Commonwealth v Yarmirr & Ors Yarmirr & Ors v NT & Ors

[2001] HCATrans 11

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D7 of 2000

B e t w e e n -

THE COMMONWEALTH OF AUSTRALIA

Appellant

and

MARY YARMIRR, CHARLIE WARDAGA, KHAKI MARALA, ILIJILI LAMILAMI, JOY WILLIAMS, CHARLIE MUNGULDA, RACHEL NIMILGA, ANDREW YARMIRR, CHRISTINE YARMIRR

First Respondents

NORTHERN TERRITORY OF AUSTRALIA

Second Respondent

PASPALEY PEARLING COMPANY PTY LTD

Third Respondent

NT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION

Fourth Respondents

OCEAN TRAWLER PTY LTD

Fifth Respondent

SHINE FISHERIES PTY LTD

Sixth Respondent

M.G. KAILIS GULF FISHERIES PTY LTD

Seventh Respondent

PAVALINA HENWOOD

Eighth Respondent

ARNHEM LAND ABORIGINAL LAND TRUST

Ninth Respondent

Office of the Registry
  Darwin  No D9 of 2000

B e t w e e n -

MARY YARMIRR, CHARLIE WARDAGA, KHAKI MARALA, ILIJILI LAMILAMI, JOY WILLIAMS, CHARLIE MUNGULDA, RACHEL NIMILGA, ANDREW YARMIRR, CHRISTINE YARMIRR

Appellants

and

NORTHERN TERRITORY OF AUSTRALIA

First Respondent

THE COMMONWEALTH OF AUSTRALIA

Second Respondent

PASPALEY PEARLING COMPANY PTY LTD

Third Respondent

NT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION

Fourth Respondents

OCEAN TRAWLER PTY LTD

Fifth Respondent

SHINE FISHERIES PTY LTD

Sixth Respondent

M.G. KAILIS GULF FISHERIES PTY LTD

Seventh Respondent

PAVALINA HENWOOD

Eighth Respondent

ARNHEM LAND ABORIGINAL LAND TRUST

Ninth Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 FEBRUARY 2001, AT 10.17 AM

Copyright in the High Court of Australia

________________

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth:   May it please the Court, I appear for the appellant in the first matter and the second respondent in the second matter, with my learned friends, DR M.A. PERRY, MR S.B. LLOYD and MR J.S. STELLIOS. (instructed by the Australian Government Solicitor).

MR J. BASTEN, QC:   If the Court pleases, I appear with MR K.R. HOWIE, SC and MR S.A. GLACKEN for the first respondents in the first matter and the appellant in the second.  (instructed by the Northern Land Council)

MR T.I. PAULING, QC, Solicitor‑General for the Northern Territory:  May it please the Court, I appear with MS R.J. WEBB for the Northern Territory in both matters as respondent.  (instructed by the Solicitor for the Northern Territory)

MR G.E. HILEY, QC:   May it please the Court, I appear for the third, fourth, fifth, sixth and seventh respondents in both appeals, with my learned friend, MR N.J. HENWOOD.  (instructed by Cridlands Lawyers)

MR R.J. MEADOWNS, QC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MR K.M. PETTIT, on behalf of the Attorney‑General for Western Australia seeking leave to intervene in both matters.  (instructed by the Crown Solicitor for Western Australia)

Do you wish me to address the application for leave at this stage, your Honours?

GLEESON CJ:   You have that leave.

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MS S.E. CARLTON, for the Attorney‑General for South Australia seeking leave to intervene in both matters, though I only wish to make oral submissions in D7 of 2000.  (instructed by the Crown Solicitor for South Australia)

GLEESON CJ:   Mr Solicitor, you have that leave.

MR H.B. FRASER, QC:   May it please the Court, I appear with my learned friend, MR P.J. FLANAGAN, for the Attorney‑General for Queensland seeking leave to intervene in D9 of 2000, the second appeal.  (instructed by the Crown Solicitor for Queensland)

GLEESON CJ:   You have that leave.

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR S.J. GAGELER, SC, for the Lardil, Kaiadilt Yangkaal and Gangalidda peoples seeking leave to intervene in support of the Yarmirr respondents.  (instructed by Chalk & Fitzgerald)

GLEESON CJ:   You have that leave.

MR B.A. KEON‑COHEN, QC:May it please the Court, I appear with my learned friend, MR C.F. THOMSON, on behalf of Mirimbiak Nations Aboriginal Corporation seeking leave to intervene in matter D7.  (instructed by Mirimbiak Nations Aboriginal Corporation)

GLEESON CJ:   You have that leave.

MR G.M.G. McINTYRE:   Your Honours, I am seeking leave on behalf of the Kimberley Land Council and the Yamatji Barna Baba Maaja Aboriginal Corporation in both appeals.  (instructed by Kimberley Land Council and the Yamatji Barna Baba Maaja Aboriginal Corporation)

GLEESON CJ:   You have that leave.  Yes, Mr Solicitor?  I understand that the parties have made arrangements between themselves as to the order of addresses and an informal division of time.

MR BENNETT:   Yes, your Honour.  In relation to the quantity of time, we have universal agreement with one exception.  I would hand to your Honours a schedule we have drawn up of which my friends have copies, which show an order of address and allocation of time.  The orders of address are agreed.  There are two problems with the allocation of time, both fairly minor.  The first is that this allocation goes over the allocated time by 15 minutes, and the second is that my learned friend, Mr Basten, does not consent to the figure in relation to the time allowed to him.  We allowed him the same time as us, and we reduced ours.  He was not prepared to accept a corresponding reduction, so that is without his consent.  But the times are approximate, of course, in any event, your Honour, and we are hopeful of the matter finishing this week.  Whether it finishes by lunchtime on Friday may be problematical.

GLEESON CJ:   Mr Solicitor, before you commence your submissions, I should mention this:  there is a certificate from the Senior Registrar in the matter No D9 of 2000, that she has been advised by the solicitor for the ninth respondent that there will be no appearance on behalf of the ninth respondent who will submit to any order of the Court, save as to costs.  And in matters D7 of 2000 and D9 of 2000, there is a certificate from the Senior Registrar concerning what has happened in relation to the eighth respondent, who does not appear.  Yes, Mr Solicitor.

MR BENNETT:   Your Honours will see, that from the index to our submissions, that they are divided into five parts, the first being an introduction and the last being a discrete issue which I can deal with briefly at the end of my submissions. 

Our primary submission in the appeal in D7 is Parts 2, 3 and 4. I will deal with those in the order of 3 then 4 then 2. My learned friend, Dr Perry, will be putting the primary submissions in D9 and she will be followed by Mr Lloyd in relation to certain aspects of it.

The essential submission which the Commonwealth makes in Parts 2, 3 and 4 of its submissions is that there is an insuperable difficulty in applying the Native Title Act to areas below the low-water mark.  The first part of that submission deals with the area between three and twelve nautical miles.  Your Honours will see that some of the submissions in relation to that are picked up in relation to the area closer to the shore.  In order to make the submission clear, it is convenient to deal first with the area between three and twelve nautical miles.

The first matter to note about that area is that the common law does not extend to it, and has never extended to it.  It is an area which is regarded as within Australian sovereignty in the international sense and it is an area in relation to which sovereignty is asserted domestically, but it is not an area to which, in any respect, the common law has been extended, nor is it an area in relation to which the writ of the States or the Territories runs in any respect.  The proposition that flows from that ‑ ‑ ‑

KIRBY J:   Is not the recognition of sovereignty itself founded on the common law?

MR BENNETT:   No.

KIRBY J:   What is it founded on then?

MR BENNETT:   International law, your Honour.

KIRBY J:   Let it be asked, what about the claim of sovereignty?  Is that not a claim that rests ultimately on the common law?

MR BENNETT:   No, your Honour.  The claim of sovereignty does not involve the proposition that the common law or any particular aspect of it extends to the area.  So much was made clear in the Seas and Submerged Lands Act Case and I will take your Honours to the relevant passages in that where, at the time prior to some later developments in relation to the area from zero to three miles, the Court made it clear that the common law simply does not extend beyond the low‑water mark.

I will come back, of course, to this proposition in more detail but what flows from it for present purposes is a very simple series of logical propositions.  The basis on which native title exists in Australia and is recognised and protected by the Native Title Act is that certain rights existed under Aboriginal customary law prior to the acquisition of sovereignty in 1824.  The legal system under which they operated ceased to be the applicable legal system in 1824.  The common law, however, recognises the existence of those rights.  The common law also recognises, and indeed has as one of its postulates, the doctrine of radical title and the two are reconciled by saying that the native title rights thus become a qualification to the Crown’s radical title, but the essential element of native title rights today is that they exist because they are recognised by the common law.

But the essential element of native title rights today is that they exist because they are recognised by the common law.  Both elements must be present for them to exist.  They must have been rights in existence under the pre‑existing legal system in 1824 and they must be rights which are recognised by the common law.  The short point in this case is that if the common law did not extend to areas of the sea, as it did not, there was no lex situs which could accord recognition to the pre‑existing rights.

GAUDRON J:   Can I interrupt you there?  You make the point, I take it, that the common law simply does not apply, not that it will not recognise native title rights?

MR BENNETT:   Your Honour, the connecting link between the two propositions is the proposition that interests in land exist only by virtue of the lex situs to that land.

GUMMOW J:   That is a common law rule.

MR BENNETT:   Yes, your Honour.  This Court is applying the common law.  It has to then ask, in relation to a particular problem that arises, does the common law apply to that problem?  As we are dealing with land law one must look to the law of the piece of land in question to see what law there is there and whether it is capable of applying the relevant recognition.

HAYNE J:   Well, there seem to be several premises even to that proposition, Mr Solicitor, but we are dealing with relevantly land law, common law.  The rule relating to lex situs has some application.  There would seem, to me at least, to be several steps in the apparently simple proposition you put.

MR BENNETT:   I accept that, your Honour, and I have to make good each of those steps, but at the moment I am simply outlining the overall picture as to where we are going. The effect of what I have said thus far will be submitted to be - and this is Part 3 of our submissions - that in the area from three to 12 nautical miles there is simply no common law which can recognise, or can ever have recognised, the pre-existing rights.

GAUDRON J:   Well, if I could take you back, is it sufficient to put a full stop after “there is simply no common law”, or do you need the qualifying phrase, “which recognises native title rights”?

MR BENNETT:   I can put a full stop, your Honour.  The next step in the argument is the consequence, but yes.

KIRBY J:   But the common law would extend beyond England, for example, take Joyce’s Case, in respect of imposing upon a British subject outside England duties of loyalty to the King or Queen.  So that you cannot simply say that the common law does not extend beyond the realm or beyond three miles from the realm’s low-water mark.  The common law, on one theory, extends everywhere.

MR BENNETT:   Your Honour, first, Joyce’s Case concerned a statute, the treason statute of Edward I.

KIRBY J:   Leave Joyce as the rules of the common law concerning private international law which extend the common law’s operation beyond the realm.  I can understand if you are limiting your rule to land law and lex situs, but I think in your answer to Justice Gaudron you do not put a full stop and you propound a rule which is far too large in its ambit, at least on my current understanding.

MR BENNETT:   Your Honour, Keyn’s Case was, of course, the leading case for the proposition and it led to statutory amendments partially curing the problem.  That was the case in the last century where a German captain of a ship was sailing one mile off the English coast was said to have negligently navigated it into another ship, causing death, and he was charged with manslaughter and it was held by majority that the English court had no jurisdiction to try him, although he was a mile offshore and although within internationally ceded territorial waters of the United Kingdom.

GAUDRON J:   That is a jurisdictional question, that is not necessarily ‑ ‑ ‑

GUMMOW J:   That is right.  This is the sort of question where we are dealing with Lipohar.

MR BENNETT:   Yes.

GAUDRON J:   I presume at some time you will explain according to your argument why a native title claim, having been lodged in the Federal Court, section 80 does not render the common law applicable.

MR BENNETT:   I will come to that, your Honour, yes.  I can answer that now.  Section 80 is simply defining the law to be applied by the Federal Court or a Federal Court in dealing with a problem.  What it does not do is make that law apply where otherwise it would not, for example ‑ ‑ ‑

GAUDRON J:   I do not know about that.

MR BENNETT:   Well, to take a simple example, suppose a ‑ ‑ ‑

GAUDRON J:   As a matter of ordinary language, it would seem to.

MR BENNETT:   Your Honour, the section itself uses the words “so far as applicable”.

GAUDRON J:   That is why I asked you about the full stop of the qualifying clause.

MR BENNETT:   Yes.  Your Honour, clearly, for example, it would not apply where the common law had been overridden by statute.  One would not say the Court was to apply the common law.  The common law applies so far as it is applicable.  If one is asking the question, what law is applicable to a particular piece of land, then one has to ask, is the common law applicable to that, or not?  In much the same way, as if one had a dispute concerning foreign land, it is not the common law, except perhaps in the context of private international law rules, which applies to it.  And that is the reason for the words “so far as applicable” in section 80? 

GUMMOW J:   But this Keyn’s Case does not have anything to do with this, does it?  There is no jurisdictional problem here.  Everyone was regularly before the Federal Court of Australia.

MR BENNETT:   That is so, your Honour.  What Keyn’s Case has to do with it is that part of the holding in Keyn’s Case was that the realm of England stops at the low-water mark, and that the common law does not extend beyond it.  And so much was repeated by a majority of this Court in the Sea and Submerged Lands Act Case.  And I will take your Honours to that in due course. 

When I come to the fourth part of the submissions, the argument there deals with the land between zero and three miles.  What has happened there is that, as a result of the Sea and Submerged Lands Case and settlement and the subsequent legislation by the Commonwealth and by the Northern Territory, is two things:  first, the Commonwealth legislated that that area was one to which the Northern Territory could apply law.  That was the first step.  The second step was that the Northern Territory extended, by its own statute, the common law and all its statutory laws to that area of one to three miles. 

The third step was that a Commonwealth Act vested in the Northern Territory, in terms which will have to be examined, the seabed in relation to that area.  The vesting in the Northern Territory of the seabed took place prior to the extension of the common law to that area.  So the argument, shortly, is that the effect of that timing, which happens to be the same in all States and Territories except Western Australia and Tasmania, where it is the reverse ‑  but the effect of that timing is that, at the time the common law was extended, there was already a vesting which was inconsistent with the continued existence of native title. 

So, even if one could get over the time gap and say when the common law starts to apply 170‑odd years after sovereignty, it is capable of picking up a recognition of pre‑existing native title, even if one can say that, as to which there may be some question - and that would arise in the case of Western Australia and Tasmania but not in this case - it does not arise in this case because the native title simply could not be recognised at the time the common law came into effect for the reasons given in Fejo.

KIRBY J:   Correct me if I am wrong in my understanding, but does not Mabo and Wik state that native title in Aboriginal law and custom exists outside the common law?  It exists before the common law.  It was there before sovereignty was asserted over Australia by the Crown of the United Kingdom.

MR BENNETT:   Certainly the third of those propositions is correct, your Honour, yes.

KIRBY J:   And that all that the step that was taken in Mabo involved was that then it was recognised that the common law of Australia will recognise that independently existing, externally authorised system of law and that therefore, in so far as we are talking about the recognition by the common law, when it comes to be available, so long as it is available in this case, is irrelevant.  All that the common law does, it being invoked, is to say the common law of Australia will recognised, if invoked, the pre‑existing and independently existing native title which exists within its own authority as under Aboriginal custom.

MR BENNETT:   Yes.  It is a common law rule as to what takes place on the acquisition of sovereignty in a particular manner and the common law rule says we will recognise something which previously existed under the legal system which then applied to this land, but no longer does, but we will recognise this consequence of that pre‑existing legal system, namely the proprietary rights.  It is that recognition as part of the common law of the acquisition of sovereignty which results in native title being recognised and enforceable under Australian law independently, of course, of the Native Title Act, or prior to the Native Title Act anyhow and that was the effect of Mabo and the other cases in that line.

HAYNE J:   Can I take you back a moment, Mr Solicitor?  At one level this problem might be seen as a problem concerning the intersection or relationship between two legal systems.  At one level, therefore, it might be seen as a problem of the kind commonly encountered in conflict of laws.  Always the problem that must first be addressed is where you begin.

MR BENNETT:   Yes, your Honour.

HAYNE J:   Questions of jurisdiction in this case, at least at first blush, seem not to arise.

MR BENNETT:   Yes, your Honour.

HAYNE J:   Where are we beginning when you say the common law did not run beyond low‑water mark or whichever of the relevant lines happens to be appropriate according to the date at which we are asking?  Where are we beginning?  What is the realm of discourse?

MR BENNETT:   The common law, your Honour.  Common law says it applies only to it.  One of the things the common law does is to determine what it applies to, where it applies.

GAUDRON J:   Does the common law say there is no law below the low‑water mark?

MR BENNETT:   There are two things that there are.  There is international law, I suppose, which is recognised to some extent and for some purposes, and there is sovereignty pursuant to which it is permissible to legislate in relation to that area and thus extend the common law to it or apply statute law to it.

GAUDRON J:   Then the question really arises, is it not, “What does the common law say once sovereignty has been extended?”.  I do not imagine, for example, that sovereignty having been extended for 12 miles out that the law of negligence would not apply to a pleasure cruiser being incompetently navigated.

MR BENNETT:   It would not, your Honour.

GAUDRON J:   It would not.

MR BENNETT:   It might apply by virtue of admiralty statutes and being an Australian ship and matters of that sort, but if one imagines a swimmer, or two swimmers, swimming three miles off the coast and then one commits a tort against the other, or what would be a tort on the mainland, being a common law tort, there would be no cause of action for that in Australia.

GAUDRON J:   That is a big proposition, is it not?  Let us take it a little further.  A couple of drug smugglers out there agree to – they have not decided what they are going to do with their drugs but they are out there and they have said, “Oh, well, let us take them to Australia.  It is a good market in Australia”.  Common law does not recognise that as a conspiracy?

