the alleged manslaughter was a passenger on the Strathclyde who had drowned. Seven members of the Court (Cockburn CJ, Kelly CB, Bramwell JA, Lush and Field JJ, Sir R Phillimore and Pollock B) held that the Central Criminal Court had no jurisdiction to try the prisoner for the offence charged; six members of the Court (Lord Coleridge CJ, Brett and Amphlett JJA, Grove, Denman and Lindley JJ) concluded, contrary to the views of the majority, that the sea within three miles of the coast of England was part of the territory of England, that the English criminal law extended over those limits, and that the Admiral formerly had, and the Central Criminal Court then had, jurisdiction to try offences committed there although on board a foreign ship.
The question in Keyn was, therefore, a question about the jurisdiction of a criminal court. The word "jurisdiction" was used as identifying whether the subject‑matter of the proceeding could be entertained by the particular court, not as describing the amenability of the defendant to the court's authority[27]. The amenability of the defendant to the court's authority was asserted, or assumed, when he was required to enter a plea to the charge, the challenge to "jurisdiction" not being mounted until after the close of the prosecution case[28]. As was said in Lipohar v The Queen[29]:

[74]

The decision in Keyn must also be understood bearing in mind that much of the argument in that case was founded on the rules of international law which had evolved about two subjects concerning the territorial sea: the authority of the coastal state over that area, and the use which that state and the ships and nationals of other states might make of it. First, it was recognised that, by international law, every vessel has a right of innocent passage through the territorial sea[38]. Secondly, it was acknowledged that, by international law, merchant vessels at sea are, generally, subject only to the law of the state to which they belong[39].
The Commonwealth contention that the common law does not apply beyond the low‑water mark sometimes appeared, in the course of argument, to go so far as contending that the courts could give no remedies in respect of transactions or events which occurred in that area. Keyn does not warrant such a general or absolute proposition. Keyn established that, absent statutory authority, a criminal court cannot punish as criminal, conduct which happens beyond the low‑water mark on vessels flying the flag of a foreign state. The same proposition, with respect to the Colonial Courts of Admiralty, previously had been established in New Zealand by R v Dodd[40]. That conclusion owed much to the history of the criminal law and trial by jury and is a conclusion about the reach of the criminal law. As it happens, legislative action to reverse the effect of the decision in Keyn was soon taken[41] but this may be put aside as irrelevant to the Commonwealth's contention about the common law.
In a civil action brought by the legal personal representative of another victim of the collision against the owners of the Franconia for damages under Lord Campbell's Act, Harris v Owners of Franconia[42], it was held that the rules of court did not authorise service of the proceedings out of the jurisdiction where the cause of action arose outside the jurisdiction. Lord Coleridge CJ said[43]:

[77]

It was noted in Lipohar[45] that the distinction between local and transitory proceedings, which can be seen as lying behind the attitude of the common law courts to crimes committed outside the jurisdiction, underpinned the (often criticised) decision of the House of Lords in British South Africa Co v Companhia de Moçambique[46]. It was there held that the Supreme Court of Judicature of England and Wales had no jurisdiction to entertain an action to recover damages for trespass to foreign land[47].
Moçambique established that the civil courts will not entertain (at least some) actions in respect of immovables in a foreign country[48] or "a dispute involving the title to foreign land"[49]. That principle can be seen to derive from the fact that the rights with which actions of the kind embraced by the principle are concerned, are rights which arise under the law of the place where the land, or other immovable property, is situated. It is a principle which, whatever its merits may be, represents a resolution of the problems thought to result from the intersection between what can be seen as two competing systems of law - the law of the place in which the land is situated and the law of the forum. In Moçambique, Lord Herschell LC pointed to what he saw to be great inconveniences that might follow if the courts of England and Wales were to exercise jurisdiction in claims concerning the title to foreign land[50]. These arguments may or may not be thought to warrant the conclusion reached in that and later cases. For present purposes, however, the critical point to recognise is that the rule grew out of difficulties which it was thought would follow if one system of law (the law of the forum) did not leave a dispute about title to foreign land to be resolved entirely by another, competing system (the law of the place).
If the contention that the common law does not "extend", "apply", or "operate" beyond low‑water mark is intended to mean, or imply, that, absent statute, no rights deriving from or relating to events occurring or places lying beyond low‑water mark can be enforced in Australian courts, it is altogether too large a proposition and it is wrong. The territorial sea is not and never has been a lawless province[51]. The courts of England and Wales and the courts of Australia have long since given effect to rights and duties which derive from transactions and events which have occurred in that area. The very existence of the body of Admiralty law denies the generality of a proposition understood in the way we have identified. It suggests at least that the reference to "common law", in the proposition about its reach, is to be understood as restricted to that part of the unwritten law which was administered in the common law courts. Reference to the history of the jurisdictional conflicts between the courts of Admiralty and the common law courts[52] reinforces that view, especially when it is recalled that from 1536[53] the criminal jurisdiction of the Admiralty in relation to crimes at sea was exercised by the judges of the common law courts as commissioners of oyer and terminer[54].
Even the more limited proposition, that so much of the unwritten law as was administered in the common law courts does not extend beyond low‑water mark, may well be too broad[55]. In personal actions, the first question for the court is whether it has jurisdiction over the defendant. If it does, the question which then must be addressed is what are the rights and duties of the parties. If there are factors which connect parties or events to some other legal system, there may be questions of choice of law which fall to be answered by application of the rules and principles of conflict of laws. But the fact (if it be the fact) that the events occurred outside Australia does not of itself, and without more, bar relief. Questions may intrude in actions about status or in actions in rem of a kind which do not arise in personal actions. As Keyn demonstrates, other questions do intrude in criminal matters. But, importantly, the Moçambique principle demonstrates that the common law does not have only a limited territorial operation. If the common law was limited in its operation to events occurring and places lying within the area bounded by the low‑water mark, there would be no occasion to distinguish between local and transitory actions.
The Commonwealth's argument about the limited territorial operation of the common law was directed in aid of the proposition that the existence of rights in relation to land is sustained by the law of the place where the land is located (the lex situs). It was said that, because the common law did not apply beyond the low‑water mark, there was no lex situs and there was, therefore, no law which could "recognise" native title rights and interests.
There is no doubt, as s 223 of the Act makes clear, that the native title rights and interests with which the Act deals, exist "in relation to" land or waters. It by no means follows, however, that it is necessary or appropriate to apply the taxonomy of the common law rules of choice of laws in deciding whether the rights and interests in issue are "recognised" by the common law or, if it is, that even according to that taxonomy, the rights and interests which now are in issue are properly to be classed, in every case, as immovables[56]. It is inappropriate to see the present issues as engaging the common law rules of choice of laws because the Act requires no resolution of any conflict or competition between two systems of law[57]. The Act presupposes that, so far as concerns native title rights and interests, the two systems - the traditional law acknowledged and traditional customs observed by the relevant peoples, and the common law - can and will operate together. Indeed, not only does it presuppose that this will happen, it requires that result.
No less importantly, it is always necessary to recall that the rights and interests to which the Act gives effect are not rights and interests that are derived from the common law. If it were relevant to examine the present issues by reference to principles of choice of laws, it would not be right to conclude that there is not, or was not at whatever may be the relevant time, any law of the place which is the subject of the claimants' claim. Even if it is right to say that the common law has, or had, no application in that area, that says nothing about whether traditional law and custom has or had application. It must be remembered that the unchallenged finding of fact is that traditional laws and customs were and are observed in relation to the claimed area. If it is necessary to identify the lex situs, there is no basis for ignoring this finding. The question would then become whether the common law will give some effect (some "recognition") to that traditional law and custom. That question is not answered by the bare assertion that there is no lex situs or that the only possible candidate for consideration is the common law.
It is unnecessary to explore further what is meant by the proposition that the common law does not extend beyond the low‑water mark. For the reasons given earlier, a proposition in those general and unqualified terms cannot be accepted. For present purposes, however, it is necessary to consider only a narrower question - whether the common law will "recognise" native title rights and interests in respect of areas beyond the low‑water mark. In examining that narrower question, it will be necessary to consider three issues: what is meant by "recognition" of native title; what is meant by the assertion of sovereignty over areas beyond the low‑water mark; and how, if at all, the concept of the radical title to land intrudes into the debate. It is convenient to deal first with the question of "recognition", then with the role of radical title, and only then turn to what is meant by the assertion of sovereignty.

[78]

The requirement in s 223(1)(c), that the native title rights and interests which are claimed are "recognised by the common law of Australia", is not elucidated elsewhere in the Act. It is useful to approach the requirement from two opposite poles: the negative, when will the common law not recognise such rights and interests; and the positive, when will the common law recognise them? At the risk of some over‑simplification, the fundamental question which lies behind both of these approaches is a question about inconsistency between the asserted rights and the common law.
In Mabo v Queensland [No 2], the Court examined the consequences of the acts of State which established the colonies in Australia. (We need not examine what constituted each of the relevant acts of State[58].) All members of the Court accepted that on settlement of an Australian colony the settlers brought the common law with them[59]. The members of the Court differed in some respects about how the common law and the claimed native title rights and interests interacted. Central to the consideration of that issue by a majority of the members of the Court, however, was the conclusion that at common law the native title rights and interests survived acquisition of sovereignty and that an express act of recognition by the new Sovereign was not necessary to their being recognised[60]. The members of the majority may be thought to have differed in some respects about how the native title rights and interests could be extinguished and, if they were, what would be the consequences of extinguishment[61] but those differences can now be put aside. What is important to notice is that the common law which the settlers brought with them was, as Deane and Gaudron JJ said[62], "only so much of it … as was 'reasonably applicable to the circumstances of the Colony'[63]". That rule was itself a common law rule[64] and the Crown had no prerogative right to override the common law by executive act[65]. As was said in the joint judgment in Western Australia v The Commonwealth (Native Title Act Case)[66]:

[84]

The analysis reveals how native title to land survived the Crown's acquisition of sovereignty over the land. It does so by revealing that when the Crown acquired sovereignty over land it did not acquire beneficial ownership of that land in the same way as a subject may, by grant from the Crown, acquire beneficial ownership. What the Crown acquired was a "radical title" to land, a "substantial and paramount estate, underlying the [native] title"[81]. The native title rights and interests could co‑exist with that radical title and, although inherently fragile, could, so long as they existed, be seen as a burden on that radical title.
Again, however, it is of the very first importance to bear steadily in mind that native title rights and interests are not created by and do not derive from the common law. The reference to radical title is, therefore, not a necessary pre‑requisite to the conclusion that native title rights and interests exist. The concept of radical title provides an explanation in legal theory of how the two concepts of sovereignty over land and existing native title rights and interests co‑exist. To adopt the words of Brennan J in Mabo [No 2][82], it explains how "[n]ative title to land survived the Crown's acquisition of sovereignty" over a particular part of Australia.
It is, however, not right to say, as the Commonwealth contended, that native title rights and interests cannot exist without the Crown having radical title to the area in respect of which the rights and interests are claimed. This contention gives the legal concept of radical title a controlling role. The concept does not have such a role. It is a tool of legal analysis which is important in identifying that the Crown's rights and interests in relation to land can co‑exist with native title rights and interests. But it is no more than a tool of analysis which reveals the nature of the rights and interests which the Crown obtained on its assertion of sovereignty over land.
It by no means follows that it is essential, or even appropriate, to use the same tool in analysing the altogether different rights and interests which arose from the assertion of sovereignty over the territorial sea. In particular, it is wrong to argue from an absence of radical title in the sea or sea‑bed to the conclusion that the sovereign rights and interests asserted over the territorial sea are necessarily inconsistent with the continued existence of native title rights and interests. The inquiry must begin by examining what are the sovereign rights and interests which were and are asserted over the territorial sea. Only then can it be seen whether those rights and interests are inconsistent with the native title rights and interests which now are claimed.
In identifying those sovereign rights and interests it is, of course, necessary to pay due regard to some matters of history. Nevertheless, care must be exercised in looking at the very earliest development of the understanding of sovereign authority over the sea. First, as Stephen points out in his History of the Criminal Law of England[83], the critical question for a municipal court is what reach the Sovereign claims for itself, not what reach other Sovereigns may concede to it. Secondly, the earliest understandings of sovereign authority over the sea grew out of the then state of legal development, and the absence of any clear distinction between sovereignty and ownership. Those earliest understandings are rightly described by an American writer, writing at the start of the 20th century, who said[84]:

[90]

As a matter of international law, the right of innocent passage is inconsistent with any international recognition of a right of ownership by the coastal state of territorial waters. The nature and extent of the rights of the coastal state over its territorial sea was, as a matter of international law, regarded by Lord Cockburn CJ in Keyn[95] to be still then a matter of controversy and it was thought in 1913 to remain so[96]. Yet as early as 1801 Sir William Scott (later Lord Stowell) recognised in The "Twee Gebroeders"[97] that "the act of inoffensively passing over [territorial portions of the sea] … is not considered as any violation of territory belonging to a neutral state - permission is not usually required".
There may, therefore, be some dispute about when the right of innocent passage came to be regarded as forming part of customary international law. In particular, there may be some question about whether statements made by writers of the 17th and 18th centuries are to be taken as recognising the right, and the better view may be that in 1824 Great Britain may not have recognised such a right[98]. However this may be, what is important for present purposes is that it is not suggested by the Commonwealth, or for that matter by other parties or interveners, that the assertion in 1824 by Great Britain of sovereignty over that part of the area now in question which lies between low‑water mark and three nautical miles to sea was on terms inconsistent with what (if not then, at least later) was recognised as the right of innocent passage. It may be, as Jacobs J said in the Seas and Submerged Lands Case[99], that the Imperial Crown, by virtue of its prerogative, could have sought in 1824, or at some later time, to deny innocent passage to foreign ships in the area and that, if it had done so, the legality of the assertion would not have been cognisable in any municipal court. It was not suggested, however, that this had occurred and the possibility may be put to one side.
What is clear, then, is that at no time before federation did the Imperial authorities assert any claim of ownership to the territorial seas or sea‑bed. Great Britain contended that it had sovereignty over the area which the then understanding of international law identified as the territorial sea and that claim was generally conceded by the international community. As was recognised in the Seas and Submerged Lands Case, the acquisition of sovereignty over the territorial sea can be understood as occurring by operation of international law because Great Britain was the internationally recognised nation holding sovereignty over the adjoining land mass[100].
The acquisition of sovereignty can also be understood, from the point of view of municipal law, as a claim made in exercise of the prerogative[101]. The prerogative rights of the Crown in relation to the territorial sea were limited, however, in some important respects. The most relevant of those limitations were the public rights of fishing in the sea and in tidal waters[102] and the public right of navigation. So far as the high seas beyond tidal waters are concerned, both rights might be seen as owing their origin to custom since time immemorial[103]. The public right to fish in tidal waters might be seen as having been preserved by the Magna Carta of John[104]. Whatever may be the origins of those rights, no party or intervener disputed their existence and no party or intervener submitted that the sovereign rights asserted in 1824 did not acknowledge the continuation of those rights.
Sufficient has been said about the nature of the sovereignty which was claimed in 1824 to show that at that time (subject to one important qualification) there was no necessary inconsistency between the rights and interests asserted by Imperial authorities and the continued recognition of native title rights and interests. The qualification is required because the rights and interests asserted at sovereignty carried with them the recognition of public rights of navigation and fishing and, perhaps, the concession of an international right of innocent passage. Those rights were necessarily inconsistent with the continued existence of any right under Aboriginal law or custom to preclude the exercise of those rights. It will be necessary to return to this subject in connection with the claimants' appeal. Other than in this respect, however, there was no necessary inconsistency and there is no need to resort to notions of radical title to explain why that is so. It is revealed by consideration of what is meant by the claim of sovereignty.

