Commonwealth v Yarmirr
[1999] FCA 1668
•3 DECEMBER 1999
FEDERAL COURT OF AUSTRALIA
THE COMMONWEALTH OF AUSTRALIA
V
MARY YARMIRR
(Action DG 6005 of 1998)
MARY YARMIRR
V
THE NORTHERN TERRITORY OF AUSTRALIA
(Action DG 6006 of 1998)
[1999] FCA 1668
SUMMARY
In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a brief summary to accompany the reasons for judgment that are to be delivered today. It must, of course, be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment. This summary is intended to assist in understanding the principal conclusions reached by the Court, but it is necessarily incomplete.
3 December 1999
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
DG 6005 OF 1998
BETWEEN:
THE COMMONWEALTH OF AUSTRALIA
AppellantAND:
MARY YARMIRR & ORS
First RespondentsTHE NORTHERN TERRITORY OF AUSTRALIA
Second RespondentPASPALEY PEARLING COMPANY PTY LTD
Third RespondentNT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION
Fourth RespondentsOCEAN TRAWLER PTY LTD
Fifth RespondentSHINE FISHERIES PTY LTD
Sixth RespondentM G KAILIS GULF FISHERIES PTY LTD
Seventh RespondentPAVALINA HENWOOD
Eighth RespondentARNHEM LAND ABORIGINAL LAND TRUST
Ninth Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
DG 6006 OF 1998
BETWEEN:
MARY YARMIRR & ORS
AppellantsAND:
THE NORTHERN TERRITORY OF AUSTRALIA
First RespondentTHE COMMONWEALTH OF AUSTRALIA
Second RespondentPASPALEY PEARLING COMPANY PTY LTD
Third RespondentNT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION
Fourth RespondentsOCEAN TRAWLER PTY LTD
Fifth RespondentSHINE FISHERIES PTY LTD
Sixth RespondentM G KAILIS GULF FISHERIES PTY LTD
Seventh RespondentPAVALINA HENWOOD
Eighth RespondentARNHEM LAND ABORIGINAL LAND TRUST
Ninth Respondent
JUDGES:
BEAUMONT, VON DOUSSA & MERKEL JJ.
DATE:
3 DECEMBER 1999
PLACE:
SYDNEY (HEARD IN DARWIN)
SUMMARY OF REASONS FOR JUDGMENT GIVEN ON 3 DECEMBER 1999
These were appeals against a determination of native title made on 4 September 1998 by Justice Olney of the Federal Court. The determination was made under the Native Title Act 1993 (Cth), before its amendment in 1998. The proceedings raised several important questions, including whether native title may be recognised, and protected, in relation to Australia’s coastal seas, and if so, the extent of such recognition and protection. The appeals were heard in Darwin over five days by a Full Federal Court constituted by Justices Beaumont, von Doussa and Merkel.
(a) The claimants and the claimed area at first instance
The application for determination of native title before Olney J was made on behalf of the Mandilarri-Ildugij, Mangalara, Murran, Gadura-Minaga and Ngaynjaharr peoples (“the claimant group”). The claim was, in essence, for the ownership and exclusive possession, occupation, use and enjoyment of an area of seas, including the sea-bed and its resources, in the vicinity of Croker Island in the Northern Territory.
The claimed area was described (generally) as the seas in the Croker Island region of the Northern Territory; that is, the seas which adjoin Croker Island, Manburrwa (Oxley Island), Gurrmurl (New Year Island), Gurrbalud (Lawson Island), Injurranggan (McCluer Island), Wurrulja (Grant Island), and other related islands, and a portion of the mainland extending between De Courcy Head and the commencement of the Cobourg Marine Park near Guialung Point. The claim included the sea-bed and any lands or reefs within its boundaries. However, excluded from the claim were the lands and reefs which had already been granted for the benefit of Aboriginal people pursuant to a grant made on 30 May 1980 under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The general location of the claimed area is indicated in the map annexed to the published reasons of the Full Court.
(b) The decision of Olney J at first instance
His Honour upheld the claim in part. His Honour’s findings, and conclusions, in summary, were:
·The provisions of the Native Title Act expressed Parliament’s specific intention to recognise that native title rights, if proved, are capable of recognition in relation to offshore seas and waters.
·The evidence established the existence of traditional laws acknowledged and customs observed, whereby the claimant group had continuously, since prior to non-aboriginal intervention, used the waters of the claimed area for the purpose of hunting, fishing and gathering to provide for their sustenance, and for other purposes associated with their cultural, ritual and spiritual obligations, beliefs and practices.
·These native title rights and interests were regulated, but not extinguished, by Northern Territory and Commonwealth fishing legislation and administrative action. His Honour found that by virtue of the provisions of s 211 of the Native Title Act, the claimant group was not required to hold any statutory licence or permit in order to exercise their native title rights.
·The claimant group did not enjoy any exclusive rights to possess, occupy, use and enjoy the subject waters because:
(a)the evidence failed to establish that any exclusive right was part of traditional laws and customs; and
(b)in any event,
(i)Australia’s obligations under international law of the sea treaties precluded the possibility of recognition of a exclusive possession or occupation, or of a right to control access by others to the area; and
(ii)recognition of any such exclusive right would also contradict the public rights of navigation and fishing at common law.
·The claim to the resources within the sea-bed, and the subsoil, including any minerals therein, failed, first because of the absence of evidence to suggest that any local traditional law or custom related to the acquisition or use of, or trade in, such minerals; and secondly because the Crown had, by the exercise of its legislative powers, appropriated to itself an interest which amounted to full beneficial ownership, and no native title rights could have survived the acquisition.
·Although it was not necessary for his Honour to decide (given his construction of the Native Title Act) Olney J found that the territorial limits of the Northern Territory (including its “bays and gulfs” within the claimed area) included the waters of Mission Bay, but otherwise did not extend beyond the low water mark of the coastline of the mainland and islands.
For these reasons, Olney J determined that:
(a)native title existed in relation to the sea and sea-bed within the claimed area; and
(b)that this title was held by the Aboriginal peoples who were the members of the claimant group who traced or claimed their descent through the male line (“the yuwurrumu”).
However, his Honour rejected the claim for exclusive possession, holding that the 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.
·His Honour also determined that the relevant native title rights and interests of the claimants were:
(a)to fish, hunt and gather within the claimed area for the purpose of satisfying their personal, domestic or non-commercial communal needs, including observing traditional, cultural, ritual and spiritual laws and customs; and
(b)to have access to the sea and sea-bed within the claimed area –
(i)to exercise the above rights to travel through, or within, the claimed area; and
(ii)to visit and protect places within the claimed area which were of cultural or spiritual importance; and
(iii)to safeguard the cultural and spiritual knowledge of the claimants.
His Honour further declared that the native title rights and interests of the claimants could be “affected” by rights and interests in relation to the sea and sea-bed within the claimed area that were validly granted, or which existed, or which may thereafter exist, pursuant to Commonwealth or Northern Territory laws.
(c) The issues on the appeals
The Commonwealth (with the support of the Northern Territory and the fishing industry parties which are the third, fourth, fifth, sixth and seventh respondents) and the claimant group have appealed from different parts of Olney J’s judgment and orders.
In summary, the grounds of the Commonwealth’s appeal were:
·That the trial Judge wrongly construed the Native Title Act so as to provide for the recognition of native title beyond the limits of the Northern Territory.
·That there was no basis for the recognition of native title beyond the limits of the Northern Territory, because the common law did not apply outside such limits; and no law provided for that recognition.
·That the native title rights specified in the determination were already exercisable under other public rights – that is, the public rights to fish and navigate at common law; and that these rights were not capable of separate recognition.
·(Alternatively) that there was no evidence, or no sufficient evidence, of traditional or other occupation or use of certain areas to the north and north-east of New Year Island such as to warrant a finding that native title existed in that particular area.
For their part, the claimant group challenged the following conclusions of the trial Judge:
·That their native title rights and interests were not held to the exclusion of all others.
·That the content of the native title rights as found by Olney J did not include:
Øa right to fish, hunt and gather for the purposes of trade;
Øa right to exploit and control access to and exploitation of resources in the sea, sea-bed and subsoils;
Øthe right to exclude persons seeking to explore or mine for minerals pursuant to a law of the Commonwealth or Northern Territory;
Øa right to exclude persons generally.
· That their traditional laws and customs did not “bind” others.
(d) The judgments on the appeals
There are two reasons for judgment on the appeals, one a joint judgment of Beaumont and von Doussa JJ, the other by Merkel J.
Beaumont and von Doussa JJ are of the opinion that both the appeals fail, both essentially for the reasons given by the primary Judge.
Merkel J dissented. His Honour would have dismissed the appeal by the Commonwealth, allowed the appeal by the claimant group and remitted the matter back to the trial judge for further hearing. Merkel J agreed with Beaumont and von Doussa JJ that native title rights and interests in respect of offshore waters are recognised and protected under the Native Title Act, but disagreed with their Honours as to the nature and content of the rights and interests in two significant respects. The first was that, in his Honour’s view, under the Native Title Act, the native title claimed must be established to exist at the date sovereignty was acquired by the Commonwealth over the offshore waters in the claimed area and at the date of the commencement of the Native Title Act, being 1 January 1994. The second was that his Honour concluded that a right to an exclusive fishery in a particular offshore area can be recognised and protected as a native title right or interest under the Native Title Act. Merkel J regarded the right to an exclusive fishery as capable of being regulated, but not extinguished, by the extensive legislative and regulatory regimes that apply to fishing in offshore areas which form part of or are adjacent to the Northern Territory.
The formal orders of the Court, by majority were:
1.The appeals dismissed.
2.No order for the costs of the appeals.
FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Yarmirr [1999] FCA 1668
NATIVE TITLE – Native Title Act 1993 (Cth) – appeals against determination of native title by trial judge – claim to ownership and exclusive possession, occupation, use and enjoyment of the sea and its resources – whether native title may be recognised and protected in relation to Australia’s coastal seas – whether the Native Title Act 1993 (Cth) expresses the legislature’s specific intention to recognise native title rights in relation to offshore seas and waters – territorial limits of the Northern Territory - nature of right of innocent passage and of public rights to fish and to navigate in coastal sea and tidal waters – whether native title right to exclusive possession of or use, control and trade in the resources of the coastal sea and tidal waters - extinguishment - effect of legislative and administrative acts on native title rights - whether native title rights and interests were regulated, but not extinguished, by legislative and administrative action.
CONSTITUTIONAL LAW – determination of the territorial limits of the Northern Territory – evolution of relevant maritime zones in the claimed area – relevant considerations in the determination of bays and gulfs.
EVIDENCE – whether appellate Court ought to draw a different inference based on the unchallenged evidence and findings of trial judge.