MR BENNETT:   No, your Honour.  There would be questions of statute, an extraterritorial application of statutes for the peace, order and good government of Australia, matters of that sort.

GAUDRON J:   That is the question, is it not?  Ultimately, did the common law freeze itself in glacier‑like fashion at a time when we did not have notions of sovereignty extending beyond the three mile limit, or at some time – well, did it?  That is the question.

MR BENNETT:   It was so held in Keyn’s Case and in the Seas and Submerged Lands Act Case, your Honour.

GAUDRON J:   Yes, well, it might.  Undoubtedly, there are statements to that effect but in a different context.

MR BENNETT:   But this context is a fortiori because here we are dealing with title to land, interests in land.

GAUDRON J:   Well, you say so.  We may be dealing with native title.  To add “to land” is to make an assumption which directs its own answer, I think.

MR BENNETT:   It comes back to the argument about the real property being the law of the situs, but that is the ‑ ‑ ‑

HAYNE J:   Which involves the equation of real property and native title.  That may be right, it may be wrong, but do not, at least for my part, assume that the proposition goes without demonstration.

MR BENNETT:   I will not, your Honour. The final part of my submissions on the major issue is Part 2 which deals with the Native Title Act.

GAUDRON J:   Could I just tell you something that is worrying me?  If the common law never did run, or we will talk about the three, 12 miles limited, why do not we just say the Aboriginal peoples in these areas do not need native title, they have got sovereignty?

MR BENNETT:   Because that, with respect, confuses sovereignty and title  and – sovereignty and application of law.

GAUDRON J:   Exactly, and I think that is what is at the heart of this case.  We have to understand notions of sovereignty and we have to deal with what the common law says about the extension of sovereignty rather than land law and lex situs.

MR BENNETT:   Your Honour, one thing that is clear from all the native title cases is that the legal system under which these rights arose and were enjoyed prior to the abolition of sovereignty does not continue as such.  All that continues ‑ ‑ ‑

GAUDRON J:   That again may be an assumption; it may have continued up until the assertion of sovereignty by Australia of the three to 12 mile limit.

MR BENNETT:   Your Honour, there was never any doubt about the assertion of sovereignty; the issue always was the application of the law.  What we say is, once the ‑ ‑ ‑

GAUDRON J:   Or the content of the law.  They may be two quite different concepts in this area.

MR BENNETT:   They are, your Honour.  Once the former sovereignty ceased, the only existence the rights could have, so far as the common law is concerned, is the extent to which a common law rule required them to be recognised, and that common law rule, the rule referred to in Mabo, which recognised them, could only operate if the common law applied.  If there was sovereignty but the common law did not apply then there was nothing on which those rights could continue to be based.

HAYNE J:   Well let us just test that a moment.  You present the problem at the moment, it seems to me, as one in effect of a choice of law, that there are native title rights and there is a question of whether, as you put it, the common law runs out in this part of sea, and you resolve that by appealing to notions of conflict of laws that are bound up in notions of lex situs and real property.  Once you are into the realm of discourse of the common law itself you are applying common law choice of law rules, but if you are doing that, what are you choosing between, because the logical premise from which you have begun is that the common law does not extend three to 12 and you have created on its face a false conflict.  If the common law does not run, there are native title rights that run, where is the conflict to resolve by reference to lex situs?  There are logical difficulties, it seems to me, in this argument dependent on verbal facility rather than upon underlying principle and we have to come to grapple with the principle.

MR BENNETT:   Your Honour, the principle, we submit, is this:  the principle is, number one, the only basis on which native title can be recognised, other than statute which I will come to, is that the common law recognises a result of a pre-existing legal system which does not continue as a legal system.  That recognition itself must be dependent on the applicability of the common law to the area we are talking about and that really is the end of it.

KIRBY J:   You say the recognition of a legal system that does not continue as a legal system, but unless for some purposes and to some extent it continues as a legal system to provide the footing to which the common law attaches, then you have nothing to attach to?

MR BENNETT:   No, your Honour.  It attaches to a pre-existing right.  What it says is at the moment of acquisition of sovereignty or immediately prior to that, in the punctum temporis, immediately prior to that there were certain rights under another system.  The common law then says we recognise those rights as common law rights.  We take them over, if one likes.  Of course, there are incidents governed by the pre-existing legal system, but the pre-existing legal system does not, itself, continue.  So much is clear from Mabo and the other cases, and I will take your Honours to the passages.

GAUDRON J:   Mr Solicitor, it seems to me that the common law has something to say about the assertion of sovereignty because, at least, according to our theory, what it said was as soon as Australia was claimed or the relevant parts, the common law came instantaneously, as I understand it.

MR BENNETT:   Yes.

GAUDRON J:   So it says something about the assertion of sovereignty.  Why does it not say something about the assertion of sovereignty beyond the low-water mark?

MR BENNETT:   Because the assertion of sovereignty and the application of law are different things and the common  ‑ ‑ ‑

GAUDRON J:   Well, the first question - the first question - and we come back to the full stop or the qualifying phrase and the question is does the common law, itself, say something about the assertion of sovereignty?

MR BENNETT:   One has to ask which meaning of sovereignty one is using, the international sense or the domestic sense.  But the
relevant ‑ ‑ ‑

GAUDRON J:   Either.

MR BENNETT:   I am sorry, your Honour?

GAUDRON J:   Either.

MR BENNETT:   Relevantly, what the common law says is it does not extend beyond the low-water mark  ‑ ‑ ‑

GAUDRON J:   But it certainly may have said that at a time when sovereignty was not being asserted.  I am asking you to look at the assertion of sovereignty with respect to the seas and seabeds in the same context as the assertion of sovereignty with respect to New South Wales in 1788.

MR BENNETT:   It is a different sort of sovereignty, your Honour.

GAUDRON J:   It may be, and, therefore, it may say something different with respect to one form of sovereignty and with respect to another.

MR BENNETT:   Yes.

GAUDRON J:   But that seems to me to be quite a different proposition from yours which says “I, the common law, am not in this area”.

MR BENNETT:   Your Honour, if the common law says that and the authorities say that it says that ‑ ‑ ‑

GAUDRON J:   Yes, but at a time when notions of sovereignty with respect to the sea were very different.

McHUGH J:   Mr Solicitor, correct me if I am wrong, but I thought that the traditional doctrine was that England in the common law entered at the low‑water mark but, nevertheless, there was a legislative power which extended to the three-mile limit.

MR BENNETT:   Yes, that was the position at the time of Keyn’s Case, yes, your Honour.  In one sense, it is confused in the case of England because of the doctrine of sovereignty of Parliament and one remembers the Diceyan example of the United Kingdom law forbidding a Frenchman to smoke in the streets of Paris, and the effect of that in England.  Subject to that qualification, yes, your Honour, that was the effect.

Now, the final aspect of the introduction is Part 2, in which I will be submitting that the effect of the Native Title Act is not to create any new rights, but rather to recognise and protect native title rights which were recognised under the common law. If I can just very quickly show your Honour the relevant section – I will deal with this, of course, in much more detail later on. It is section 223(1), which defines native title and it lays down three requirements. They are:

possessed under the traditional laws acknowledged, and the traditional customs –

there is:

a connection with the land or waters –

and thirdly, and relevantly for present purposes:

(c) the rights and interests are recognised by the common law of Australia.

Not are of a type recognised, which was the way it was construed by some of the judges below, but:

the rights and interests are recognised by the common law of Australia.

If your Honours look at section 10 of the Act ‑ ‑ ‑

KIRBY J:   Can I just go back to a question I asked earlier.  In the statutory definition in 223(1), it does not seem to expressed in terms of a defunct system of traditional laws, but a continuing one, and was that not the problem in Mason v Tritton that the defendant in that case could not prove the continued observance of the native law.  You see, if you just look at the words that the Parliament has used in 223(1), it is:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by –

ie today –

the Aboriginal peoples or Torres Strait Islanders –

it does not say, “the rights and interests were possessed as at 1824” or at some other time “by” and that the common law is attached to recognise them.

MR BENNETT:   No, it does not need to, your Honour, because paragraph (c) picks up that concept and the decision in Mabo and the other decisions.

KIRBY J:   I may have forgotten this body of law but my recollection was that Aboriginal customary law has its own integrity.  It stands outside the Australian legal system, outside the common law, outside even the Native Title Act and it has its own integrity and existence, but given the de facto and de jure situation of the courts of this country, it will not be enforced unless our common law attaches to it and enforces it or unless a statute attaches to it and enforces it, but it still exists.

MR BENNETT:   Yes.  When your Honour says it still exists, one really has to answer the question Justice Hayne asked me about where one starts and what it exists under.  If one is talking about the common law, then it is limited in the manner which your Honour described.  It is not an existing body of law which has any force.  It is rather something which is done in practice by groups of people as to which certain consequences may be attached by this legislation or by something else.  But when one looks at the basis of common law recognition of native title as defined in Mabo, it is rather the way I have defined it, that one starts with what existed before 1824 and one then says whatever there was is recognised by the common law and given certain effect.

CALLINAN J:   Mr Solicitor, could I ask you this question?  What was the evidence with respect to the traditional customs affecting the subsoil under the waters?

MR BENNETT:   There was some evidence of hunting turtle and matters of that sort.

CALLINAN J:   But how could that relate to the subsoil under the sea?

MR BENNETT:   The subsoil.

CALLINAN J:   Was there any evidence about use or a custom or practice?

MR BENNETT:   I am told there was not, your Honour.  That arises much more, of course, in relation to the second case.

CALLINAN J:   Yes, and in what respects does the common law of Australia recognise exploitation of underwater sea subsoil?

MR BENNETT:   I am sorry, your Honour.  I am not sure I understand the question.

CALLINAN J:   Perhaps I did not put it clearly.  How does the common law of Australia recognise rights to use and exploit subsoil under the sea?  It may have a specific particular relevance, for example, to mining company activities.

MR BENNETT:   It is all statutory, your Honour.

CALLINAN J:   Is there any common law of Australia that gives effect to land under the sea, to the use and occupation or exploitation of land under the sea?

MR BENNETT:   Only in a negative sense, your Honour, that there is not – but if someone prior to all relevant legislation sailed away from the coast and started to mine under the sea, there would be no prohibition on that and there would be no right to do it and no prohibition on doing it.  It would simply be something ‑ ‑ ‑

CALLINAN J:   But in any event, so far as you are aware, there was no evidence of any use or exploitation by the claimant peoples of the subsoil under the waters?

MR BENNETT:   Yes, that is so, your Honour, and, indeed, that appears at page 2050 of volume 8 of the appeal book, in the judgment of the trial judge, paragraph 117 of his judgment, where his Honour at the end of that paragraph specifically says:

There is no evidence to support any traditional claim to the use and control of any of the resources of the subsoil of the claimed area.

The other matter, in answer to Justice Kirby’s question, is that in Wik 187 CLR, your Honour referred to this proposition in your Honour’s judgment at page 213, where your Honour said that there was ‑  this is proposition 1 under the heading “Common ground”:

There was no challenge to the principle established by Mabo [No 2] that the duty of this Court (as of every Australian court) is to apply the common law and relevant statutes although this could lead to the extinguishment or impairment of native title. This Court, established by the Constitution, operates within the Australian legal system. It draws its legitimacy from that system. Self-evidently, it is not an institution of Aboriginal customary law. To the extent that native title is recognised and enforced in Australia by Australian law, this occurs because, although not of the common law, native title is recognised by the common law as not inconsistent with its precepts.

KIRBY J:   I do not think I said anything to the effect that native title ceased to operate in its own constellation at a certain date.  My understanding has always been that it continues or does not continue as a matter of fact, in its own constellation, and our common law, or statute now, either picks it up or does not pick it up, and we only enforce our common law and statute, but it is having its own legitimacy.  I think in Mason v Tritton I even suggest that like any other area of law, it will change over time.

MR BENNETT:   Yes.

KIRBY J:   Which contradicts your notion that it is just frozen and stopped and it either existed and came in in 1824 or did not. 

MR BENNETT:   If your Honour could just give me a moment, I will turn up the passage in Fejo. 

KIRBY J:   I do not want to take you off your track.  It may be more efficient for you to just continue your own submissions and me to ponder on it as you do so. 

MR BENNETT:   Yes.  Yes, I am still doing my introduction.  I will have the passage in a moment, your Honour. 

KIRBY J:   Yes. 

MR BENNETT: I will have that found in any event, your Honour. So, those are the three sections I need to deal with of the argument. Starting then with Part 3, which is the position outside the three‑mile limit but within what is now the 12‑mile limit. We have provided an appendix which sets out the history of the claimed area and the history of the application of various principles to it. Your Honours will see at the end of the first appendix there is a chronology in blue, yellow and red, which are immediately between Appendix 1 and Appendix 2, and that shows the various zones we are talking about. The submission at the moment is concerned with the area beyond three nautical miles. As your Honours see from that diagram, the exact limits of that area have moved slightly, because in 1983 there was a movement to straight baselines.

What that means is that one joins promontories on the coast for the purpose of working out the three-mile limit, so it is a slightly different limit after that to what it was before.  But for present purposes I am concerned with what the situation was outside that three-mile limit.  That is an area which is juridically, at all relevant times until 1990, the high seas and from 1990 is part of the 12 nautical mile territorial sea.  It is an area to which, as I have said, the common law has never been extended.

I start then at 3.4 of our submissions with the proposition that interests in land exist only by virtue of the lex situs.  Native title rights are, of course, by their nature rights and interests in relation to particular land.

GAUDRON J:   That is really where we come back to what I think Justice Hayne and I were putting to you earlier.  Some native title rights are clearly rights in relation to land, some may not be.  The question is whether the common law has anything to say about them if they are not in relation to land.

MR BENNETT:   There are two comments on that. The first is that section 223 under the Native Title Act of course defines native title rights as being rights “in relation to land”.

GLEESON CJ:   It is “land or waters” actually.

MR BENNETT:   Yes, for this purpose that is so.  Secondly, in this case we are only concerned with native title rights in relation to land.

GAUDRON J:   No, we are not.

MR BENNETT:   We are not concerned with the ‑ ‑ ‑

HAYNE J:   If you want to use “land” as meaning waters, we will know where you are beginning, Mr Solicitor, but really you cannot slide away from it as easily as that.  We are dealing with claims in respect of waters, are we not?

MR BENNETT:   Yes, we are, your Honour, underlined, I suppose, in the intertidal zone and land under the waters.  Yes, we are, your Honour, but for the point of view of the proposition I am putting at the moment, which is talking about lex situs - perhaps the word “land” is not the best word to use and “situs” is a more neutral word.  But the proposition I am putting simply is that so far as native title of the present type is concerned, it is necessarily governed by the law appropriate to the situs.

GUMMOW J:   I am not sure lex situs ever said anything about seabeds.  It may have said something about riverbeds.  I do not know.

MR BENNETT:   The principle, one would assume, would apply, your Honour.  The purpose of situs is not confined to the nature of the surface.  Situs involves a geographical situation rather than a question of whether it is wet or dry.

GUMMOW J:   What I am putting to you is I cannot at the moment think of a case in a conflict of law situation, which is the only relevant use of lex situs, I suppose, at common law where the lex causae was supplied using the term “lex situs” where what one was talking about was waters, not the sort of waters that are involved here.

MR BENNETT:   It would never arise, your Honour, because ‑ ‑ ‑

GUMMOW J:   That is right, so we are in new territory anyway.

MR BENNETT:   It could only have arisen if one had a case involving the acquisition of some legal principle at sea in the absence of a ship, and that is hard to imagine.  There are cases like Plomp’s Case - - -

GUMMOW J:   I know.  I am just querying your starting point, that is all.  It seems to have some assumptions.

MR BENNETT:   Yes.  What we say, your Honour, is this, that if one is looking at whether the common law can recognise particular rights in a particular place, one has first to say, does the common law apply to that place, does it operate there, and while one is looking at what are essentially proprietary rights in relation to a situs, whether it be land or sea, one has to look at the legal system applicable to that and if there is none, if the common law does not apply to it, then there is simply nothing on which the Mabo principles can operate.

GUMMOW J:   Well, the common law is supposed to abhor vacuums, is it not?

MR BENNETT:   Well, your Honour, it is not a complete vacuum; it is subject to international law, but it is no more a vacuum that the high seas of a vacuum.  If one has a tort committed on the high seas independently of a ship, a tort arising between two swimmers in the high seas with no relevant ship involved, then, under the principles of private international law it just is not a tort.

GUMMOW J:   I am not sure about that.

GAUDRON J:   Yes.  Well we will take two surf borders.  I seem to have heard today of surfing on the high seas and we know that from time to time surfers get a bit aggressive if people steal their waves.

MR BENNETT:   Yes.  Your Honour, there may be different questions in relation to the criminal law, because ‑ ‑ ‑

GAUDRON J:   Well can there be?  We have got to find out what the common law says about sovereignty asserted, exercised in relation to the high seas.

MR BENNETT:   The common law says nothing, your Honour.

GAUDRON J:   Well it may have been silent once, because it simply did not have to address the problem.

MR BENNETT:   One has to find a system of law governing a place before one can do anything in relation to it under the Australian legal system, and that is why there was a whole system of law developed about flags of ships and aeroplanes and treaties on those subjects and a great many statutes on those subjects, but they never dealt with the question of that area independently of that.  That is why, as Justice Callinan’s question illustrates, we needed statutory principles in relation to the exploitation of the subsoil under the sea, because in the absence of any such statute, it was an area without relevant law.

GLEESON CJ:   How has the legal regime been established in relation to people on oil drills?

MR BENNETT:   I do not know the answer to that question, your Honour, but one assumes by statute and in the absence of statute there would not be one.  It may be that for Commonwealth officers an oil rig might have certain characteristics of a ship, I do not know enough about the definition to answer that, but certainly it is done by statute in practice.

HAYNE J:   But does the proposition then come to this, that absent statute there is no law in this area, period?

MR BENNETT:   There is international law and there is the capacity of the Australian Government or the Territory Government within three miles now, to control it by statute and to extend the common law to it.