[96]

In September 1985, the Off-shore Waters (Application of Territory Laws) Act came into operation. That Act provided that "the laws of the Territory" (which included present and future laws in force in the Territory, whether written or unwritten and as in force from time to time[111]) "have effect in and in relation to the coastal waters of the Territory"[112]. Thereafter, Territory law has applied in the area of the coastal waters of the Territory.
In 1990, by Proclamation pursuant to s 7 of the Seas and Submerged Lands Act, Australia extended the limit of its territorial sea from three nautical miles to 12 nautical miles. The baselines from which that territorial sea is drawn were proclaimed in February 1983 and included some straight baselines in the area the subject of the claimants' claim. It follows that the area of territorial sea claimed by Australia has changed since Great Britain first acquired the territorial sea in the area in 1824. First, there was the extension that followed from the adoption of straight baselines, then the extension from three nautical miles to 12 nautical miles. As was pointed out earlier, however, all of the claimed area now lies within Australia's territorial sea. Part of the area lies within the territorial limits of the Northern Territory, although on the evidence before him the primary judge was unable to define precisely the extent of the waters within those limits[113].
At or after federation, Australia came to take its place in international affairs and its links with the British Empire changed and dissolved[114]. Those changes did not affect the nature of the sovereignty that was exercised over the territorial sea. From time to time, colonial parliaments, and later the federal Parliament, passed laws regulating various activities in that area. It is not necessary to notice the content of those laws beyond noticing that some laws, like the Petroleum (Submerged Lands) Act 1967 (Cth), provide for the granting of very extensive rights in relation to areas of the sea or sea‑bed[115]. The enactment of laws regulating activities in the area constituted the assertion of the right to regulate what was done there but it was not submitted that these acts served to extinguish a native title that had existed until then. As is apparent from what has been said, the submission was put at the higher level of contending that native title could not exist in the offshore area.
The Seas and Submerged Lands Act asserted sovereignty over the territorial sea and the bed and subsoil of the territorial sea[116] and sovereign rights in respect of the continental shelf for the purpose of exploring it and exploiting its natural resources[117]. The former of these assertions was not different in any presently material respect from the sovereignty which was asserted in 1824. The fact that it reflected settled principles of international law found in the Convention on the Territorial Sea and the Contiguous Zone neither adds to nor detracts from that proposition.
Some more detailed attention, however, must be paid to the NT Title and NT Powers Acts. As has already been noted, by the NT Powers Act the Territory Legislative Assembly was given power to make all such laws as could be made if the territorial waters were within the limits of the Territory[118]. It was empowered, therefore, to enact the Off‑shore Waters (Application of Territory Laws) Act 1985. The consequence of the enactment of the Off‑shore Waters (Application of Territory Laws) Act was no more than to apply Territory laws, including unwritten laws, in the area. It was not submitted that this extinguished, or in any way precluded recognition of, native title rights and interests. Chief emphasis was given to the NT Title Act which came into force after the NT Powers Act. Again, as has been noted, by that Act "the same right and title to the property in the sea‑bed beneath the coastal waters … and the same rights in respect of the space (including space occupied by water) above that sea‑bed" was vested in the Territory "as would belong to the Territory if that sea‑bed were the sea‑bed beneath waters of the sea within the limits of the Territory"[119].
It is unnecessary to decide what was the right and title that was vested in the Territory. If it is appropriate to speak of that right and title in the language of the real property lawyer, the right and title thus vested in the Territory was no more than a radical title; it was not full ownership of the sea‑bed or space above it. (We need not and do not decide whether it is appropriate to adopt such terms as radical title in this context.) There are several reasons why the right and title that was vested does not amount to full ownership. First, the right and title was vested by an Act of the Parliament which was itself an exercise of the sovereignty which had been asserted by the Seas and Submerged Lands Act and earlier by Acts of the Imperial and later the federal executive. It would be inconsistent with the public rights to fish and to navigate that were recognised as qualifying those sovereign rights, for purposes of municipal law, to treat the right and title vested as absolute and unqualified ownership. Further, it would be inconsistent with the international obligations which Australia had undertaken in the Convention on the Territorial Sea and the Contiguous Zone[120] to afford innocent passage to ships of all States through the territorial sea to vest absolute and unqualified ownership in the area in the Territory.
Secondly, as the NT Title Act makes plain, the right and title which was vested in the Territory was identified as the same right and title the Territory had over the sea‑bed beneath waters of the sea within the limits of the Territory. It was not submitted that the right and title to areas of the latter kind was any greater than radical title to land. It is unnecessary to stay to consider whether it is less than a radical title. If the title thus vested is not larger than a radical title, that title is not inconsistent with the continued existence of native title rights and interests.
Finally, s 4(2) of the NT Title Act expressly made the right and title vested in the Territory subject to "any right or title to the property in the sea‑bed … of any other person … subsisting immediately before the date of commencement" of the NT Title Act. Any native title rights and interests in relation to the sea‑bed that then existed were, therefore, expressly preserved.
Thus far we have dealt with the legal regime that applied to the territorial sea. The Commonwealth made no separate submission about the inter‑tidal zone and we need say nothing more about that area.
As indicated earlier, the area of the territorial sea has changed over time, first by the adoption in 1983 of different baselines and then, in 1990, by the extension from three to 12 nautical miles. It follows that parts of the area the subject of the primary judge's determination lay outside what were, until those two events, the territorial waters of Australia. Australia's successive assertions of sovereignty over further areas of the sea and sea‑bed leads to no different conclusion about whether the primary judge was right to make the determination he did in relation to those further areas.
The rights and interests that are in question have been found to be now possessed under traditional laws and customs. When Australia asserted sovereignty over those further areas, it did so in terms which are not different in any relevant way from the kind of assertion that was made in 1824, except that there can be no doubt that, by the time of the later assertions of sovereignty, the right of innocent passage was conceded. Further, nothing in the then operative legislation, Territory or Commonwealth, leads to any different conclusion. The change of baselines occurred before the NT Title Act and the Off‑shore Waters (Application of Territory Laws) Act came into operation. The extension of sovereignty to 12 nautical miles took place after those Acts came into force. Once it is recognised that the NT Title Act vested in the Territory a title to the sea‑bed in territorial waters, and the space above it, that was no greater than a radical title, it is clear that nothing in that Act (or for that matter the Off‑shore Waters (Application of Territory Laws) Act) effected an extinguishment of native title rights and interests.
None of the past or present law relating to the territorial sea is inconsistent with the common law of Australia recognising native title rights and interests in relation to the sea or the sea‑bed in that area. For the reasons given earlier, the submissions that assert a territorial reach to the common law require some, perhaps considerable, qualification and may to that extent be regarded as flawed. Even if that were not so, however, questions about the territorial reach of the common law distract attention from the relevant statutory requirements. The requirement, that the native title rights and interests are recognised by the common law, requires examination of whether the common law is inconsistent with the continued existence of the rights and interests that owe their origin to Aboriginal law or custom. In the present case, that examination for inconsistency requires consideration of the effect of the various assertions of sovereignty over the area the subject of the claim. Examination reveals no inconsistency with rights and interests of the kind that have been found to exist, but does reveal an inconsistency with the continued existence of any exclusive rights and interests of the kind that were claimed. That being so, the common law will recognise rights and interests which are of the kind the subject of the determination in this matter and it will do so by affording remedies for their enforcement and protection.

[97]

The Commonwealth submitted that there was no basis in the evidence for the primary judge's finding that the rights claimed by the claimants continued to exist in the far north‑east and eastern parts of the claimed area. It was further submitted that the Full Court erred in concluding that it was open to the primary judge to make findings on "generalised" evidence.
The finding which the Commonwealth challenges is a finding of fact and it is a finding which the Full Court concluded should not be disturbed. The Commonwealth's challenge to the finding raises no point of general principle, only a question about the sufficiency of evidence. The finding which the primary judge made must not be misunderstood. As he pointed out in his reasons, some parts of the boundary of the claimed area had been fixed arbitrarily, in particular the western boundary of the claimed area, and although both the eastern boundary and part of the northern boundary were "a reasonable representation"[121] of the limit to which the sea in the area would have been used, the rest of the northern boundary was fixed arbitrarily. Thus, the question for the trial judge was whether the area claimed, defined by those boundaries, extended beyond the area over which native title rights and interests existed. His Honour concluded (he said, as a matter of inference) "that the waters within the outer boundary of the claimed area comprise either the whole or part of the sea country of one or other of the several yuwurrumus of the Croker Island community" (emphasis added)[122]. It was, therefore, a finding consistent with the existence of native title rights and interests over areas lying beyond the boundaries of the claimed area.
The finding that the primary judge made depended upon an assessment of all of the evidence that was given. If, as the Commonwealth contended, the only evidence which touched on the far north‑east and eastern parts of the claimed area was the evidence of Mr Wardaga, a senior Aboriginal spokesman, it was a finding which depended upon an understanding of that evidence, taken on New Year Island, the most north‑easterly island in the claimed area, and which was accompanied by the witness pointing out the areas to which he was referring. As the majority of the Full Court rightly pointed out[123], there can be no doubt that the primary judge was in a much better position to assess this evidence than an appellate court. The Full Court was not persuaded that the primary judge erred in his conclusion. Nor are we.
The Commonwealth's appeal (Matter No D7) should be dismissed with costs.

[115]

These findings that the rights claimed were not supported or established by the evidence are findings of fact. They are findings which, as the primary judge pointed out, did not depend upon the conclusions he had reached about the effect of the common law public rights to fish and to navigate in the area claimed. The conclusions about those common law public rights were seen by the primary judge as providing a separate and independent reason for rejecting the claim to rights to possess, occupy, use or enjoy the claimed area to the exclusion of all others. It will be necessary to return to that issue, but for the moment it can be put aside.
The findings which the primary judge made about the claims to exclusive possession, occupation, use and enjoyment depended upon his assessment of the oral evidence given by some of the claimants and upon the significance which was to be attached to evidence given of the frequent visits made during the 18th and 19th centuries by fishermen from the port of Macassar (now known as Ujang Pandang) in southern Sulawesi.
For four to seven months each year, large numbers of Macassans (sometimes over 1,000 men) came to gather trepang (also known as beche‑de‑mer or sea cucumber) in the claimed area. Thus before 1824, when British sovereignty was first asserted over any of the claimed area, there had been regular contact with other, non‑Aboriginal peoples who sought to and did enter the area and take its resources. The primary judge found that it was not demonstrated that under traditional law and custom such persons were to be excluded. Although there was some suggestion on the hearing of the appeal to this Court that this might be no more than a recognition by the Aboriginal peoples of the area that the Macassan fishermen could not be stopped from entering, that is not the way in which the primary judge understood the evidence. He understood the evidence as not revealing any assertion of a right, under the relevant traditional laws and customs, to exclude such persons. Only if there had been some asserted right to exclude would questions of capacity to enforce have arisen.
The primary judge, having dealt with certain evidence that was given about the need to seek permission before entering the claimed area, concluded that "[i]t 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" (emphasis added)[128]. His Honour referred in this respect to some oral evidence given by Ms Yarmirr about the seeking of permission to enter the area. In his reasons, he said[129]:

[124]

Counsel for the claimants placed considerable emphasis on this part of the evidence of Ms Yarmirr and submitted that, properly understood, it supported the claim to rights to exclude all others (Aboriginal and non‑Aboriginal) from the claimed area. Even if this evidence is capable of bearing the meaning for which counsel contended, it is not the only way in which it can be understood. It fell to be considered against the whole of the evidence which was led in relation to this subject. Pointing to another meaning which this particular part of the evidence could bear falls well short of demonstrating that the finding made by the primary judge was not open.
We were taken to no other evidence that would suggest the primary judge was wrong in his understanding of the evidence. In those circumstances, it is not demonstrated that he should have been persuaded of the factual proposition that lay behind the claimants' contentions that they were entitled under traditional law and custom to exclude, as they chose, anyone and everyone from the claimed area. The Full Court was correct to conclude, as it did, that the claimants failed to demonstrate that the findings made on this subject should be set aside.
There is, however, a more fundamental difficulty standing in the way of the claimants' assertion of entitlement to exclusive rights of the kind claimed. This difficulty stems both from the common law public rights to navigate and to fish and from the international right of innocent passage which is recognised by Australia. These are rights which cannot co‑exist with rights to exclude from any part of the claimed area all others (even those who seek to exercise those public rights or the right of innocent passage).
Recognising that there may be a difficulty about this aspect of the matter, the claimants sought, in this Court, to accommodate the competing rights by acknowledging the existence of the public rights to navigate and to fish and the right of innocent passage and contending that a determination of native title should be made subject to a qualification recognising those rights. In their amended notice of appeal, this qualification was expressed in the following terms:

[129]

It may readily be accepted that neither the public right to navigate, nor the right of innocent passage, require free access to each and every part of the territorial sea. Neither right is infringed, for example, by erecting a pier from the shore to a point well out into the territorial sea even though that pier prevents vessels from using the part of the sea on which it stands. Nevertheless, the tension between, on the one hand, the rights to "occupy, use and enjoy the waters of the determination area to the exclusion of all others" and "to possess" those waters to the exclusion of all others (which the claimants sought in their amended notice of appeal to this Court) and, on the other, the rights of fishing, navigation and free passage is self‑evident.
Much of the debate on this aspect of the matter proceeded by reference to the metaphor of "fractur[ing] a skeletal principle of our legal system" used by Brennan J in Mabo [No 2][130]. The use of the metaphor cannot, however, be allowed to obscure the underlying principles that are in issue. There are obvious dangers in attempting to argue from the several elements of the metaphor to an understanding of the principles that lead to the result that is expressed by the metaphor. It is, therefore, not profitable to stay to consider what principles of the legal system are, or are not, part of its "skeleton". Rather, attention must be directed to the nature and extent of the inconsistency between the asserted native title rights and interests and the relevant common law principles.
When that is done in the present case, it is seen that there is a fundamental inconsistency between the asserted native title rights and interests and the common law public rights of navigation and fishing, as well as the right of innocent passage. The two sets of rights cannot stand together and it is not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests is to be subject to the other public and international rights.
The successive assertions of sovereignty over what now are territorial waters, without any further or other act of the executive or legislature, brought with them, and gave to the public, the public rights that have been mentioned. The assertion of sovereignty in 1824, over part of those waters, may have conceded the right of innocent passage to all vessels over those waters, and later assertions of sovereignty over other parts of the waters certainly did. Assertion of sovereignty, on those terms, is not consistent with the continuation of a right in the holders of a native title to the area for those holders to say who may enter the area.
Although the inconsistency does not arise as a result of the exercise of sovereign power (as is the case where a grant in fee simple extinguishes native title[131]) the inconsistency which exists in this case between the asserted native title rights and the assertion of sovereignty is of no different quality. At its root, the inconsistency lies not just in the competing claims to control who may enter the area but in the expression of that control by the sovereign authority in a way that is antithetical to the continued existence of the asserted exclusive rights.
The claimants' appeal (Matter No D9) should be dismissed with costs.
McHUGH J. These two appeals, one brought by the Commonwealth of Australia and the other by claimants for native title, raise issues concerning native title and the territorial sea, sea-bed and sub-soil. The principal issue in the Commonwealth's appeal is whether, under the Native Title Act 1993 (Cth) ("the Act"), native title can be claimed in respect of the sea-bed and its superjacent waters below the low water mark. If it can, the appeal of the claimants raises the issue of whether native title extends to exclusive rights, inter alia, to fish, hunt and gather food in respect of the sea and sea-bed below the low water mark.
The principal issue in the Commonwealth's appeal raises three sub-issues:

[135]