WORDS & PHRASES – “bays and gulfs”
Native Title Act 1993 (Cth), ss 3, 6, 10, 11, 13, 211, 223, 225, 235
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Seas and Submerged Lands Act 1973 (Cth)
United Nations Convention on the Territorial Sea 1958
United Nations Convention on the Law of the Sea 1982
Acts Interpretation Act 1901 (Cth), s 15B(4)
Northern Territory Acceptance Act 1910 (Cth)
Coastal Waters (Northern Territory Powers) Act 1980 (Cth)
Coastal Waters (Northern Territory Title) Act 1980 (Cth)
Petroleum (Submerged Lands) Act 1967 (Cth)
Offshore Waters (Application of Territory Laws) Act 1985 (NT)
Aboriginal Land Act (NT), ss 12, 20
Northern Territory Surrender Act 1907 (SA)Australian Breeders Co-operative Society Ltd v Jones (1997) 150 ALR 488, cited
Amadio v Henderson (1998) 81 FCR 149, cited
Mabo v The State of Queensland [No 2] (1992) 175 CLR 1, applied
Western Australia v The Commonwealth (1995) 183 CLR 373, considered
North Ganalanja Aboriginal Community v State of Queensland (1996) 185 CLR 595, considered
The Wik Peoples v State of Queensland (1996) 187 CLR 1, considered
Fejo v Northern Territory of Australia (1998) 195 CLR 96, applied
Yanner v Eaton (1999) 166 ALR 258, considered
McRitchie v The Taranaki Fish and Game Council [1999] 2 NZLR 139, cited
R v Keyn (1876) 2 Ex D 63, cited
Eaton v Yanner; ex parte Eaton ( Queensland Court of Appeal, unreported, 27 February 1998)
New South Wales v The Commonwealth (1975) 135 CLR 337, considered
A. Raptis and Son v South Australia (1977) 138 CLR 346, considered
Mason v Tritton (1994) 34 NSWLR 572, considered
Sutton v Dershaw (1995) 82 A Crim R 318, referred to
Dershaw, Clifton & Murphy (1996) 90 A Crim R 9, referred to
Dillon v Davies (1998) 156 ALR 142, referred to
Wilkes v Johnson [1999] WASCA 74, referred to
United States v Louisiana (1969) 394 US 11, cited
North Atlantic Coast Fisheries Arbitration (1910) Reports of International Arbitral Awards, Vol XI, 167, considered
Adams v Bay of Islands County [1916] NZLR 65, cited
Ferguson v Union Steamship Co. of New Zealand Ltd (1969) 119 CLR 191, cited
Post Office v Estuary Radio Ltd (1967) 1 WLR 847, referred to
Haruo Kitakoka v Commonwealth (Supreme Court of Northern Territory, Wells J, No. 14 of 1937), discussed
Anglo-Norwegian Fisheries Case (1951) 1 ICJ Rep 116, cited
Bonser v La Macchia (1969) 122 CLR 177, cited
Attorney-General (British Columbia) v Attorney-General (Canada) [1914] AC 153, considered
Sue v Hill (1999) 163 ALR 648, cited
Land, Island and Maritime Frontier Case (1992) ICJ Rep. 351, cited
A-G v Chambers [1854] 43 ER 486, cited
Bowen v Minister for Urban Affairs (1996) 90 LGERA 368, cited
Anderson v Alnwick DC [1993] 3 All ER 613, cited
Adair v National Trust [1998] NI 33, cited
Harper v Minister for Sea Fisheries (1989) 168 CLR 314, applied
Minister for Primary Industries and Energy v Davey (1993) 47 FCR 151, cited
Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567, cited
Gann v Free Fishers of Whistable (1865) 11 HLC 192, considered
Lord Fitzhardinge v Purcell [1908] 2 Ch 139, considered
SRA v Earthline (1999) 160 ALR 588, considered
Devries v Australian National Railways Commission (1993) 177 CLR 472, considered
Agbaba v Winter (1977) 51 ALJR 503, cited
The Queen v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327, cited
Gerhardy v Brown (1985) 159 CLR 70, cited
R v Van Der Peet (1996) 137 DLR (4th) 289, cited
Ward v Western Australia (1998) 159 ALR 483, cited
Shaw v Wolf (1998) 83 FCR 113, cited
Pianka v The Queen [1979] AC 107 at 125, cited
Nulyarimma v Thompson (1999) 165 ALR at 651-653, cited
State Government Insurance Commission v Trigwell (1979) 142 CLR 617, cited
Waipapkura v Hempton (1914) 33 NZLR 1065, cited
Keepa v Inspector of Fisheries [1965] NZLR 322, cited
McRitchie v Taranaki Fish and Game Council (1999) 2 NZLR 139, cited
R v Sparrow [1990] 1 SCR 1075, cited
R v Gladstone (1996) 137 DLR (4th) 648, citedM H McLelland, “Colonial and State Boundaries in Australia” (1971) 45 ALJ 671
A H Charteris, Chapters in International Law (Law School, University of Sydney, 1940)
W R Edeson, “The Validity of Australia’s Possible Maritime Historical Claims in International Law” (1974) 48 ALJ 295
Brian R Opeskin, “The Law of the Sea”, in Blay, Piotrowicz & Tsamenyi, Eds, Public International Law: An Australian Perspective (Oxford University Press, 1997)
Brian R Opeskin and Donald R Rothwell, “Australia’s Territorial Sea: International and Federal Implications of Its Extension to 12 Miles” (1991) 22 Ocean Development and International Law 395
Gayl S Westerman, The Juridical Bay (Oxford University Press, 1987)
United Nations [1962] Yearbook of the International Law Commission, Vol II
South Australian Historic Bays Issue, Report of the Commonwealth/South Australian Committee
Stuart Kaye, “The South Australian Historic Bays: An Assessment” (1995) 17 Adel LR 269
R R Churchill and A V Lowe, The Law of the Sea, 3rd ed. (Manchester University Press, 1999)THE COMMONWEALTH OF AUSTRALIA v MARY YARMIRR & ORS, THE NORTHERN TERRITORY OF AUSTRALIA, PASPALEY PEARLING COMPANY PTY LTD, NT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION, OCEAN TRAWLER PTY LTD, SHINE FISHERIES PTY LTD, M G KAILIS GULF FISHERIES PTY LTD AND PAVALINA HENWOOD
DG 6005 OF 1998
AND
MARY YARMIRR & ORS v THE NORTHERN TERRITORY OF AUSTRALIA, THE COMMONWEALTH OF AUSTRALIA, PASPALEY PEARLING COMPANY PTY LTD, NT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION, OCEAN TRAWLER PTY LTD, SHINE FISHERIES PTY LTD, M G KAILIS GULF FISHERIES PTY LTD, PAVALINA HENWOOD AND ARNHEM LAND ABORIGINAL LAND TRUST
DG 6006 OF 1998
JUDGES: BEAUMONT, VON DOUSSA & MERKEL JJ.
DATE: 3 DECEMBER 1999
PLACE: SYDNEY (HEARD IN DARWIN)
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
DG 6005 OF 1998
BETWEEN:
THE COMMONWEALTH OF AUSTRALIA
AppellantAND:
MARY YARMIRR & ORS
First RespondentsTHE NORTHERN TERRITORY OF AUSTRALIA
Second RespondentPASPALEY PEARLING COMPANY PTY LTD
Third RespondentNT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION
Fourth RespondentsOCEAN TRAWLER PTY LTD
Fifth RespondentSHINE FISHERIES PTY LTD
Sixth RespondentM G KAILIS GULF FISHERIES PTY LTD
Seventh RespondentPAVALINA HENWOOD
Eighth Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
DG 6006 OF 1998
BETWEEN:
MARY YARMIRR & ORS
AppellantsAND:
THE NORTHERN TERRITORY OF AUSTRALIA
First RespondentTHE COMMONWEALTH OF AUSTRALIA
Second RespondentPASPALEY PEARLING COMPANY PTY LTD
Third RespondentNT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION
Fourth RespondentsOCEAN TRAWLER PTY LTD
Fifth RespondentSHINE FISHERIES PTY LTD
Sixth RespondentM G KAILIS GULF FISHERIES PTY LTD
Seventh RespondentPAVALINA HENWOOD
Eighth RespondentARNHEM LAND ABORIGINAL LAND TRUST
Ninth RespondentJUDGES:
BEAUMONT, VON DOUSSA & MERKEL JJ.
DATE OF ORDER:
3 DECEMBER 1999
WHERE MADE:
SYDNEY (HEARD IN DARWIN)
THE COURT ORDERS THAT:
1. Appeals dismissed.
2. No orders for the costs of the appeals.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
TABLE OF CONTENTS
BEAUMONT & VON DOUSSA JJ.