KIRBY J:   Not the government, the Parliament, the legislatures.

MR BENNETT:   Yes.

KIRBY J:   This was Justice McHugh’s earlier question.  You appear for government but it is legislatures that make law unless the government has power under law to do so.

MR BENNETT:   Yes, but in the absence of such law there is not law, or there is not common law.  There are some international legal principles, the right of free passage and so on, the right of innocent passage, but the ‑ ‑ ‑

GAUDRON J:   That is unchanged by the assertion of sovereignty.  You have to go that far.

MR BENNETT:   Yes, because it must depend on the nature of the assertion, your Honour.

GAUDRON J:   It seems to me then a very funny sort of sovereignty that is being asserted.  We have sovereignty but there is no law there unless we legislate.

MR BENNETT:   That is why we have legislated for part and we are ‑ ‑ ‑

GAUDRON J:   It seems a very odd sort of sovereignty.  It seems almost inimical to the notion of sovereignty.

MR BENNETT:   It is a limited sovereignty in any event, because there is the international right of innocent passage and there is all that sort of limitation.  So it is, by its very nature ‑ ‑ ‑

GAUDRON J:   Was not the right of navigation a common law right?

MR BENNETT:   It is an international law right recognised by the ‑ ‑ ‑

GAUDRON J:   No, not innocent passage, the right of navigation, the right of public navigation.  Is not that a common law right?

MR BENNETT:   Yes, your Honour, but it is a ‑ ‑ ‑

GAUDRON J:   Where did that come from, the common law was not there but it ‑ ‑ ‑

MR BENNETT:   No, it comes in this way:  first of all, it is not a proprietary right, as we are talking about here, so it is in a very different category, but the right of innocent passage is basically an international law construct which ‑ ‑ ‑

GAUDRON J:   The right of navigation I thought was a different right.  Am I wrong in that?

MR BENNETT:   It is a different sort of right, your Honour, yes.

GLEESON CJ:   This idea of the law having boundaries is a puzzle.  The law of property does not cease to apply – when a man goes out on to an oil rig he does not cease to own his trousers.

MR BENNETT:   No.

GLEESON CJ:   And, when a person sails a ship out on to the high seas there is a law of property that determines who is the owner of the ship while on the high seas.

MR BENNETT:   The ship is floating territory, of course, but assuming a person is in a foreign country that right may well be – in a sense it is irrelevant to Australian law because it is the foreign law which will determine, for relevant purposes, the possession and the rights and so on in relation to what one is carrying.  The Australian law does not apply overseas.  Rights and liabilities may arise in Australia because of things done overseas, of course.  That is part of the, I suppose, general application of Australian law and legislation can govern it because it is for the peace, order and good government of Australia that certain things should take place overseas.

GLEESON CJ:   To bring it closer to the problem in the present case, when the people aboard a vessel catch fish in the high seas, what law determines who is the owner of the fish?

MR BENNETT:   The problem arises if someone comes and takes the fish from them, I suppose.  One then has the international law concept of piracy which would apply and which is enforced by most legal systems internally in various ways.  On board the ship of course, it depends on the nationality of the ship as to which law determines it.  So, I suppose the practical answer to your Honour’s question is:  the law of the nationality of the ship.

HAYNE J:   But that, if it is litigated in Australian courts, is arrived at through the route which begins by that court applying its, that is, Australia’s common law choice of law and other conflict rules.  It applies its jurisdiction rules and it gets to a particular result which either sees an order go or an order not go in respect of what has been done.  The immediate question that confronts us could be portrayed as whether between parties who are lawfully before the court, that is, in respect of whom no question of jurisdiction arises, declarations might be made – to use more traditional terms – declarations of right might be made about whether, if resort was had to Australian courts, their rights will be enforced or not enforced.

If you portray the question in that way, questions of territoriality, questions of territorial reach of the common law, at least tend towards merging, perhaps merge entirely, with questions of sovereignty, and they are not, I think, answered by saying that there is a part of the globe beyond three or 12 nautical miles – I leave aside which – where the common law of Australia does not apply.  The question whether X committed murder, whether X committed theft, whether Y can recover the fish that were on his/her surfboard, his/her vessel, are very different questions not answered by globally saying the common law does not apply out there.

MR BENNETT:   No, your Honour, but when one is asking about the existence of the right, when these two people subject to the jurisdiction come before the court and one says, “I seek a declaration that I have a right”, the court then says, “Well, what is the right?”.  The person says, “It is a common law right.  It is a right recognised by the common law”.  One then has to say, “Well, why does the common law recognise this right?”.  The common law recognises rights where it extends.  If the common law rule is that the common law does not extend to a certain area, it cannot recognise rights in that area, any more than it could recognise rights in land in New Zealand.

GLEESON CJ:   I do not quite follow that.  Two people might ordinarily be unlikely to argue about an oyster, but if the oyster has a pearl in it, the argument might be important.

MR BENNETT:   Yes.

GLEESON CJ:   Now, does not the common law of Australia have a technique for deciding who of two competing claimants to an oyster owns it?

MR BENNETT:   Yes, it does, your Honour.  Yes, of course it does.  It applies the common law concepts.

GLEESON CJ:   If that oyster was recovered from the seabed at a distance further out than one of these distances of which we are speaking, there is no difference, is there, in the way the common law goes about solving the problem?

MR BENNETT:   Your Honour postulates no Australian ship involved in the capture of the oyster and no relevant statute, so one has a situation where two divers have swum out four miles, dived for an oyster, and it has come into shore and there is a dispute of who owns the oyster.  One would have then, I suppose, to look at the personal rights based on who had possession at the time they came to shore, rather than analysing the conduct that took place in the open seas because that conduct took place in an area where there was no legal system that applied to it.

But even if one went further, even if one said one would in some way extrapolate common law rules as to first possession to what occurred outside the area of the common law, even if that were permissible – and there is a real question whether it is in the light of Keyn’s Case and the Seas and Submerged Lands Case – but even if one could do that, it would not extend to a dispute over proprietary rights in that area of the sea.

That would be something quite different and there would be no principle on which Australian law could say, for example, this diver got to that area of the sea and asserted rights over it before that diver.  There would be no principle on which that could be said if the common law did not extend to the relevant patch of sea any more than it would do so if it were in the middle of the Pacific Ocean.  The mere fact that sovereignty is claimed over the area without the application of the common law cannot make any difference to that.

One aspect of the absence of extension of the common law beyond the low‑water mark is that there was never a concept in the common law of titles or common law estates or interests below the high‑water mark and there are cases we have set out which make that proposition clear.

The proposition that native title is recognised by virtue of the presence of the common law is not one I need to take your Honours to in detail.  The easiest passage to go to is probably the one in Fejo, which we have set out in full in paragraph 3.11, which makes the point that the “existence of” underlying “traditional laws and customs”, although a “necessary prerequisite for native title” is “not a sufficient basis for recognising” it.  It must be recognised by the common law in accordance with common law rules.

If your Honours look at the second sentence of paragraph 3.12 and footnote 99, we have referred to a number of cases putting the proposition clearly that there is no indigenous entitlement to rights and interests under the common law other than to those created or recognised by the laws of the Commonwealth, States and territories, or the common law.  That flows from Coe v The Commonwealth as well as various passages in the other cases.

GLEESON CJ:   If you had an Australian court confronted with the question of ownership of a fish or a pearl or some other form of property and the determination of that dispute turned on the fact that the person who actually physically recovered the article in question was the employee of the person who claimed to be entitled to it, then presumably the common law of Australia would say the fact that you only obtained that fish in the course of your employment for the employer means that it is the employer’s fish, not your fish.

MR BENNETT:   Yes.  That would be because the personal law affecting matters such as the law of contract may be said, in some senses, to move with the person.  It is the private international law rule which says that the matters concerning the lex situs are subject to the law of the situs whereas matters concerning the person may, in some circumstances, move with that person.  It is the difference between movables and immovables.

So, one might be able to say that Australian law would look at the relationship wherever the contract was made, whether the contract was made on the high seas or in a foreign country or in Australia, and the relationship of master and servant might well be treated in the same way as a matter of the law applicable to the person, but that is totally different from the situation where one is dealing with proprietary rights to real estate, again to use a neutral word.

McHUGH J:   Mr Solicitor, I have forgotten all the details of this law now, but what about the law relating to flotsam and jetsam and royal fishes and wrecks of the sea, and, for that matter, salvage?  Were they not dependent upon common law?  Did not the sovereign, the King in his office of admiralty, have rights to matters picked up at sea?  Were there not common law rights to that effect?

MR BENNETT:   That is a complicated question, your Honour.  First of all, most of those rights applied between high and low‑water mark where  there were different principles in any event.  Secondly, to the extent that some of the earlier cases talked about the king having certain rights in the area below the low-water mark and out to the three‑mile limit, most of those cases were residues of a day when there was a different approach taken to the law of the sea.  There was a doctrine of narrow seas and a doctrine of high seas, which was ultimately discredited.  There is a long history of that sort of ‑ ‑ ‑

McHUGH J:   Where will I find a discussion of that?

MR BENNETT:   It is discussed to some extent in footnote 55 on page – yes, to our reply.

McHUGH J:   Of your reply?

MR BENNETT:   Yes.

GLEESON CJ:   What is the name of that Western Australia case a few years ago?

McHUGH J:   Robinson.

GLEESON CJ:   Robinson.

MR BENNETT:   Well, Robinson v Western Australia Museum involved a different question.  That involved a section 109 issue and it also involved the question of was it for the peace, order and good government of Western Australia to deal with wrecks within its coastal sea, and the majority of this Court said it was not, and for that reason the Western Australian Act was invalid.  The cases are discussed in that footnote, in footnote 55.

There is also some material, which I will not take your Honours to, I will simply refer your Honours to it.  In an article in the British Yearbook of International Law ‑ it is in the volume of material filed by the Commonwealth in D7 on the 15 January.  It is at pages 6 and following.  It is a lengthy article by Professor Crawford about the contribution of Professor O’Connell to international law, and in the course of that article there is a detailed discussion of the developments, the historical developments, in relation to common law attitudes towards the sea prior to Keyn’s Case.  It is also discussed in Appendix 2 to our submissions, in paragraphs 4 and following, where the historical material is dealt with.

Now, in paragraphs 3.17 and following we simply make the submission that at common law its limits lay at the low‑water mark.  We have referred to Keyn’s Case in some detail.  It is picked up and discussed in the Seas and Submerged Lands Case, which is New South Wales v The Commonwealth 135 CLR 337. It appears at page 368 to 369 in the judgment of the Chief Justice where at the very bottom of 368, six lines from the bottom, his Honour says:

No power over Imperial territorial waters was granted expressly or impliedly.  The colonists inherited the common law:  but it operated only in the realm which ended at low-water mark.  This was decided in Reg v Keyn, a decision with which I respectfully agree.

Then the two cases referred to, Harris v Owners of Franconia was a case arising under the same collision at sea, a civil action, and Blackpool Pier Co Ltd v Fylde Union was a case where it was held that the owners of Blackpool pier could not be charged the poor tax because the pier was outside the realm and the county.  His Honour goes on.

KIRBY J:   Was that a statutory tax?  It must have been?

MR BENNETT:   Yes, your Honour.

KIRBY J:   So, but it is not really a common law question.

MR BENNETT:   No.

Thus, property in and power over the territorial seas could not have come by the common law.  As I have already mentioned, no statute and no executive act authorized by statute conferred upon the colonies property in or legislative power over the territorial seas.

And then he goes on to deal with other matters.

GLEESON CJ:   Could I come back to that sentence on the bottom of page 368:

The colonists inherited the common law: but it operated only in the realm which ended at law-water mark.

MR BENNETT:   Yes.

GLEESON CJ:   Would it make any material difference if that said, “It operated only in but not only in respect of, the realm which ended at low‑water mark”?

MR BENNETT:   The difficulty I have with answering that question, your Honour, is the ambiguity of the phrase “in respect of”.  Obviously there are some ‑ ‑ ‑

GLEESON CJ:   Well there might be an ambiguity in the phrase “operated in”.

MR BENNETT:   Less ambiguity when one is dealing with title to real estate or interests in real estate, because his conclusion, of course, in the next sentence, is that:

property in and power over the territorial seas could not have come by the common law.

GAUDRON J:   Can I raise with you something that troubles me about that statement?  It seems to be - well I am not too sure, but the statement was made before there were developed motions of an Australian common law and before the amendment of section 80 of the Judiciary Act, to take that into account.  So it does not seem to me appropriate to think in terms of inheriting anything for the purposes of this case.  We know there is an Australian common law, it is all our own now.  What does it do, and it does not seem to me you could answer the question what it does by reference to how things are inherited.

MR BENNETT:   No, your Honour.  To ask what the Australian common law is, one asks I suppose two questions, maybe three:  one asks what the English common law was, one asks how that common law developed in the six colonies, and one asks when it became an Australian common law, how it has developed as Australian common law, but one has to find something which has changed it from the basic principle in the Keyn’s Case, which the Chief Justice expressed agreement, and other judges did, in the Seas and Submerged Land’s Act Case.

GAUDRON J:   Yes.  Well that may be a case of what we inherited.

MR BENNETT:   There is really no difference, no reason for a difference in relation to Australia and England concerning the common law ending at low-water mark.  There is clearly, in both places, and has been at all times, power to extend it by statute.  It was substantially extended by statute in England immediately after Keyn’s Case.

KIRBY J:   There is one difference and that is that since those words were written by Chief Justice Barwick this Court has said that the common law in Australia will recognise native title that exists and if that is so, that not being a problem which the Court considered in the Seas and Submerged Lands Act, we have to now ask ourselves whether, where it is asserted that of its own integrity native title to offshore waters existed, the common law in Australia adapts to recognise that, and the answer to that question is not found by what was the principle in England where there was no problem of this kind.  There were no natives in England, though the Picts and so on have all been murdered or removed and there was no concept of native title, whereas we have that concept and the common law, which is not past child‑bearing adapts to reflect the necessities of Australia.

MR BENNETT:   Yes.  Two things, your Honour:  first it is not quite correct to say that there was nothing corresponding in England.  There are cases after the conquest of Wales and cases after the conquest of Ireland, which discuss the question of continuation of prior rights ‑ ‑ ‑

GUMMOW J:   Well there was a allodial title in various ‑ ‑ ‑

MR BENNETT:   There was certainly a allodial title in some Scottish islands.

GUMMOW J:   There is in the Isle of Mann to this day, I think.

MR BENNETT:   Yes, in the Isle of Mann.

KIRBY J:   But are these truly analogous to Australia’s indigenous people native title rights of the kind that Mabo recognised?  I doubt it.

MR BENNETT:   In the Welsh case, which we have referred to in our submissions - I will have it turned up in a moment - it was said that although the pre-existing legal principles cease to exist, titles which were established under those principles were recognised by the common law.  That was one of the bases for the type of thinking which led to Mabo.  The Irish case was the case of Tanistry, where it was held that a particular custom involving fights between male heirs to determine who was the heir was repugnant to the common law and was not picked up, but those cases certainly dealt with the type of problem we are dealing with here.

Secondly, if one is going to say we need to lay down a new principle of the common law to avoid a problem, then that is something which one has to examine all the familiar reasons and questions for, to see whether one develops the common law or not.  But we would submit it is a fairly large jolt to say that the common law is going to recognise a title, or a set of rights, in an area to which the common law does not, according to its own terms, extend; in other words, to create an exception to the rule that the common law ends at high‑water mark for the purpose of creating a result that one sees as desirable in a particular case. 

KIRBY J:   I do not see why it is such a big step.  The big step is the step that was taken in Mabo.  Now the steps that are taken are little steps that are designed to ensure that the big step is carried forward on its own logic. 

MR BENNETT:   Members of the majority in Mabo, your Honour, I am not sure would accept that they were taking such a big step, except in the ‑ ‑ ‑

KIRBY J:   Everyone else in the nation thought they were taking a big step.  I think they were taking a big step.

MR BENNETT:   They were certainly changing ‑ they changed a ‑ ‑ ‑

KIRBY J:   150 years of land law.

MR BENNETT:   Yes, but the principles on which they did so were not put as new principles.  They were put as a correct interpretation of the common law principles, and of a string of cases in England in the last century involving African colonies and some Indian cases ‑ which had dealt with these issues. 

CALLINAN J:   Mr Solicitor, is there a distinction, for example, between airspace and the seas?  The common law has always recognised, has it not, title to airspace ‑ ‑ ‑

MR BENNETT:   Yes.

CALLINAN J:   ‑ ‑ ‑ but has never recognised title to the high seas?

MR BENNETT:   There is certainly that distinction, your Honour.  The common law view of airspace was that ‑ it was a fairly imprecise view ‑ one controlled it up to a certain level.  There were cases in the last century saying one was not trespassing if one floated in a balloon over someone’s property.  I think that was Pickering’s Case in ‑ ‑ ‑

CALLINAN J:   But there was common law in relation to airspace.

MR BENNETT:   Yes.  The common law was one owned it up to the limit to which one could reasonably control it, although, of course, once aeroplanes came in, for more abundant caution, legislation was passed specifically saying that overflying planes were not trespassing.  But under the common law cases in the last century, they would not have been.  I will not, in view of time, go through in detail the remainder of my submissions in relation to the third question.

CALLINAN J:   Can you give me those cases on airspace that you mentioned?  Not now, but at some convenient time. 

MR BENNETT:   Yes.  Pickering v Rudd was the case of the balloon.  Kelsen v Imperial Tobacco Co was a case about an overhanging sign, which was held to be, where a tall building was next to a very low building ‑ ‑ ‑

CALLINAN J:   Do not worry about the facts.  If I can just get a reference, that is all. 

MR BENNETT:   Yes, I will have the references for your Honour this afternoon. 

HAYNE J:   Before you leave the third section, do the arguments you advance here, are those advanced in respect not only of claims to exclusive rights but also in respect of claims to non‑exclusive rights as, for example, to fish?