The appeals arise from an application lodged with the Registrar of the National Native Title Tribunal in November 1994 for a determination of native title. Representatives of the Mandilarri-Ildugij, Mangalarra, Muran, Gadurra, Minaga, Ngaynjagar and Mayorram peoples ("the claimants") made the application. Its subject area ("the claimed area") was described in general terms as the seas in the Croker Island region of the Northern Territory which adjoin Croker Island and other related islands[134]. It also included the sea-bed and any land or reefs within that area which had not been granted for the benefit of Aboriginal people pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)[135].
The claimed area lies between 132° and 133°30' East longitude. The Letters Patent issued to Captain Phillip and publicly read in 1788 had defined the western boundary of New South Wales as 135oE[136]. In 1824, Captain Bremer on behalf of King George IV extended the territorial limits of New South Wales, taking possession of "[t]he North Coast of New Holland or Australia, contained between … 129° and 135° East … with all the Bays, Rivers, Harbours, Creeks, etc, in, and all the Islands laying off"[137]. The Crown in right of the United Kingdom therefore acquired sovereignty over this land mass. In addition, international law gave the Crown sovereignty over so much of the coastal sea as was within three nautical miles of the low water mark, which is the mean of the neap and spring tides.
In 1863, by Letters Patent, the territorial limits of South Australia were extended to "so much of [the] Colony of New South Wales as lies to the northward of [26°S] and between [129° and 138°E] 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"[138]. By s 7 of the Northern Territory Surrender Act 1907 (SA), South Australia surrendered the area so described to the Commonwealth, and the Commonwealth accepted that area by enacting the Northern Territory Acceptance Act 1910 (Cth) which came into force on 1 January 1911.
In November 1990, a Proclamation made under the Seas and Submerged Lands Act 1973 (Cth) extended the boundary of the territorial sea to 12 nautical miles[139]. Until then, although Australia had certain sovereign rights over the sea and sea-bed beyond the three nautical mile limit, it did not have sovereignty beyond that limit. While all of the claimed area has fallen within the territorial sea since 20 November 1990, for over 150 years a substantial part of the claimed area was part of the high seas. That area is one over which no nation has sovereignty and over which the common law could not recognise or enforce native title rights and interests. This fact creates an insuperable barrier to much of the claim. Three nautical miles of the claimed area, however, lies within an area over which the Northern Territory has had title and legislative power since 1983[140]. But as will appear, the common law did not operate in this area at any relevant time.
In 1975, the decision of this Court in New South Wales v The Commonwealth[141] established that no part of the sea below the low water mark was part of the territory of the Northern Territory. As a result, the Commonwealth enacted the Coastal Waters (Northern Territory Powers) Act 1980 (Cth) and the Coastal Waters (Northern Territory Title) Act 1980 (Cth) to give to the Northern Territory the rights and powers which many believed that it had before the decision in New South Wales v The Commonwealth. It is unnecessary to refer to them at this stage except to say that s 7 of both Acts declared that nothing in either Act extended the territorial limits of the Northern Territory.

[165]

It is also necessary to keep in mind that, in the Second Reading Speech on the Native Title Bill 1993, the then Prime Minister, Mr Keating, saw Mabo [No 2] as giving Australians the opportunity to rectify the consequences of past injustices[159]. The Act should therefore be read as having a legislative purpose of wiping away or at all events ameliorating the "national legacy of unutterable shame"[160] that in the eyes of many has haunted the nation for decades. Where the Act is capable of a construction that would ameliorate any of those injustices or redeem that legacy, it should be given that construction.
If the purpose of the Act was to recognise native title in any case where Aboriginal or Torres Strait Island peoples still possessed rights and interests in respect of land or water under their traditional laws or customs, the duty of the courts would be to ensure that that purpose was achieved. That would be so even if it meant giving a strained construction[161] to or reading words[162] into the Act. In an extra-judicial speech, Lord Diplock once said that "if … the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed"[163].
However, the natural and ordinary meaning of the Act indicates that it is not the purpose of the Act to recognise rights and interests under the traditional laws and customs of the Aboriginal and Torres Strait Island peoples unless the common law recognised those rights and interests when sovereignty over the relevant area was acquired. The reference to "the rights and interests" in s 223(1) is a reference to the particular rights and interests that have been, can be or are the subject of a claim of native title. It is not a reference to rights and interests in the abstract, divorced from a concrete claim that has been, is to be or can be determined. It describes an element of what constitutes native title for all the purposes of the Act including determinations of native title. The definition is applied to concrete controversies. After all, s 225 declares that "[a] determination of native title is a determination of ... whether native title exists in relation to a particular area" and, if so, who holds the title, the nature and extent of the native title rights and interests in respect of that area, and that of other interests in the area.
Before a court can determine that native title exists in respect of any area, therefore, it must be satisfied that "rights and interests" in respect of that area exist and are recognised by Aboriginal and Torres Strait Island societies independently of the Act. Native title is merely the description which the Act, like the common law, gives to those rights and interests. In the words of s 223(1), they are "rights and interests [that] are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders".
Thus, when an application is made for a determination of native title, it is the possession or non-possession of those concrete rights that is in issue. But it is only when the common law recognises those rights and interests that they answer the description of "native title". Section 223(1)(c) expressly declares that native title or native title rights and interests means rights and interests that "are recognised by the common law of Australia". Consequently, it can only be referring to the concrete rights that are in issue in particular proceedings. It is those particular rights that must be recognised by the common law, whether they exist on the mainland, the external territories, the coastal sea or any waters over which Australia asserts sovereign rights.
The reference in s 6 to "waters" over which Australia asserts "sovereign rights" under the Seas and Submerged Lands Act is curious. The sovereignty of a state extends only "to a belt of sea adjacent to its coast, described as the territorial sea"[164]. Beyond the territorial sea lie the high seas over which no nation has sovereignty. International law recognises, however, that a nation has rights in respect of its continental shelf even where that shelf extends beyond the boundaries of the territorial sea. In respect of its continental shelf, a nation has "sovereign rights" to exploit the sea-bed and its sub-soil. In 1953, Australia declared that it had sovereign rights over its continental shelf[165]. But it has no sovereignty over the waters or area beyond the territorial sea boundary[166]. Consistent with its international obligations, Australia might declare native title over the sea-bed and sub-soil. But as at present advised, I am not persuaded that, consistently with international law, it could do so over any part of the high seas. If I thought that it was possible to read the Act as declaring that native title existed over the high seas, I think that it would be necessary to read the Act down to be consistent with Australia's obligations in international law.
That the Act "extends" to the coastal sea of Australia and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act does not mean that the Act is declaring that the Aboriginal and Torres Strait Island peoples have rights and interests over those areas. After all, the Act also "extends" to "each external Territory", areas where there may be no such rights or interests. To my mind, the certainty of this conclusion can only be doubted by commencing with the premise - which I have rejected - that the Act intended to recognise native title over the territorial sea irrespective of whether the common law recognised it.
Given the definition in s 223 and despite the declaration in s 6 of the Act, therefore, the natural and ordinary meaning of the Act is that it protects and enhances traditional and customary rights and interests where, but only where, the common law recognises them.

[177]

Members participating in the debate on the Bill in the House of Representatives made little reference to native title rights in relation to waters, let alone coastal waters. The debate in that House contained little discussion of specific provisions and their intended effect. In his Second Reading Speech, the Prime Minister assumed that the Bill would regulate the relationship between commercial fishermen, petroleum explorers and Aboriginal and Torres Strait Island peoples in respect of offshore waters[175]. But neither the Prime Minister nor the Minister for Aboriginal and Torres Strait Islander Affairs, Mr Tickner, made any statement that indicates that the Bill was intended to extend native title to offshore areas even if the common law did not recognise native title over such areas.
Comments made by the Prime Minister, by the Member for Moore[176] and by a number of Senators indicate that some members of the Parliament assumed that determinations of native title under the Act might include areas such as the coastal sea. But nothing in the Parliamentary debates indicates that the Bill was intended to declare native title over areas which were beyond the operational reach of the common law. To the contrary, the statements of Senator Evans indicate that the Parliament left it to the courts to determine the extent of native title by applying the principles laid down in Mabo [No 2].
That being so, it would not be right to construe the Act on the basis that the Parliament intended the Act to recognise native title in the sea and sea-bed below the low water mark even if the common law did not recognise native title in those areas. Even more importantly, if the Act's references to offshore waters conflict with the reference in s 223(1)(c) to recognition of native title by the common law, the statements of Senator Evans explain how that apparent conflict has arisen and how it should be resolved. His statements make it clear that the Parliament was not sure as to the status of native title claims in respect of offshore waters or airspace and that the courts would resolve the uncertainty by applying the principles laid down in Mabo [No 2].

[205]

It will be apparent from what I have already written that I can not accept their Honours' approach to the construction of s 223(1)(c). With great respect, their Honours turned the Act on its head. They did not see the Act as protecting, and in some respects enhancing, rights and interests which the common law recognises, as the text of the Act suggests. In fact, their Honours implicitly rejected the proposition that the Act was a legislative endeavour to protect or enhance a common law conception - the recognition by the common law of certain traditional and customary rights and interests. Instead their Honours saw the Act as bringing into existence a new entity that had analogies with the common law conception of native title but was not identical with that conception.
As Merkel J pointed out, the approach of Beaumont and von Doussa JJ took the opening words of s 223(1) as implying a legislative confirmation that, as native title had survived the acquisition of sovereignty and constituted a burden on the Crown's title or sovereign rights, the subject matter of the sub-section was those rights and interests that have not been extinguished or abandoned. Merkel J found it difficult to accept that construction. In his Honour's opinion, to regard the introductory words as referring to unextinguished rights or interests would require reading words into the sub-section. It would also mean that the words "rights and interests" had different meanings in different parts of the same sub-section.
More importantly, Merkel J said that the approach of their Honours amounted 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". Its effect was to replace the date of sovereignty criterion (which, in his Honour's view, would arise under s 223(1)(c)) with the requirement that the native title right or interest be possessed as at 1 January 1994[197] by the claimant community in accordance with its traditional laws and customs. Provided it was based on "traditional" use or enjoyment at that date, it could differ substantially in area, nature and content from the native title (if any) in existence at the date of sovereignty. Merkel J was concerned about possible anomalies eventuating from this approach, concluding that:

[224]

The distinction that the common law has made between local and transitory actions[218] also makes it impossible for the common law to recognise and enforce native title rights and interests over the territorial sea or sea-bed. Not only does the common law not operate beyond the realm, it does not allow some rights arising without the realm to be enforced in its courts even though the parties were within the jurisdiction of the common law courts.
For historical reasons concerned with common law procedure, the substantive common law refused to provide remedies or recognise rights that concerned or were inextricably connected with the occupation, possession or ownership of places outside the realm. Actions concerning such places were classified as local actions; other actions were classified as transitory actions. The mature common law classified as local actions all actions whose proof depended, wholly or partly, on a fact or facts concerning, or inextricably involved with, the occupation, possession or ownership of a place outside the territory of England. It classified as transitory actions all actions where proof of a fact concerning a place outside England was neither an essential element of the action nor inextricably associated with the occupation, possession or ownership of such a place[219].
The need for these classifications arose from the early common law's insistence that issues of fact could only be determined by juries drawn from the particular town or village where the facts of the case occurred, jurors in those days being in the position of witnesses as well as judges. Common law pleadings had to state truly the venue of every material fact in issue upon which a party - plaintiff or defendant - relied[220]. If the pleadings showed that the issues arose in different venues, they had to be tried by juries drawn from the respective venues.
Eventually, jurors ceased to be persons who had some prior knowledge of the case and the parties. When that happened, the common law came to distinguish between those cases where proof of possession or ownership of a place, or a fact inextricably associated with it, was material (local actions) and those where it was not (transitory actions). Where proof of an issue concerned occupation, possession or ownership of a place or was inextricably linked with it, the venue had to be truly stated in the pleading. Any variance between the pleading and the evidence on the issue meant that the party had failed to prove his or her case[221]. If the venue was not material, the pleader could fictitiously aver that the fact occurred within the county where the case was tried and the other party was not allowed to deny it[222].
Where the venue was material but was outside the realm, no jury could be summoned from that venue. The logical consequence was that no common law court could try the action. Sixteenth-century lawyers ingeniously solved this problem of venue by inventing a fiction. The plaintiff could aver that a fact occurred in a foreign place but add an averment that the place was a place in England, which was subject to the court's jurisdiction[223]. Although the latter averment was fictitious, the defendant was not allowed to challenge it. However, as Morse has pointed out, this "procedural dodge" was only available in respect of transitory actions. It was not available in local actions, where the laying of the venue remained a strict requirement[224].
Thus in Skinner v The East-India Company[225], Skinner alleged that in a foreign place the defendant had caused injury to his property and person. The Lord Chief Justice of the King's Bench reported to the House of Lords that all the Judges were of the opinion that[226] the taking of Skinner's ship and goods and the assaulting of his person were justiciable in the ordinary courts at Westminster. But his claim for dispossessing him of his house and island "was not relievable in any ordinary court of law"[227].
In Mostyn v Fabrigas[228], the plaintiff brought an action for assault and false imprisonment. The defendant pleaded that, because the assault for which the action was brought occurred in Minorca, out of the realm of England, it was not cognisable by the King's Courts. In giving judgment, Lord Mansfield said[229] "all actions of a transitory nature that arise abroad may be laid as happening in an English county". But he also recognised[230] that "there are some cases that arise out of the realm, which ought not to be tried any where but in the country where they arise". An example was a case "where the question was a matter of title only, and not of damages".
In British South Africa Company v Companhia de Mocambique[231], the House of Lords approved the distinction between local and transitory actions in respect of events occurring without the realm. The House held that an action for damages for trespass to foreign land could not be brought in an English court. Lord Herschell LC said[232] that "the grounds upon which the Courts have hitherto refused to exercise jurisdiction in actions of trespass to lands situate abroad were substantial and not technical". Consequently, "the rules of procedure under the Judicature Acts have not conferred a jurisdiction which did not exist before"[233].
Where proof of the place was a material fact in a civil action and the plaintiff had pleaded the fact, the defendant could demur that there was no cause of action. If the fact was not pleaded, but proved in evidence by the defendant under the plea of not guilty, the plaintiff would be non-suited[234].
In criminal cases, the procedure was no doubt dependent on the form of the indictment. In Keyn[235], for example, the venue was laid in the Central Criminal Court. The indictment contained two counts, one of which alleged a felonious killing and slaying "upon the high seas", and it was upon this count that the accused was convicted. The other count omitted these words[236]. The accused did not demur to the count upon which he was convicted. But at the end of the evidence for the Crown, he took the point that the Court had no jurisdiction.
The failure to demur is understandable. As an alternative basis of jurisdiction, the Crown alleged that the crime had occurred on a British ship because the deceased was a passenger on such a ship. If the crime had occurred on a British ship, then, as numerous authorities had decided, the offence occurred within the territory and realm of England even though it occurred on "the high seas"[237]. This alternative argument of the Crown was rejected because a majority of the judges held that the negligence that resulted in the death of the passenger occurred on a foreign ship. Until all the evidence was adduced, however, it was not possible to say that the Court had no jurisdiction merely because the indictment laid the crime on "the high seas".
The common law's classification of actions as either local or transitory shows that it would not have recognised a claim of native title over the territorial sea or sea-bed. If a Torres Strait Islander holding the right, under traditional law, to fish in the territorial sea was forcibly ejected from the area in 1825[238], no action could have been brought for interference with the right to fish in that area (a local action). Such an action would require proof of ownership over an area to which the common law did not extend and where it refused to enforce or recognise rights[239]. As Lord Herschell LC pointed out in British South Africa Company v Companhia de Mocambique[240], at common law "in respect of a trespass to land situate abroad there was no right of action, for an alleged right which the Courts would neither recognise nor enforce did not constitute any right at all in point of law". It could make no difference in principle that the right concerned an interest in the territorial sea instead of an interest in land in a foreign place.
It may be that in 1825 a native title holder ejected from the territorial sea might have brought an action for assault (a transitory action) in the common law courts[241]. Given that the venue fiction, to which I have referred, resulted in a foreign transitory action "happening in an English county"[242], it was inevitable that the early common law would apply its own rules and principles in determining whether the plaintiff was entitled to a remedy in that action. As Morse has pointed out, the fiction of laying the venue within the jurisdiction of the English courts operated to "naturalise" the foreign act in England, so that English law would automatically be applied[243]. Courts did not apply the law of the foreign place, and the rules of private international law were not created until the middle of the 19th century. Morse wrote[244]:

[228]

Further proof that the common law did not and does not recognise native title rights and interests over the territorial sea and sea-bed is shown by the need to develop a separate body of law - Admiralty or maritime law - to deal with some offshore disputes. Maritime law is the law developed and administered in the Admiralty Court in exercising both its original jurisdiction and the jurisdiction derived from statute[247]. Smith traced the origins of the Admiralty jurisdiction back to the reign of Edward I[248]. His examination led him to conclude that the rise of Admiralty or maritime law was in no small degree attributable to the inelasticity of the common law - the processes of common law courts originally depending on venue, and not extending to matters happening at sea[249]. The general inability of the common law to regulate matters, things and events occurring on the waters below the low water mark led to the development of Admiralty law.
Initially, the function of the Admiralty courts was to keep the King's peace upon the seas and to punish the crime of piracy. However, the jurisdiction of the Admirals soon extended to civil cases and encroached upon the jurisdiction of the common law courts[250]. All encroachments upon that jurisdiction were sturdily resisted and prevented by Acts of the Parliament. The controversy that developed between them led to two statutes being passed in the 14th century[251]. These statutes restricted the Admirals' jurisdiction to things done upon the sea and in the great rivers beneath the bridges. But the procedures of the common law courts limited their jurisdiction, and the Admiralty courts obtained exclusive authority over a number of matters. They included[252]:
all torts committed on the high seas;
all suits of salvage;
all suits of possession concerning ships;
all cases of hypothecation; and
all suits for seamen's wages.
According to Smith, the ordinary cases in respect of which the authority of the Admiralty division was exercised, at the time he was writing, were actions for[253]:

[237]

The claimants and the interveners supporting them argued that the common law would enforce the rights and interests of the Aboriginal and Torres Strait Island peoples in the territorial sea and sea-bed. The claimants submitted that under the common law the real question was whether native title rights over offshore places, derived from traditional laws and customs, survived the acquisition of sovereignty. But their arguments failed to acknowledge that it is not the acquisition of sovereignty over a territory that leads to the recognition of native title rights. It is the bringing of the common law to the territory. The rights and interests of indigenous people in respect of land survive the acquisition of sovereignty because the common law - when it is brought to the territory - burdens the radical title of the Crown with those rights and interests. While that burden exists, the common law permits any right or interest, possessed under the traditional laws of the indigenous people, to be enforced in the common law courts. The burden ceases when the Crown disposes of an interest in its radical title in a manner that is inconsistent with the enforcement of the native title right or interest.
However, the acquisition of sovereignty does not bring the common law to the territorial sea. When international law finally recognised the three nautical mile territorial sea as within the sovereignty of the coastal state and consequently gave Great Britain sovereignty over its territorial sea, it had no effect on the common law. The early common lawyers accepted that the sovereign had proprietary rights in the sea-bed and superjacent waters, subject to public rights of fishing and navigation[266]. They saw the Crown's title as derived from the prerogative and as being a full beneficial, and not merely a radical, title to the sea-bed. Support for the view that the Crown had a prerogative right to the sea-bed can even be found in some cases decided after Keyn[267]. As late as 1975, Jacobs J thought the cases still justified this proposition[268]. But in New South Wales v The Commonwealth[269], Barwick CJ, McTiernan and Mason JJ rejected it. As previously mentioned, Barwick CJ said[270] that "property in and power over the territorial seas could not have come by the common law".
The judgment of Murphy J in New South Wales v The Commonwealth is not so clear but the better view is that his Honour also rejected the proposition that the Crown had any proprietary rights in respect of the territorial sea and sea-bed. His Honour referred[271] to the contentions of the Australian States, one of which was that "the Crown in right of the colony owned the seabed and sub-soil of the territorial sea". Murphy J said[272] that a case decided by the Supreme Court of the United States "showed that the contentions of the States of the United States were groundless, and its reasoning is applicable here".
Even if the view of the dissenting judges in New South Wales v The Commonwealth had prevailed, and the Crown had title to the territorial sea and the sea-bed by virtue of the common law, it is difficult to see how any claim of native title could have succeeded. Under the old learning, the title of the Crown in the sea-bed of the coastal waters was a full beneficial title and not merely a radical title. Radical title was the device that the common law adopted to reconcile the theory of tenure and native title when the Crown acquired sovereignty of a settled country. It was the invention of 19th-century judges confronted with the reality of indigenous persons occupying land over which - according to the orthodox common law view - they had no rights against the Crown. So the judges invented the notion of a radical title burdened with the rights and interests that indigenous people possessed under their traditional laws and customs. Radical title in a native title setting serves the same purpose as the fiction of the grant of an estate does in the case of the fee simple in England[273]. If the Crown claims title to land, that fiction requires the Crown to prove its title. Historically it did so by an inquest of office or an information of intrusion[274].
By contrast, in respect of the foreshores and the beds of tidal rivers and coastal waters (when the Crown was believed to have title to the beds of the coastal waters), the common law acted on the presumption that the Crown had a full beneficial title to this land by virtue of the prerogative[275]. There was no room for the fiction of the lost grant. The Crown did not have to prove its title. It was presumed. Any person claiming title to the foreshores, to the beds of tidal rivers or to coastal waters in opposition to the Crown had to prove a prior grant from the Crown[276]. There was not and could not be radical title in the sea or sea-bed which native title rights and interests could burden. The Crown title was absolute and untrammelled.
Given the majority's rejection, in New South Wales v The Commonwealth, of the proposition that the Crown had title to the territorial sea and sea-bed, the position must be that, when what became the Northern Territory was acquired by the Imperial Crown in 1824, dominion over its territorial sea became vested in the Imperial Crown. That dominion entitled the Imperial Crown - through the Crown-in-Parliament - to enact laws with respect to the territorial sea. But it did not bring the common law to the territorial sea. Nor did the colonies acquire any proprietary rights over the territorial sea. The colonies were not international persons[277]. They did not acquire ownership of the sea-bed or the superjacent waters from the low water mark to the three nautical mile limit[278]. Only nation states can perform international obligations[279]. Only nation states can have sovereignty over the territorial seas adjacent to their land masses.
The United States Supreme Court has taken the same view of the ownership of the sea-bed and the superjacent waters in the territorial sea adjoining the coast of the then United States colonies[280]. For more than 50 years the Supreme Court has consistently taken the view that the territorial sea is a national and not a State concern[281]. The Court has rejected the view that the States have any common law rights in respect of the territorial sea. The Federal Court of Appeals for the Ninth Circuit has also held that Aboriginal native title holders have no rights over the territorial sea, sea-bed or sub-soil[282].
Without the intervention of federal Parliament, no one can acquire a legal right in relation to the territorial sea, sea-bed and sub-soil that the common law courts can enforce. It is erroneous to suggest, as the claimants do, that sovereignty in the territorial sea carries with it judicial power to protect and enforce private rights and interests in respect of the territorial sea and sea-bed. As I have explained, the Aboriginal and Torres Strait Island peoples have no sovereignty over the seas; nor are their rights and interests inherently enforceable in the common law courts. Nor does international law recognise them as being a burden on the sovereignty that a coastal state has over its territorial sea.
As Mason J pointed out in New South Wales v The Commonwealth[283], "the territorial sea is essentially a conception having its origins in and owing its elaboration to international law". His Honour also pointed out[284] that "the territorial rights now conceded by international law to the coastal state in the solum of territorial waters stamp it with the character of territory that is different from the land territory of the coastal state". That the sovereignty over the territorial sea is different from the sovereignty of the coastal state is demonstrated by the obligation to permit the innocent passage of foreign vessels through the territorial sea adjoining that coast[285]. The sovereignty that the coastal state exercises over the territorial sea is also subject to the developing international law. As international law changes, so does the content of the sovereignty of the coastal state over its territorial sea.

[238]

As I have already indicated, Merkel J held in the Full Court of the Federal Court that, by reason of 20th-century developments in international law, the territory of Australia now includes the territorial sea. Consequently, the common law operates over the territorial sea and recognises native title rights and interests over the territorial sea and sea-bed. But it is impossible to reconcile this proposition with New South Wales v The Commonwealth[286] where this Court held that the common law did not extend to the territorial sea. That case also held that the realm of the States - and therefore the Northern Territory - did not extend below the low water mark. Nothing has occurred since 1975 to alter those views.
His Honour's view has the surprising consequence that, independently of Commonwealth legislation, the common law extends beyond the territorial limits of the States and Territories as specified in the instruments that define their boundaries[287]. On his Honour's view, the common law would extend beyond even the three nautical mile area over which the States were given powers as the result of the constitutional settlement that took place in 1980 after the decision in New South Wales v The Commonwealth[288]. That is because since November 1990, the territorial sea extends to 12 nautical miles from the coast of Australia.
Merkel J thought that the boundaries of Australia were extended and the common law applied to the territorial sea when Australia asserted its claim of sovereignty at the League of Nations Conference in 1930. His Honour was mistaken. At the Conference, Australia made no such assertion. It merely asserted in a memorandum to the Preparatory Committee of Experts that Australia "accepts the proposition that a State possesses rights of sovereignty in the generally accepted sense of the term over the belt of waters around its coast generally described as territorial waters"[289].
But even if Australia had asserted sovereignty at that date, that would not have advanced the claimants' application. As previously mentioned, a nation's assertion of sovereignty over the territorial sea does not extend its territory. Under international law, England had sovereignty over its territorial sea in 1876 when Keyn[290] was decided. Nevertheless, that case held that the realm of England and the reach of the common law ended at the low water mark. Only legislation could extend the law of England to the territorial sea. In Re Offshore Mineral Rights of British Columbia[291], the Supreme Court of Canada declared that in England "even after the enactment of the Territorial Waters Jurisdiction Act [1878 (Imp)] the majority opinion in [Keyn] that the territory of England ends at low-water mark was undisturbed". Similarly, only legislation could apply the common law to the territorial sea of Australia. The view of Merkel J also overlooks or at all events does not deal with the fact that until November 1990 part of the claimed area was on the high seas over which no nation has sovereignty.
Furthermore, on his Honour's view, there was a gap of 106 years between the acquisition of the territory of the Northern Territory in 1824 and the application of the common law to the territorial sea in 1930.
When the Crown acquires sovereignty over land, the common law operates to recognise the rights and interests in that land possessed under the traditional laws and customs of the indigenous population and to burden the Crown's radical title. But the common law cannot recognise rights and interests under traditional law when, at the date of acquiring sovereignty, it did not operate over the area where the rights and interests are now asserted. As previously mentioned, six members of this Court pointed out in Fejo v Northern Territory[292]:

[247]

Section 4 cannot be read as preserving native title rights. Section 4(2)(a) preserves only those rights or titles that subsisted immediately before 14 February 1983, the date on which the Northern Territory Title Act commenced. Having regard to the title vested in the Northern Territory by s 4(1), it is a curious feature of s 4(2) that it preserves only the right or title to the property "in the sea-bed".
Immediately before the commencement of the Northern Territory Title Act, the common law did not recognise any rights under traditional laws over the territorial sea. Nor did any statute then recognise native title rights in that area. Moreover, as I have pointed out, the rights that were preserved were rights to the property "in the sea-bed". There was no preservation of rights or titles in the space above the sea-bed. If s 4(1) had not mentioned the "space (including space occupied by water) above that sea-bed", it would have been proper to read the reference to property in the sea-bed in s 4(2)(a) as preserving rights in respect of the space and water above the sea-bed. But the omission of these words in s 4(2)(a) must have been deliberate.
Five years after the enactment by the Commonwealth of the Northern Territory Powers and Title legislation, the Northern Territory enacted the Off-shore Waters (Application of Territory Laws) Act 1985 (NT). By this enactment the Northern Territory applied the written and unwritten laws in force in the Territory over its coastal waters. Although, as a result of this enactment, the common law has applied to so much of the territorial sea as falls within three nautical miles from the coast of the Northern Territory, it does not have the effect of preserving native title rights. The moment when the common law would recognise those rights - the bringing of the common law upon the acquisition of sovereignty - had long passed when the Off-shore Waters (Application of Territory Laws) Act extended the common law to the then territorial sea off the Northern Territory coastline.

[249]

The Native Title Act 1993 is so framed that no claim of native title can succeed over any area - land or water - unless the common law would have recognised native title rights and interests at the time that the Imperial Crown acquired sovereignty over that area. The Parliamentary debates show that this was the deliberate choice of those who enacted the Act and its 1998 amendments.
Sovereignty over what is now the Northern Territory was acquired in 1824, and the common law applied from that date. Unfortunately for the claimants, the common law did not then, and of its own force does not now, operate over the territorial sea. When the Imperial Crown acquired sovereignty, the common law could not enforce rights and interests over the territorial sea, possessed under traditional law. Those rights and interests were not recognisable by the common law, for the common law recognised no property in the territorial sea, sea-bed or sub-soil. Despite the enactment of the Coastal Waters (Northern Territory Powers) Act 1980, the Coastal Waters (Northern Territory Title) Act 1980 and the Off-shore Waters (Application of Territory Laws) Act 1985, the better view of that legislation is that even now the common law itself does not recognise any property in the territorial sea, sea-bed or sub-soil. Certainly, that legislation does not have the effect that the common law recognises rights over the territorial sea beyond three nautical miles from the coast of the Northern Territory. And even if the common law now recognises rights in part of the territorial sea, it did not do so in 1824 when the Imperial Crown acquired sovereignty over what is now the Northern Territory.
In Mabo [No 2], this Court did what it could to correct the injustice that had been done to the Aboriginal and Torres Strait Island peoples in dispossessing them of their rights and interests in the land. Acting on common law principles, long recognised in other jurisdictions, the Court was able to reject the then orthodox view in Australia that the traditional laws and customs of the indigenous people gave them no enforceable land rights. But in my opinion it is not open to this Court to hold that the common law recognises native title rights over the territorial sea, sea-bed and sub-soil. Consistently with fundamental common law principle, the Court cannot legitimately declare that the common law no longer ends at the limits of the realm but operates over the territorial sea and perhaps even over the high seas. Nor can the Court legitimately declare that the common law will enforce native title rights over the territorial sea. To do so would be "to fracture a skeletal principle of our legal system"[294] - that the common law does not operate below the low water mark. By statute, the federal Parliament may declare that the common law operates below the low water mark. Even then, any rights and obligations thus established are not truly common law rights and obligations. They are statutory rights and obligations whose substance is identified by reference to common law rules and principles.
The courts - including this Court - have no authority to "provide a solvent"[295] for every social, political or economic problem or wrong. As Gaudron J and I pointed out in Breen v Williams[296]:

[252]