INTRODUCTION 2
COMMON LAW NATIVE TITLE 7
NATIVE TITLE ACT 1993 16
RELEVANT MARITIME STATUTORY DEFINITIONS 24
AUSTRALIAN NATIVE TITLE FISHING RIGHTS CASES 25
THE LEGAL STATUS OF THE MARITIME ZONES CLAIMED 28
(a) The complete description of the area the subject of the determination 29
(b) The limits of the Territory in the region of the area claimed 30
(c)The area of the grant to the Arnhem Land Aboriginal Land Trust and its relationship to the claimed area 31
(d) The geography of the claimed area described by the Australia Directories and Australian Pilots 32
(i) 1863 Directory 32
(ii) 1905 Directory 33
(iii) 1948 Pilot (as corrected to July 1954) 33
(iv) 1972 Pilot 34
(v) 1992 Pilot 34
(e)The significance, for present purposes, of the reference to “bays and gulfs” in the 1863 Letters Patent and in subsequent legislation 34
(f) The action taken by the Commonwealth in respect of Australia’s maritime zones 1930 - 1994 42
(i) The TSC 1958 (ratified by Australia 1963) 42
(ii) Proclamation of a nine mile fishing zone beyond the three mile territorial sea in 1967 44
(iii) The SSLA 44
(iv) Acts Interpretation Act 1901 (Cth) 46
(v) The Offshore Constitutional Settlement 47
(vi) Proclamation of baselines in 1983 48
(vii) The three mile breadth of the territorial sea in municipal and international law in 1983 49
(viii) The LOSC 1982 – 1994 51
(ix) Extension of Australia’s territorial sea from three to twelve miles in 1990 51
(x) The material provisions of LOSC and its nexus with amendments to the SSLA in 1994 51
(g)What waters, if any, fall within the description “bays” used in the Territory’s constating instruments and are thus within the limits of the Territory? 53
“Historic bays” 53
“Juridical bays” 54
“Mountnorris Bay” 56
“Malay Bay” 58
“Bowen Strait” 59
“Somerville Bay” 60
“Palm Bay” 61
“Mission Bay” 61
(h) The intertidal zone or foreshore 62
(i) The waters in the area claimed are “waters” within s 6 of the NTA 63
THE NATURE OF THE PUBLIC RIGHT TO FISH IN TIDAL WATERS 63
THE NATURE OF THE PUBLIC RIGHT AT COMMON LAW TO NAVIGATE IN TIDAL WATERS AND IN THE HIGH SEAS 66
THE CLAIMED RIGHT OF “OWNERSHIP” OF THE SEA AREA 67
THE CLAIMED RIGHT TO EXCLUSIVE POSSESSION, OCCUPATION, USE AND ENJOYMENT 69
THE CLAIM TO EXCLUDE OTHERS FROM ACCESS TO THE AREA FOR MINING 73
THE CLAIM OF THE RIGHT TO USE AND CONTROL RESOURCES 73
THE CLAIM OF THE RIGHT TO TRADE IN THE AREA’S RESOURCES 74
THE COMMONWEALTH’S CONTENTION THAT ANY NATIVE TITLE RIGHTS OR INTERESTS SHOULD BE REGARDED AS “MERGED” IN THE COMMON LAW PUBLIC RIGHTS TO FISH AND TO NAVIGATE 76
THE COMMONWEALTH’S CONTENTION THAT NO NATIVE TITLE EXISTED IN THE NORTH-EAST AND EASTERN REGION OF THE CLAIMED AREA 77
ORDERS ON THE APPEALS 81
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
DG 6005 OF 1998
BETWEEN:
THE COMMONWEALTH OF AUSTRALIA
AppellantAND:
MARY YARMIRR & ORS
First RespondentsTHE NORTHERN TERRITORY OF AUSTRALIA
Second RespondentPASPALEY PEARLING COMPANY PTY LTD
Third RespondentNT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION
Fourth RespondentsOCEAN TRAWLER PTY LTD
Fifth RespondentSHINE FISHERIES PTY LTD
Sixth RespondentM G KAILIS GULF FISHERIES PTY LTD
Seventh RespondentPAVALINA HENWOOD
Eighth Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
DG 6006 OF 1998
BETWEEN:
MARY YARMIRR & ORS
AppellantsAND:
THE NORTHERN TERRITORY OF AUSTRALIA
First RespondentTHE COMMONWEALTH OF AUSTRALIA
Second RespondentPASPALEY PEARLING COMPANY PTY LTD
Third RespondentNT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION
Fourth RespondentsOCEAN TRAWLER PTY LTD
Fifth RespondentSHINE FISHERIES PTY LTD
Sixth RespondentM G KAILIS GULF FISHERIES PTY LTD
Seventh RespondentPAVALINA HENWOOD
Eighth RespondentARNHEM LAND ABORIGINAL LAND TRUST
Ninth Respondent
JUDGES:
BEAUMONT, VON DOUSSA & MERKEL JJ.
DATE:
3 DECEMBER 1999
PLACE:
SYDNEY (HEARD IN DARWIN)
REASONS FOR JUDGMENT
BEAUMONT & VON DOUSSA JJ:
INTRODUCTION
These are appeals against a determination of native title by a Judge of the Court (Olney J). The determination was made under the Native Title Act 1993 (Cth) (“the NTA”) before its amendment in 1998. His Honour’s principal judgment is reported as Yarmirr v Northern Territory (1998) 82 FCR 533. (His Honour gave supplementary reasons on 4 September 1998 (unreported) on the form of his final orders.) The proceedings raise several important questions including whether native title may be recognised, and protected, in relation to Australia’s coastal seas, and, if so, the extent of such recognition and protection.
The claim before the trial Judge was brought pursuant to s 13(1)(a) of the NTA which provides, in effect, that an application may be made to this Court for a determination of native title in relation to an area for which there is no “approved” determination of native title. At the time of the application, there was no such determination. The claim, in essence, was for the ownership and exclusive possession, occupation, use and enjoyment of an area of the seas, including the sea-bed and its resources, in the vicinity of Croker Island in the Northern Territory (“the Territory”) (“the claimed area”). Expressly excluded from the claim were the Arnhem lands and reefs within the claimed area which had already been granted for the benefit of the Aboriginal people pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“the Land Rights Act”). The general location of the claimed area is indicated on the map annexed to these reasons (a map produced by the Commonwealth at the trial, which became Schedule 2 to his Honour’s reported reasons (see 82 FCR at 604)).
His Honour upheld the claim in part. His Honour’s findings and conclusions may, for our immediate purposes, be summarised as follows:
·The provisions of the NTA, particularly s 6 (see below), expressed the Parliament’s specific intention to recognise that native title rights, if proved, are capable of recognition in relation to offshore seas and waters (at 550).
(By s 6, it is provided that the NTA “extends … to the coastal sea of Australia … and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973 (Cth) (“the SSLA”).)
·Although, given his construction of the NTA, this was not strictly necessary for his Honour to decide, the territorial limits of the Territory (including its “bays and gulfs”) within the claimed area, included the waters of Mission Bay, but otherwise did not extend beyond the low water mark of the coastline of the mainland and the islands (at 551 – 558).
·The evidence established the existence of traditional laws acknowledged, and traditional customs observed, whereby the claimant group had continuously, since prior to non-aboriginal intervention, used the waters of the claimed area for the purpose of hunting, fishing and gathering to provide for their sustenance and for other purposes associated with their ritual and spiritual obligations and practices. They had also used the waters for the purpose of passage from place to place and for the preservation of their cultural and spiritual beliefs and practices. As between the several component subgroups, the group’s traditional laws and customs required that, on occasions, permission of the senior members of one subgroup will be required before members of another subgroup, or Aboriginals from other areas, may enter upon the subject waters to hunt, fish or gather (at 593 – 594).
·These native title rights and interests were regulated, but not extinguished, by Territory and Commonwealth fishing legislation and administrative action. By virtue of the provisions of s 211 of the NTA (see below), the claimant group was not required to hold any statutory licence or permit in order to exercise their native title rights (at 599 – 600).
(Relevantly, by s 211(2) of the NTA it is provided, in effect, that a Commonwealth, State or Territory law does not prohibit or restrict native title holders from carrying on an activity (of hunting, fishing etc.) or from gaining access to the land or waters for that purpose to satisfy their personal, domestic or non-commercial communal needs.)
·The claimant group did not enjoy any exclusive right to possess, occupy, use and enjoy the subject waters because: (a) the evidence failed to establish that any such exclusive right was part of traditional laws and customs (at 593); (b) in any event, (i) Australia’s obligations under the United Nations Convention on the Territorial Sea 1958 (“the TSC”) and under the United Nations Convention on the Law of the Sea 1982 (“the LOSC”) to allow the innocent passage of the ships of all States through its territorial sea precluded the possibility of recognition of a right in the claimant group to exclusive possession or occupation, or of a right to control access by others to the area (at 592); and further (ii) recognition of any such exclusive right would also contradict the public rights of navigation and fishing recognised by the common law (at 593).
·The claim to the resources within the sea-bed, and the subsoil, including any minerals in or below the subsoil, failed in the absence of evidence to suggest that any traditional law or custom of the group related to the acquisition or use of, or to trading in, minerals. Moreover, the Crown had, by the exercise of its legislative powers, appropriated to itself an interest which amounts to the full beneficial ownership, and no native title rights in the minerals could have survived the acquisition (at 601).
For these reasons, Olney J determined: (1) that native title existed in relation to the sea and sea-bed within the claimed area then specified by his Honour (see below); and (2) that this title was held by the Aboriginal peoples who are the “yuwurrumu” members (i.e. those who trace or claim their descent through the male line) of the claimant group (“the common law holders”). However, his Honour rejected their claim for exclusive possession, holding that the 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.
Olney J further determined that the relevant native title rights and interests of the common law holders, in accordance with, and subject to, their traditional laws and customs, were: (a) to fish, hunt and gather within the claimed area for the purpose of satisfying their personal, domestic or non-commercial communal needs, including observing traditional, cultural, ritual and spiritual laws and customs; and (b) to have access to the sea and sea-bed within the claimed area (i) to exercise the rights in (a) above; (ii) to travel through, or within, the claimed area: and (iii) to visit and protect places within the claimed area which are of cultural or spiritual importance; and (iv) to safeguard the cultural and spiritual knowledge of the common law holders.
In his determination, his Honour went on to declare that the native title rights and interests of the common law holders may be “affected” by rights and interests in relation to the sea and sea-bed within the claimed area that are validly granted, or which exist, or which may hereafter exist, pursuant to Commonwealth or Territory laws.
The Commonwealth (with the support of the Territory and the fishing industry parties, which are the third, fourth, fifth, sixth and seventh respondents) and the claimant group both now appeal from different parts of his Honour’s judgment and orders. The appeals raise many complex questions including the central one, previously mentioned, whether native title may be recognised, and protected, in relation to Australia’s coastal seas. At this stage, it will suffice to indicate generally the scope of the issues raised by the appeals respectively.
The grounds of the Commonwealth’s appeal, summarily stated, are:
·Firstly, that the primary Judge wrongly construed the NTA so as to provide for recognition of native title beyond the limits of the Territory.
·Secondly, that his Honour erred in that he ought to have held that no native title exists within that part of the claimed area which is outside the limits of the Territory for the reasons that:
(a)the common law of Australia does not, of its own force, apply outside the said limits;
(b)no law of the Commonwealth or of the Territory provides a basis for the recognition of native title outside the said limits;
(c)in the absence of a law of the Commonwealth of Australia or a law of the Territory making provision as in sub-para (b) above, no basis exists for the recognition of native title outside the said limits.
As the common law only operates within the territory of Australia, that is, to the low water mark of the mainland and the offshore islands, it cannot and does not recognise the native title rights or interests claimed by the claimant group in respect of the area beyond that point (that is, in the territorial sea).
·Thirdly, that the native title rights specified in the determination were already exercisable under the public rights to fish and navigate at common law, and were incapable of separate recognition.
·Fourthly, (in the alternative) that there was no evidence, or no sufficient evidence, of traditional or other occupation or use to warrant a finding that native title existed in certain areas to the north and east of New Year Island.
For their part, the claimant group now challenges the following conclusions of the trial Judge:
·That their native title rights and interests were not exclusive, i.e. not held to the exclusion of all others;
·That the content of their native title rights and interests over the area did not include:
qa right to fish, hunt and gather for the purposes of trade;
qa right to exploit and control access to and the exploitation of resources in the sea, sea-bed and subsoils;
qthe right to exclude persons seeking to explore or mine for minerals pursuant to a Commonwealth or Territory law;
qa right to exclude persons generally.
·That their traditional laws and customs did not “bind” others.
Before considering the specific offshore native rights claimed, it will be necessary to refer, by way of background, to the general nature of Australian common law native title in all its dimensions; to the operation of the NTA; to the several maritime zones in the area claimed and to their history, municipal and international; and to the nature of the common law public rights to fish and to navigate.