MR BENNETT:   Yes, your Honour.

HAYNE J:   What is the basis for the argument that they extend to non‑exclusive rights to fish?

MR BENNETT:   That is also said to be a proprietary right attaching to a situs.

HAYNE J:   So you equate the right to one which the common law conflict rules would attribute to things like title to land?

MR BENNETT:   Yes, your Honour.

HAYNE J:   Notwithstanding the existence of common law rights to fish?

MR BENNETT:   Yes.  The common law rights to fish are not specific as to area; they are sort of general rights.

HAYNE J:   They can exist but these particular rights which are restricted in area cannot, is that the proposition?

MR BENNETT:   Yes, your Honour.  In section 4 starting at page 36 we have gone through the legislation of the early 1980s.

CALLINAN J:   Mr Solicitor, is the right to fish enjoyed in common with others a proprietary right anyway?

MR BENNETT:   No, your Honour, it is not a proprietary right.  There are three relevant Acts.  These are in the joint volume of legislative material which your Honours have.  The first relevant Act is at page 227.  It is the Coastal Waters (Northern Territory Powers) Act and the operative section is section 5 on page 228 of the volume.  It deals with the land from zero to three nautical miles and section 5 provides:

The legislative powers of the Legislative Assembly of the Territory . . . extend to the making of:

(a) all such laws of the Territory as could be made . . . if the coastal waters –

that is zero to three miles –

of the Territory, as extending from time to time, were within the limits of the Territory, including laws applying in or in relation to the sea‑bed and subsoil beneath, and the airspace above, the coastal waters of the Territory –

So what it is saying is that the Northern Territory has full power to make laws in relation to the area zero to three miles.

GAUDRON J:   At that time the baselines had not come into play, had they?  That is my recollection.

MR BENNETT:   That is so, your Honour; that was the following year, but it was ambulatory in its operation.

GAUDRON J:   You say that when the baselines came in, section 5 extended out?

MR BENNETT:   Yes.  That Act came into effect – and the dates are important - on 1 January 1982.

GAUDRON J:   That is the Coastal Waters Act?

MR BENNETT:   Yes, your Honour.  It was assented to on 29 May 1980 and commenced on 1 January 1982.  The second Act is also a Commonwealth Act, it is the Coastal Waters (Northern Territory Title) Act, it is at page 230.  The operative section is section 4 and it provided that:

(1) By force of this Act, but subject to this Act, there are vested in the Territory, upon the date of commencement of this Act, the same right and title to the property in the sea-bed beneath the coastal waters of the Territory, as extending on that date, and the same rights in respect of the space (including space occupied by water) above that sea-bed, as would belong to the Territory if that sea-bed were the sea-bed beneath waters of the sea within the limits of the Territory –

ie, the sea in bays, gulfs and estuaries and matters of that sort, which is a radical title.  Now, it is ‑ ‑ ‑

GAUDRON J:   No more than radical title?

MR BENNETT:   Well, it is qualified, your Honour, by the next subsection which provides that:

(2) The rights . . . are vested subject to:

(a) any right or title to the property in the sea-bed beneath the coastal waters of the Territory of any other person (including the Commonwealth) subsisting –

and the key word is “subsisting” –

immediately before the date of commencement of this Act –

and if our argument in section 3 is correct, there were no relevant native title rights subsisting because they were not recognised by the common law at that time.

GAUDRON J:   Or since.  The argument does not matter, does it?  You say they would have been recognised later?

MR BENNETT:   They may have been later, yes, which I will come to.

GAUDRON J:   Yes.

MR BENNETT:   That Act came into effect – and again the date is important – on 14 February 1983.

The third Act is printed immediately prior to those two in the volume at page 217 and it is an Act of the Northern Territory, and it is the Off-shore Waters (Application of Territory Laws) Act, and its title really says it all.  It came into effect on 18 September 1985, so after the other two Acts.  The operative provision is section 3(1)(a)(i), which says:

(1) Subject to this section –

(a) the laws of the Territory –

(i) have effect in and in relation to the coastal waters of the Territory –

and “coastal waters” picks up the definition in the Commonwealth Act which is the zero to three, and “law of the Territory” is defined as including the common law.  So that is the structure of what occurred.

Now, I used the words “radical title” in answer to a question I was asked about the second of those Acts, the Coastal Waters (Northern Territory Title) Act.  That answer has to be slightly qualified.  The title which is given is the same right and title as if the seabed were beneath waters of the sea in the Territory.  That title would be a radical title which in turn would be identical to a full fee simple title unless there were some relevant limitation on it. 

There is no relevant limitation because, for the reasons I gave a moment ago, the only qualification is to interests of other persons subsisting immediately before the commencement of the Act.  In the absence of such interests, it is a full title.

GUMMOW J:   When you say “a full title” do you mean ‑ ‑ ‑

MR BENNETT:   By “full” I mean fee simple.

GUMMOW J:    ‑ ‑ ‑fee simple or wastelands, do you, in the 19th century sense of that term?  In other words, not granted to any subject.

MR BENNETT:   Not granted to any subject but a full beneficial title.

GUMMOW J:   Subjects have titles against the Crown, really.

MR BENNETT:   It is a grant, a statutory grant by the Commonwealth which at the time, I suppose, was able to deal with it by virtue of sovereignty, the federal Crown, to the Northern Territory.

GUMMOW J:   Yes.

MR BENNETT:   What we say is the effect of that is, bearing in mind the construction we place on the exclusion, that by the time the common law came to be applied in 1985 whether or not one can get over the temporal problem in relation to native title when the common law applied there was nothing remaining to which it could attach.

GAUDRON J:   There was nothing which it could recognise?

MR BENNETT:   Yes, nothing to which it could recognise.

GAUDRON J:   We have to assume, do we not, however, that there had been Australian sovereignty, whatever that might mean, with respect to the three-mile waters since 1901?  Whatever may have been the position ‑ ‑ ‑

MR BENNETT:   There were a number of conferences in the 1920s on the law of the sea which resolved some of the issues about how far the international sovereignty was conceded to countries.  I think thethree-mile limit was finally generally accepted around 1930.  I say that subject to correction.  There may be some questions about the extent to which the area internationally conceded extended.  Certainly, nothing was done in a statutory sense in relation to it.  There is a discussion in a number of the cases in the 1970s, the lines of cases about the sea in 1970, about the question of whether the general sovereignty over the three miles of the sea had – or how far it went, but the ‑ ‑ ‑

GAUDRON J:   What do you mean “how far it went”?  There is ambiguity just in the phrase, I am sorry.

MR BENNETT:   Yes, there is, your Honour.  I am sorry, I put that badly.  The general answer to your Honour’s question is, yes, that from the time of Federation the current doctrine appears to be that there was Australian sovereignty rather than State sovereignty over the first three miles.  It was widely thought until Bonser v La Macchia in 1970 that that sovereignty vested in the States rather than the federal government, and many of the States had legislated on that basis.  It was that misunderstanding and its correction on Bonser v La Macchia which led to the Seas and Submerged Lands Act and the case of, ultimately, the offshore settlement between the Commonwealth and the States.

GAUDRON J:   Yes.  Now, could I ask another question?  Is it the case that from 1901 the sovereignty asserted was the same title to the waters of the seabed as in the case of the bays and estuaries?

MR BENNETT:   No.

GAUDRON J:   When did that happen?

MR BENNETT:   It has never happened, your Honour.  In bays and estuaries it has always been ‑ ‑ ‑

GAUDRON J:   Well, except it has happened in the Coastal Waters (Northern Territory Title) Act, has it not? 

MR BENNETT:   The type of title involved is the same as that but that is the same as land.

GAUDRON J:   What I really want to know is when did Australia first assert and in what manner the title and thus the power to vest title to the three‑mile area on the same basis that it was bays and estuaries?

MR BENNETT:   1980, your Honour.

GAUDRON J:   And it did it by what?

MR BENNETT:   By the Coastal Waters (Northern Territory Title) Act and the corresponding Acts in relation to the States.

GAUDRON J:   It did not assert it for itself by statute, as I remember correctly, did it, until it passed these Acts?

MR BENNETT:   Yes.  I think there was a declaration in the Seas and Submerged Lands Act. That is at the end of the volume of legislative material at page 287, and your Honour sees section 6 at page 293 of the volume says:

It is by this Act declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth.

One adds that to section 10 which provided that it was also:

declared and enacted that the sovereignty in respect of the internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of the territorial sea) –

so that is bays and gulfs and perhaps the intertidal zone and I suppose rivers and matters of that sort.

GAUDRON J:   Now, it has always been clear though as for bays and gulfs, or bays and estuaries, I would say, has it not, that one could dispose of title, one could grant title?

MR BENNETT:   Yes, your Honour.  There were letters patent in, I think, it is 1868.  It is set out in our chronology of legislative material – 1863 – which dealt with the boundaries of the Northern Territory and used the words “bays and gulfs”.  That was a phrase that had been used in relation to South Australia for the first time and it was because of Spencer Gulf and the gulf around Kangaroo Island, whose name I forget, and because of them the word “gulf” was added to the normal phrase.  But they have always been treated as internal waters and, indeed, there was some argument below ‑ ‑ ‑

GAUDRON J: But the question I am really coming to is: section 6 asserts sovereignty. It does not assert that they are internal waters. This may be important – I do not know – and it may not be important with respect to the Northern Territory’s Title Act, if I could call it that. The common law certainly allowed, did it not, for the creation of title or rights and interests with respect to the waters and the bed of what we will call internal waters, bays and estuaries and whatever else that – yes. Section 6, if I am looking at the Seas and Submerged Lands Act, does not seem to assert that right because it just asserts sovereignty over the three‑mile territorial seas.

MR BENNETT:   That is all, your Honour.  It is not dealing with title and it is not dealing with application of law.

GAUDRON J:   So the first time there is an assertion of title on the same basis as there would be for the bays and estuaries is with the Northern Territory Title Act?

MR BENNETT:   Yes, your Honour.

GAUDRON J:   So at that point there was a capacity to create title?

MR BENNETT:   Yes, and prior.

GAUDRON J:   But there must be some common law at play in that case.  Once you bring it, it seems to me, to the same point as a bay and estuary, the common law has to be in play notwithstanding that the Northern Territory does not statutorily extend it.

MR BENNETT:   No, your Honour.  All that has happened is that a statutory title has been created, depending on statute and statute alone.

GAUDRON J:   I am not too sure about that.  What has happened is the assertion that the three‑mile territorial seas are the same as the bays and estuaries.

MR BENNETT:   For one purpose.

GAUDRON J:   What purpose?

MR BENNETT:   That is a purpose set out in the Northern Territory Title Act, the vesting of title in the Territory.

GAUDRON J:   All right.  So the Territory can now create title in the waters and seas within the three‑mile limit?

MR BENNETT:   Yes, your Honour.

GAUDRON J:   But it can only do that because the common law applies to allow that to happen in bays and estuaries and always has, so far as we know?

MR BENNETT:   No, I am sorry, your Honour.  The reason the Northern Territory can create titles is ‑ ‑ ‑

GAUDRON J:   What I am really putting to you is that without the common law to tell you what we are talking about, the Act means nothing to say on the same basis as if they were bays and estuaries.

MR BENNETT:   No, your Honour.  One has to take it in the three stages.  You start with the Seas and Submerged Lands Act which declares sovereignty, nothing more.

GAUDRON J:   Yes, and we do not know precisely what that means.

MR BENNETT:   Then, in 1982, the Commonwealth says the Northern Territory may legislate in relation to this area.  Until it does, that does not change anything; it merely creates a power to legislate.  Then, the third step is the Northern Territory Title Act, which vests, by statute, under a statutory vesting, a title in the Northern Territory which is to be the same as if it were in bays and estuaries? 

GAUDRON J:   And we have to resort to the common law to find out what that means. 

MR BENNETT:   That is not the common law applying to the area, your Honour, that is the description of ‑ the statue applies to the area and the statute happens, to a very limited extent, to incorporate some common law principles, but it does not extend the common law to it.  That occurs in 1985, when the Northern Territory ‑ ‑ ‑

GAUDRON J:   The Northern Territory purports to extend its unwritten laws.  Question: whether its unwritten laws equal or does not equal the common law of Australia. 

MR BENNETT: It does, your Honour, because it has been held that the common law does not differ from State to State, or State to Territory. One of the aspects – I withdraw that. The unwritten law in force in the Northern Territory, and the phrase used is “law in force in the Territory”, is the Australia common law. So what the definition in section 2 does, in conjunction with the operative provision, is to say that the Australian common law, which is the law enforced in the Territory, is to apply to this area.

GAUDRON J:   Then, on your argument, until that happened, I should have thought, the title was worthless.

MR BENNETT:   No, your Honour, it is a statutory title having statutory effect and no doubt value because one can do with it whatever the statute implies that one can do with it.  It is in accordance with the statute.

GAUDRON J:   It implies you can do with it what you could with bays and estuaries - what you can at common law do with bays and estuaries.

MR BENNETT:   Yes.

GAUDRON J:   Perhaps nothing turns on it.

MR BENNETT:   I do stress, your Honour, the words in the Title Act the subjective word “would”.  It is section 4(1), page 231 of the volume and taking the relevant words:

By force of this Act, but subject to this Act, there are vested in the Territory, upon the date of commencement of this Act, the same right and title . . .as would belong to the Territory if that sea‑bed were the sea‑bed beneath –

the internal waters.  So, it does not apply the common law.  It says there is to be this statutory title which is to be the title that would exist if something were the case, and that is simply done for the purpose of identifying it.  If it said it shall be the same title as the Government of New Zealand has to the land in some strait in New Zealand, that would not make New Zealand law applicable in Australia, it would simply be part of the description adopted for convenience by Australian law, and that is all that has happened here by virtue of the word “would”.

The third and final part of this argument is section 2 of our submissions which deals with the Native Title Act.  The point which we make is that the primary purpose of this Act, as set out in section 10, to recognise and protect native title.  It was because of its vulnerability to extinguishment under the common law that it needed additional protection.  It was to be recognised in accordance with the common law and that is made clear by the three-part definition I have taken your Honours to. 

It is interesting that if one goes to the preamble of the Act - it has a particularly long preamble which appears at the beginning of the Act - it sets out the considerations to be taken into account by the Parliament in enacting the law.  It describes the various purposes.  There is a reference in the preamble which is cited against us to the rights needing to be significantly supplemented.  Now, that appears at ‑ ‑ ‑

GUMMOW J:   It is on page 2 just below the middle.

MR BENNETT:   Yes.  It is the paragraph beginning “It is particularly important” more than halfway through the preamble.  Your Honours will see what is said there is:

It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests.  Their rights and interests under the common law of Australia need to be significantly supplemented.

One of the matters put against us is that those words indicate that the Act was doing something more than merely dealing with existing native title, it was creating something new and additional.  We would submit that the context suggests that the reference to the rights being significantly supplemented related primarily to the increased difficulties imposed by the Act on extinguishment.

GUMMOW J:   It is the next sentence.  It introduces the next sentence.

MR BENNETT:   Yes, it does, your Honour.  Your Honours see:

In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement –

et cetera.  The previous paragraph refers to extinguishment and, in our respectful submission, that is what is being referred to.  Indeed, the reference to “their rights and interests”, if one looks at the first sentence of that paragraph:

It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests.

That, again, suggests that it is rights and interests which they have under the common law under Mabo.  If it had been intended to suggest that the concept was to be extended beyond what the common law recognised, one would have expected to have found that said somewhere.

CALLINAN J:   I think Justice McHugh and I in dissent in Yanner said something to that effect.  I do not know whether our dissent affected that, but we said that the Act did not extend rights.

MR BENNETT:   The majority did not suggest the contrary, as I understand it, your Honour.

CALLINAN J:   No.  I said that at paragraph 158, and Justice McHugh expressed agreement with that; I am just not sure of the paragraph now.

MR BENNETT:   Yes.  There is also a passage in Western Australia v The Commonwealth 183 CLR 373, your Honour, which says the same thing – your Honours need not go to it – at pages 452 to 453. Your Honour cited that in Yanner v Eaton, I am reminded.

CALLINAN J:   Yes.

MR BENNETT:   Now, I have at this stage to make a concession in relation to the construction of this Act, and this is the problem with which I have to deal, and that is that the Act, both in the preamble and in various places, refers to rights over land and waters, and the word “waters” is defined in section 253 and in section 253 that definition is that waters include “sea” and then a whole lot of other areas of water.  The submission which is made against us is it is quite clear that the draftspersons intended this Act to apply to claims over sea.  If the argument which we are putting is correct, that would rarely be possible and it would be surprising if the Act said that in that way.

Our answer to that is a very short one.  The Act was passed in the aftermath of the Mabo decision.  As was pointed out to me earlier today, although that decision was and expressed itself as being an application of correct and existing legal principle, it was widely perceived as something that extended beyond that.  The Parliament did not know and could not have known, no lawyer in Australia could have known, how the law of native title would develop. 

That law was clearly a new area of law which was going to develop in this Court, and to a lesser degree in other courts, over the ensuing decades.  In particular, it is highly unlikely that anyone in 1993 thought through the argument which I have put to the Court.  That is not to suggest that there is anything wrong with the argument.  It is simply to point out that it is an argument which requires some degree of careful analysis of principles and a putting together of principles which probably had not been done by anyone at that stage.

KIRBY J:   So, do you say that the addition of the words “over sea” are really a mistake?

MR BENNETT:   No, your Honour.  It is not a question of mistake.

KIRBY J:   What effect do they have then?

MR BENNETT:   The purpose of those words being put there was to allow the law of native title to be stated by the courts in its true width.  If it extended as a matter of law to the sea, then the Act would operate in that area.  If it did not, the Act would not apply to that extent, and it is as short and simple as that.

KIRBY J:   It may be short, but it is not simple because it does not seem to square very comfortably with the notion referred to in the preamble that the rights of native title holders need to be significantly supplemented.

