5 Native title offshore

HIGH COURT OF AUSTRALIA, 2001

The appeals in Commonwealth v Yarmirr (2001) (Yarmirr) provided the High Court with the first opportunity to consider whether native title could be recognised over Indigenous peoples’ sea country.¹ In the result, the High Court held that, while native title can exist offshore, as a matter of law it cannot be exclusive. This outcome was not unexpected but the decision was narrowly construed and did not provide a great deal of guidance as to the implications for the extent of rights and protections for native title holders offshore. Nor did the Court consider the substantive difference between the non-exclusive native title recognised and the qualified exclusive title that was claimed. The decision also had implications for exclusive native title onshore and took new directions in relation to the limits of common law recognition and principles of inconsistency.

The application in this case concerned the native title of the Mandilarri-Ildugij, Mangalara, Muran, Gadura, Minaga, Ngayndjagar and Mayorram over the seas in the Croker Island region off the north-west tip of Arnhem Land in the Northern Territory. While several islands, including Croker Island, are located within the claim area, they were granted as Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and were not included in the claim.

Hearing the case at first instance in the Federal Court, Justice Olney determined that native title exists in relation to the determination area but that such title did not confer possession, occupation, use and enjoyment of the sea and seabed within the claimed area to the exclusion of all others.² In accordance with s 225 of the Native Title Act 1993 (Cth) (NTA), which sets out the requirements of a determination, Justice Olney considered that the rights and interests of importance were to have free access for certain purposes: first, to travel through or within the claimed area; second, to fish and hunt for the purpose of satisfying personal, domestic or non-commercial communal needs, including the purpose of observing traditional, cultural, ritual and spiritual laws and customs; third, to visit and protect places of cultural and spiritual significance; and, fourth, to safeguard cultural and spiritual knowledge. As is usual, the proposed determination stated that the native title rights and interests would be subordinate to any validly granted rights and interests. On appeal to the full bench of the Federal Court, the majority upheld the trial judge’s findings.³

RECOGNITION OF NATIVE TITLE OVER THE SEA

As the principal respondent to the claim, the Commonwealth had argued that, despite the fact that the NTA refers to native title over ‘land and waters’ (including seas) and specifically refers to ‘fishing’ rights in s 223(1)(c), only native title ‘recognised’ by the common law was protected by the NTA. The majority joint judgment of Chief Justice Gleeson and Justices Gaudron, Gummow and Hayne took this as the appropriate question to begin the inquiry; that is, to determine when the common law will or will not recognise the native title rights and interests asserted.⁴

The majority joint judgment reiterated the principle finding of Mabo v Queensland [No. 2] (1992) (Mabo) that ‘at common law the native title rights and interests survived the acquisition of sovereignty because only so much of the common law was brought as was applicable to the circumstances of the new colony’.⁵ However, citing Western Australia v Commonwealth (1995) (Native Title Act case), the majority also suggested that an acquiring sovereign may extinguish rights and interests ‘in the course of the act of State acquiring the territory’.⁶ The majority concluded, therefore, that the principle issue in Mabo had been whether there was an ‘inconsistency’ between the common law and the continued recognition of native title rights and interests. The judges acknowledged that the presumption is that no extinguishment was intended but, had there been an inconsistency, the common law would have prevailed. There was no inconsistency, hence the common law ‘recognised’ native title and gave it effect.⁷

The judgment demonstrated how the law dealt with the coexistence of native title with the radical title of the Crown in relation to land, particularly in the Mabo decision, but disagreed with the contention of the Commonwealth that reference to ‘radical title’ is a necessary prerequisite for native title to exist.⁸ Radical title, the majority suggested, is not the only (and in this case not the appropriate) analytical tool to explain the different rights and interests arising from the assertion of sovereignty over territorial sea.⁹

CROWN SOVEREIGNTY OVER THE SEA

The majority joint judgment suggested that the key to determining the possibility of recognition was to first examine the sovereign rights and interests that were, and are now, asserted by the Crown over the territorial sea.¹⁰ At the same time, the judges said that it is notoriously difficult, inappropriate and unnecessary to attempt to describe or define the sovereignty asserted by the state.¹¹

The majority argued that the assertion and international recognition of sovereignty over the sea did not amount to a claim of ownership or even radical title. They cited R v Keyn (1876) (Keyn