We have had the benefit of full argument from counsel for the several parties who appeared on the appeals. Accordingly, we propose to follow the approach taken by Full Federal Courts in other complex appeals, e.g. in Australian Breeders Co-operative Society Ltd v Jones (1997) 150 ALR 488 (at 503) and in Amadio v Henderson (1998) 81 FCR 149 (at 175), that is, to confine our reasons to the issues raised by submissions that were both significant and consequential, lest these reasons be unacceptably long.
COMMON LAW NATIVE TITLE
Mabo v The State of Queensland [No 2] (1992) 175 CLR 1 established that, on the acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to that land, and that where native title rights and interests in or in relation to that land existed at the time, the common law recognises those rights and interests as a burden on the radical title. Brennan J (at 57) said the term “native title” conveniently describes the interests and rights of indigenous inhabitants in land, whether communal group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants. In expressing their agreement with the reasons of Brennan J, Mason CJ and McHugh J (at 15) noted that six members of the Court were in agreement:
“ that the common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws and customs to their traditional lands...”
The common law principles recognised by Mabo [No 2] have been considered and applied in subsequent decisions by the High Court: see Western Australia v The Commonwealth (1995) 183 CLR 373 (the Native Title Case) at 452, 492; North Ganalanja Aboriginal Community v Queensland (1996) 185 CLR 595 (the Waanyi Case) at 613; The Wik Peoples v State of Queensland (1996) 187 CLR 1 at 84 - 85, 100, 129, 135, 175 - 176, 213; Fejo v Northern Territory of Australia (1998) 195 CLR 96 at 126 - 128 and 146 – 147 and Yanner v Eaton (1999) 166 ALR 258 at 268, 277 – 278 and 298.
Brennan J in Mabo [No 2] said (at 48):
“The notion of radical title enabled the Crown to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown’s purposes. But it is not a corollary of the Crown’s acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants. If the land were desert and uninhabited, truly a terra nullius, the Crown would take an absolute beneficial title (an allodial title) to the land for the reason given by Stephen CJ in Attorney-General (NSW) v Brown: there would be no other proprietor. But if the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognized by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land. Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants. The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant. The English legal system accommodated the recognition of rights and interests derived from occupation of land in a territory over which sovereignty was acquired by conquest without the necessity of a Crown grant.”
The concepts of native title recognised by the common law do not constitute a title which is an institution of the common law. In Fejo Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said (at 128):
“Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law.”
It follows that the existence and content of native title is a question of fact, to be ascertained by evidence as to the laws and customs of the indigenous inhabitants, on a case by case basis: Mabo [No 2] at 58 and 61, the Native Title Case at 452 and Wik at 169. Native title is therefore “highly fact specific” (a description of Australian native title used by the majority of the Court of Appeal of New Zealand in McRitchie v The Taranaki Fish and Game Council [1999] 2 NZLR 139 at 147).
In Wik, Gummow J, citing Mabo [No 2], said (at 169):
“The content of native title, its nature and incidents, will vary from one case to another. It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time. At the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein. In all these instances, a conclusion as to the content of native title is to be reached by determination of matters of fact, ascertained by evidence.” (Footnotes omitted)
In discussing the nature and incidents of native title in Mabo [No 2], Brennan J made the following general observations.
First, as native title, though recognised by the common law, is not an institution of the common law, it is not alienable by the common law. His Honour said (at 59):
“Its alienability is dependent on the laws from which it is derived. If alienation of a right or interest in land is a mere matter of the custom observed by the indigenous inhabitants, not provided for by law enforced by a sovereign power, there is no machinery which can enforce the rights of the alienee … and, subject to an important qualification, the only title dependent on custom which the common law will recognize is one which is consistent with the common law … The general principle that the common law will recognize a customary title only if it be consistent with the common law is subject to an exception in favour of traditional native title.”
Brennan J went on to observe that many clans or groups of indigenous people have been physically separated from their traditional lands and have lost their connection with it. However, (at 59 – 60):
“Where a clan or group has continued to acknowledge the laws and, (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition.”
Secondly, native title, being recognised by the common law, may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature; and whether possessed by a community, a group or an individual. Recognition, however, is dependent on the native title arising under the laws and customs of the indigenous inhabitants not being so repugnant to natural justice, equity and good conscience that judicial sanctions must be withheld (at 59). His Honour had earlier observed (at 43) that recognition by the common law of rights and interests in land of indigenous inhabitants of a settled colony would be precluded if the recognition were to “fracture a skeletal principle of our legal system”.
Thirdly, where an indigenous people (including a clan or group) as a community, are in possession, or are entitled to possession, of land under a proprietary native title, that communal title enures for the benefit of the community as a whole and for the subgroups and individuals within it who have particular rights and interests in the community’s lands (at 61 – 62).
Where native title survived the Crown’s acquisition of sovereignty and radical title, it nevertheless was liable to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title. Brennan J in Mabo [No 2] (at 69) said:
“Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (e.g., authorities to prospect for minerals).”
Deane and Gaudron JJ (at 110) said:
“The personal rights conferred by common law native title do not constitute an estate or interest in the land itself. They are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession.”
Expressions to a similar effect were made in the joint judgment of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ in the Native Title Case (at 439), leading their Honours to observe at (452 – 453) that:
“The content of native title is ascertained by reference to the laws and customs of the people who possess that title, but their enjoyment of the title is precarious under the common law: it is defeasible by legislation or by the exercise of the Crown’s (or a statutory authority’s) power to grant inconsistent interests in the land or to appropriate the land and use it inconsistently with enjoyment of the native title.”
In Fejo, Kirby J (at 151) referred to “the inherently fragile native title right, susceptible to extinguishment or defeasance…”. Fejo confirmed that native title is extinguished by a grant in fee simple because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any rights or interests in land which together make up native title. Further, the Court held that once native title had been extinguished, it was necessarily at an end, and could not revive if and when the land came to be held again by the Crown. In their joint judgment Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said (at 128):
“As Brennan J pointed out in Mabo [No 2] the conclusion that native title has been extinguished by a later grant of freehold to the land is a result that follows not from identifying some intention in the party making the later grant but because of the effect that that later grant has on the rights which together constitute native title. The rights of native title are rights and interests that relate to the use of the land by the holders of the native title. For present purposes let it be assumed that those rights may encompass a right to hunt, to gather or to fish, a right to conduct ceremonies on the land, a right to maintain the land in a particular state or other like rights and interests. They are rights that are inconsistent with the rights of a holder of an estate in fee simple. Subject to whatever qualifications may be imposed by statute or the common law, or by reservation or grant, the holder of an estate in fee simple may use the land as he or she sees fit and may exclude any and everyone from access to the land. It follows that, as there was no reservation or qualification on the grant that was made to Benham in 1882, that grant was wholly inconsistent with the existence thereafter of any right of native title.”
Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the acts of the executive in exercise of powers conferred upon it: Mabo [No 2] at 63 – 64 per Brennan J, 110, 111 per Deane and Gaudron JJ, and 195 – 196 per Toohey J. As Brennan CJ observed in Wik (at 84 – 85), such laws or acts may be of three kinds: (i) laws or acts which simply extinguish native title; (ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title; and (iii) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title.
A law or executive act of the first kind which, although it creates no rights inconsistent with native title, but is claimed to extinguish native title, will not have that effect “unless there be a clear and plain intention to do so”: Mabo [No 2] at 64, 111 and 196, and Wik at 85. Such an inquiry is not to be conducted by inquiry into the state of mind of the legislators or of the executive officer, but from the words of the relevant law or from the nature of the executive act and the power supporting it. The test of intention to extinguish is an objective test.
In cases of the second kind, Brennan CJ, citing from his judgment in Mabo [No 2] (at 68) and the Native Title Case (at 422), said in Wik that a law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the actual intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title. It should be added that, even in this situation, the exercise of power must be in terms that “clearly, plainly and distinctly” create rights that are inconsistent with the continued exercise of native title rights and interests (see Wik at 171 and Yanner at 289 per Gummow J). Where the exercise is made under statutory authority, the statute authorises the creation of rights which have this effect: see Mabo [No 2] at 63.
In relation to the third category, Brennan CJ said (at 85 – 86) the Crown acquires a full beneficial ownership that extinguishes native title. This may occur by acquisition, by or under a statute, in which case the question is simply whether the power of acquisition has been validly exercised. Alternatively, the Crown, without statutory authority, may have acquired beneficial ownership simply by appropriating land in which no interest has been alienated by the Crown. In the latter case, the appropriation of the land gives rise to the Crown’s beneficial ownership only when the land is actually used for some purpose inconsistent with the continued enjoyment of native title, for example by building a school, or a court house, or laying a pipeline. Brennan CJ noted that the mere reservation of land for the intended purpose, which does not create third party rights over the land, does not alter the legal interests in the land; but the Crown’s exercise of its sovereign power to use unalienated land for its own purposes extinguishes, partially or wholly, native title interests in or over the land used.
In Wik, the question was whether pastoral leases issued under the Land Act 1910 and the Land Act 1962 of Queensland necessarily had the consequence that native title in the land the subject of the leases was extinguished. Toohey, Gaudron, Gummow and Kirby JJ in separate judgments each held that, as the leases did not confer rights of exclusive possession of the areas on the grantees, the grants of the leases did not necessarily extinguish all incidents of native title in respect of the areas. The point of departure between those judges who comprised the majority, and Brennan CJ, Dawson and McHugh JJ who dissented, concerned the nature of the rights granted by the pastoral lease. The minority concluded that the lessees under the pastoral leases had a right of exclusive possession, at least from the moment when the leases were granted. The minority held that the right of exclusive possession was inconsistent with the continued right of the holders of native title to enjoy that title (at 86, 100 and 167).
However, all of the members of the Court in Wik were in agreement as to the manner in which inconsistency was to be judged. Brennan CJ, with whom Dawson and McHugh JJ agreed, said (at 86):
“The question is not whether the Governor in Council intended to exhibit an intention to extinguish native title but whether the right to exclusive possession conferred by the leases on the pastoral lessees was inconsistent with the continued right of the holders of native title to enjoy that title.”
Brennan CJ rejected a test of inconsistency in the practical enjoyment of the respective rights. His Honour said (at 87):
“To postulate a test of inconsistency not between rights but between the manner of their exercise would be to deny the law’s capacity to determine the priority of rights over or in respect of the same parcel of land. The law would be incapable of settling a dispute between the holders of the inconsistent rights prior to their exercise, to the prejudice of that peaceful resolution of disputes which reduces any tendency to self-help…. The question of extinguishment of native title by a grant of inconsistent rights is - and must be - resolved as a matter of law, not of fact.
Toohey J said (at 126):
“Inconsistency can only be determined, in the present context, by identifying what native title rights in the system of rights and interests upon which the appellants rely are asserted in relation to the land contained in the pastoral leases. This cannot be done by some general statement: it must ‘focus specifically on the traditions, customs and practices of the particular aboriginal group claiming the right’. Those rights are then measured against the rights conferred on the grantees of the pastoral leases; to the extent of any inconsistency the latter prevail.”