MR BENNETT:   Yes, your Honour, but that ‑ ‑ ‑

KIRBY J:   You read that plus the definition that includes “over sea” and you also take into account, I assume, that this is beneficial legislation when one reads the whole of the preamble, and it is pretty hard to chip away at it and say, “Well, it does not really have any operative effect in respect of the sea”.

MR BENNETT:   Your Honour, first, it may have operative effect in places where the vesting of title took place after the application of the common law. and that occurred in Western Australia and Tasmania – that is one possibility – but the ‑ ‑ ‑

KIRBY J:   But you would word the Act in an entirely different way if you were intending to have a special provision in respect of those two
States.

MR BENNETT:   Your Honour, it is not a question of intention.  No one knew what the Act was going to apply to.  The Act was laying down a method of protecting and enforcing native title where it would be held to exist.

The Act was leaving it to the courts to say what native title was, when it existed and when it did not, and it did that by virtue of section 223(1)(c) which, in a sense, is the central provision of the Act. It is true that it occurs in a definition, but it is a definition which is central to the operation of the entire Act and also, of course, one of the things the Act did was to preserve the validity of Acts which resulted in extinguishment.

Again, if the legislature did not know, as it did not, the extent to which native title would exist over sea, it was important for it to lay down principles affecting both sides if it did, but it simply had no way of knowing.  One could not expect the legislature in 1993 to have sat down and analysed the arguments in this case, worked out the answer and then drafted the Act accordingly.  It was an Act designed to cover all possibilities.

GUMMOW J:   What about section 6?

MR BENNETT:   That just defines the area to which the Act applies and, certainly, if native title could exist over the coastal sea then the Act would apply to it.  Whether it could or not was something left to be determined.  In paragraph 2.6 of our reply we have dealt with the possibility that was put to me a moment ago, I think by your Honour Justice Kirby, that one possible way of looking at it is to say that the Act was enacted under the mistaken assumption that the common law had recognised native title offshore.

Now, we do not put it that way.  We put it as being the Act being enacted simply to cover all possibilities and leaving it to the courts to determine that sort of question, but even if that were so – and we have cited two cases which refer to the well‑known proposition that the mere fact that an Act contains a mistaken assumption does not make the underlying assumption correct, one does not read the Act as verifying the unspoken assumption.  If the effect of the assumption being wrong is that the Act does not operate in part, so be it, and that is, we would submit, a well‑recognised principle.

So, for those reasons, we submit that, notwithstanding the reference, indeed, the frequent references, to seas and waters in the Act, or to waters in the included definition of “sea”, that does not answer the question which is posed in this case.  The key definition has to be satisfied and that depends on the arguments I have put to the Court.

The final matter with which I need to deal is in a rather different frame of reference.  It is Part 5 of my submissions.

GLEESON CJ:   May I ask you a question about section 223(1)(c) before you come to that, Mr Solicitor? Is your proposition that the rights and interests asserted by the claimants in the present case are incapable of being recognised by the common law?

MR BENNETT:   Well, are not, rather than “are incapable of”.  They are not because there was not at any relevant time any common law in the area.

GLEESON CJ:   The proposition then is that the common law only recognises rights and interests in relation to land extending to low-water mark?

MR BENNETT:   Yes, your Honour, up to the legislation which changed that and then one has to look at the other questions to which I have referred.

GLEESON CJ:   And the same applies to rights and interests in relation to waters?

MR BENNETT:   Yes, your Honour.  Waters, of course, is wider than the sea.  The definition includes ‑ ‑ ‑

GLEESON CJ:   Quite, but the proposition ultimately comes down to this, does it not, right or wrong, that the common law does not recognise rights and interests in relation to waters extending beyond low-water mark?

MR BENNETT:   Yes, your Honour.

CALLINAN J:   And does that also mean, Mr Solicitor, that a use in common with other people for fishing and like purposes is not a proprietary right which the common law recognises?  I think the trial judge held, did he not, that the respondents did not have to apply for fishing licences or anything of that kind.  But if the view that has just been suggested to you is correct, then the trial judge would have been in error in that respect, because merely fishing with others, say with the Macassans over time, and other people, did not constitute a proprietary right capable of recognition by the common law or recognised by the common law.

MR BENNETT:   Yes.  And that is part of what will be argued in D9, your Honour, by Dr Perry, yes. 

CALLINAN J:   That is consistent with what you are putting or consistent with your answer to the Chief Justice?  That is going to be argued on the other side, by the other appellant, in that case. 

MR BENNETT:   Yes, your Honour. 

HAYNE J:   And if this proposition that you advance is right, that it is the common law has a relevant territorial element to it, the development of principle in conflict of laws which centred upon the Mocambique rule was capable of criticism on many bases, as we all know, but launched from a fundamentally wrong premise.  The Mocambique rule would find its root, if it has one, in the proposition that the common law does not run in the country or the law district of the place where the immoveable is situated.  And there is no need for the invocation of anything of the nature of the Mocambique rule. 

MR BENNETT:   It was based on a number of things, your Honour, including comity and, to some extent, the civil law attitudes and it was  ‑ ‑ ‑

GUMMOW J:   It would not have been needed, you see. 

HAYNE J:   It was unnecessary accretion, and it demonstrates, does it not, that if your proposition is right, there is a more radical issue, which hitherto, I think I am right in saying, the common law of conflict of laws has not recognised or identified. 

MR BENNETT:   With this qualification, your Honour  ‑ ‑ ‑

GUMMOW J:   See, in Mocambique – if I could just add this – in Mocambique, from the point of the common law, it was an action in trespass, was it not?

MR BENNETT:   Yes.

GUMMOW J:   The defendants had been served in Britain.

MR BENNETT:   Yes. 

GUMMOW J:   And on one view of it, that was the end of it. 

MR BENNETT:   It was – well, yes, it is ‑ ‑ ‑

GUMMOW J:   Except in so far as the common law by its generosity towards other nations and their legal systems permitted itself to intrude into the rules of decision, the rules of decision of some other law area.

MR BENNETT:   The converse, of course, was shown by cases like Penn v Lord Baltimore where you have ‑ ‑ ‑

GUMMOW J:   That is not a common law case.

MR BENNETT:   No, it is not.

GUMMOW J:   It is a whole realm of difficulty about specific performance cases and injunction cases and trust cases.

MR BENNETT:   Yes.  Also, of course, there is a difference between civil law and common law jurisprudence in that area.

GUMMOW J:   Yes.

MR BENNETT:   The civil law takes a much more rigid approach and we take a different view of Penn v Lord Baltimore.

HAYNE J:   But if you can, not now but at some point, take me or, if the other members of the Court are content with it, put in a paper that would address the question of where other than in this realm of discourse you find this territorial reach of the common law, as opposed to the territorial arm, of the courts reaching out over persons.

MR BENNETT:    Yes.  Your Honour, I will try and deal with that ‑ ‑ ‑

GUMMOW J:   In civil and in criminal it is different.

MR BENNETT:   Yes.  If your Honours please.  May I just say one final thing before leaving the Native Title Act and that is that, although I have made a broad concession in relation to waters and the definition of waters, that concession has to be qualified in this way, and that is that the word “waters” appears in the definition of “native title” and there were one or two other places which talk about land and waters.  Waters are defined as including a whole range of things, including the sea.  The sea, of course, includes the intertidal zone and, perhaps on one view of it, the parts of gulfs.

Now, all one is saying does not have operative effect is the great bulk of the word “sea” in the definition.  So one is not saying huge slabs of the Act are inapplicable or do not operate, one is not saying huge areas of the Act do not operate; all one is saying is that one word in one definition has a very limited practical effect, so it is less of a consequence than might otherwise appear.

KIRBY J:   I do not quite understand how this is a concession; it seems rather to be your endeavour to grapple with an extremely uncomfortable provision or series of provisions in the Act.  It is not conceding anything; you are trying to overcome something.

MR BENNETT:   Yes, concession may be too strong a word, your Honour. 
In any question of construction there are arguments one way, arguments the other.  I can see to the existence of the arguments the other way ‑ ‑ ‑

KIRBY J:   You can hardly deny the existence is on the face of the statute.

MR BENNETT:   Yes, that is so, your Honour, but I am saying that the arguments I have put outweigh them, but I concede their existence, in that sense of the word concede.

KIRBY J:   It is very good of the Commonwealth to concede the existence of the words of the statute of the Parliament.

MR BENNETT:   Might I for the purpose of going to Part 5, take your Honours to the map which is in the pictorial volume map A3, unfortunately fairly large.  Now, your Honours can see on this map ‑ ‑ ‑

CALLINAN J:   Which map was this one?

MR BENNETT:   Your Honour, it is that one, your Honour.

CALLINAN J:   It is A3, is it?

MR BENNETT:   Yes, it is A3.

CALLINAN J:   It has been suggested to me that it is a chart, not a map.  My associate is a reserve naval officer.

MR BENNETT:   Your associate has the advantage of me, your Honour; I had never heard of the difference before.

Your Honours will see the large island on the left is Croker Island.  There are a number of small islands.  The dotted line indicates the claim area and your Honours will see in the north-east corner an island called Gurrmurl or New Year Island.

Now, your Honours will also notice that each of the little squares is one square kilometre and your Honours could work out from that, for example, that if your Honours look at the diagonal line which goes from just to the north-east of New Year Island down to de Courcy Head, that line is about 55 kilometres long, that is my own calculation.  But it gives your Honours an idea of distance.  We are dealing with very large areas and very large distances.

Now, the point we make in relation to this ground of appeal is unashamedly a factual ground, but an important factual ground and one which ‑ ‑ ‑

KIRBY J:   Is this the one on which there were unanimous concurrent findings against you?

MR BENNETT:   Yes, your Honour.

KIRBY J:   Why would we become involved in that?

MR BENNETT:   For a number of reasons.  First, for the same reasons that the Court becomes involved in it in cases like Kouris and Voulis and indeed, within the qualification expressed in Warren v Coombes, where there was a decision which is clearly wrong.  It is a very short point.  But, secondly, and more importantly, because it is an important question of principle as to the way in which boundaries are drawn in native title claims, and if they are to exist in the future, particularly in relation to sea claims, because what occurred here was, as your Honours will see in a moment, is that the evidence was that there were occasional visits as far as New Year Island, that there were certain traditions in relation to New Year Island, and that it was a place one, for example, did not spend overnight, women did not go there, there were various limitations in relation to it.

There was evidence taken on the north coast of New Year Island, which I will read to your Honours in a moment, in which, in effect, the evidence on behalf of the claimants was that the land to the north and towards the east of where they were standing – in other words, the waters towards the north and east of where they were standing - were government waters and not part of the claim, whereas the waters to the south and up to the other islands were.  There was no evidence whatsoever of any fishing, travelling or other activity to the north or to the east of New Year Island.

There is a reef.  Your Honours can see the edges of it in the green colour to the north and there is no dispute about that reef, but what we say is that the top point should have been drawn, not by taking the completely arbitrary point which was taken and which emerged from a line drawn by an anthropologist, who agreed that it was arbitrary, but by taking the point on the north‑east of New Year Island and going from there down to McCluer Island to the easterly point of it and then down to De Courcy Head.

GLEESON CJ:   Mr Solicitor, perhaps you can deal with that after lunch.

MR BENNETT:   Yes, if your Honours please.

GLEESON CJ:   We will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GLEESON CJ:   Yes, Mr Solicitor.

MR BENNETT:   Your Honours, just before lunch I mentioned a case to which I should give your Honours the reference.  It is not on the list and I am not going to take your Honours to it, but it is Voulis v Kozary (1976) 50 ALJR 59. It is not in the Commonwealth Law Reports.

Could I take your Honours to his Honour’s judgment at first instance in the joint appeal book, volume 8.  I will just show your Honours what the findings were, virtually all of which we accept.  It starts at page 2023.  If your Honours see, his Honour says that:

Notwithstanding the delineation of the boundaries of the claimed area in the application, the evidence is not specific as to the extent of the sea country in respect of which native title rights and interests are claimed.  Peterson and Devitt state that “the applicants have traditionally thought of the sea to the horizon as being under their control” -

and there is a note that:

the estates extend seawards “as far as the naked eye can see”.  Mary Yarmirr’s evidence -

who was the senior spokeswoman for the group –

confirms these statements.

She said the sea country extends:

“As far as my eyes can carry me – carry – look towards the ocean.”

And there is some discussion of that. 

Then there is a couple of pages describing her evidence about the different areas of the sea, there are a series of grades moving outwards, and the last one is referred to at about point 8 on page 2025 where she says:

That is where our old people, our law, speaks about those areas.  Further it is birrina, but that is right out into the ocean.  Right out in the ocean, that is birrina.  We have no interest but that is the word for that area, right out birrina.

. . . So our sea country – Mandilarri sea country starts off from the ajbud –

which is the beach –

and finishes down at the balu –

which is the second last area.  Now, on the next page his Honour says this at about point 7, the end of the evidence, one sentence down:

However, the answers appear to be of general application although it is difficult to reconcile the two concepts of sea country extending on the one hand to the balu (which presumably includes the whole of the balu) and on the other, as far as the eye can see.  The problem is compounded by the absence of any evidence as to how far away the horizon would appear to a person “sitting down on the beach or standing up”.

Then there is some further evidence the next few pages.  There was a witness who said that the balu and the birrina were the same thing, and his Honour explains that and says that is not the conclusion he draws.  Then at paragraph 96 on page 2030 he comes to the evidence of Charlie Wardaga, who is another senior spokesman, and says his:

evidence appears to contradict that of other witnesses . . . when asked whether the balu was the deep water or shallow:

“That deep water that balu”

and when asked what the birrina he replied:

“Birrina little bit shallow, and balu too deep, that balu”.

Then we get to the relevant part, the specifically relevant part, on the next page and at point 2 he says:

Charlie Wardaga claimed that reef to the north of New Year Island is part of Mangalara country but said of the sea to the north and east –

“Yes, outside.  That for Government, that one”.

I will take your Honours to that passage in the transcript in a moment so your Honours can see the context, but it is of the sea to the north and east of New Year Island.

He said that the sea between New Year Island and Cape Croker and the areas around Lawson, Oxley and New Year Islands belong to him and that he shares it in company with “Mary mob”.

Then there is a discussion about fishing, hunting and catching turtle and dugong and oysters.  Four lines from the end of that page, his Honour says.

There is however no direct evidence of the extent seaward to which the applicants and their ancestors have travelled to pursue these activities, and more particularly there is no direct evidence as to what relationship the boundary of the claimed area bears to the areas used.  There are however a number of facts from which reasonable inferences can be drawn.

He then goes on to discuss the western boundary which we are not concerned with and some of the islands which we are not concerned with.  In the middle of the page his Honour, after dealing with the islands in the middle, says:

It is fair to assume that people travelled the sea between these islands Croker Island and that they fished the sea.  New Year Island is a further 30 kilometres or so north-east of Grant Island and McCluer Island is half way between the two.  Charlie Wardaga’s evidence concerning New Year Island is compelling testimony of a traditional connection with New Year Island –

that is not an issue -

and I accept his claim that the reef just to the north of it is part of Mangalara country.

That is not an issue.

It will be recalled that Flinders saw human footprints on the shore of New Year Island in 1803.

That is a neutral sort of fact.  They may have been Macussans, they may have been Aborigines, we do not know.  There is evidence elsewhere about use – about visits by Macussans.  His Honour then says, and this is the sentence which is the only conclusion of fact which we dispute and which we say simply does not follow from the previous pages and indeed is contradictory to it.  His Honour says:

The eastern boundary of the claimed area appears to be a reasonable representation of the limit to which the sea in that area would have been used.

So, he is basing it on use not on how far the eye can see and he says, “Oh, well, that boundary is a reasonable representation of the limit to which it would have been used”.

KIRBY J:   I suppose the Aboriginal people of those times did not have the methods of measuring that we had.  They hardly had tape measures and miles and kilometres, so my understanding is that – at least I thought I knew that – the horizon is 25 miles.  I do not know what his Honour allowed but he had evidence which he accepted and it is a purely factual question and it has concurrent findings in both the primary judge and the Full Court.  It really hardly seems he sort of thing that we should tarry long over.

HAYNE J:   And is his Honour drawing boundaries?  Does his Honour not make plain at 2033 he is not defining the limits?  He is saying that the area claimed lies within area of use, which is different from drawing a boundary, Mr Solicitor, surely.

MR BENNETT:   In one sense, your Honour, yes, but the same submission can be made because we submit there is simply no evidence of use of anything to the east or the north of New Year Island.  If one then draws a line from the limit of New Year Island to McCluer and then down to de Courcy Head, there is a significant difference.  This is important in native title cases where this type of evidence is relied on.  The answer to your Honour Justice Kirby is that his Honour is not relying on how far the eye can see.  That, of course, was in the context of Croker Island, not in the context of the smaller islands.  His Honour makes it clear by the word “use” that the reason why he has given that further area to the east is that he has drawn the inference that that is an area that would have been used.

KIRBY J:   Was the Commonwealth granted special leave on this ground?

MR BENNETT:   Yes, your Honour.  We submit that when boundaries are being drawn, while it is not an exact science, it is a matter of some concern when many, many square kilometres of sea - as one can see, because each of these little square centimetres is a square kilometre – are included in a grant for no reason other than that it may have been used, and in the face of direct evidence from the senior spokesman who gave evidence saying that, no, the area to the north and east is for government.

KIRBY J:   At its extreme point, to the furthest point of the amount claimed, my counting is that it is 11 kilometres.

MR BENNETT:   Yes.

KIRBY J:   Well, that is a whole lot shorter than my understanding of what the horizon is, which is what the evidence attributed.

MR BENNETT:   But that was not the basis of his Honour’s finding, your Honour.  His Honour did not say he was granting “as far as the eye can see” from New Year Island nor was there any suggestion of that in the evidence, because the evidence of Mr Wardaga was that to the north and east of New Year Island was government.  There was no suggestion of any claim there, “as far as the eye can see”.  The “as far as the eye can see” evidence was all in the context of Croker Island, of people standing on the home island, if I can call it that, and saying how far out they claimed.  But that is very different to this and it is the finding in the face of the only direct evidence and an inference which simply is interpreted.