Before the decision of this Court in Mabo v Queensland [No 2][297], rights and interests, such as those claimed in this matter, were not recognised or enforced by the common law of Australia. In that decision, the common law was re-expressed. It was held that, under certain conditions, it would recognise and enforce such rights and interests. As a consequence, for nearly a decade, the Australian legal system has been adjusting to new legal principles[298].
In part, this adjustment has been effected by legislation[299]. In part, it has been effected by further judicial decisions[300]. The process of elucidation of the law is continuing[301]. The process involves both the construction of the provisions of applicable legislation (most of it enacted since Mabo [No 2]) and the extension, by analogical reasoning into new factual and legal situations, of the basic principles stated in Mabo [No 2][302].
It was to be expected that such a significant change in legal doctrine would give rise to many doubts and uncertainties, especially during the early stages of clarification and elucidation[303]. This was especially so because the altered principle affects interests that are important to those who claim them, such as the possession, occupation, use and enjoyment of, or other entitlements in land, water and other resources. However, there is no gulf between the common law and the provisions of the main legislation enacted following Mabo [No 2]. Amongst the "key concepts" provided by s 223 of the Native Title Act 1993 (Cth) ("the Act") are definitions of "native title" and "native title rights and interests" as those expressions are used throughout the Act. The definitions envisage a tripartite requirement for the establishment of native title under the Act[304]. The rights and interests in question must be possessed under the relevant traditional laws and customs of the indigenous peoples affected; those peoples, by law and custom, must have a connection with the place in which the rights and interests are said to exist; and the rights and interests must be "recognised by the common law of Australia"[305].
Accordingly, although the Act establishes its own legal regime, it is not one divorced from the reformulated common law that existed immediately before its passage. The rights and interests upheld by the Act must be of a kind that the common law of Australia will recognise[306]. Whilst the Act is therefore the starting point of legal analysis, the key definitions within it take one back to the fundamental concepts of the common law. The Aboriginal rights and interests given legal force by the Act build upon, and to the extent of the requirement of recognition, depend upon, the principles of the common law as stated in Mabo [No 2].
During the colonial period of Australia's history, and after federation but before Mabo [No 2], the common law, inherited from England to the extent that it was applicable at the date of reception after settlement, drew a relatively clear distinction between the law applicable to land and the law applicable to the sea. It did so for the purpose of the enjoyment of rights and interests which the law would enforce. One of the many problems now presented by the intersection of the common law of Australia and the traditional laws and customs of Australia's indigenous peoples is that no such distinction was drawn by indigenous law and custom. At least, it was not so drawn under the laws and customs of the Aboriginal clan groups on whose behalf the claim, the subject of the determination under the Act in issue in these proceedings, was made.
Whereas before and at the time of the establishment of the Australian settlements, the common law of England had generally recognised a difference between land and tidal waters to the low water mark and the seas beyond that point[307], the evidence accepted in the present proceedings made it clear that the claimants, within their own society, laws and customs, drew no such distinction. Of communities such as theirs it has been truly said that they "do not observe this 'cultural distinction between land and sea', constructing land and sea property into a seamless web of cultural landscape"[308].
These appeals require a resolution of this difference of approach. They necessitate a statement by this Court of the principle to be applied in resolving such differences in this matter, and, hence in other matters like it.

[254]

Basis of the appeal: The findings of the primary judge (Olney J)[309], responding to the claim made under the Act, make it plain that the indigenous claimants had a clear concept of their sea country. The findings of connection, by law and customs, were not relevantly challenged in the appeals to this Court. So far as the claimants were concerned, the sea of the determination area was an undifferentiated part of the entirety of their "country"[310]. Neither the common law nor the Act impinges upon or modifies this conception, viewed from within its own paradigm.
However, the first question to be resolved is whether the Act, and to the extent that it is thereby incorporated, the common law of Australia, permit or require the recognition of the rights and interests which the claimants assert over their sea country. That is the question at the heart of the Commonwealth's appeal. The various ways in which the Commonwealth sought to suggest that the common law could not, or did not, recognise native title rights and interests over, or in relation to, such sea country including rights of fishing there, are explained in the joint reasons[311], by McHugh J[312] and by Callinan J[313]. I will not repeat that exposition.
In resolving questions for the determination of native title rights and interests, it is always necessary to focus first on the Act itself. Whilst the common law provides the background against which the Act operates[314], and is referred to in the Act[315], the Act itself must be construed according to its terms, taken as a whole[316] and having regard to its beneficial purpose[317]. Such an approach recognises that the Act is not confined to a codification of the common law[318] but has given rise to an extensive scheme of recognition and protection (and extinguishment and impairment) that may operate to change the common law[319]. It also supplements and reinforces the common law[320].
The Act's application to sea country: That the Act expressly contemplated, and allowed for, the recognition of "native title" and "native title rights and interests" in respect of the sea country of persons such as the claimants is shown by the definition contained in s 223. In the introductory words of s 223(1) it is made plain that the rights and interests that will be recognised are not only rights and interests in relation to land but also "in relation to ... waters". The Act's potential application to sea country is reinforced by the express mention, within the general definition, of the "connection" which the claimant Aboriginal peoples or Torres Strait Islanders have "with the land or waters". It is still further reinforced by the mention in s 223(2) of the fact that the "rights and interests" referred to in s 223(1) include "fishing", an activity necessarily engaged in, or on, or close to, waters[321].
It is within common knowledge, of which this Court may take notice, that a very high proportion of Australia's Aboriginal peoples (like the non-indigenous population) live within a few kilometres of Australia's enormous coastline[322]. Virtually all Torres Strait Islanders to whom s 223(1) of the Act applies would, in their original habitat, be in a similar position. Accordingly, the language, operation and apparent purposes of these "key concepts" of the Act contradict a notion that the Act was merely repeating, or blindly and unquestioningly reflecting, pre-existing English, Imperial, colonial or early Australian differentiations between land and sea for legal purposes. There are too many references to water and water rights for that to be so[323]. Thus, s 253 defines "waters" as including:

[260]

To the full extent that the language of the Act permits, this Court should give effect to the purposes of the Parliament expressed or implied in the foregoing provisions. This is the modern "purposive" approach to the construction of statutes[326] that has been accepted by this Court and applied in countless recent decisions. It is the approach which I would adopt here - and specifically in giving meaning to the third element of the statutory definition of rights and interests that will be recognised under the Act, namely that they are "recognised by the common law of Australia"[327]. It was not suggested by anyone that the Act, either generally or in this particular respect, was invalid as being beyond the Commonwealth's legislative powers. With respect to legislation concerning the sea areas in question in these appeals, and the claims by indigenous peoples in relation to them singled out by reference to the claimants' race, and external to the Australian mainland, ample constitutional power existed for the Parliament to make the law that it did, in the terms that it adopted[328].
Proper construction of s 223(1)(c): By the Act, the Federal Parliament obviously set out to protect and uphold the rights and interests of Australia's indigenous peoples[329]. To some extent it also supplemented those rights and interests[330]. In so far as the laws and customs of such indigenous peoples reflected rights and interests in connection with offshore "waters", it would, in my view, defy the terms and purposes of s 223 of the Act to permit notions of the common law that pre-existed the Act to negative the postulate of the existence of rights and interests in, or in connection with, waters, upon the basis of which the Act is so clearly drawn.
It is a common mistake to take words or phrases in a statutory provision out of context and to subject them to textual analysis divorced from their setting. Such an approach should not be taken with any Act of Parliament. Least of all should it be taken with an Act, necessarily including many novel concepts, designed to effect the adjustment of the Australian legal system to the recognition of the rights and interests of the indigenous peoples of Australia "in connection with" both "land" and "waters".
Of course, the Parliament could have confined the Act to apply only to "land" (inviting argument over what that concept would mean in this context)[331]. However, it did not do so. It would be a serious error of interpretation to uphold the Commonwealth's primary submission, which attempted to utilise par (c) of s 223(1) of the Act, in effect, to erase the broader statutory context with its many express references to rights and interests in connection with "waters" and in relation to "fishing"[332]. The Commonwealth's proposition is simply not compatible with the assumptions which s 223 of the Act reflects and which were then enacted by the Parliament. It is not compatible with the achievement of the Act's purposes derived from its language. An acceptance of these facts obliges the attribution to the phrase "recognised by the common law of Australia"[333], in this context, of a meaning different from that which might have been ascribed to such expression taken in isolation prior to Mabo [No 2] or to the expression "recognised by the common law" or "recognised by the common law of England" at a different time or in a different context.
There is a further reason that reinforces this conclusion. The common law of Australia may not defy, or conflict with, the Constitution[334]. Neither may it be inconsistent with valid federal legislation[335]. The common law adapts itself to the Constitution and to such legislation[336]. The residue of the common law may be re-expressed, deleting any former parts that cannot stand with the constitutional or legislative provisions or the assumptions inherent in them. So much follows, if from nothing else, from the requirement of the Constitution that there is but one law applicable to, and binding upon, all the people of Australia. The content of that law may occasionally be in doubt. It may sometimes require the application of legal reasoning to discover the rule to be observed and to exclude laws that are invalid. But, ultimately, a single governing law is discoverable and enforceable, if necessary in this Court.
I do not read the words "recognised by the common law" as abdicating the powers and stated objects of the legislation to protect and uphold native title rights and interests. I interpret this phrase as incorporating the ongoing relationship between the common law and the Act, grounded on the propositions advanced by Mabo [No 2], and acknowledging that those propositions need to expand and develop when applied to different customary title. This beneficial construction is in keeping with the purpose which the Act was intended to serve[337]. Thus pars (a) and (b) of s 223(1) pick up the common law incidents of recognition described by this Court in Mabo [No 2]. Paragraph (c) then ties the sui generis and fragile customary title rights to the relative security of the common law, as re-expressed in Mabo [No 2] and as advanced and developed by the common law method, in subsequent cases. The only limitations on recognition of native title rights and interests, that pass the tests of pars (a) and (b), to be read into par (c) are those stated in Mabo [No 2]: namely that native title could not be recognised when to do so would "fracture a skeletal principle of our legal system"[338]; or where to do so would be repugnant to the rules of natural justice, equity and good conscience[339]. To apply, as McHugh J does, a meaning to s 223(1)(c) which makes recognition of native title contingent on applications of the common law stated before Mabo [No 2] and divorced from the language and purposes of the Act would, with respect, amount to rejecting the fundamental premise of that decision. This was to recognise that, by virtue of its prior existence, the origin of native title existed in customary law rather than the common law and native title does not therefore need to fit into common law categories in order to be recognised and enforced[340].
It follows that the recognition of native title "by the common law" is shaped, and, if necessary, extended, by the Act's application to sea waters. Within the terms of s 223 of the Act, these considerations therefore provide a complete answer to the Commonwealth's primary proposition that, of its nature, the common law of Australia could not recognise rights and interests of the kind claimed by the claimants over their sea country. Thus, s 223(1)(c) cannot, in its context, be read as implying a geographical restriction on the recognition of native title. If the reach of the common law is so limited (which may be doubted after the assertion of sovereignty in the area in 1990 and the ability of the common law, as declared by municipal courts, to extend with it[341]) it must nevertheless give way to the application of the Act to such areas of the seas[342]. It is therefore unnecessary for me to consider the additional analysis offered by the joint reasons to demonstrate, by reference to the suggested sources of the common law upon which the Commonwealth relied, that the propositions advanced by it were unacceptably wide. I would reserve my opinion on that analysis. I prefer to start with the legislation and to give the critical words in it a meaning that is apt to the statutory context and appropriate to carry into effect an obvious purpose of the Act[343].
I cannot agree, with respect, with the opinions of McHugh J and Callinan J that the multifarious references to "water" and "fishing" in the Act are an instance of a legislative assumption not fulfilled when tested against accurate legal analysis[344]. The mere fact that rights of indigenous peoples in Australia in relation to the sea were not expressly mentioned in Mabo [No 2] is not determinative of the rights of the present parties[345]. This Court was there responding to the claim before it, which related to land. Nothing was said in Mabo [No 2] that excludes recognition and protection of rights in, or in relation to, "waters" and "fishing" if, conceptually, they give rise to a claim analogous to that presented with respect to land.
Nor do I find it useful to explore the subjective attitudes and intentions of those in Parliament at the time of the enactment of the Act[346]. The purpose of a legislature must be ascertained objectively from the language of the legislation that it enacts[347]. The text of the statute, not opinions recorded in Hansard, represents the ultimate source for resolving the territorial and substantive operation of the Act[348]. The Act is clearly expressed to extend to Australia's territorial waters. The purpose of the Parliament was also stated emphatically in the Preamble to the Act, namely:

[264]

One of the dangers of talking, as courts often do, of parliamentary "intention" is that use of this fiction slips all too easily into a search for the "intention" of the Minister, the Government or the Members of Parliament who spoke on the Bill that became the law in question. This is why, at a time when there is much greater latitude in the examination of the record of parliamentary debates, it would be preferable for courts to drop altogether the fiction of parliamentary "intention". I do not use it. The more objective word "purpose" reminds the searcher that the object of the inquiry is something other than the subjective intentions (if any) of the legislators. A court seeks to ascertain the purpose of the law, ultimately derived objectively from the language in which the law is expressed.
The realities of indigenous life in an island country, such as Australia, with a huge coastline and many offshore islands, rendered it virtually unthinkable that the new legislation, in the form of the Act, would ignore completely such an important part of the reality of the traditional laws and customs of the people whose rights and interests the Act was designed to protect. The only way in which the Act could be reconciled with the Commonwealth's basic proposition would be to assume that the "waters" and "fishing" to which it referred were confined to internal waterways in which most parts of Australia are, alas, comparatively deficient. Unsurprisingly, there is no indication in the statutory language that such was the Parliament's purpose. Nor should this Court attribute to the Parliament such a narrow, discriminatory and unjust objective that would benefit only some inland indigenous peoples and exclude the rights of the majority of Aboriginals and Torres Strait Islanders living at, or near, the coastline and maintaining a traditional connection to the waters and seas beyond. Clearly, the Act's purpose was to operate consistently, as well as beneficially, throughout the nation.
In several international reports[349] and municipal decisions[350] concerned with the legal entitlements of indigenous peoples, rights and interests have been asserted, and in some cases upheld, in relation to waters and fishing. Cases in a number of jurisdictions illustrate, to a point that puts the matter beyond argument, that in this field of discourse, an important dimension in affirming and protecting indigenous rights is the assumption that claims in relation to waters and fishing can be recognised[351]. In the case of most indigenous peoples living near the sea, or on offshore islands, such aspects of life as use of their sea country and access to fishing in it are essential to their economic viability, the preservation of their culture and language; indeed to their food supply and even their continued existence as a people.
Conclusion on Commonwealth's appeal: Therefore, having regard to the ultimate purposes that lay behind the Mabo [No 2] decision and the subsequent enactment of the Act (including to remove the discrimination against the indigenous peoples of Australia which the law had previously condoned and which this Court found to be unjustifiable) this Court should be extremely slow to reintroduce a discriminatory legal rule in the form of an artificial exclusion of entitlements to native title where such entitlements can be proved to exist in relation to "waters" and "fishing" within Australia's territorial sea. Especially should this outcome be avoided where it is obvious from the terms of the Act that the Parliament proceeded upon precisely the opposite footing.
I agree with the analysis of the joint reasons[352] in respect of the Commonwealth's subsidiary argument, challenging a particular finding of fact in relation to the north-eastern and eastern portions of the claimed area. Because that finding was heavily dependent on the primary judge's impressions of the evidence[353], and was not shown to have been erroneous[354], it should not be disturbed. It follows that the Commonwealth's appeal should be dismissed with costs.