In the postscript to his judgment, added with the concurrence of the other members of the majority, Toohey J said (at 132 – 133):
“…the rights and obligations of each grantee depend upon the terms of the grant of the pastoral lease and upon the statute which authorised it…. Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established. If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield to that extent, to the rights of the grantees.”
Gaudron J (at 135) said:
“By way of alternative, the appellants argued that if pastoral leases did confer rights of exclusive possession, native title rights were not extinguished because those rights were not exercised either pursuant to the Mitchellton Pastoral Leases or the Holroyd Pastoral Lease. The respondents and supporting interveners replied to this contention by asserting that it was the grant, not the exercise, of a right of exclusive possession which operated to extinguish native title rights. In this they were undoubtedly correct. As Deane J and I pointed out in Mabo v Queensland [No 2] native title rights ‘are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right of exclusive possession’ or other inconsistent dealings with the land by the Crown.”
Gummow J (at 185) said that the test of inconsistency:
“… requires a comparison between the legal nature and incidents of the existing right and of the statutory right. The question is whether the respective incidents thereof are such that the existing right cannot be exercised without abrogating the statutory right. If it cannot, then by necessary implication, the statute extinguishes the existing right.”
Kirby J (at 238) accepted as established by Mabo [No 2] the theory about extinguishment and impairment which he described (at 221) as follows:
“The inconsistency of incident test: That once the Crown’s ultimate or radical title was converted, by the exercise of sovereignty into an estate or interest in land, the question became whether that estate or interest, of its legal character, was inconsistent with the continuance of native title in the land. The question is not whether the estate or interest had been exercised, in fact, in a way that was incompatible with the exercise of native title rights, but whether it was legally capable of being so exercised. The issue was one of a legal theory, not detailed evidence.”
In the result, all seven judges adopted an “inconsistency of incidents test”, succinctly expressed by Kirby J in the passage just cited.
The inconsistency of incidents test approved by the members of the Court in Wik was applied in Fejo at 126 and 154.
The inconsistency of incidents tests formulated in Wik enables a determination as to whether inconsistency, and extinguishment, occurs at the time of the grant. That test however requires one qualification by way of addition. The grant may confer or impose on the grantee a power or condition to be exercised or performed in the future and which, until exercised or performed, has no immediate legal effect in terms of inconsistency: see Mabo [No 2] at 166 per Gaudron J. In Wik, Gummow J (at 203) instanced conditions in pastoral leases requiring improvements to the land under which the construction of an airstrip and dams in compliance with the conditions could, at the time of the performance of the conditions, bring about an abrogation of native title. See also Yanner v Eaton at 289. Inconsistency arising in this situation may conveniently be described as operational inconsistency.
NATIVE TITLE ACT 1993
The NTA is Parliament’s response to the decision of the High Court in Mabo [No 2]. Its substantive provisions were held to be valid in the Native Title Case, save only for s 12. The preamble to the NTA notes that the High Court has:
“…held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, according to their laws and customs, to their traditional lands.”
The word “land” is defined in s 253, and does not include waters. The preamble correctly recognises that the Mabo decision was concerned with land and not with offshore areas. The preamble also says that considerations taken into account by Parliament in enacting the NTA included that:
“It is particularly important to ensure that the native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common laws of Australia need to be significantly supplemented.”
Section 3 sets out the main objects of the NTA, the first of these being:
“To provide for the recognition and protection of native title.”
Section 5 provides that the NTA binds the Crown in the right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island. Section 6 provides that the NTA extends to each external territory, to the coastal sea of Australia and to each external territory, and to any waters over which Australia asserts sovereign rights under the SSLA. “Coastal sea” by s 253 of the NTA has the meaning given by subs 15B(4) of the Acts Interpretation Act 1901 (Cth) namely, the territorial sea of Australia, the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal territory, and includes the airspace over and the sea-bed and subsoil beneath, any such sea.
Sections 10 and 11 reflect the first of the objects of the NTA. Section 10 provides that native title is recognised and protected in accordance with the NTA, and s 11 provides that native title is not to be extinguished contrary to the NTA. In the Native Title Case (at 453) Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ said:
“The first of the enacted objects of the Native Title Act is ‘ to provide for the recognition and protection of native title’ (s3(a)). This object is achieved by a statutory declaration (s 11(1)) that native title ‘is not able to be extinguished contrary to this Act.’ The protection given to native title by this provision removes its vulnerability to defeasance at common law by providing a prima facie sterilisation of all acts which would otherwise defeat native title. By that prima facie sterilisation, s 11(1) ensures that the exceptions prescribed by other provisions of the Act which permit the extinguishment or impairment of native title constitute an exclusive code. Conformity with the code is essential to the effective extinguishment or impairment of native title. The Native Title Act thus governs the recognition, protection, extinguishment and impairment of native title.”
Section 13 provides, as previously noted, that an application may be made under Part 3 for a determination of native title in relation to an area for which there is no approved determination of native title; or for the revocation or variation of an approved determination. Part 3 deals with procedural aspects of making an application for the determination of native title. Section 225 provides that a determination of native title is a determination whether or not native title exists in relation to a particular area of land or waters, and if it does exist, prescribes matters which the determination must specify.
“Native title” is one of the key concepts defined in s 223 as follows:
"(1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia.
(2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.”
Subsections 223(3), (3A) and (4) make provision for circumstances where native title rights and interests have been converted or replaced by statutory rights and interests.
In the Native Title Case (at 452) the majority said:
“The common law concept of ‘native title’ is incorporated into the definition contained in s 223(1) of the Act.”
The definition, however, goes further than Mabo [No 2], as it incorporates communal group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to waters. The Explanatory Memorandum, Part B, which accompanied the Native Title Bill 1993 said at 76 – 77:
“Clause 1 of the definition uses terms similar to those used by the High Court of Australia in Mabo in defining native title. This definition is not a codification of the common law.
Subsection 2 provides an example of the type of rights and interests that might comprise native title. In accordance with the High Court’s decision, the use of the word ‘traditional’ in reference to laws and customs in this definition, is not to be interpreted as meaning that the laws and customs must be the same as those that were in existence at the time of European settlement.”
The application of the concepts discussed in Mabo [No 2] in relation to land to offshore waters is, to say the least, not easy, particularly having regard to the territorial limits of the areas over which sovereignty was acquired at the time of first European settlement: see R v Keyn (1876) 2 Ex D 63. Further, in water where the tides ebb and flow and living creatures move from place to place, notions of occupation and possession are difficult to apply. However, the NTA does not discriminate in the provisions of ss 3, 10 and 13, and Part 3, between native title in onshore and offshore areas.
The construction of s 223 itself is not without difficulty. Expressions used in paras 223(1)(a), (b) and (c) have close similarity to passages appearing in the judgment of Brennan J in Mabo [No 2] at 57 – 59, but to understand the meaning and content of those passages it is necessary to go beyond those pages in the judgment. It is not possible to understand the concept of native title rights and interests that may be the subject of a determination under s 225 by reading s 223(1) as a stand-alone definition. Nowhere in s 223(1) is there any express reference to the notion of extinguishment of native title, yet questions of extinguishment by legislative or executive action are of central importance in determining whether native title rights and interests exist. The imprecision of the described characteristics of native title in paras 223(1)(a), (b) and (c) adds to the difficulty of understanding of s 223(1).
Section 223(1) is a compendious description of native title and native title rights and interests, to be understood against the background of the common law concept of native title as declared by the High Court. And the Act must be “read with an understanding of the novel legal and administrative problems involved in the statutory recognition of native title”: the Waanyi Case at 614 – 615.
The common law rights and interests defined by s 223(1) are rights and interests “of Aboriginal peoples or Torres Strait Islanders in relation to land or waters …”. The definition is descriptive of rights and interests in existence. It is not descriptive of rights and interests that were once held and have since lapsed or been extinguished. In our opinion, it is for this reason unnecessary for the definition to refer to these topics. If, in a claim by persons who apply under s 13 and Part 3, it appears that rights and interests claimed have lapsed, or been extinguished by legislation or executive action, the claim must fail for that reason.
For there to be native title there must be in existence communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters where those rights and interests have the characteristics described in paras 223(1)(a), (b) and (c).
Paragraph 223(1)(a) refers generally to the requirement identified by Brennan J in Mabo [No 2] (at 57 and 58) that native title has its origin in, and is given its content by, “the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants” of an area. Section 223(1)(b) refers generally to the requirement identified by Brennan J (at 59) that native title rights and interests which the common law (and now the NTA) recognises are rights and interests that reflect a connection with the land (or waters). See also Yanner at 269 – 270. These two requirements are considered together by Brennan J in Mabo [No 2] in proposition 6 in his summary at 70, indicating the close relationship and interrelationship of the two. Within these two paragraphs, the requirements that the rights and interests be presently possessed under traditional laws acknowledged, and traditional customs observed, comprehend these elements: first, that those possessing the rights and interests will have the ancestral connection and recognition required by the laws and customs to be members of the indigenous people; and, secondly, that the indigenous peoples have substantially maintained their connection with land by acknowledgment and observance of their laws and customs, so far as that is practicable.
The content of the required characteristic of native title described by para 223(1)(c) is not apparent from reading the section, or indeed the NTA. In Mabo [No 2], steps in the reasoning by which it was held that the common law in Australia recognised the native title of the Meriam people, included the following, appearing in the summary of Brennan J at 69 – 70, namely: (a) that on the acquisition of sovereignty, the Crown acquired a radical title to the land in that part of Australia; (b) that native title to the land survived the Crown’s acquisition of sovereignty and radical title; and (c) that the native title was exposed to extinguishment; but, in the case of the Murray Islands, extinguishment had not occurred. In addition to these major steps, other considerations important to the recognition of particular rights and interests that might be revealed in a case by evidence as to the traditional laws acknowledged by, and customs observed by, the indigenous people were identified by Brennan J. In particular, his Honour (at 43) said:
“However, recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system.”
Furthermore, (at 61) his Honour said that native title will not be protected by legal remedies where the rights and interests disclosed by the evidence are founded on laws and customs of the indigenous people that are:
“so repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld.”
Recognition by the common law will be withheld in respect of rights and interests of a kind that offend these principles.
If para 223(1)(c) is considered in isolation, it might be thought to comprehend the need to satisfy both the major steps and the other considerations for recognition identified by Brennan J. However, we think that the better construction of para 223(1)(c) is that it only comprehends the other considerations, and not the major steps in the reasoning of the Mabo decision. Of the major steps, the fact of the enactment of the NTA gives recognition and protection to native title. The NTA is an expression of legislative intent to recognise and confirm that native title survived the acquisition of sovereignty and constitutes a burden on the radical title of the Crown. Those points no longer remain matters that call for consideration in the definition of native title and native title rights and interests. The requirement that the rights and interests not be extinguished is already encompassed in the opening lines of s 223(1). (In expressing this view of the construction of s 223(1) we respectfully disagree with Moynihan J in Eaton v Yanner; ex parte Eaton (Queensland Court of Appeal, unreported, 27 February 1998) who held that non-extinguishment was a threshold requirement imposed by paras 223(1)(a) and (c) of the NTA.)