May I just show you under the actual evidence, and it the last I will be saying about this ground.  It is in volume 3 of the joint appeal book at page 622.  This evidence is taken on the beach on the north of New Year Island.  At line 15 this evidence appears:

Yes.  Now, you say this is your country here, Charlie.  Which way is McCluer from here?  Which way is McCluer?---Here.

You are pointing over to the back of you here to the south and the west.  This sea, the sea going to McCluer from here, is that anybody’s sea country?---Eh?

Is that somebody’s sea country?  This is between here and McCluer?---Yes.  I been tell you about that story.  You know that story.

You told me, but I want you to tell everybody else?---That like little tide, you know, little water.  Little water for Aborigine.  For Aborigine, that one.  Government – you see that outside over there?

Outside?---Yes, outside.  That for Government, that one.

All right.  You are pointing to the north and to the east at about 40 degrees.

That is in the presence of his counsel, so one can assume that is an accurate statement.

You say that is outside and that is Government?---Outside Government, but that tide, he come in like that, in another island here, like poke it, you know.

And so on, so that is the reference to other islands.

KIRBY J:   Would you explain to me the concept of government in this context?

MR BENNETT:   Presumably the understanding of the witness is - in fact, a correct understanding - that if native title is granted that land is still government land and not part of the grant of native title, not part of what native title is claimed over.  What he is saying, in effect, is that there is the area over which we claim native title and the area which we concede is government, ie, not ours.

KIRBY J:   Not ours.

MR BENNETT:   There was no other relevant claimant, I suppose.  I do stress, your Honour, his Honour said there was no evidence before him as to the horizon but the question of horizon was not what he decided it on and was only concerned with Croker Island.  What we say, your Honours, is this, that there are many native title cases.  Subject to the result in this case there may be many cases dealing with sea claims.  It will be important to know if one needs something better than this to establish a sea boundary.

GLEESON CJ:   How did the Full Court deal with this?

MR BENNETT:   Your Honour, the Full Court dealt with that at paragraph 5.16 of our submissions.  The passage in the judgment of the Full Court – it is in volume 11.  It commences at paragraph 258 on page 2162 and the decision is at paragraph 267 on page 2165.  His Honour says this, after saying “we cannot accept the Commonwealth’s contention”:

As has been noted, the Commonwealth does not seek a new trial on this aspect; instead, it urges that another inference, different from that drawn by his Honour, should be drawn by the appellate bench.  There are obvious difficulties in accepting this as an appropriate course.  The main one is the relative advantages plainly enjoyed by a trial judge in litigation –

et cetera.  He refers to the process of explication and the difficulties of language and “the trial judge must be in a better position”, and then he says he refers to degrees in Earthline:

True, the precise location of the eastern boundary was, as his Honour said, not the subject of specific or direct evidence.  Yet, in his view, there was evidence, albeit generalised, from which a boundary might be inferred.  The question then was essentially one of fact and degree, a matter for the judge to determine –

et cetera.

Having been now taken to the detail of that material, we are not persuaded –

I invite your Honours to be persuaded.  It is an important question and it is important from the point of future courts that guidance be given in relation to this type of evidence in this type of case.

CALLINAN J:   Mr Solicitor, are the islands part of the Arnhem Land Aboriginal Land Trust, the islands themselves?

MR BENNETT:   Yes, they are, your Honour.

CALLINAN J:   They all are?

MR BENNETT:   They all are, yes. 

CALLINAN J:   Was there any evidence or any argument that, in order to enjoy whatever rights might exist in relation to the sea, there needed to be some foothold right, as it were, on land from which they could be enjoyed, exploited?

MR BENNETT:   I suppose if there was not, your Honour, one would not get to it to be able to enjoy them and to give evidence of the enjoyment.  But that did not really arise in this case because, clearly, there were the relevant ‑ ‑ ‑

CALLINAN J:   Were there, because there was no claim in respect of the trust land, was there?

MR BENNETT:   No, there was not, your Honour, there did not need to be.

CALLINAN J:   None of the respondents made any claim in respect of the trust lands, is that right?

MR BENNETT:   Yes, that is so, your Honour.

CALLINAN J:   Where is the foothold?

MR BENNETT:   Well, I am sorry, your Honour, I should say this:  there was certainly evidence in this case about sites on land and about activities on land.

CALLINAN J:   Yes.  So, launching points - was there evidence about launching points where the canoes were stored or whatever was used?Do not perhaps trouble about it now, but I will be interested at some stage to see the evidence of what I would describe as footholds or launching points.

MR BENNETT:   I do not think it was so much launching points, your Honour, as evidence of sites and activities and matters of that sort, which were given because they were regarded perhaps as relevant in the manner your Honour indicates.  Although there was no need to prove native title in relation to any of the land areas, because of the ArnhemLand Trust, there was some evidence given of material which might have been relevant if there had been such a claim, in this claim.

CALLINAN J:   But there would need to be some rights existing in respect of the land in order that the access to and rights of user, as it were, of the sea could actually be enjoyed.

MR BENNETT:   It is hard to imagine, your Honour, how there could be sea rights without that, that is certainly so.

CALLINAN J:   That is what I am interested in:  the evidence that demonstrates that there were land rights which would have made any sea rights effective and able to be enjoyed. 

MR BENNETT:   Your Honour, might I have leave in relation to that matter as well as the matter in relation to which Justice Hayne invited a paper from us, to put in submission.  But I will also ask Mr Lloyd, when he addresses the Court, to deal with that issue. 

CALLINAN J:   And it might be relevant to Mr Hiley’s case as well, of course.

MR BENNETT:   Yes.  Yes, that is so.  May it please the Court, those are the submissions for the appellant.

GLEESON CJ:   Thank you.  Yes, Mr Solicitor for Western Australia?

MR MEADOWS:   May it please the Court, we would seek to adopt our written submissions, including some supplementary submissions which we filed, which we appreciate we need leave to refer to, and we would seek that leave.  They are quite short but they address an issue which we intended to put in oral argument and we thought it would be better if we distilled it into written form.

GLEESON CJ:   Yes.

MR MEADOWS:   May it please the Court. We wish to address two things in oral argument. The first concerns the interpretation of section 223 of the Native Title Act. As the Court will see from our submissions, we say that section 223(1)(a), (b) and (c) each has an element of what is necessary to prove native title under the Native Title Act. That is to say, section 223(1) requires recognition by the common law and, in addition, compliance with paragraphs (a) and (b).

The second point on which we wish to address oral submissions is in connection with the Coastal Waters (Northern Territory Title) Act of 1980.  We say that conferral of title upon the Northern Territory under that Act had the effect of precluding recognition of native title except where there was pre‑existing native title to the seabed.  This is a subject which is dealt with in our supplementary submissions.  It can be accepted, we would submit, that a number of things were left open in Mabo [No 2] as to the content of native title, but one thing that was clear was that the only possible native title which could exist was that which burdened the Crown’s title at sovereignty.  Thereafter, while native title may wane, it could not wax because, if it were to wax or revive, this would erode the Crown’s title and we would say that this reasoning derives from the common law rather than the Native Title Act.

So, turning to section 223(1) it can be seen from paragraph (c) that one of the requirements is that:

the rights and interests are recognised by the common law of Australia.

And at paragraph 6 of our submissions we set out some indications in the Native Title Act that native title under the Act is common law native title, that is rights and interests recognised by the common law, as confined by the effect of paragraphs (a) and (b).  If I could refer the Court to paragraphs 9 to 14 of our submissions where we set out our submissions in respect of these confinement contentions.

Now, the point itself may not need to be resolved in this case.  However, it is a relevant issue because it may be said against us that if paragraph (c) draws in all of the common law, then paragraphs (a) and (b) serve no purpose.  Now, we say that because Justice Merkel seems to say just that at paragraphs [372] and [390] of his judgment in the Full Court.

What we say paragraphs (a) and (b) do is to confine the scope of native title as it can be found under the Native Title Act to those rights and interests which are still the subject of acknowledgment under the traditional laws of the people and those traditional customs which are still observed.  So, it is not enough to show that the common law would have recognised native title or particular rights and interests.  It is also necessary by virtue of paragraph (a) that those rights and interests are still acknowledged under traditional law or that the traditional customs are still observed, and paragraph (b) requires the existence of connection.

KIRBY J:   Does that not imply the continuance in its own sphere of Aboriginal customary law with its capacity to change over time?

MR MEADOWS:   We would say that it obviously has a capacity to change but, so far as the Native Title Act is concerned, it can only be those rights and interests which existed at common law, or as recognised by the common law, which would continue to subsist.

KIRBY J:   But do you embrace the notion that that is fixed and frozen in time as at 1824?

MR MEADOWS:   It can only wane rather than wax.

CALLINAN J:   What traditional customs does the common law protect, as opposed to rights and interests?  How do you give a proprietary effect, as it were, to a custom?

MR MEADOWS:   It may be a custom of a particular group to hunt and fish in a particular area, which could be said to create a right which would be recognised by the common law.

CALLINAN J:   It is more of a practice, is it not, than a custom?  I mean, “custom” may be wide enough to embrace what you have said. At first sight, “custom” does not strike me as that.  “Custom” suggests to me ritual or something of that kind.  I may be wrong.

MR MEADOWS:   Yes.  Well, it is not always easy in the context of a statute such as this to give content to a word such as “custom” but we would submit that it does embrace something in the nature of a right to hunt.

CALLINAN J:   Otherwise you could not give any proprietary effect to it.

MR MEADOWS:   Well, we would suggest that it is not so much a proprietary effect as a right in the nature of usufruct which the common law would allow to be in force.

CALLINAN J:   That is a proprietary interest, is it not?

MR MEADOWS:   We say that you do not need to go that far.

KIRBY J:   It may be that the Parliament has used these terms because we are dealing here with the intersection of two utterly different worlds of law and custom and that it is like avoiding anthropomorphism, that in order to avoid the peril of, as it were, trying to impose on Aboriginal society the categories and classifications and approaches of the common law of England, a wide formula was used, laws and customs, to recognise that their universe will approach problems in a somewhat different way.

MR MEADOWS:   I accept that, your Honour, in that a traditional law as the Aboriginal people might know it may involve something which is not conceptually a law as we would know it.

CALLINAN J:   There might be a custom with respect, for example, to the law of dissent of rights or interests.

MR MEADOWS:   Yes.

CALLINAN J:   That may be the thrust of the use of the word “custom” there.

MR MEADOWS:   That could be one use to which it could be put.

CALLINAN J:   That it is customary for a particular sex or relation to inherit, something of that kind.

MR MEADOWS:   Quite so, your Honour, but the point that we make is that in order for a finding of native title to be made, the particular law or custom must be still acknowledged and observed.

CALLINAN J:   Yes.

GAUDRON J:   There is, not just by you, Mr Solicitor, a tendency to put something like “still” in.  All that the Act says is “are recognised”, presumably speaking in the continuous present.

MR MEADOWS:   That is true of something that ‑ ‑ ‑

GAUDRON J:   I do not see where the notion comes from that you have to look back and see that they were always recognised.  There may well be a critical distinction in this case between extinction and failure to recognise and if you put “still recognised”, you seem to be talking in the continuous past and the immediate present.

MR MEADOWS:   Well, if we are talking about paragraph (a), your Honour, the word “recognised” is not there; there are two words there.

GAUDRON J:   No, it was (c).

MR MEADOWS:   Well (c) is a recognition by the common law.

GAUDRON J:   Yes, but you said “still recognised”.

MR MEADOWS:   No, I said “still acknowledged or still observed”, and I say that because, if you look at paragraph (a) it is clearly in the present tense, that:

the rights and interests are possessed under the traditional laws acknowledged –

We would say, at the time that the determination is being made –

and the traditional customs observed –

again, at that time.

GUMMOW J:   What is the significance of section 250 in the construction of the tenses in 223, if any?

MR MEADOWS:   In this context, we would suggest it does not have any bearing on the construction.  What section 250 tells you is that you can look backwards, but when you are determining whether something is “acknowledged” or “observed” it can only be in the present tense.

GLEESON CJ:   Well, does it produce the consequence that if a group of people or a claimant, a group of claimants have abandoned their acknowledgment of traditional laws or their observance of traditional customs they lose their claim?

MR MEADOWS:   Yes, your Honour.  So they have to show current acknowledgment or observance?

GUMMOW J:   Yes, but the nature of the observance, you seem to be saying, has to be the same at the time of the determination of the claim as it was here in 1824.  That does not seem ‑ ‑ ‑

MR MEADOWS:   Well, that is just to give content to the word “traditional”.

GUMMOW J:   I am not sure that is all that consistent with Yanner v Eaton.

MR MEADOWS:   Well it may not be, your Honour.

CALLINAN J:   Yanner was conducted on the basis though that there is no objection to the reception of the evidence as to the use of the implements that Mr Yanner used.  There is never any contest in Yanner, as I read the case in the courts below, on the question whether traditional methods had to continue to be employed.  It was just never an issue.

MR MEADOWS:   I agree, and we are here talking about a determination of native title.  What we are saying is that where there is a determination of native title called for, it can only be in respect of a traditional law or a traditional custom, otherwise the word “traditional” does not carry with it any meaning in the context of this section.

CALLINAN J:   Does that mean, do you say, that no modern implements at all could be used?

MR MEADOWS:   That does not follow from what I have just said, your Honour.

CALLINAN J:   But do you say that?

MR MEADOWS:   It is a question of degree, I would submit.  For example, if there was evidence that fishing was carried out by means of a throw net, that may not result in an ability to make a determination which would allow the Aboriginal group to use a 100 foot gill net, or something of that nature.

CALLINAN J:   Well I do not know whether it arises in this case, but it is obviously a very important issue, not only for non-indigenous people, but also for indigenous people.  It really is, it seems to me, an unresolved important matter.

MR MEADOWS:   Well, quite so, and that is why we are putting this particular submission, that if the legislature has deliberately confined the scope of the native title that can be determined under the provisions of the native title.  It may be different from the common law, in fact.

GLEESON CJ:   I am not sure how you relate this submission to the facts of this case.

MR MEADOWS:   I did preface my remarks by saying it may not be necessary to resolve it in this case, but we address it so as to answer what Justice Merkel did say in his judgment.

CALLINAN J:   I do not think there was any issue in this case, was there, about the methods employed?  Am I right about that?

MR MEADOWS:   There was no issue as to that.

CALLINAN J:   So, in that respect this case might be like Yanner.  It comes to us upon the basis that there was no issue at all as to the methods employed and employable by the indigenous people.

MR MEADOWS:   Yes, I would accept that, your Honour.

CALLINAN J:   I am not putting that to you; I am asking you whether that is right.

MR MEADOWS:   I am accepting that as a proposition.  What we say the legislature has done here is to use the approach which Justice Brennan suggested in Mabo at pages 59 to 60 where he says:

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.

This could be contrasted, as we have pointed out in our submissions, to what Justices Deane and Gaudron said at page 110 and what Justice Toohey said at page 192, where it was suggested that even though there may have been some abandonment, that would not prevent the traditional laws and customs from still being capable of creating native title rights. So what we say is that section 223, in particular in paragraphs (a) and (b), is closer to what Justice Brennan had to say in that case.

If I could turn then to the second matter on which we wish to make submissions in relation to the Coastal Waters (Northern Territory Title) Act.  Our submission is that that Act precluded subsequent recognition of native title unless, at the date the Act came into force, there was a subsisting native title which could be properly described as a right or title to the property in the seabed.

GUMMOW J:   Is that any different from the submissions the Solicitor for the Commonwealth was putting to us?

MR MEADOWS:   In our submission, the Solicitor for the Commonwealth did not seek to draw a distinction between the possibility of native title over the seabed as opposed to above the seabed, in the water column or beyond.

GLEESON CJ:   The water column?  It moves, does it not?

MR MEADOWS:   “Water column” is a term which I have become familiar with through the Convention on the Law of the Sea where, for example, the Australian fishing zone is a right which is asserted over the water column within a particular boundary.

GAUDRON J:   Your argument on this part does not assume extinguishment, does it?  It assumes, on the contrary, never extinguished but never recognised.  That brings you right to the use of the present tense, particularly in the context where section 80 of the Judiciary Act will apply.  There may be a question about the content of the common law, but leave that aside.

MR MEADOWS:   No, your Honour, what we say is that when the Commonwealth, under section 4(1) of the Act, granted title to the Northern  ‑ ‑ ‑

GAUDRON J:   On the same basis as for bays and estuaries, more or less.  That is the effect, is it not?

MR MEADOWS:   That is the effect – it is not so  ‑ ‑ ‑

GAUDRON J:   There was not a grant of an estate in fee simple. 

MR MEADOWS:   I would rather not use bays and estuaries as a  ‑ ‑ ‑

GAUDRON J:   Well, inland waters. 

MR MEADOWS:   Inland waters.

GAUDRON J:   Yes.  There was not a grant of an estate in fee simple?

MR MEADOWS:   It was, in effect, a grant in fee simple, subject to those rights  ‑ ‑ ‑

GAUDRON J:   That is a big question.

MR MEADOWS:   Perhaps I could at this point take your Honours to the parliamentary debates which we  ‑ ‑ ‑

GAUDRON J:   Take us to the Act.

MR MEADOWS:   I am happy to do that, your Honour. 

GAUDRON J:   It vested property, did it not?

MR MEADOWS:   It is.

GAUDRON J:   Have you the page  ‑ ‑ ‑

MR MEADOWS:   The vesting of title.  It is at page 231 of the volume containing the statutory materials. 

GAUDRON J:   “Same right and title to the property”. 

MR MEADOWS:   Yes.

GAUDRON J:   As if – “as would belong to the Territory” if the seabed and sea were inland waterways.

MR MEADOWS:   Yes, your Honour.

GAUDRON J:   In effect.