[275]

Primary judge's determination: The foregoing qualifications on the claimants' asserted "rights and interests" are consistent with the holding of the primary judge that the claimants' native title rights and interests did not "confer possession, occupation, use and enjoyment of the sea and sea-bed within the claimed area to the exclusion of all others"[356], so far as his Honour rested his finding on the paramountcy of the rights of passage and navigation and of pre-existing statutory fishing licences. I will deal with each of these non-exclusive rights in turn.
The claimants go further than the primary judge in seeking "qualified exclusive" native title rights and interests, which can be exercised to exclude persons from accessing the area for other purposes, including, relevantly, those seeking to exercise public fishing rights or other rights to extract resources from the determination area. The key issue presented by the claimants' appeal therefore concerns whether a qualified power of exclusion (that is, a power to exclude persons entering the determination area for some purposes but not for others) is recognised by the law. This question must be resolved in accordance with the Act and the basis for recognition (and non-recognition) by the common law provided by the Act. A necessary influence will be the acknowledgment that, where possible, the question must be resolved in favour of full recognition of an existing customary right[357]. A further influence will be the consideration of any relevant international human rights norms which protect indigenous peoples against a discriminatory legal denial of their rights and interests. But recognition will not be accorded where to do so would be incompatible with a basic principle of the common law.
International right of innocent passage: The first basis upon which the primary judge rejected the claimants' assertion of the power of exclusion was that such a claim was inconsistent with the right of innocent passage under international law. The right of innocent passage through the territorial sea of Australia is recognised in conventional[358] and customary international law[359]. It has been incorporated in Australian legislation and preserved in Australia's decision to extend its territorial sea from three nautical miles to 12 nautical miles[360]. That extension was expressly stated to be subject to the right of ships of all nations to innocent passage through the territorial sea[361]. Thus, whilst there is potential for proprietary interests to be created by the Commonwealth in the sea-bed in its exercise of territorial sovereignty[362], these interests would appear to be subject to the right of innocent passage. The power of the common law to recognise such an interest is likewise so limited. The right of innocent passage allows ships of all states to navigate expeditiously and continuously in order to traverse the sea and to proceed in like manner to or from internal waters. Such a right is prima facie inconsistent with a right of native title holders to exclude all persons from large areas of the title holders' sea country.
It was therefore correct for the claimants to concede that any native title right to sea country must be subject to the foregoing rule of international law. It remains for this Court to ascertain what, if any, scope remains for the recognition of a "qualified exclusive" native title right[363]. Considerations in favour of recognition, coupled with the demonstrated capability of the common law to recognise exclusive interests in territorial sea waters subject to the international principle[364], lead inevitably to a conclusion that a general right of passage through an area of sea does not necessarily defeat all other legal rights within that area to control access and exclude others.
As a matter of practicality, a right to exclude persons from entering waters can be exercised for some purposes and not for others. For persons entering the waters "innocently", for the prescribed purposes of accessing internal waters and land, the rights of native title holders must give way. But just as a coastal nation may take steps to prevent passage which is not innocent[365], so too holders of a recognised native title could do so without doing any offence to the international rule. Innocent passage is defined by reference to its objectives. It is conceivable that persons acting outside of these objectives (the most obvious example being to access fishing and other natural resources in the determination area) could be obliged to seek permission from native title holders, just as they are now subject to lawful regulation by the littoral state.
Obviously, the intersection between the right of innocent passage and the native title right will be related to the size of the determination area. It is necessary to consider two principles when judging the breadth of a native title claim over waters. First, the larger an area of sea country, the greater the need to accede to the right of innocent passage[366]. It is also conceivable that in some cases, areas of sea country, although existing in the territorial sea, will be so narrow and defined that the right of innocent passage would not be disturbed by the enforcement of exclusive native title rights and thus would not be applicable. The present determination related to five estate claims which existed across land and sea. In the Full Court, Merkel J noted the advantages of delineating the separate estates of the determination area and particular parts requiring closure on sacred or ritual grounds (whether temporary or permanent), in order to respond to their apprehended interference with, amongst other rights, the right of innocent passage[367]. I agree with his Honour's remarks in that regard.
Secondly, the breadth of the determination area may, in a given case, extend beyond the territorial sea, bearing in mind the inevitable setting of boundaries in traditional customary laws without reference to conventional concepts of sovereignty and jurisdiction (in the present case using the reference points of "the horizon" or the deeper waters of the "balu" and "birrina"[368]). The present claim, lodged in 1994[369], is to be treated as existing within Australia's territorial waters, as proclaimed in 1990. If a native title claim extended to the high seas (beyond 12 nautical miles and outside the Act's operation), relying on Australia's interests in its continental shelf[370], a determination of native title would enliven an additional norm of international law. That norm generally upholds access to the open sea as part of the common heritage of humanity[371].
As the high seas are not, as such, part of the territory of any state, no state, as a rule, has a right to exercise its jurisdiction or powers over parts of the high seas[372]. Various reasons have been given for this treatment of the open sea in international law as different from land and from seas connected territorially to land. The reasons have included the fact that, of their nature, the high seas are not as susceptible as land and territorial waters are to "appropriation" and "divisibility"[373]. Furthermore, the high seas separate nation states so that international peace and security depend, in part, upon a high measure of freedom of movement and upon common use of the open sea[374]. In recent times, the notion that the high seas are part of the common heritage of humanity has come to replace earlier notions based upon Imperial or mercantile interests[375]. Claims upon the high seas may now be viewed as analogous to other interests regarded as part of the common heritage of humanity, such as the Moon and outer space[376], the Antarctic[377] and the human genome[378]. This international norm is more comprehensive than the right of innocent passage and presents greater scope for conflict with any native title rights and interests in the high seas. However, that potential problem is not relevant to the claims in this appeal. Those claims relate exclusively to waters within Australia's legal control. Accordingly, this potential source of extinguishment may be disregarded.
Common law right of navigation: The second qualification conceded by the claimants relates to the common law right of the public to navigate in tidal waters. This is analogous to the international right of innocent passage. It is founded on the same principles of freedom of movement and access. The common law right includes a right to pass and repass over the water and includes a right of anchorage, mooring and grounding where necessary in the ordinary course of navigation[379]. It prevails over exclusive fishing rights when the two conflict[380]. It can be described as a foundational principle of the common law[381]. It can only be modified by statute. No right of a private person, however long enjoyed, can extinguish it[382].
The claimants' concession of the public's right to navigate in areas of sea country respects this foundational principle of the common law. From the perspective of the claimants, it is clear that the elements of exclusivity within traditional laws and customs may continue, even when their exercise is restricted so as not unreasonably to interfere with the general right of the public to navigate. There was much evidence to support this proposition in the present case. The description of the claimants' originally asserted rights[383] indicates that no claimed right is inconsistent with the public's right to navigate, save for the right "of the senior yuwurrumu member(s) to close off areas of the estate on the death of either yuwurrumu members or of individuals in important relationships with yuwurrumu members, and to decide when they shall be re-opened to use". The claimants now seek the right to close certain areas to access in accordance with traditional laws and customs, so long as bona fide sea traffic is not "at any particular time substantially impede[d]". Such a right is not unfamiliar to the common law[384].
In their submissions, the claimants have identified ways in which exclusive rights of possession in the sea can coexist with the public right to navigate. For example, the creation of oyster beds or leases of the sea-bed permit exclusive possessory rights in the sea[385]. Although in Australia such cases consist of statutory, rather than common law, rights, they demonstrate important, and practical, ways in which the right of navigation may coexist with underlying exclusive interests in the sea.
A recognition of a public right of access would be unsurprising in relation to certain (exclusive) common law land tenures[386]. It should not be prevented from operating in relation to the sea. If, as has been accepted by the majority of this Court, the Act and the common law recognise native title rights and interests to the sea, it would be incongruous for the general right of navigation to operate as a blanket refutation of such recognition, where the incidents of traditional law and custom and connection to the sea otherwise demonstrate "exclusive" elements in particular native title rights and interests. It is for the courts to recognise "exclusive" rights if they are found to exist as a matter of fact. The common law public right to navigate does not, as a matter of law, extinguish all otherwise exclusive elements of native title, where as a matter of fact these continue to exist[387].
The common law right to navigate is different in character and strength from the common law right to fish. The latter ceases to exist in areas where there are proprietary rights[388]. It may also be limited by statute[389]. Whilst the public right to navigate is based on the principle of freedom of movement across waters, the principle behind the public right to fish is based on the (now unscientific) notion that uncontrolled catching of fish in sea areas cannot diminish the stock. The claimants do not concede the right of others to fish in the determination area except in accordance with licences granted under valid legislation. As will be shown later in my reasons[390], I agree with Merkel J that, in an area of pre-existing native title, the common law right of the public to fish may operate subject to, and be defeated by, the underlying native title rights and interests in the claimants' sea country.
Statutory fishing licences: The claimants' third qualification relates to the exercise of rights of holders of fishing licences, validly granted under statute, to enter the waters of the determination area[391]. These licences are granted for a specific time and may be subject to conditions in respect of particular areas, species, quantities and fishing methods. Such a grant is greater than, and distinguishable from, the public's common law right to fish[392]. In Australian land law, it is recognised that a statutory grant of a licence for certain purposes does not necessarily detract from the "exclusive" nature of freehold title to the same area[393]. I see no reason of principle or policy why such a grant of non-exclusive fishing licences is inconsistent with the continued right of the claimants to enjoy a residue of exclusive elements of their native title rights and interests. Indeed, consistently with the principles accepted by the majority of this Court in Wik[394], whilst the specific rights of the licence holders prevail over the traditional entitlement of the claimants to control access to, and use of, the resources of their sea country, the underlying elements of native title are not extinguished. The two may coexist. If they can coexist in law in the vastness of pastoral leases of outback Queensland, I fail to see why they cannot coexist in law in the vastness of a given sea country.
The comprehensive scheme of Commonwealth and Northern Territory fishing regulation, including that in place prior to the current Fisheries Act 1988 (NT)[395], contains a prohibition on commercial fishing without a licence. In the Full Court, Merkel J[396] correctly reasoned that native title rights to an exclusive fishery are not necessarily extinguished by such a "conditional prohibition" as a matter of law[397]. This is because the continued existence of native title rights and interests, even those supporting a power to exclude for certain purposes, is not inconsistent with regulation which is directed to the way in which native title rights may be exercised in the particular land and waters, without severing any connection upon which the native title rights and interests are based.

[276]

Three accepted qualifications: It follows that the above three qualifications do not extinguish otherwise exclusive native title rights and interests. As the claimants submitted, rights of passage and navigation and rights of fishing under statutory licences are all rights "defined and limited by purpose". Although extensive, such purposes do not by any means cover all the potential activities and uses of the claimed waters. A power to exclude, for example, persons who move through the waters of the determination area in order to fish without licence, to conduct tourist activities or to extract natural resources without the consent of the native title holders remains a very significant power. Such a power is currently exercisable by the Northern Territory (up to three nautical miles) and the Commonwealth, subject to the recognition of pre-existing exclusive native title rights in the determination area[398]. The rights which the claimants assert in these proceedings are similar. Viewed apart, they appear completely reasonable. But does the law recognise and uphold them? The other members of this Court think not. I disagree.
A proprietary right: The claimants assert "qualified exclusive" native title rights and interests to waters, as that term includes the sea, sea-bed or subsoil beneath the sea and airspace over the sea[399]. Following Yanner[400], such a right is proprietary in nature, in the sense that the right to exclude others from, and to control access to, a resource produces a proprietary relationship. The common law has recognised a proprietary community title. It has done so in the face of significant difficulties of proof of boundaries, of membership of the community and of representatives of the community[401]. So much is as clear for the sea as for the land[402]. Modern approaches to the concept of property, embraced by the common law and this Court[403], acknowledge this possibility. I agree with Merkel J[404] that the former uncertainty as to the ability of the Crown to assert proprietary rights in the sea‑bed of the territorial sea, expressed outside of the context of the special status of native title under the common law and the Act[405], does not defeat this proposition.
If the Aboriginal laws and customs observed by the claimants establish otherwise a traditional entitlement to the exclusion of others to control the access of other persons to their sea country, and to fish in their sea country, such an entitlement is proprietary in nature. In Mabo [No 2], this Court made it clear that concepts such as "alienability" are not relevant in the context of a proprietary native title right[406]. Nor should strict concepts of occupation and possession, in the sense that they are confined to an unbroken physical presence, be imported for the determination of native title rights[407]. Such an approach is inappropriate for a native title determination in respect of land; but even more so in respect of waters[408].
Even in England it has not proved beyond the capacity of the common law to recognise proprietary interests of the kind that the claimants propound. One instance of the ability to recognise proprietary interests in the sea (without proof of physical occupation) is the recognition of an exclusive (or "several") fishery, that is, an exclusive right of fishing in a given place, either with or without the property in the subsoil[409]. Such an "exclusive" right is qualified by the competing rights of others to exercise freedom of movement. The rights contained in the exclusive fishery entitle the owner to exclude others from accessing the resources of the fishery[410], thereby taking priority over the common law right to fish.
Questions have arisen as to the ability of the common law of Australia to recognise rights akin to an exclusive fishery. It has been asserted that such rights must pre-exist the Magna Carta, which expressly prevented recognition of exclusive fisheries not based on prior "custom or prescription" or Crown grant[411]. In Attorney-General for British Columbia v Attorney-General for Canada[412] it was stated that "proof of the existence and enjoyment of [exclusive rights of fishing] has of necessity gone further back than the date of Magna Charta". However, the subsequent holding that "no such case could exist in any part of British Columbia, inasmuch as no rights there existing could possibly date from before Magna Charta"[413] has no application in this Court. It was recognised in Mabo [No 2] that customary title pre-existed the acquisition of sovereignty in 1824. Moreover, the necessary date of inquiry as to the existence of rights analogous to exclusive fishing rights is Australia's reception of the Magna Carta rather than its making in 1215[414]. As the claimants have proved their continual connection with the waters of the determination area since sovereignty, in accordance with the common law and the Act, they sufficiently discharge proof of an exclusive fishery by prescription or custom, if the power to exclude others from the area is proved as an incident of their customary title.
I therefore agree with Merkel J that there is scope for the survival of a native title right, equivalent to a pre-existing exclusive fishery, established in accordance with the traditional laws and customs of the indigenous peoples[415]. In this situation, the general right of the public to fish, although recognised by the common law, is subservient to a right akin to an exclusive fishing right, founded on native title and recognised by the Act and the common law. I do not find that there is a "fundamental inconsistency"[416] between the two. This is because the common law has historically been capable of sustaining exclusive rights in the sea. Where it does so, public rights of navigation continue but public rights of fishing are no longer exercisable. The conflict between titles[417] is between native title containing a right to exclude access for certain purposes and a general public title to fish, the latter being inherently subject to rights in exclusive fisheries and rights conferred by legislation.
To extinguish legal rights, legislation said to have that effect must be completely clear[418]. The same must be true in relation to a rule of the common law. If the common law is ambiguous and coexistence of rights is possible, extinguishment of the rights of some, but not others, will not have been clearly demonstrated. The rights will survive.
The use of international principles: In resolving the problem of legal recognition of continuing exclusive elements of native title in the sea (where exclusive enjoyment can be proved as a fact to exist) there are new sources to inform the content of the common law of Australia, including as that expression is used in the Act. Those sources assist in the resolution of ambiguous provisions in Australian legislation or gaps in the common law of Australia[419]. While it has been demonstrated that the common law, inherited from England, is capable, in certain circumstances, of recognising exclusive rights in the sea, I regard international principles as an even more persuasive source in a decision about whether certain exclusive rights in the determination area may be recognised by the common law in the present context.
A critical step in the reasoning of Brennan J in Mabo [No 2], with whom Mason CJ and McHugh J agreed, was the one that ultimately sustained the move by this Court to a new principle of the common law of Australia in respect of native title. This was explained in the following oft-cited passage of Brennan J's reasons[420]:

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Expositions of international law, concerned with fundamental human rights, repeatedly stress the impermissibility of discrimination and unequal treatment of people on the grounds of their race[421]. This norm has particular relevance to Australian law both because Australia is a party to the International Convention on the Elimination of All Forms of Racial Discrimination[422] and because the Federal Parliament has enacted a law to give effect to the requirements of that Convention[423].
The importance of preserving and protecting the traditional society and culture of indigenous peoples, in terms of the activities essential to their way of life, has been recognised by several international bodies[424]. This is why, in practical terms, the maintenance of the rights of indigenous peoples often necessitates effective protection of their land and resources extending to their traditional economic activities, such as hunting, fishing, trapping and so on[425]. Such norms recognise that it is not enough merely to allow indigenous peoples to carry out their traditional economic activities without legal protection for their exercise of control and decision-making in relation to developments (including the use of natural resources, management and conservation measures) that may otherwise diminish or destroy those activities. It is also why those who expound the application of international human rights law in this context repeatedly emphasise that the principle of non-discrimination must include a recognition that the culture and laws of indigenous peoples adapt to modern ways of life and evolve in the manner that the cultures and laws of all societies do[426]. They do this lest, by being frozen and completely unchangeable, they are rendered irrelevant and consequently atrophy and disappear.
In short, to take a view of the common law of Australia, including as it is given recognition and protection under the Act, that would confine the native title rights of indigenous peoples solely to those enjoyed by their forebears before European settlement of Australia could itself amount to imposing on them an unjust and discriminatory burden not imposed by the common law on other Australians. If it were proved, for example, that persons such as the claimants did indeed, by their own laws and customs, enjoy over a claimed area rights and interests exclusive of others, it would be discriminatory against them to deny recognition of exactly the same entitlements in respect of their rights and interests in land or waters as other Australians would enjoy in respect of their rights and interests. On the face of things, once recognition of indigenous rights and interests is accepted in principle, the common law accepts the indigenous rules to be applicable so far as it can. If it does not, there needs to be a very good legal reason to justify denying such recognition, given that the denial necessarily involves discrimination against vulnerable persons defined in terms of their race.
In giving expression to the common law of Australia, to the extent that, in the present context, it is given effect by the Act, it is no longer sufficient, or even necessarily relevant, in my respectful opinion, to refer to English sources of law; still less to be constrained by that law. The recognition of the rights to land and to waters and fishing resources of indigenous peoples is now an international question. It is one that concerns, but is not confined to, the several nations settled at one time under the British Crown[427]. It is therefore at least as relevant (and will sometimes be more helpful) to have regard to the requirements of international law as a "legitimate and important influence on the development of the common law"[428] as it is to consider the old cases expounding the common law of England.
Limits of applicability of English law: At least after the Norman Conquest, English law did not have to solve the many special problems now presented to Australia's legal system by the intersection of an established written legal system of immigrant settlers and their successors, on the one hand, and the unwritten laws and customs of the pre-existing indigenous peoples, on the other. English law did not have to attempt to reconcile notions of individual and communal rights[429]. It did not have to accommodate feudal ideas of tenure with concepts based on a spiritual connection with a given "country", comprising both land and sea. It did not have to adjust the universal conception of a single legal sovereignty to a new legal idea affording special recognition to the legal claims of indigenous peoples both because their claims relate to rights and interests that preceded settlement and because their recognition is essential to reverse previously uncompensated dispossession.
It is because the common law of England developed in circumstances that were so profoundly different from those in which courts in Australia now find themselves, that great care must be taken when our courts are invited simply to pick up and apply to contemporary Australian legal conditions the rules and assumptions expressed by English law for circumstances so distinct. It is for this reason that, in this legal context in Australia, the influence of international law, especially when it declares the existence of universal human rights[430], must be given special attention. Such international law will take Australian courts to principles of universal application. Those principles are less likely to be affected by accidents of legal history that occurred on the other side of the world and long ago in completely different social and legal conditions.
Conclusion: The common law as re-expressed in Mabo [No 2] and incorporated in the Act, and as informed by norms of international law and supported by the analogy to exclusive fisheries, is able to recognise certain exclusive rights in relation to the sea. When the norms of international law are invoked, they forbid the existence of exclusive title in the high seas - which are part of the common heritage of humanity. But no such claim is made here. They also forbid extinguishment of title on the basis of rules which discriminate against people on racial grounds. This is the point that Mabo [No 2] teaches. It is applicable to the claimants' sea country here as it was to land country in Mabo [No 2] and in Wik.

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The evidentiary finding: In the present case, the primary judge did not contemplate that exclusive elements of possession, occupation, use and enjoyment of the seas of the determination area were capable of coexistence with other, non-exclusive, rights. His was an all or nothing approach. This, along with the assumption that occupation and possession were impossible in relation to the sea, led him to the finding that the claimants had only non-exclusive native title rights and interests to be exercised for non-commercial fishing, hunting and gathering and for observing and protecting cultural, ritual and spiritual laws and customs. His Honour did not accept that non-exclusive rights, recognised by legislation, common law and international law, could coexist with demonstrated exclusive elements of native title. The true relationship between the different rights and interests was therefore not explored.
Findings of a primary judge should not be disturbed by an appellate court, unless an appellant is able to demonstrate error. Where the assessment of oral evidence is involved, the appellant must show, relevantly, that the primary judge has failed to use, or palpably misused, his or her advantage in arriving at the particular result[431]. In the Full Court, Merkel J, in dissent, held that the primary judge had erred in law by failing to ascertain the nature and incidents of native title according to the different dates at which sovereignty was acquired with respect to the particular areas within the determination area[432]. His Honour was also critical of the primary judge's failure to recognise the possibility of exclusive uses of parts of the determination area[433]. He also criticised the primary judge's reasons for failing to draw a clear distinction between the acknowledgment and observance of laws and customs by the Aboriginal people and their enforcement against others[434]. Enforcement of laws and customs against others is clearly not determinative of a genuine connection between indigenous peoples and their sea country. Nor is the acknowledgment of such laws and customs by non-Aboriginal people crucial in that respect. Whilst Merkel J found it unnecessary to decide whether such reasoning had led the primary judge into legal error, I find such a conclusion inescapable.
Problems with the finding: The first problem with the findings of the primary judge was an underlying assumption, evident in his reasons, that, without fulfilling conventional definitions of occupation and possession, which he saw as unachievable in relation to the sea, the claimants could have no exclusive proprietary rights to the sea. He said[435]:

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I agree that concepts of "occupation" and "possession" are, in some ways, ill‑suited to a description of a relationship between persons and the sea. However, the claimants' argument that their traditional laws and customs do recognise a form of "occupation" and "possession" of the waters has obvious factual merit. The latter is demonstrated by their consistent reference to the determination area as "my country" or "Mandilarri-Ildugij country"[436]. When questioned about ownership, Mary Yarmirr responded: "It's always the yuwurrumu, yuwurrumu clan that owns that particular estate."[437] Unlike the primary judge and the majority in the Full Court, I would not regard such views of possession and ownership, although expressed from within a different legal culture from our own, as irrelevant[438]. Such concepts, accepted by traditional law and custom, are an integral part of the "socially constituted fact" that the majority of this Court in Yanner[439] upheld as an indication of native title rights and interests. Indeed, such concepts appear far more relevant than physical possession of the area which, of its nature, was not capable of being "occupied", as non-indigenous perspectives understand that term. Remote areas, such as mountain regions or deserts, may be equally "empty" or "uninhabited" according to common European thought. Yet in looking at the history of colonisation, including as it affected Australia, it is not coincidental that such remote areas continue to be "occupied" by indigenous peoples, living according to indigenous customary laws[440]. His Honour's error was therefore to prefer an unduly narrow classification of "use and enjoyment", distinguished from occupation and possession, to fit the demonstrated "connection"[441] that the claimants had with the waters of the determination area. In giving flesh to these concepts in this context, a more useful focus is on the rights that the native title claimants assert based on their own understandings of occupation, possession, use and enjoyment of their sea country. This is the approach envisaged by Mabo [No 2]. It is not completely alien to notions known to the common law. The very claims to sovereignty in the Crown, made respectively by Captains Cook and Phillip, over the land mass of a huge continent, had a similar metaphorical quality, excluding all other claims to sovereignty. But they had undoubted legal consequences which our courts uphold.
Secondly, in approaching the question of the standard of exclusion required to establish a proprietary title in the sea, as that of exclusion "of all others", the primary judge failed to acknowledge the capacity of the common law to recognise a proprietary title in the sea which is concurrently subject to other rights. This amounted to a failure to accord full weight to the requirements of s 225 of the Act[442], which avoids a rigid delineation between a power to enjoy native title rights to the exclusion of all others or to the exclusion of none at all. The determination should rather have been focused on the nature and extent of native title rights and interests and any other interests in the determination area, and the relationship between the two, taking into account the principles of recognition and protection (and impairment and extinguishment) contained in the Act.
It was established that the determination area in the present case was subject to non-exclusive fishing licences (as well as rights of access based on international and common law principles of freedom of navigation). Accordingly, a determination of possession to the exclusion "of all others" in an absolute sense, under s 225(b)(ii), was impossible. The proper focus, required by s 225 of the Act, was thus upon the relationship between the claimants' asserted rights and interests under par (b)(iii) and the nature and extent of any other interest in relation to the land or waters that may affect such rights under par (b)(iv). In rejecting the possibility of a power of exclusion subject to some rights but not others, the primary judge did not allow for a determination in accordance with this section. In this, with respect, his Honour also took an unnecessarily narrow view.
Thirdly, native title accords recognition to rights and interests based on the claimants' connection with land and waters, as recognised by their traditional laws and customs. Such connection must have survived the acquisition of sovereignty. It is the traditional connection arising from the acknowledgment of laws and customs by the indigenous community, and not recognition or acceptance by others of the connection, which is the source of native title[443]. Nevertheless, in Mabo [No 2], it was held that a proprietary native title interest may be recognised by the common law where exclusive possession or occupation had been "assert[ed] effectively"[444]. It is therefore necessary to consider the findings of the primary judge in respect of the rights asserted by the claimants against non-Aboriginal people, namely the visiting fishermen from Sulawesi, described as the Macassans, and the balanda or "white man", after the Europeans and their descendants arrived in the area.
Response to the Macassans and the balanda: There was evidence, described in the joint reasons in this Court[445], that demonstrated that the forebears of the claimants asserted exclusive possession of the sea country against other Aboriginal peoples. A right to exclude was also asserted against the Macassans. Thus, the primary judge found that, in the times before contact with the balanda, the Macassans sought and received permission to take trepang from the waters around the islands[446]. I agree with Merkel J that it is unclear, from the primary judge's treatment of this evidence, whether the Macassans' repeated presence in the area was based on permission in foreshore areas and so limited in outlying areas that it could be analogised as akin to a right of navigation[447]. The evidence demonstrated that rights of control of access as between other Aboriginal groups (including other clans) continue to be asserted and respected to the present day.
In relation to the balanda, the evidence fell short of demonstrating that no attempt was made to control their access to the area. In assessing such attempts, the trial judge was charged with the difficult task of giving recognition to "highly fact specific" rights[448]. A failure to appreciate the unique requirements of the determination of the nature and extent of native title and its relationship with the rights of others may lead to error. For example, the present content of native title, although substantially based on traditional connection with the land or waters, may incorporate activities and practices which are the modern form of exercise of traditional laws and customs[449]. The primary judge's approach in the present case may be criticised in this regard[450]. Limitations on how a right to exclude may be "asserted effectively" by Aboriginal claimants must also be appreciated. Thus, for example, continual assertion of rights to be consulted in decisions concerning access to, and use of, the claimants' country may be the highest feasible level of assertion of control by a fishing-based society against Europeans where the latter were possessed of superior arms and legal power. In such circumstances, I agree with Merkel J that it would not be reasonable for a court to place undue weight on methods of enforcement of Aboriginal rights against non-Aboriginal persons[451]. How, it might be asked, were the forebears of the claimants expected to assert and uphold their rights to their sea country when the balanda enjoyed indisputable superiority of weapons and, until Mabo [No 2], incontestable superiority of legal rights? A proper approach is rather to ask whether native title rights and interests survived in fact, what their relationship was with other rights and interests and how such rights were "asserted" in that context[452].
In determining the relationship between the rights and interests of native title claimants and others in the determination area, a focus on the relative powers of having and controlling access is essential. The primary judge attempted to make findings in relation to the claimed right of yuwurrumu members to make decisions about oil exploration, tourism and commercial fishing within the determination area. There was evidence, which the primary judge expressly accepted, that rights to make decisions about the sea country had been asserted "on numerous occasions". In relation to the testimony of Mary Yarmirr, questions about the potentiality of a petroleum company planning to drill for oil in the sea area resulted in the following exchange:

[297]

"Unauthorised and inappropriate use" of sites in the determination area can be perpetrated by non-Aboriginal, just as by Aboriginal, peoples. According to traditional laws and customs, where such areas are not respected, sickness, cyclones, intense rain or waterspouts may be visited on the area. How such rights of protection may be enforced, without underlying rights to control access and use of such areas, was not addressed by the primary judge. His approach was to recognise the obligations on the claimants of their own laws and customs in the sacred areas without recognising and protecting their ability to oversee the use of such areas in accordance with such laws and customs.
Conclusion: overly narrow approach: It follows in my view that the claimants (the appellants in the second appeal) have shown that the primary judge erred in the approach that he adopted to the determination of the existence of exclusive native title rights and interests, subject to qualifications, over their sea country. He applied an incorrect legal standard, one that was, with respect to him, unduly narrow. His approach overlooked the flexible principle declared by this Court in Mabo [No 2], applied in Wik, and carried into s 223(1) of the Act. Having adopted an incorrect legal standard, it was unsurprising that the primary judge reached an erroneous conclusion when he applied that standard to the evidence. To posit an obligation of the poorly armed forebears of the claimants to assert against the balanda (and for that matter the Macassans) a right of physical expulsion, in order to uphold their native title over their sea country, otherwise surviving in fact, which the Act would enforce, is to define the problem in terms of a desired outcome that would always be unfavourable to the rights of persons such as the claimants.
Viewing the common law from its usual standpoint of reasonableness[457], and construing the Act in light of the strong rule of international law forbidding discrimination against people's legal rights by reference to their race, I do not agree that such an unreasonable and discriminatory rule is what Australian law requires.

[298]

New source for a special body of law: I leave these appeals with a final observation. The decision in Mabo [No 2] represented a partial change in the exposition of the sources of Australia's common law. The essential justification for the alteration of the long-standing pre-existing law affecting native title was a perceived consequence of the principles of international human rights law, as those principles informed the content of the common law of Australia. To press on with a blind adherence only to the adapted rules of the common law of England is not only inconsistent with the essential legal foundation for the step which this Court took in Mabo [No 2] as the basis for the new legal reasoning concerning native title. It is also incompatible with the independence and self-respect that should today be reflected in the exposition by this Court of the common law of Australia, at least where that law is concerned with vital and peculiar problems of a special Australian character[458]. The rights of the indigenous peoples of Australia are of that kind.
This conclusion does not represent a revolutionary severance of Australian law from its past foundations. On the contrary, as Brennan J recognised in Mabo [No 2][459], it simply constitutes a supplementation and development of the legal sources appropriate to the performance of the judicial function in addressing contemporary problems which the law of Australia must solve. Those problems include, not least, the law on the native title of Australia's Aboriginal and Torres Strait Islander peoples as now effected by the Act.
The conclusion that I favour: The result that I favour in this case is scarcely a surprising one. Indeed, it appears a reasonable and just one. In the remote and sparsely inhabited north of Australia is a group of Aboriginal Australians living according to their own traditions. Within that group, as the primary judge accepted, they observe their traditional laws and customs as their forebears have done for untold centuries before Australia's modern legal system arrived. They have a "sea country" and claim to possess it exclusively for the group. They rely on, and extract, resources from the sea and accord particular areas spiritual respect. The sea is essential to their survival as a group. In earlier times, they could not fight off the "white man" with his superior arms; but now the "white man's" laws have changed to give them, under certain conditions, the superior arms of legal protection. They yield their rights in their "sea country" to rights to navigation, in and through the area, allowed under international and Australian law, and to licensed fishing, allowed under statute. But, otherwise, they assert a present right under their own laws and customs, now protected by the "white man's" law, to insist on effective consultation and a power of veto over other fishing, tourism, resource exploration and like activities within their sea country because it is theirs and is now protected by Australian law. If that right is upheld, it will have obvious economic consequences for them to determine - just as the rights of other Australians, in their title holdings, afford them entitlements that they may exercise and exploit or withhold as they decide. The situation of this group of indigenous Australians appears to be precisely that for which Mabo [No 2] was decided and the Act enacted. The opinion to the contrary is unduly narrow. It should be reversed.