In addition to those characteristics described in paras 223(1)(a) and (b), the characteristic of existing rights and interests of Aboriginal peoples or Torres Strait Islanders made necessary by para 223(1)(c), is that the rights and interests be of a kind that the common law will recognise. So construed, rights and interests of Aboriginal peoples or Torres Strait Islanders that fracture a skeletal principle of the Australian legal system, or are contrary to natural justice equity and good conscience will not be recognised, nor will other rights and interests that are contrary to established principles of the common law of Australia. Paragraph 223(1)(c) is not, however, concerned with how and when the common law was applied by prerogative act of the Crown or by legislation to any particular territorial area of Australia: the paragraph applies generally to rights and interests asserted by Aboriginal peoples or Torres Strait Islanders in respect of any area within the territorial scope of the NTA as stated in s 6. The NTA is drawn on the assumption that by 1993, in one manner or another, the Crown in the right of the Commonwealth had acquired sovereignty over the whole of the area to which the NTA would apply. We agree with Olney J (at 550) that s 6, coupled with the recognition of native title accorded by s 10, namely recognition “in accordance with this Act”, supports the proposition that the legislative intent was to provide a statutory basis for recognition offshore.
In Mabo [No 2], the date of acquisition of sovereignty of the Murray Islands was treated as important, as it was at this date that the rights and interests then possessed under the traditional laws acknowledged by, and the customs observed by, the indigenous inhabitants became a burden on the radical title of the Crown. On the construction which we place on s 223, the date of acquisition of sovereignty over the area in respect of which native title is asserted is not an issue comprehended by the definition of s 223. The fact of acquisition of sovereignty over the settled lands of Australia was essential to the reasoning leading to the conclusion that the common law of Australia recognised native title; but now that the concept of native title is recognised by the NTA, the fact of acquisition of sovereignty, and the precise date thereof, is not a matter that requires to be further established. The date of acquisition of sovereignty in Mabo [No 2], was also an important fact, as it was in Wik, as it was the commencement date from which to consider whether legislation or executive action might have extinguished native title. However, for that purpose, the date was merely an evidentiary fact relevant to extinguishment, not an issue essential in the determination of the nature and content of the native title rights and interests.
As a matter of theory, native title as it existed at the date of the acquisition of sovereignty burdened the radical title of the Crown, and the nature and extent of that burden would fall to be ascertained according to the nature and content of the rights and interests at that date. Thus it can be argued that the date of acquisition of sovereignty remains central to the determination of native title. However, from a practical viewpoint, the particular date is not of importance. Mabo [No 2] (at 70, 110 and 192) recognises that laws and customs of indigenous people may undergo change subsequent to the acquisition of sovereignty, and the means of enjoyment of native title rights and interests can change with the times (e.g. to permit the hunting of estuarine crocodiles with the use of an outboard motor: Yanner at 277).
The important requirement discussed in Mabo [No 2] is that the native title rights and interests which the common law protects are those of the indigenous people possessed under traditional laws acknowledged by traditional customs observed by them. The fundamental requirement is not that the rights and interests were acknowledged and observed at any particular date, but that they follow from the acknowledgment of traditional laws and the observance of traditional customs. The meaning of “traditional” is that which is “handed down by tradition” and “tradition” is “the handing down of statements, beliefs, legends, customs, etc. from generation to generation, especially by word of mouth or by practice”: The Macquarie Dictionary, 3rd ed.
In most cases where the date of acquisition of sovereignty was coincidental with, or preceded, first European contact in a particular area, there will be no reason to doubt that the rights and interests of the indigenous inhabitants, so long as they reflect the laws acknowledged and customs observed, were rights and interests possessed under traditional laws and customs. The present claim is exceptional in that regard because of contact at earlier times between the indigenous peoples of that area and the Macassan traders. This fact has given rise to a question whether customs observed in earlier times relating to alleged trading activities by Aboriginal people in that area may not have been traditional, but that is an argument that is in no way dependent on the date of acquisition of sovereignty over all or any particular part of the claimed area. In Mabo [No 2], Toohey J at 192 said:
“Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist.”
The definition of native title in s 223(1) does not direct attention to whether the rights and interests in question were possessed at any particular time in the past. The definition requires only that the rights and interests are (presently) possessed under the traditional laws acknowledged and the traditional customs observed. This simplification overcomes complications of proof that would exist if the definition made it necessary to ascertain the date of acquisition of sovereignty of the area of land or water in question, and the situation prevailing in the community at that time, as well as ascertaining the present situation. The point is sufficiently dealt with in the definition by the requirements that the laws and customs be “traditional”. In claims for determination of native title, that requirement will usually be met by showing that the laws acknowledged by, and customs observed by, the claimants predated first European contact - regardless of the precise date of the acquisition of sovereignty.
If para 223(1)(c) had the meaning and effect contended for by the Commonwealth in relation to offshore claims, the NTA would have failed dismally to achieve the aim stated on page 1 of Part A, of the Explanatory Memorandum, which accompanied the Native Title Bill 1993, namely, that:
“To facilitate certainty, the Commonwealth has provided a straightforward mechanism to determine whether or not native title exists and what the rights and interests are that comprise the native title.”
A consideration of the judgments in New South Wales v The Commonwealth (1975) 135 CLR 337 (the SSLA Case), A. Raptis and Son v South Australia (1977) 138 CLR 346, and the arguments in this case as to the dates upon which sovereignty was acquired over the offshore areas under claim, demonstrates that the ascertainment of the dates of acquisition of sovereignty in claims over areas of offshore waters is unbelievably complex. The proliferation of possible dates for the acquisition of different offshore zones only adds to the complexity. A further undesirable consequence would follow, as the arguments here of the Commonwealth and the Territory demonstrate, that fundamental questions as to the limits of the Territory (or a State) in the vicinity of bays and gulfs would have to be determined, as immensely complicated collateral issues, to enable the date of acquisition of sovereignty of particular areas of water to be determined.
In extending concepts discussed in Mabo [No 2] to waters, Parliament in the NTA has sought to avoid complexities of that nature by extending the Act to all waters covered by the very broad application provisions of s 6, and has specified, in the definition in s 223(1), only the minimal characteristics that rights and interests presently possessed by Aboriginal peoples or Torres Strait Islanders must meet to be entitled to protection under the NTA. Those minimal characteristics find expression in paras 223(1)(a), (b) and (c). To apply those provisions, it is not necessary to determine the actual date of the acquisition of sovereignty of each and every part of the area under claim. We agree with Olney J that it is not necessary to determine the precise limits of the Territory, nor do we think that, on our approach to the operation of the NTA, it is necessary to determine the precise dates upon which acquisition of sovereignty occurred in respect of the offshore areas. However, it is necessary for our purposes to describe in a general way the relevant maritime zones in order to demonstrate that the present claim fell within the provisions of s 6 as we have construed it.
RELEVANT MARITIME STATUTORY DEFINITIONS
It is important, for our purposes, to bear in mind the precise terms of the relevant maritime statutory definitions. It will be convenient to refer to their terms at this point as necessary background in our consideration of the arguments here, especially in considering the Commonwealth’s argument and the responses to it.
Section 6 of the NTA provides, as previously mentioned, that the NTA “extends [inter alia] to the coastal sea of Australia …”.
The “coastal sea” is relevantly defined in s 15B(4) of the Acts Interpretation Act 1901 (Cth) (a provision inserted in 1976) to mean:
“(i) the territorial sea of Australia; and
(ii)the sea on the landward side of the territorial sea of Australia and not within the limits of … an internal Territory;
and includes the airspace over, and the sea-bed and subsoil beneath, any such sea; … .”
Section 6 of the NTA further provides that the NTA also “extends … to any waters over which Australia asserts sovereign rights under the [SSLA]”. We refer to these rights below.
The situation postulated by the Commonwealth could not have arisen in cases such as Mabo, whether by legislation or otherwise, as inconsistent sovereign acts in respect of land only occurred after the change of sovereignty and therefore can only operate to extinguish the native title already burdening the Crown’s radical title to the land. However, the situation postulated arises directly in the present case as legislation could be, and was, validly passed regulating fishing in the territorial sea prior to the acquisition of sovereignty in respect of the sea.
The Commonwealth’s submission misconceives the conceptual basis for recognition of native title. That basis is the recognition by the common law of the survival of pre-existing native title after the change in sovereignty by it burdening the Crown’s radical title or sovereign rights as from that date. Prior to the acquisition of sovereignty native title is a “perception of socially constituted fact”: see Yanner at [37] and [38]. Upon recognition of native title by the common law after the acquisition of sovereignty it also comprises “assortments of artificially defined jural right”. As extinguishment relates to inconsistent legal rights and is therefore a question of law (Yanner at [106] and [107], Wik at 85-88, 126 and 233-238 and Fejo at 126-127 and 154-155), extinguishment will be of the “jural right” which only comes into existence, as such, upon its recognition by the common law as a right burdening the Crown’s sovereign rights. Thus, prior to the existence of the “right”, legislation may operate to prohibit certain traditional activities but cannot operate to extinguish the “right” to engage in the activities as the “right” does not come into existence as a legally enforceable or protected entitlement until it is recognised, as such, by the common law. Accordingly, extinguishment can only arise by reason of legislative or executive acts operative at or after the date sovereignty is acquired.
Thus, a prior legislative regime might be relevant, for example, if it is relied upon to establish as a matter of fact how it came about that the traditional customs and laws on which native title is allegedly based had been abandoned by the date of the change in sovereignty. On the other hand the traditional laws and customs may have continued to be acknowledged and observed irrespective of the legislative regime in place prior to the date upon which sovereignty is acquired.
It follows from the foregoing that the fisheries legislation that is directly relevant to the issue of non-recognition or extinguishment is the legislation in force in respect of the claimed area at and since the dates on which sovereignty was acquired in respect of the various parts of that area. If the legislation in force at the date of the acquisition of sovereignty is inconsistent with the enjoyment of native title, the native title may not be recognised by the common law on the ground that the claim will not satisfy s 223(1)(c) of the NTA. If the inconsistent legislation was enacted after the acquisition of sovereignty it may operate to extinguish the relevant native title on the ground that it will not satisfy s 223(1)(c). In that context the same test will apply to non-recognition and extinguishment.