MR MEADOWS:   So the only qualification  ‑ ‑ ‑

GAUDRON J:   What does that mean?

MR MEADOWS:   The only qualifications to the title of the Northern Territory would be the public right to fish in those waters and  ‑ ‑ ‑

GAUDRON J:   No, no, let us find out what is meant by section 223(1). What is meant by “right and title to the property as would belong if they were inland waterways”?

MR MEADOWS:   We would submit, absolute title to those waters  ‑ ‑ ‑

GAUDRON J:   An estate in fee simple?

MR MEADOWS:    ‑ ‑ ‑ equivalent to – subject to the public right to fish and to navigate.

GAUDRON J:   You get that just out of  ‑ ‑ ‑

MR MEADOWS:   No, we draw this out  ‑ ‑ ‑

GAUDRON J:   You have to go back, do you not, to what you would have, what the Territory would have, with respect to the seabed and the waters of inland waters? 

MR MEADOWS:   Yes, that is so, your Honour, but  ‑ ‑ ‑

GAUDRON J:   Where do we find that?

MR MEADOWS:    ‑ ‑ ‑ unburdened, we would submit, and  ‑ ‑ ‑

GAUDRON J:   We will come to that, later.  For the moment, what is concerning me is what it is that is actually vested in the Territory.  You say to me it is fee simple.  But if you want to say that, you have to show me, on the language of the subsection, that that is what they got for inland waterways, or that is what they – yes, as distinct from a radical title.

MR MEADOWS:   Yes, I understand that, your Honour.  But one has to read subsection (1) with subsection (2). 

GAUDRON J:   I know, but I cannot read subsection (2) until I have found out what would belong to the Territory if the seabed and the waters were within the limits of the Territory.

MR MEADOWS:   But subsection (2) would not carry with it the meaning that is clearly intended if it did not include a burden such as a native title right.  So what we are saying is that what subsection (1) does is to give an absolute title subject to ‑ ‑ ‑

GAUDRON J:   I suppose somebody will tell me one day, will they, what the right and title of the Territory was to the inland waters?

GUMMOW J:   Now, this Act is by way of supplement to the Northern Territory’s self-government legislation, is it not?

MR MEADOWS:   It is, yes.

GUMMOW J:   Did we not discuss that in some, no doubt, painful detail in the last three years?

MR MEADOWS:   On more than one occasion, as I recall, your Honour.

GUMMOW J:   That is right. What we are talking about is government‑to‑government transactions. We are not talking about governments granting people fee simples. It is the same sort of idea as is involved when the States surrender territory to the Commonwealth under section 11 of the Constitution. No one says the Commonwealth have got a fee simple in the Australian Capital Territory.

MR MEADOWS:   Well, I have not used the words “fee simple”.  I have said that it was equivalent to it and absolute title ‑ ‑ ‑

GUMMOW J:   It is apple and oranges, I am afraid.  You cannot get out of it by saying it is equivalent.  It is just a different universe of discourse, and I will not say any more.

MR MEADOWS:   What we say it is full beneficial title ‑ ‑ ‑

GAUDRON J:   What does that mean?

MR MEADOWS:   That is the phrase that is used regularly in Mabo, if it please your Honour.

GAUDRON J:   What, in relation to the Territory’s title to the inland waterways?  I mean, I might have full beneficial title to a leasehold or I might have full beneficial title to a copyhold.  Full beneficial title takes its content from the type of estate you are talking about.  So what we need to know is if there was ever an estate in the inland waters. 

MR MEADOWS:   There is no doubt that interests in the nature of an estate were ‑ ‑ ‑

GAUDRON J:   Are capable of being created, just as they were capable of being created out of wasteland.

MR MEADOWS:   Quite so, your Honour, but that brings me back ‑ ‑ ‑

GAUDRON J:   The real question is, “Was there ever any estate in these inland waters?”.

MR MEADOWS:   Well, we would say that the position is no different from that which applies to wastelands.

GAUDRON J:   Good.  What applied to wastelands?

MR MEADOWS:   Well, if I could just quote from what Justice Brennan said in Mabo [No 2] at page 70, in paragraph 9 on that page.  He said:

If native title to any parcel of the waste lands of the Crown is extinguished, the Crown becomes the absolute beneficial owner.

GAUDRON J:   Yes.

MR MEADOWS:   We would say that in this instance ‑ ‑ ‑

GAUDRON J:   You told me that we were not talking extinguishment.

MR MEADOWS:   No, I know, but I am just identifying what the Crown, or in this case the Northern Territory, has by way of an interest ‑ ‑ ‑

GAUDRON J:   Yes, but full beneficial ownership of what?

MR MEADOWS:   Absolute beneficial ownership of the inland water, which if one goes to the particular Act, we are talking about the seabed.  We are talking about section 4(1) because it is the seabed beneath the waters.

GLEESON CJ:   You are not suggesting anybody owns water, are you?

MR MEADOWS:   No, no, but there can be rights in respect of the water.

GLEESON CJ:   Yes.

MR MEADOWS:   This Act does not purport to confer title in respect of the water.

GAUDRON J:   I think it does, does it not?  It says the “space occupied by water”.

MR MEADOWS:   Yes.

GAUDRON J:   Yes.

MR MEADOWS:   Yes.  We should note, your Honour, that it talks about the rights rather than the property.  It is the rights in respect of the space, including space occupied by water as opposed to title.  So we say that what subsection (1) did was give the Northern Territory absolute beneficial ownership of the seabed and ‑ ‑ ‑

GAUDRON J:   As an estate in the seabed?

MR MEADOWS:   No, your Honour.

GAUDRON J:   Absolute beneficial – so we are not talking in the same realm as we are in property law, of real estate law, the law of real property, where you have to have estates.

MR MEADOWS:   We are not talking in the realm of estates or interests in land in that sense.

GAUDRON J:   Yes, exactly.  That is right.  It seems to me once you admit that, you have to come to grips with our dealing with something entirely different, and to say absolute full beneficial ownership does not really tell you much.

MR MEADOWS:   Well, it tells you this, your Honour, that the Northern Territory had the same interests in the land, that is the seabed, that an individual would have if they held a fee simple.

GAUDRON J:   No, it does not.  That is exactly what it does not tell you.  Fee simple is estate.  Now, perhaps we can at some stage erect a whole new notion of estates with respect to waters and seabeds and space occupied by waters, but we have not done that yet.

MR MEADOWS:   Well, I appreciate that, your Honour, but what I am seeking to say is that the effect of section 4(1) is to give absolute beneficial ownership, and that is ‑ ‑ ‑

GAUDRON J:   The equivalent of an estate in fee simple.

MR MEADOWS:   Yes, your Honour.

GAUDRON J:   I understand what you are saying.  I do not see it is the basis for it.

MR MEADOWS:   If anything, it may well exceed.  If there were any qualifications on a fee simple ‑ ‑ ‑

GLEESON CJ:   Is it intended to do anything more than to say the Northern Territory has the same rights and interests in relation to the seabed as Britain had in 1824?

MR MEADOWS:   Well, in our submission, the effect of the statute is to give more than what Britain had.

GLEESON CJ:   I mean, this was all plugging a gap, was it not?  You got to this legislation because, first of all, for a long time everybody assumed that the territorial sea was part of the State of New South Wales, for example.  Bonser v LaMacchia exploded that idea.  The Seas and Submerged Lands Act said the limits of the boundaries of the State are at low-water mark, and the Commonwealth had at some undefined time succeeded to the same rights in the territorial sea as Britain had in 1824, or whatever was the relevant time that you are looking at.  Then the settlement following that litigation was aimed at getting back to the State or the Territory those rights that people thought were there before Bonser v LaMacchia.

MR MEADOWS:   Well, in our submission, it went further than that, in that what the Commonwealth, in fact, gave to the Territory was more than what it had.

GLEESON CJ:   Say that again.

MR MEADOWS:   It was more than what it had as the person who was entitled to the rights over the territorial sea.  Using the external affairs power it sought to grant absolute beneficial ownership in the seabed in that area.  If I could, with your Honour’s permission, go to the Hansards which we have provided.

GUMMOW J:   Just before you do that, the relevant discussion of the Northern Territory situation I was thinking of is in Newcrest 190 CLR 513, 614 to 615 and 623 to 630. There is no need to go to that now.

MR MEADOWS:   Of course, I accept what your Honour says and if I could ‑ ‑ ‑

GUMMOW J:   If you are going right back, you have to work out what the Commonwealth got from South Australia under ‑ ‑ ‑

MR MEADOWS:   Yes, I accept that as well, your Honour, but we say that in the context of what we are talking about here it is not necessary to go beyond what is in ‑ ‑ ‑

GUMMOW J:   I do not think they thought they were a beneficiary of trust or something.

MR MEADOWS:   No, but what we are saying is that the Territory’s rights in connection with this land derived from this Act.

GAUDRON J:   I think there is no doubt about that.  The question is what they are.

MR MEADOWS:   Yes, I accept that, too, your Honour.

CALLINAN J:   The Act seems to assume some sort of an estate because it used the word “title” which is much more for an estate than it is for some bundle of rights, non‑proprietary rights.

MR MEADOWS:   Quite so, your Honour.

GUMMOW J:   We are talking about radical title here.

MR MEADOWS:   It goes beyond radical title, in our submission, as well.

GUMMOW J:   Radical title is in a different level from the doctrine of estates and interests.

MR MEADOWS:   I accept that as well, your Honour, but we say that this is more than mere radical title and was intended to be.  I think your Honours have before you a copy of the Hansard.  I just want to refer to three particular passages, firstly, in the second reading speech.  You have there the speech of Senator Durack at page 2123 and the passage to which I refer is at page 2127.

KIRBY J:   What is this being read to establish?

MR MEADOWS:   This is for the Coastal Waters (Northern Territory Powers) Bill.

KIRBY J:   I have it and I do realise what you are doing, but I want to know what it is aimed at.

MR MEADOWS:   It is to explain what the terms “right” and “title” to the property in the seabed mean in that statute.  Senator Durack said at about point 7 on that page in the first column:

This Bill, when proclaimed to come into force, will vest in each of the States proprietary rights and title in respect of land beneath the coastal waters adjacent to the State and within the sovereignty of the Commonwealth.  It is one of the major elements of the history‑making off‑shore constitutional settlement between the Commonwealth and all the States.  As I have already observed in dealing with the Bill extending State powers in the off‑shore area, the present Bill, by conferring rights of ownership on the States, will support the grant of legislative powers to the States in the off‑shore area, and provide an assurance to the States that the settlement will have permanency and stability.

GLEESON CJ:   Now, before you go further, on the middle of page 2127 in the right‑hand column you will see that he talks about a belief:

Until the High Court’s decision, the territorial sea was widely considered to be the property of, and under the control of, the States.

He did not quite mean that to be taken literally, did he?

MR MEADOWS:   I hope not, your Honour.

GLEESON CJ:   Then, if you look at the conclusion of that sentence, you will see a practical illustration of what this legislation was aimed at, granting:

proprietary rights in the territorial sea, even for such obvious matters as wharves and jetties.

Now, when the State grants a proprietary right for a wharf or a jetty in the territorial sea, does it do it by way of grant or by way of transfer?

MR MEADOWS:   You mean under the law as it currently stands?

GLEESON CJ:   Well, whenever.

MR MEADOWS:   If we mean post this legislation, your Honour, we would say that it would be, in effect, by transfer.

GUMMOW J:   Transfer?

CALLINAN J:   It would be by a lease or a licence, would it not?

MR MEADOWS:   It could be.  There are various ways in which it could be done and there could be a legislative regime set up whereby there could be a grant.

GUMMOW J:   It is a grant out of a radical title, surely.  It is what sovereigns do.  They grant things to people.

GLEESON CJ:   It would be called a Crown grant, I am sure.

GUMMOW J:   You grant things to subjects; you do not transfer them.  Subjects transfer them inter se when they got it.

MR MEADOWS:   I understand what your Honour is saying but what we are saying is that this legislation gave more than radical title than it was intended to.  If I could just refer further to ‑ ‑ ‑

GUMMOW J:   But how can there be more than radical title?

GLEESON CJ:   Could the Northern Territory transfer part of its territorial sea to Western Australia?

MR MEADOWS:   I would have to accept that it could, in theory.

GAUDRON J:   Or to Indonesia?

KIRBY J:   I notice that Senator Evans, in discussing this Bill for the opposition, at 2611, posed that very question and suggested that there was doubt as to whether what was being done here could be done and that the real purpose of it was to establish in the States and, in this case, the Northern Territory, some title which would attract the protective provisions of section 51(xxxi) of the Constitution.

MR MEADOWS:   Yes, so that if it was taken away by the Commonwealth by a subsequent government then the Commonwealth would face a “just terms” situation involving the State.

KIRBY J:   That still assumes that this can be done.  That is to say that the Commonwealth has a proprietary right to the seabed of the type that it can give away.

MR MEADOWS:   Yes.  I think the point is, your Honour, as my learned junior has said to me, what has happened here is by using the external affairs power the Commonwealth has done more than merely confer a right to grant titles over this particular land. 

Just alluding to the point that your Honour made about section 51(xxxi), you can see that at page 2615 in the first column midway down Senator Durack said:

The Bills to give title to the seabed are, I think, a very important aspect of the package because the States are entitled to have a guarantee of their powers if any constitutional settlement is worth its name.

I would also refer just briefly to what Mr Lionel Bowen said in the House of Representatives at page 2557.

KIRBY J:   This is pushing the envelope, is it not, to be citing what opposition people as distinct from the Ministers say?

MR MEADOWS:   The point which we would seek to make is that the opposition saw this legislation as, in effect, vesting fee simple in the Territory or the States and you can see this at page 2558 at the bottom of the first column and also at the bottom of the second column.

HAYNE J:   Yes.  I just wonder what I am meant to draw from the interjection of the then member for Blaxland at 2558 but, no doubt, that will assist me with interpreting it.

MR MEADOWS:   I am sure it will not, your Honour, but it was clear that he was unhappy.  But the point that we seek to make is there was no demur by the government as to what the opposition was saying as to the effect of this legislation.  Your Honours, I do not think I can do any better at this stage than to refer to our supplementary submissions where we develop this argument in further detail.

GLEESON CJ:   Thank you, Mr Solicitor.  Mr Solicitor for South Australia.

MR SELWAY:   May it please the Court.  Justice Merkel and I think most parties and interveners argued that the basis upon which the common law recognised native title is by characterising it as a burden on the sovereign rights of the Crown and as the Crown has sovereign rights in respect of the waters, therefore native title can be identified as a burden on those rights.  We differ.  We say that the basis for recognition of native title is the common law relating to land, what we have described in our written submissions as the common law of tenure.

Your Honours, we say that the basic problem addressed in Mabo v Queensland [No 2] is how in a settled colony you can recognise common law pre‑existing Aboriginal rights.  We say that the approach of the majority, meaning Justice Brennan and those Justices who agreed with Justice Brennan and Justices Deane and Gaudron, on that point was basically the same.  The approach is probably best explained, in our submission, by looking at the judgments of Justices Deane and Gaudron.  What I propose to do is just give your Honours the references to how we say the argument is developed without necessarily taking your Honours to the pages, if that is convenient.

It is Mabo v Queensland [No 2] (1992) 175 CLR 1. The first step in the analysis is an acceptance by their Honours that it cannot now be challenged that Australian colonies were settled colonies. Your Honours can see that at pages 80 and 81. The second step is an acknowledgment that the common law recognised pre‑existing title to land even in settled colonies. Your Honours can see that at pages 82 to 83. The means by which that occurred was the acceptance of the theory of tenure, in particular the radical title of the Crown. Your Honours can see that, we say, at pages 86 to 87. Properly understood, we say that Justice Brennan is to the same effect, although we would accept not as clearly.

His Honour accepted that the colonies were settled at page 33 and that the English common law applied at pages 37 to 38.  He nevertheless was of the view that the common law should be changed to reflect the historical reality that Aboriginal rights did exist.  Your Honours can see that at pages 42 to 43.  The way this could be done without fracturing a skeletal principle of the legal system, which his Honour said was the condition for a change at page 43, was by means of the theory of tenure, in particular the Crown’s radical title, at pages 47 to 48.

What we say is that, properly understood, native title as described in Mabo [No 2] is recognised by the common law because the land law of the common law, that is, the doctrine of tenure, admits of the recognition of pre‑existing traditional interests.  The theory of radical title of the Crown is the necessary consequence of that recognition and that is why Aboriginal rights in land are recognised, we would say, whilst Aboriginal criminal law is not, or at least, if I might say, is not yet.

If we are right in that analysis of how native title is recognised, then it follows from the basic proposition that the common law of land law did not extend beyond the territory of the State that there is no basis from Mabo [No 2] to recognise native title rights beyond the territory of the State.  Native title rights outside that territory could not be recognised by the common law at least within Mabo [No 2]’s description.

Your Honours, we adopt the submissions of the Commonwealth in that regard.  Where we differ from them is that the Commonwealth for obvious reasons wishes to preserve the full strength of the Seas and Submerged Lands Act Case and even some of the dicta in that case that seemed to go somewhat further than was necessary.  But what is absolutely plain from that case is that the land law of Australia does not extend below the low‑water mark.

GAUDRON J:   Well perhaps you can help me then.  What does the land law say about inland waters?

MR SELWAY:   Your Honours, the inland waters are broadly the same as wastelands; the Crown hold and held the radical title to inland waters subject to two common law rights which are the rights to fish and the rights to navigation, both of those not necessarily existing on all inland waters, but certainly on ones which were navigable.

GAUDRON J:   So, at least for the inland waters there is no relevant difference between notions of radical title and there would be no relevant difference, from the common law perspective, with respect to tenures or estates?

MR SELWAY:   No relevant difference, your Honour.  We would accept ‑ ‑ ‑

GAUDRON J:   And that now, under the Northern Territory – one of the Acts anyway – extends to at least the three‑mile limit as extended by the baselines.

GUMMOW J:   Yes, that is the 1985 Northern Territory Act, is it not?