[300]

In Mabo v Queensland [No 2][460] ("Mabo"), the Court held that the peoples of the Murray Islands had native title rights to the unalienated land of the Islands which entitled them, as against the whole world, to possession, occupation, and use and enjoyment of that land. The evidence in that case was directed to the land uses, practices and traditions of those peoples which may, or may not have been unique to them. The parties to the case in the High Court were the island peoples or their representatives, and the State of Queensland. Neither pastoralists, miners nor others holding, using, occupying or exploiting the surface or sub-surface of land on the mainland of Australia, or the airspace above it presented arguments with respect to the availability of native title on the mainland of Australia. There is no doubt, however, that the decision of the Court was intended to and did apply to the mainland[461].
The response of the Federal Parliament to the decision was to enact the Native Title Act 1993 (Cth) ("the Act") which acknowledged that native title could (if not validly extinguished) exist in any part of the Commonwealth. It is to that Act that the Court must look, therefore, in deciding these appeals, although, as will appear, concepts and expressions giving effect to them, almost certainly have their source in some of the reasons for judgment in Mabo, especially those of Brennan J. One of the principal purposes of the Act is to provide a special procedure for the just and proper ascertainment of native title rights and interests and their protection. The Act does not, as I read it, seek to invent or create any native title, or alter the rights and interests which it may embrace in any particular case[462].
The issues in this case were comparatively narrow ones. Questions whether, for example, in order to establish rights over water it may as a practical (as well as a legal) matter be necessary to demonstrate first a right or interest in land giving access to, and enabling the exploitation and navigation of the waters; and whether rights claimed may only be enjoyed in the same way as they have traditionally been enjoyed or practised, were not raised. Nor is it necessary to decide whether, as contemplated by Brennan J in Mabo[463], in order to maintain a right or interest susceptible to recognition by the common law, the claimants were bound to show that such right or interest was one that had regularly been effectively asserted in a way that was not repugnant to the common law. And, finally, it should be pointed out that there was no controversy between the parties that the claimants enjoyed rights (as opposed to the nature and extent of them) over the waters of the Northern Territory.
The judgments in Mabo are replete with references to rights and interests in land. In his judgment, Brennan J explained[464]:

[351]

Great Britain acquired sovereignty over the lands of the Northern Territory in 1824 when Captain Bremer took possession of the continent from longitude 135ºE to longitude 129ºE. The commission issued to Governor Darling on 20 December 1825 defined the territory of New South Wales as extending to 129ºE. At that time, the colony of New South Wales reached to the low water mark, that is to say the mean low water mark of the neap and spring tides.
The boundaries of the Northern Territory were defined by Letters Patent dated 6 July 1863 by which the territory, which now constitutes the Northern Territory, was annexed to South Australia. It was expressed to include "bays and gulfs" and was surrendered to, and accepted by, the Commonwealth on 1 January 1911 by the Northern Territory Acceptance Act 1910 (Cth).
On the acquisition by Great Britain of sovereignty over the land mass constituting the Northern Territory in 1824, it also acquired sovereignty over the territorial sea extending to three nautical miles from the low water mark between the same coordinates. This occurred by the operation of international law to which the common law gave recognition: no executive or legislative act was required to achieve it. At Federation or immediately thereafter, sovereignty over the territorial sea passed to the Commonwealth by the same process, the effective reception of international law[471]. By Federation, the State of South Australia and, subsequently, the Northern Territory did not have any sovereign powers over any part of the territorial sea. These were only acquired as a result of an exercise of sovereignty by the Commonwealth in 1980 by legislation in favour of the Northern Territory and to which I will later refer[472].
Some changes to the boundaries of the territorial sea were made by the Proclamation of straight baselines in 1983 and the extension, by Proclamation, of the territorial sea in 1990 to a line twelve nautical miles from the low water mark. By the time that these proceedings were commenced, the whole of the claimed area beyond the inter-tidal area was clearly within Australia's territorial sea and internal waters.
It was established at first instance that the claimants did not, historically, enjoy exclusive possession, occupation and enjoyment of any of the waters the subject of the claim[473]. The claimed area was an important place of resort and activity for Macassans, who travelled in their praus to exploit the produce of the waters from as early as 1720. Dutch mariners freely navigated them from as early as the first half of the seventeenth century[474]. These matters have significance in more than one respect. They show that people other than the claimants have freely resorted to and enjoyed the benefits and resources of the claimed area. They show that it is unlikely that either the indigenous peoples or others have had the inclination or, indeed, the capacity, to exclude anyone else from the area. They may also provide further evidence of a universal acceptance that, historically, no one has owned or been able to assert effective ownership for any sustained period of the seas. They may demonstrate as well a settled recognition of the futility of seeking to apply to the seas the same laws (such as proprietorial laws of exclusion) and curial processes as apply, and may effectively be invoked on, or in respect of land.
It should also be pointed out that it was accepted on both sides that the claimants had never sought in any way to exploit any minerals or other valuable resources that might lie beneath the sea-bed. They were never, in short, of any interest to them and their pursuit never formed part of any particular custom or practice such as could give rise to a native title right or interest in them, or any right to deny others access to them.

[352]

Section 6 contemplates the possibility of the application of the Act to "the coastal sea of Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973". "Coastal sea" is relevantly defined by s 15B(4) of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act") to mean the territorial sea of Australia and the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal territory. Section 6 of the Seas and Submerged Lands Act 1973 (Cth) provides 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". Section 7 of the Seas and Submerged Lands Act, in its original form, empowered the Governor-General to declare by Proclamation, not inconsistently with Section II of Part I of the Convention on the Territorial Sea and the Contiguous Zone done at Geneva on 29 April 1958, the limits of the whole or any part of the territorial sea of Australia. The Seas and Submerged Lands Act was amended in 1994 to give effect to the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982[475]. Section 11 of the Seas and Submerged Lands Act declared and enacted that the sovereign rights of Australia as a coastal state in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in, and exercisable by the Crown in right of the Commonwealth.
I have referred to the "possibility" of native title in respect of the seas. I put the matter that way for the reasons advanced by McHugh J[476] and for these reasons. Although the preamble to the Act refers to the supplementation of the rights and interests of native title holders under the common law, the Act is not designed to and does not create native title. Its purpose is the "recognition and protection of native title"[477]. For it to be recognised and protected by the common law it must have existed and exist when the common law is called in aid of it, and must have done so when the common law was brought to the area in contention. The Act does not require that the common law remedy any deficiencies in, or clarify ambiguities about the title or rights asserted. Native title rights or interests must stand on their own feet and be capable of effective enforcement within the community enjoying them[478]. The Act, as well as providing a means of protection and enforcement of native title rights or interests, frequently adopts expressions used by the Justices of the Court in the majority in Mabo and seeks to give effect to the concept of native title as articulated in them. I would not infer from the language and structure of the Act an intention to create native title rights in respect of an area where, or of a kind of which, none had existed before. Any indication to the contrary to be found in s 6 of the Act must give way to these considerations, and in particular to s 223 of the Act which relevantly states the criteria to be satisfied for a determination of native title:

[367]

The body of legislation to which I have referred was "designed largely to return to the States [and, for present purposes, the Territory] the jurisdiction and proprietary rights and title which they had previously believed themselves to have over and in the territorial sea and underlying seabed"[486].
The purpose of the Seas and Submerged Lands Act was the assertion by the Commonwealth of its rights over and in respect of the territorial sea, the sea-bed and its sub-soil. It was, in effect, a statutory declaration by the Commonwealth of what had occurred progressively on the taking of possession by Great Britain of the continent, and the nation's accession to that on Federation. By s 4(2) of the NT Title Act "any right or title to the property in the sea-bed … of any other person … 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" was preserved.
The first submission of the Commonwealth involved these steps: that native title was to be engrafted upon, indeed, could only exist as a burden upon a radical title in the Crown; that there could therefore be no native title unless there were an underlying radical title; that here no such radical title existed (absent express sovereign grant or appropriation of it) because radical title could only otherwise be acquired if and when the common law applied in respect of the area over which it was asserted; and that, because the common law never ran on and over the seas (including territorial waters) no radical title in the Crown ever arose in respect of them. There was, however, an alternative submission which, in my opinion, is more persuasive. It is that unless and until sovereignty is exercised over the territorial sea, relevantly here by the conferring of rights, interests and titles in respect of it, there is and can be no title or possessory right in respect of it, and what lies above or below it[487]. The issue that the argument presents is not whether native title depends upon the existence of underlying prior radical title, but simply whether until sovereign assertion and the exercise of sovereign power to define and confer rights and interests including titles, there can be any title or proprietary or personal rights or interests of any kind in the territorial sea.

[383]

It must be acknowledged, therefore, that as a result of the acceptance of the application of the principles of international law with respect to the high seas, and, as Mason J said[508], their incorporation into British municipal law, those principles have now come to be part of the common law of this country. They establish that unless and until, by an exercise of sovereignty, dominion is actually asserted, and rights, titles and interests are expressly conferred by the sovereign authority, the common law does not recognise any other rights, titles or interests claimed in or in respect of territorial waters and what lies above and below them. It follows that the common law does not and cannot recognise any of the rights claimed by the claimants in respect of what lies beyond the low water mark in this case: a critical requirement of s 223 of the Act has therefore not been met.
I have briefly pointed out that because the Act refers to the coastal sea of Australia (which, by definition in s 15B(4) of the Interpretation Act, means the territorial sea) and by implication therefore to the possibility of native title rights to or in respect of it, does not mean that native title rights or interests do exist there. Nor do, for example, the references in s 4(1) of the NT Title Act to "right and title to the property in the sea-bed beneath the coastal waters of the Territory", or the conferring by s 5 of the NT Powers Act upon the Territory of legislative power with respect to various maritime matters within a distance of three nautical miles from the low water mark, have that meaning or produce that result. It is a result that can only be derived by satisfaction of the criteria set out in s 223 of the Act. Legislatures and legislators are certainly not unknown to have made assumptions and to have held misconceptions about the meaning of provisions in enactments and their application, although by reason of the matter referred to by McHugh J in his reasons that does not seem to be the case with respect to the possibility of native title over the sea[509]. The Act itself, in its original form, is a case in point. The Prime Minister, Mr P J Keating, in his second reading speech of 16 November 1993[510] in respect of the Bill for the Act, said that "leasehold grants extinguish native title. There is therefore no obstacle or hindrance to renewal of pastoral leases in the future, whether validated or already valid", yet this Court held in Wik Peoples v Queensland[511] that the grant of pastoral leases in Queensland did not necessarily extinguish native title. Another example is provided by the advice of the Privy Council (Lord Keith of Kinkel, Lord Roskill, Lord Brandon of Oakbrook, Lord Brightman and Lord Mackay of Clashfern) in Abel Lemon & Co Pty Ltd v Baylin Pty Ltd[512], in which their Lordships advised that an Act, the Sydney Building Act 1837 (NSW), which was expressly repealed by another Act, the New South Wales Acts (Termination of Application) Act 1973 (Q) relevantly had no operation because, despite the Queensland legislature's view to the contrary, the former Act had never applied in Queensland[513].

[386]

In the United States, a similar conclusion has been reached by the adoption of a doctrine of paramountcy by the Supreme Court of the United States.
From 1947 to 1975, cases were heard in the Supreme Court between various American coastal states and the Federal Government: United States v California[517], United States v Louisiana[518], United States v Texas[519] and United States v Maine[520]. In these cases, these coastal states claimed to possess rights over the resources of the adjacent territorial sea, the sea-bed underneath it and the sub-soil.
In every case, the Court found both for the national government, and against the theory that any state or similar subordinate claimant had jurisdiction or rights below the low water mark. The basis for these findings was threefold: historically, (as with the Australian colonies) there was no legitimate tradition of colonial rights to the sea and sea-bed[521]; secondly, rights to the geographic areas contested, inevitably or, at least potentially, involved or concerned the external relations of the United States, as well as its treaty and commercial obligations or arrangements, with the result that the existence of competing rights of a party which was subordinate to the nation would be irreconcilable with the position of the United States as the sole international personality; and thirdly, the distinction which the states as subordinate polities sought to draw between their putative rights of dominium (ownership or proprietary rights) and the national government's rights of imperium (powers of regulation and control), would have the effect of causing the piecemeal derogation of sovereignty from the national government and towards state governments[522].
Historically, the original thirteen colonies which united to form the United States of America had not made any claims to proprietary rights in or over the seas, or as to what lay beneath them. Black J, delivering the opinion of the majority of the Supreme Court of the United States in United States v California[523], said this[524]:

[403]

I turn now to the determination which was made by the primary judge and affirmed by the Full Court by reason of the dismissal of the appeals to that Court. It follows from what I have held that that determination by the primary judge and affirmed on appeal cannot stand. The question is whether any determination in favour of the claimants should have been made at all, that is to say, even with respect to the internal waters of the Northern Territory. Regardless whether the parties are in conflict over that matter, the terms of s 225 of the Act require, I think, that it be addressed.
The determination was that rights and interests, to travel through the areas, to fish and hunt in them for the various purposes stated, and to visit areas of cultural and spiritual importance, are all rights and interests which, pursuant to par 3 of the determination, did not confer on the holders possession, occupation, use and enjoyment to the exclusion of all others. Non-exclusivity necessarily involves a number of different elements: that anyone else might at any time and at any place within the relevant area do what the claimants non-exclusively did or do there. If everyone can draw water from a well, absent effective regulation, no one can say that he or she has any proprietary, or indeed enforceable right or interest in respect of the well or any quantity of water in it. If others have a right to occupy or use a particular area, and to exploit its resources, then it is always possible, indeed perhaps optimistic to believe other than, that someone will wish to, and indeed will, exploit those resources, unless restrained, to the point of depletion. It seems to me that a non-exclusive right to do something may be of little or no value in the absence of enforceable, effective rules to regulate the use, access and exploitation by all users descending to the detail of all of, times, places, persons, numbers, means of access to the area, and other like essential matters. There was certainly no evidence in this case as to any system of law with respect to, or regulation of these critical matters. Its absence raises the question whether non-exclusive rights to be shared with the public in general and in no way otherwise defined, are rights to which the common law would accord recognition. It may be, however, that such rights and interests do have a particular value to the claimants in that any law or regulation which restricted or denied their rights to do anything of the kind to which par 4 of the determination refers would give them a right to compensation, even though no other member of the public who ordinarily resorted to the determination area might be so entitled. In that sense therefore, the rights the subject of the determination may have value to the claimants and hence are cognisable by the common law.

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