No determination of native title rights or interests to an exclusive or commercial fishery has yet been made. Accordingly, the factual and legal findings that are necessary to establish the ambit of any native title right or interest in respect of an exclusive or commercial fishery, which must be placed against the statutory rights which are said to abrogate or extinguish it (Yanner at [109]), have also yet to be made. However, as the issue of extinguishment has been extensively argued and may arise on any remitter in respect of a several fishery, including commercial exploration of such a fishery it is appropriate to briefly state my views on the extinguishment of any such right or interest by reason of the fisheries legislation or licences issued pursuant to that legislation.
The fisheries legislation
It is appropriate to commence with a summary of the main elements of the fisheries legislation which is set out in detail in the written submissions of the Commonwealth and the Northern Territory and was summarised by his Honour at 82 FCR 594-598.
Although South Australian fisheries legislation applied to regulate fishing in respect of parts of the claimed area as early as 1872 the first comprehensive scheme of regulation was under the Fisheries Act 1904 (SA). The Act prohibited the taking of fish for sale or barter without a licence and provided for annual licences to take fish for sale or barter upon payment of a fee. The Governor was empowered to close off areas from the taking of fish. Subject to the exercise of the power to close off areas or to declare “…any waters to be reserved within which only Aboriginal natives shall be allowed to fish” and the exemption from the provisions of the Act of “any Aboriginal native taking fish for his own use”, licences prescribed under the Act contained no restriction as to the areas within which the licence holder might fish.
The scheme established by the 1904 Act was, in substance, repeated in subsequent Northern Territory legislation after the surrender of the Northern Territory to the Commonwealth in 1911. However, the Northern Territory legislation did not contain any special provisions regarding traditional Aboriginal fishing until the Fish and Fisheries Act 1979 (NT).
Subsequent fisheries legislation became increasingly complex as legislatures sought to balance conservation concerns with the development and optimal exploitation of offshore fisheries. The Fisheries Ordinance 1911 (NT) provided for fishing licences for a period of six to twelve months to take fish for the purpose of trade but not from waters closed off to the taking of fish. There was a prohibition of fishing for the purpose of trade or from taking pearls, pearl-shell or trepang from the sea without a licence.
The 1911 ordinance remained in place until repealed by the Fisheries Ordinance 1949 (NT). Under that ordinance annual licences were issued for the taking of fish for the purposes of trade and annual trepang licences were also issued. The taking of fish for sale without a licence from any part of the sea within a distance of three miles from any part of the coast of the Northern Territory and any bay, estuary or other inlet of the sea was prohibited. The Fisheries Ordinance 1965 (NT) implemented a similar scheme.
Although the forms prescribed for commercial fishing licences made provision for the area in which the licensee was entitled to fish to be confined, during the period from 1960 to the enactment of the Fisheries Ordinance 1972 (NT), the licences issued did not contain restrictions as to the location in which fishing could take place in waters off the coast of the Northern Territory.
The Fisheries Ordinance 1972 (NT) heralded a more sophisticated approach to the regulation of fishing off the coast of the Northern Territory. The number of categories of licences increased and provision was made for certain species of fish to be declared to be “controlled species”.
Following the conferral of self government on the Northern Territory in 1978 the Fish and Fisheries Act 1979 (NT) established an even more comprehensive scheme for the regulation of fishing off the coast of the Northern Territory. The 1979 Act implemented the government’s policy “to develop the fishing industry as a major economic base for the Territory” and to provide a more flexible system which reflected the needs of the industry. Licences remained annual but the Act provided for the issue of licences in a number of classes. Provision was also made for licences to be subject to limitations and conditions including as to the area in which the licence could take effect. Although conditions imposed in licences at different times related the method of fishing or species which could be the subject of fishing, the licences did not specifically limit the rights of the licensee to fish by defining any specific areas in which fishing might or might not occur. The Fisheries Act 1979 (NT) re-introduced special provision for the use of waters by Aboriginal people “in accordance with Aboriginal tradition”.
The Fisheries Act 1988 (NT) provided for different licences to be granted for “inshore” areas (within two nautical miles of the high water mark) and “offshore” areas (between the two nautical mile boundary and the outer limit of the Australian Fishing Zone). The 1988 Act, which repealed the 1979 Act, is presently in force in the Northern Territory with the consequence that any native title rights and interests relating to an exclusive or commercial fishery will, subject to the NTA, be governed by the provisions of the 1988 Act. The 1988 Act built on the principles concerning managed fisheries introduced in the 1979 Act. Licences could be granted for a maximum of five years and may be subject to conditions, including conditions relating to areas, species, quantities, methods and use or non-use of specific fishing gear. In general, the Act prohibited the taking of fish or aquatic life, other than for subsistence or personal use, without a licence. The 1988 Act provided for fishery management areas and locally managed fisheries.
Various managed fisheries, up to three nautical miles from the low water mark or the baselines, were declared under the Fisheries Regulation 1992 (NT). The regulations provided for various categories of licences, including Aboriginal Coastal Licences which may be issued to a member of a community granted land under the Land Rights Act who is permanently resident on the land. The regulations prohibited persons, without lawful authority, from interfering with a vessel or fishing gear being used for fishing, and from hindering or obstructing a person fishing pursuant to a licence.
The Commonwealth also enacted laws with respect to fisheries. The first general fisheries legislation enacted by the Commonwealth was the Fisheries Act 1952 (Cth) which remained in force until repealed by the Fisheries Management Act 1991 (Cth). The 1952 Act provided for a proclamation of the Governor-General declaring waters to be proclaimed waters for the purposes of the Act. The Act provided for the Minister to prohibit the taking of fish in proclaimed waters without a licence. As a result of the proclamation made on 30 November 1954 the proclaimed waters embraced some of the waters in the claimed area. The Act provided for the granting of licences to take fish in proclaimed waters subject to conditions specified in the licence. The proclaimed waters completely surrounded the coast but did not include waters within the territorial limits of a State and, from 7 February 1956, also did not include waters within the territorial limits of the Northern Territory. Objectives of the Act included conservation and management of fisheries to achieve the optimum utilisation of the living resources within the proclaimed waters. A 1973 amendment to the Act provided that it was a defence to a prosecution if a person had not taken fish for trading or manufacturing purposes.
The Fisheries Management Act 1991 (Cth) replaced the 1952 Act and substantially continued the previous scheme but with greater emphasis upon plans of management. The 1991 Act created a number of specific offences including prohibition upon engaging in commercial fishing without a fishing concession or a permit authorising the activity. The Act does not apply to recreational fishing.
Under the fisheries legislation currently in place joint Commonwealth and Northern Territory fisheries Authorities were established. It is unnecessary, for present purposes, to outline the detail of the scheme of managed fisheries and the role of the Authorities.
It is plain that since 1872 fishing in the claimed area has been extensively regulated. The basic feature of the regulation was the prohibition of commercial fishing in offshore areas without a licence. It is in that context that the question of a claim to an exclusive or commercial fishery must be considered.
Extinguishment cases
The High Court considered extinguishment of native title rights and interests in Mabo, the Native Title Act case, Wik, Fejo and, most recently, in Yanner. The basic principles governing extinguishment, which were stated and applied by Olney J (82 FCR 590 and 598-600), are uncontroversial. As explained above, the respondents do not challenge his Honour’s conclusions; rather, they contend that the native title rights claimed, but not accepted by Olney J, to an exclusive or commercial fishery in the claimed area were extinguished by the fisheries legislation and the licences granted thereunder.
The relationship between a statutory regulatory regime and native title arose directly for decision in Yanner. Prior to Yanner, the effect of a statutory regulatory regime on the continued existence of native title had not directly arisen for decision by the High Court. However, in Mabo Brennan J (at 64) stated:
“A clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title.”
Yanner concerned the appellant’s exercise or enjoyment of a native title right to hunt estuarine crocodiles in accordance with his community’s traditional laws and customs. The appellant was charged with having taken fauna (ie. estuarine crocodiles) without being a holder of a licence, permit, certificate or other authority as required under s 54(1)(a) of the Fauna Conservation Act 1974 (Qld) (“the Fauna Act”).
In the Magistrates’ Court, the appellant successfully argued that s 54(1) of the Fauna Act was inconsistent with s 211(2) of the Native Title Act and, as a consequence, s 109 of the Constitution rendered s 54(1) invalid to the extent of the inconsistency. The Queensland Court of Appeal (McPherson JA and Moynihan J, Fitzgerald P dissenting) held that the appellant’s native title right to hunt estuarine crocodiles had been extinguished by s 7(1) of the Fauna Act and, accordingly, the Native Title Act had no application. Section 7(1) of the Fauna Act provided that all fauna, with the exception of fauna taken or kept otherwise than in contravention of the Act during an open season with respect to that fauna, is the property of the Crown and under the control of the Queensland Fauna Authority.
The appellant subsequently appealed to the High Court. The majority of the High Court (Gleeson CJ, Gaudron, Kirby, Hayne and Gummow JJ) upheld the appeal on the basis that s 7(1) of the Fauna Act did not extinguish, but merely regulated, the appellant’s native title rights or interests to hunt estuarine crocodiles with the consequence that, as a result of the operation of s 211(2) of the Native Title Act and s 109 of the Constitution, the Fauna Act did not prohibit or restrict the appellant from exercising his native title rights and interests to hunt or fish for the crocodiles he had taken for the purpose of satisfying personal, domestic or non-commercial communal needs. The minority (McHugh and Callinan JJ) were of the view that s 7(1) of the Fauna Act did extinguish the appellant’s native title rights and, as a consequence, the Native Title Act had no application.
Gleeson CJ, Gaudron, Kirby and Hayne JJ delivered a joint judgment. Their Honours were of the view that the statutory vesting of property in the Crown by virtue of s 7(1) of the Fauna Act did not vest absolute ownership in fauna covered by the Act in the Crown. Rather, the Honours concluded (at [30]) that “[t]he property which the Fauna Act and its predecessors vested in the Crown was … no more than the aggregate of the various rights of control by the Executive that the legislation created”. As the relevant rights did not amount to full and beneficial ownership of the fauna, the Fauna Act did not extinguish the native title right to hunt crocodiles that the Magistrate had found was possessed by the appellant.
In relation to the regulatory regime, Gleeson CJ, Gaudron, Kirby and Hayne JJ (at [37]-[38]) stated:
“It is unnecessary to decide whether the creation of property rights of the kind the respondent contended had been created by the Fauna Act would be inconsistent with the continued existence of native title rights. It is sufficient to say that regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists. No doubt, of course, regulation may shade into prohibition and the line between the two may be difficult to discern. Similarly, it may not always be easy to say whether the creation of statutory rights or interests before the enactment of the Racial Discrimination Act (Cth) and the Native Title Act was consistent with the continued existence of native title rights and interests. … But in deciding whether an alleged inconsistency is made out, it will usually be necessary to keep in mind that native title rights and interests not only find their origin in Aboriginal law and custom, they reflect connection with the land. …
…Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal peoples, ‘You may not hunt or fish without a permit’, does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing.
Not only did the respondent not contend that such a law severed the connection, s 211 of the Native Title Act assumes that it does not. Section 211 provides that a law which ‘prohibits or restricts persons’ from hunting or fishing ‘other than in accordance with a licence, permit or other instrument granted or issued to them under the law’, does not prohibit or restrict the pursuit of that activity in certain circumstances where native title exists. By doing so, the section necessarily assumes that a conditional prohibition of the kind described does not affect the existence of the native title rights and interests in relation to which the activity is pursued.”
Gummow J arrived at the same result as Gleeson CJ, Gaudron, Kirby and Hayne JJ. His Honour ([60] and [108]) said that for extinguishment of any native title rights to hunt and fish to be effective, it was unnecessary that the statutory regime and the overall native title rights and interests of the appellant be wholly inconsistent; rather, the issue involved examining the extent of the inconsistency.
Gummow J (at [109]) said:
“Factual findings are necessary to establish the ambit of the native title right as defined by the traditional laws and customs of the indigenous community. The ambit of the native title right is a finding of law. This must then be placed against the statutory rights which are said to abrogate it. The question to be asked in each case is whether the statutory right necessarily curtails the exercise of the native title right such that the conclusion of abrogation is compelled, or whether to some extent the title survives, or whether there is no inconsistency at all. Indeed, statute may regulate the exercise of the native title right without in any degree abrogating it.”
In explaining why the Fauna Act did not abrogate the appellant’s native title right to hunt or fish his Honour (at [115]) said:
“The exercise of the native title right to hunt was a matter within the control of the appellant’s indigenous community. The legislative regulation of that control, by requiring an indigenous person to obtain a permit under the Fauna Act in order to exercise the privilege to hunt, did not abrogate the native title right. Rather, the regulation was consistent with the continued existence of that right.”
The majority decision in Yanner, that a statutory regulation of the way in which native title is enjoyed does not sever connection with the land or deny the continued existence of native title rights and interests, is consistent with the earlier consideration of that issue by Kirby P in Mason v Tritton. His Honour (at 592-593), in considering the effect of a State regulatory regime on the native title right to fish, said:
“The history of the Fisheries and Oyster Farms Act 1935 and its accompanying Regulations established a regime of control of the New South Wales fisheries in a manner amounting to stringent regulation, but not extinguishment, of any otherwise established proprietary right. No doubt stringent regulation may reach the point where the ordinary rights and privileges associated with property ownership is inconsistent with continued property ownership. Indeed, civilised societies demand that proprietary rights and interests be highly regulated. I do not take it to be the intent of the High Court in Mabo that successful claimants to a form of native title should then be able to remove themselves from the ordinary regulatory mechanisms of Australian society. In the particular context of this case, the control and the regulation of fishing activity applies to all those who fish, regardless of the nature of the fishing right which they severally purport to exercise.”
Wilkes v Johnsen [1999] WASCA 74 is another recent decision in which consideration was given to the effect on native title fishing rights of State regulatory laws restricting persons from carrying on fishing activities. The appellant had been convicted in the Court of Petty Sessions of two offences under the Fisheries Resources Management Act 1994 (WA). The offences involved being in possession of totally protected fish (eight undersized marron) under the Act and Regulations.
On appeal to the Full Court of the Supreme Court of Western Australia (Kennedy and Wheeler JJ, White J dissenting), the appellant successfully argued, among other things, that if a native title right to fish or hunt for marron exists, it is neither extinguished, in whole or in part, nor otherwise regulated by the FRMA.
Wheeler J (with whom Kennedy J agreed) [76] said:
“It is conceivable that very restrictive regulation of a number of aspects of native title may eventually lead to extinguishment of title, although it is to be noted that only the ‘general nature of the connexion’ must be maintained, and the customs must be observed ‘so far as practicable’. It may on some future occasion be necessary to consider whether legislation which is in form regulatory will really effect an extinguishment. However, that is not this case. The [Act] is directed to sustainable exploitation of fish resources rather than prohibition of all or most fishing … and it expressly acknowledges Aboriginal traditional fishing for some purposes…”
The appellant in McRitchie v Taranaki Fish and Game Council (1999) 2 NZLR 139 fished for trout in the Mangawhero river on authority from his indigenous community (“hapu”). He was subsequently charged under s 26ZI(1)(a) of the Conservation Act 1987 (NZ) which declared it an offence to take sports fish (in this case, trout) from any fresh water without holding a licence authorising the holder to fish for sports fish. Richardson P, who delivered judgment for the Court of Appeal (with Thomas J dissenting), agreed (at 153) with the High Court that the legislative history demonstrated “beyond doubt that the appellant and his hapu did not have a Maori fishing right to take trout in the Mangawhero river”. Importantly, their Honours found that the terms of the legislation precluded attaching Maori fishing rights to imported species of fish. As trout were an imported species, they were and had always been part of a separate regime exclusively controlled by legislation, and the only fishing rights which existed were those available under those legislative provisions.
Conclusions
Under the fisheries legislation the scheme of regulation has not been one of general prohibition. Rather, it has been a prohibition, primarily on commercial fishing or fishing for particular species of fish, without a licence. Accordingly, the regulation relates to the way in which any native title rights, including rights to commercial fishing, are or may be enjoyed or exercised, and is not inconsistent with their continued existence. Plainly, the requirement not to fish without a licence or permit does not, of itself, sever any part of the connection of the claimant group with the claimed area. The regulatory regime, as such, does not operate totally or partially to extinguish a native title claim to an exclusive or commercial fishery in the claimed area.
A separate question arises in relation to a claim to an exclusive or several fishery which would preclude the holder of a licence under the legislation from fishing in the area of the exclusive fishery. Ultimately, that issue will have to be considered in the context of the precise ambit of that claim, if proved. However, there are a number of reasons why the granting of licences is unlikely to totally or partially extinguish a native title right in respect of a several fishery. First, having regard to the nature, scope and purpose of the fisheries legislation, fishing pursuant to a licence is, in substance, in the nature of the exercise of a statutory privilege. The privilege is in the form of relief from the consequences of the statutory prohibition, rather than a conferral of a positive right of entry onto specific land or into specific waters to fish. Such a “privilege” was said by Mason CJ, Deane and Gaudron JJ (at 325) in Harper v Minister for Sea Fisheries to be an entitlement of a new kind:
“…created as part of a system for preserving a limited public natural resource in a society which is coming to recognize that, in so far as such resources are concerned, to fail to protect may destroy and to preserve the right of everyone to take what he or she will may eventually deprive that right of all content.”
Secondly, as a fishing licence does not specifically authorise fishing in any particular part of the claimed area, it is difficult to conclude that the legislation or licences issued thereunder reveal a clear and plain intention, expressly or by necessary implication, to extinguish native title rights. Neither the legislation nor the licences “clearly, plainly and distinctly” authorise the doing of an act which is physically inconsistent with the continuance of native title rights. The expression “clearly and distinctly” emphasises the burden borne by a party seeking to establish the extinguishment of subsisting rights, not by express legislative provision but by necessary implication: see Wik at 185 and Yanner at [10] per Gummow J.
Thirdly, as Gummow J observed in Wik (at 185), the question is whether the respective incidents of the native title right are such that it cannot be exercised without abrogating a statutory right. Generally, under the legislation power has been conferred to close off areas from fishing or to exclude, from the exercise of the entitlement to fish under a licence, any particular area. Excluded areas may be areas the subject of a native title right to an exclusive or several fishery. The fact that no such closures have occurred to date is more likely to be referable to the absence of recognition of enforceable or protected native title rights rather than to any intention to deny the existence of such rights, if proved. In Yanner, Gummow J in considering the issue of operational inconsistency drew an analogy with the decision in Commonwealth v Western Australia (1999) 160 ALR 638 which concerned whether inconsistency under s 109 of the Constitution arose where certain mining exploration licences granted under State legislation with respect to land were declared in respect of a defence practice area in Western Australia under Commonwealth legislation. His Honour observed [at 111] that inconsistency was “not inevitable” as:
“The Minister for Mines could have granted the licences under the State law on terms which prevented the licensees from being on the relevant land at any time during the conduct of defence operations.”
It may be said in the present case that licences granted under the fisheries legislation could have been, and now can be, granted on terms that prevented the licensees from fishing in the area of an exclusive fishery.
Finally, until very recently licences under the legislation were, in general, conditional annual licences to engage in regulated fishing activities in offshore waters. Such licences do not suggest any intention to sever or interfere with the traditional connection of the claimant group concerning any exclusive or several fishery in the claimed area.
For the foregoing reasons, in my view the fisheries legislation and the licences granted thereunder do not appear to operate to extinguish a native title right or interest, if proved, to an exclusive or commercial fishery in any particular part of the claimed area. I have expressed my conclusion in qualified terms, as a determinative answer to the issue of extinguishment can only be given in the context of a native title claim to an exclusive or commercial fishery in a particular part of the claimed area. Further, in the light of my conclusion, it is unnecessary to consider whether the Validation of Titles and Acts Act 1994 (NT) or the Validation (Native Title Act) 1999 (NT) might affect any determination that may be made on a remitter: cf Olney J at 82 FCR 600.
Conclusions
For the above reasons I would dismiss the appeal of the Commonwealth, allow the appeal of the claimant group and remit the matter for further hearing by Olney J. As the claimant group has succeeded on the Commonwealth’s appeal and has been partially successful on its appeal I would order that the Commonwealth pay one half of the claimant group’s taxed costs of and incidental to the appeal and the cross appeal.
I certify that the preceding four hundred and sixty-seven (467) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.
Associate:
Dated: 3 December 1999
DG 6005 of 1998
Counsel for the Appellant:
D Bennett QC with
M Perry and S Lloyd
Solicitor for the Appellant:
Australian Government Solicitor
Counsel for the First Respondent:
J Basten QC with
R Howie
Solicitor for the First Respondent:
Northern Land Council
Counsel for the Second Respondent:
T Pauling QC with
R Webb
Solicitors for the Second Respondent:
Solicitor for the Northern Territory
Counsel for the Third to Seventh Respondents:
G Hiley QC with
N Henwood
Solicitor for the Third to Seventh Respondents:
Cridlands
For the Eighth Respondent:
No appearance
DG 6006 of 1998
Counsel for the Appellant:
J Basten QC with
R Howie
Solicitor for the Appellant:
Northern Land Council
Counsel for the First Respondent:
T Pauling QC with
R Webb
Solicitor for the First Respondent:
Solicitor for the Northern Territory
Counsel for the Second Respondent:
D Bennett QC with
M Perry and S Lloyd
Solicitors for the Second Respondent:
Australian Government Solicitor
Counsel for the Third to Seventh Respondents:
G Hiley QC with
N Henwood
Solicitor for the Third to Seventh Respondents:
Cridlands
For the Eighth and Ninth Respondent:
No appearance
Dates of Hearing:
24, 25, 26, 27 and 28 May 1999
Date of Judgment:
3 December 1999
14
13
0