MR SELWAY:   Yes.  Your Honour, I will come to that in a moment.  It is another matter of difference.

GUMMOW J:   It comes out of the definition of “coastal waters of the Territory” and that is three miles.

MR SELWAY:   Yes, your Honour.

GAUDRON J:   Then it is more than ‑ ‑ ‑

GUMMOW J:   Plus baselines.

MR SELWAY:   Yes, your Honour.  The question then is, which are the various Acts achieves which of the various purposes, but it is a matter upon which we differ from the Commonwealth and Western Australia.

GUMMOW J:   I understand you differ there, but you do not go any more than the three miles plus baselines, why is that?

MR SELWAY:   Because firstly the Coastal Waters (State Title) Act does not and secondly the Northern Territory (Application of Territory Laws) Act does not.  We say that the extension of the law to the three-mile limit, the common law to the three-mile limit, was sufficient to attract, if you like, the Crown’s radical title ‑ ‑ ‑

GUMMOW J:   I understand that, yes.

MR SELWAY:   The question then is, what is the evidence that occurred which would prevent, if you like, Mabo applying?  We say nothing has occurred.  The Commonwealth in their reply says - I think paragraph 3.36 of their reply, they argue that the distinguishing feature is that there was no legal system for 170 years and that that is a reason why native title cannot now be recognised at the relevant date.  We say that is not a relevant distinction; it misunderstands the significance of legal systems.

GUMMOW J:   Could you just expand that a bit, Mr Solicitor.

MR SELWAY:   Yes, your Honour.  Australian sovereignty or British sovereignty ‑ ‑ ‑

GUMMOW J:   Why do you say 3.36 is ‑ ‑ ‑

MR SELWAY:   I apologise; I hope I have got the right paragraph.

GUMMOW J:   Yes, you have, 3.36 of the Commonwealth’s reply.

MR SELWAY:   Yes, your Honour.  They say ‑ ‑ ‑

GUMMOW J:   You say that has a false premise in it, about the nature of the legal system?

MR SELWAY:   Yes, your Honour.  They say at the bottom:

there was a discontinuity of 171 years during which there was no legal system that applied to sustain rights in the sea.

With respect, we say that misunderstands the nature of the process.  The relevant legal system that identifies these rights is the Aboriginal legal system, which presumably has continued as a matter of fact.  British sovereignty, now Australian sovereignty, means that this Court and the courts of Australia, cannot recognise that legal system or give effect to its rights, as such.  To that extent there is no legal vacuum; there are laws there.  They are simply laws that this Court and other courts cannot give effect to.  But when the common law applies, the common law can acknowledge and identify and pick up pre-existing rights and apply them as common law rights.  So we say that the analysis of 171 years of legal discontinuity is simply wrong; it is a misunderstanding of the nature of sovereignty and how the common law works in this regard.

GAUDRON J:   So, do I correctly understand you to say that the native title rights were recognised when the Northern Territory passed its legislation stating the common law?  They were not recognised before that, but they were recognised then and they remain so recognised?

MR SELWAY:   Yes, your Honour, we say at least by that date.  It is possible that it may be the Commonwealth Act did it.  The Commonwealth Act, with respect, it is unclear what it is trying to do in conferring title.  It may be merely conferring dominium, it may be conferring a proprietary right.  If it is conferring a proprietary right, then it must bring with it the common law to give effect to that proprietary right.  If that is what has happened, the common law is giving effect to, we would say – is to be defined the same as in relation to inland waters and necessarily means, we would say, that native title rights can be recognised as at that date.

McHUGH J:   It must be the same as when the settlers brought the common law here, whether you say 1824 or 1788.  The common law of Australia did not recognise native title in 1769, but at some point of time when the common law was brought to Australia it recognised it and, similarly, it might recognise some new form of native title in 200 or 300 years’ time, if it is based on the then traditional laws of a particular people.

MR SELWAY:   Yes, your Honour.

McHUGH J:   But there does not seem to me anything in 223 – and it does not say that the common law cannot develop in its acceptance of rights and interests that are possessed under the traditional laws and customs.

MR SELWAY:   We would accept that, your Honour.  What we would say then is that, assuming native title rights existed as at 14 March 1983 or 18 September 1985, whichever is the relevant date – and it does not seem to make any difference for the purpose of this case – then those native title rights were acknowledged and recognised as at that date by the common law.  That has one handy further point which is that it actually explains and makes sense of some of the provisions of the Native Title Act that were raised by my learned friend, the Solicitor for the Commonwealth, because it does mean that the law can develop into other areas as the common law may extend to them.  Apart from that, we would adopt the Commonwealth as to the meaning of the Native Title Act.

GLEESON CJ:   Does that mean that a difference between your submission and Commonwealth’s submissions is that you would accept the possibility of native title out to three miles?

MR SELWAY:   Yes, your Honour.  In fact, we would say, on the evidence as we understand that evidence – not that we purport to be experts on it – that would mean that there was native title out to three miles.

GUMMOW J:   What about the facts of this case, this particular determination?  Would that be supported by that?

MR SELWAY:   Some of the areas, we understand, go well beyond three miles, and to that extent, we would say they go too far.

GUMMOW J:   Even with baselines, they still go beyond it?

MR SELWAY:   That is our understanding, your Honour, but, as I say, I would not like to mislead the Court that we made a particular study of the evidentiary background in this case.

GAUDRON J:   Could I ask, Mr Solicitor, what the mechanism was that might have operated to apply the common law to the three‑mile area before the Northern Territory legislation, a possibility which you seem to acknowledge in your submissions?

MR SELWAY:   The possibility would be that the Coastal Waters and Native Title Act, the Commonwealth Act of 1980, which vested title, if the Court were of the view that the title vested was a proprietary right, we would say, if that were true, then the right is a radical title. If it is a radical title, then the common law must be applying within that area to enable you to determine, firstly, what that is, and, secondly, how it is to be protected and enforced. For example, the Crown, the Northern Territory Crown could take proceedings to protect its radical title, such as it is. So, in that regard, we would say the common law must be applying as a necessary inference from the Coastal Waters (Northern Territory Title) Act 1980. 

GAUDRON J:   But it does not apply simply from the assertion of sovereignty?

MR SELWAY:    No, your Honour.  That was, if you like, the argument that the States lost in the Seas and Submerged Lands Act Case, and, obviously, the loss of that argument causes practical difficulties in jurisprudence, but that is the effect of the loss of that argument in that case.  May it please the Court.

GAUDRON J:   But that was an assertion of sovereignty which had no effect.  The States were asserting sovereignty, but without a proper legal foundation.  One might therefore well understand, if there ever was such a thing as State common law, that it would not run in the area over which sovereignty was asserted without legal effect. 

MR SELWAY:    Yes.

GAUDRON J:   What if sovereignty is asserted, with legal effect?  Why does not the common then run?

MR SELWAY:    It could, your Honour.  The assertion of sovereignty over land has that effect.

GAUDRON J:   Yes.  Let us assume, for a moment, that an island is formed in the Antarctic as a result of an earthquake or something tonight.  Australia asserts sovereignty.  The common law would go there, would it not?

MR SELWAY:    Yes.

GAUDRON J:   Straightaway?

MR SELWAY:   Yes.

GAUDRON J:   In the blink of an eyelid?

MR SELWAY:   Yes, your Honour.

GAUDRON J:   Without even the blink of an eyelid?

MR SELWAY:   It would, your Honour.

GAUDRON J:   How does it do that and why?

MR SELWAY:   Australia asserts sovereignty over land, but as I understand the Seas and Submerged ‑ ‑ ‑

GAUDRON J:   Over land?

MR SELWAY:    Yes.  As I understand the Seas and Submerged Lands Act ‑ ‑ ‑

GAUDRON J:   And why is it different then to assert sovereignty over land from asserting sovereignty over seabed?

MR SELWAY:    Is your Honour inviting me to try and reargue Seas and Submerged Lands Act, tempting as that would be?

GAUDRON J:   No, I just want to know why you say it is different, because the Seas and Submerged Lands Act was a different – we have already been down that track – there was an assertion of sovereignty that had no legal effect.  Nobody is suggesting that Australia’s assertion of sovereignty over its territorial sea is without legal effect.  Everybody says it is of perfectly good effect; if nothing else, look at the external affairs power.

MR SELWAY:   But, your Honour, as we understand the analysis in Seas and Submerged Lands Act, it was not simply that the States could not assert sovereignty.  It was that the common law and, if you like, the proprietary rights under the common law did not extend below the low‑water mark, following on from ‑ ‑ ‑

GLEESON CJ:   Which made life very uncomfortable for people who had wharves and jetties sticking out onto the ocean.

MR SELWAY:   Yes.

HAYNE J:   But that in the context of a dispute between the integers of the federation, and, if you remove that element of the dispute, and, without regard to which integer of the federation could assert sovereignty, that is, could assert the rule of law in that area, was there any doubt that one or other or all of those integers together – it does not matter which answer you give – could do so?

MR SELWAY:   No, your Honour.

HAYNE J:   But if that is so, is there anything in Seas and Submerged Lands that would deny the proposition that from sovereignty, or as part of the assertion of sovereignty, there is an assertion that the rule of law runs there, namely, the rule of the common law, relevantly, the common law of Australia?

MR SELWAY:   Your Honour, there is certainly dicta and we would say some of it is - maybe more than that, it may be part of the ratio, that the common law does stop at the low‑water mark.

McHUGH J:   That is true but can I just ask for some assistance on a proposition you put earlier.  You asserted that the common law came with sovereignty.  Is that correct?  Does it not come with settlement?  In other words, did the common law come to Australia when Cook claimed sovereignty on behalf of George III or did the common law only come when the settlers arrived, when there was an attempt to make the settlement?  I thought the latter was the accepted theory.

MR SELWAY:   I think the latter is the accepted theory, your Honour, but I think it is made the appropriate theory because there was a further assertion of sovereignty at the first settlement and it is that further assertion of sovereignty that is counted as the bringing of the law.  There are obvious complications but the difficulty with saying it is related to settlement is that settlement itself may be, if you like, an artificial sovereignty.  The claim for sovereignty at settlement was half the continent.  It is unlikely that the writ practically ran of whatever courts there were sitting in Sydney through that area, but the reality is, under the theory of the common law for settled colonies, that all of the peoples, Aboriginal of otherwise ‑ ‑ ‑

KIRBY J:   This was the common law of England which was extending beyond the high‑water mark of England.

MR SELWAY:   Yes, your Honour.

MR SELWAY:   Or a bit of England here, your Honour.

McHUGH J:   The view has not been taken hitherto, has it, that the common law arrived with Cook?

MR SELWAY:   It certainly applied to his ship, your Honour, but whether – there has never been a practical issue in the sense that it is hard to imagine in what way we would have been then thought of as his Majesty’s subjects.

McHUGH J:   I though it was the colonists carrying it with them.  That was the theory of Blackstone.  I thought that was what was accepted in Delohery v Permanent Trustee and Dugan v Mirror Newspapers – those cases – that they brought it.

MR SELWAY:   Yes.  It is the theory but it is not just the settlement, it is also the exercise of the right of sovereignty that brings the law because the law extends beyond the settlement.

McHUGH J:   The sovereignty may precede it.  I am not sure that the common law does not arrive until a country is settled even though one stakes a claim of sovereign over a particular area.

HAYNE J:   There is a conundrum that you present at one level of the submission, Mr Solicitor, which seems to me to be this:  the assertion of radical title brought with it the common law but the question for debate is

whether the native title is to be recognised, a question which itself depends on the common law.

MR SELWAY:   Yes.

HAYNE J:   The asserted recognition of native title would itself bring with it the common law.  It really is chicken and egg.

MR SELWAY:   It is but with this qualification:  we know here that there is no land law below the low‑water mark because the Seas and Submerged Lands Act tells us there is.  There is no radical title.  Her Honour Justice Gaudron effectively asked could we create a radical title for the Commonwealth as a result of sovereignty but no one has ever taken the matter that far.  It has always been assumed that, for example, the United Kingdom Crown did not have radical title in the territorial sea.  If that is so then the result is that there is no land law below low‑water mark.  If land law is the relevant issue there is nothing to recognise.  If it please the Court.

GLEESON CJ:   Thank you, Mr Solicitor.  Mr Solicitor for the Northern Territory.  I am sorry, Mr Basten, it is your turn.

MR BASTEN:   I think the Northern Territory does not support this aspect of the matter before the Court, your Honour, and that is a matter we will come to in a moment. 

The point at which the Solicitor for South Australia was addressing your Honours is really the point at which I wish to enter the debate with two propositions which take the matter a stage further than he was prepared to concede, as I understood him.  The first proposition is that the acquisition of sovereignty itself was sufficient to import the operation of the common law.

The second proposition is that that, in itself, is an inference which can be derived from the judgments of this Court in Seas and Submerged Lands.  Seas and Submerged Lands says nothing adverse to the idea of a territorial sea and it says certain things about the question of sovereignty of the Crown in that sea although, for relevant purposes, those rights were vested in the imperial Crown and not in the colonies prior to Federation.  That is one proposition I want to make good and, with the Court’s leave, I would need to take the Court to a number of passages in the Seas and Submerged Lands Case for that purpose.

Before doing that may I just say one or two things about the nature of this case, partly to indicate what I do not intend to address in this appeal because, as I understand it, it will be central to issues arising in the next matter but there is an important issue raised by your Honour Justice Callinan in relation to what your Honour colourfully describes as footholds.  It must be understood that for the purposes of this argument we assume both the existence of traditional laws and customs and of relevant rights and interests enjoyed under them.  The extent of those matters is not in debate in this appeal, as I understand it.

The second point I wanted to make in that regard was that this native title claim proceeded on the basis that it did not involve any claim to land which was the subject of a grant in fee simple under the Aboriginal Land Rights (Northern Territory) Act 1976, which, as your Honour correctly noted, encompassed all of the islands.

One matter which I will take your Honours to in the next appeal is the proposition accepted unequivocally by the trial judge that the interests enjoyed under traditional law and custom were the same in relation to land and waters.  The Aboriginal claimants saw the land and sea country as part and parcel of one title and that was a matter which was clear and unequivocally accepted on the basis of the evidence so that, in that sense, your Honour’s question about footholds is an interesting one but one which I will ultimately say does not arise in these proceedings.

The other proposition that your Honour invited comment on, again which does not arise either in this appeal or in the next, was the nature of the concept of custom both as addressed, no doubt, in Mabo and in the Native Title Act in section 223. In volume 8 at page 2023 the trial judge noted that there appeared to be a potential distinction between traditional law and custom as the phrase is used in this area and in paragraph 90 his Honour says that if there is a distinction, which he says in the middle of the page:

is not readily discernible, and in the present case nothing turns upon it.

That was because “the senior yuwurrumu members” gave evidence on the basis of their “Aboriginal law” and no one challenged them “on that issue” so that if there is a distinction, we say that we ‑ ‑ ‑

CALLINAN J:   Mr Basten, I thought, in any event on reflection, it probably could extend to such things as inheritance and there was evidence, I think, in this case about inheritance, was there not?

MR BASTEN:   Indeed there was, your Honour.

CALLINAN J:   That might be a distinction.  There might be a custom; whereas the other matters may be rights and interests.

MR BASTEN:   What I will seek to say in that regard in the next appeal, your Honour, is that the evidence which goes to both the inheritability of the rights and, indeed, the automatic inheritance by persons within the patrilineal descent line is indicative of a proprietary interest, as we would understand it.  There is also evidence of the use of adoption into a patrilineal line, again consistent, we would say, with concepts which we might call proprietary interests, and there is also evidence of succession to the community title in areas where there is, as it were, a gap due to the death of a senior member of the relevant estate group.  I do intend to take your Honours to some evidence in that regard because it is directly relevant to the next appeal, so I am not, as it were, putting that entirely to one side.

Similarly in relation to the nature of the frozen in time question, whether it is applied to traditional laws and customs or to the rights and interests which derive from them is, again, not a matter which arose in the trial in this case.  It no doubt does raise important questions.  They will not be questions that I think we or the other parties will be inviting this Court to address in what would be entirely an abstract manner.

I was also going to come, and now I do so by way of introduction, to your Honour the Chief Justice’s question in relation to how, at least in practice, the Northern Territory deals with land below the low-water mark.  In the same volume 8 of the appeal book at page 1815 is a lease of land below the low-water mark for pearling purposes which, as your Honour would expect, is in the form of a grant.

CALLINAN J:   Mr Basten, I am sorry, can I just bring you back to the first point, the foothold point.  You say it is not an issue because there is no necessity to make any claim in respect to the foothold because all of that land was vested in the trust?

MR BASTEN:   Yes.

CALLINAN J:   Well, it may not arise in this case; I can see why you might say that, but is there any possibility that the vesting of the land in the Aboriginal trust - and it was a full vesting, was it not?

MR BASTEN:   Yes.

CALLINAN J:   Is there any reason why that might not inconsistent with any right or interest in, say, your clients to use and occupy and launch from such footholds?

MR BASTEN:   Yes.

CALLINAN J:   Might it not inevitably arise?  You say it does not, I think.

MR BASTEN:   Yes.  Might I make two responses to that.  One is a pragmatic one, your Honour.  To the extent that there might be inconsistency in the administration of the different interests, a decision was taken not to seek major title over land which was already owned and vested in a trust.  I will also take your Honours to some evidence about the nature of the group of native titleholders, as his Honour identifies it.  They were not simply Aboriginal people resident on Croker Island; they were a defined subset of those people identified in accordance with traditional laws and customs.  Now, it is probably not a matter I should talk about from the Bar table, but the members of the land trust are not necessarily simply those who reside on Croker Island either.  They are a more limited group, but there are rights under the Lands Rights Act which permit others to have interests and access to land for that purpose.

CALLINAN J:   Mr Basten, just so I can understand it, the legal title to the land is in the Aboriginal Trust, is that right?

MR BASTEN:   In the islands to the low-water marks on each coast.

CALLINAN J:   Yes, and also the relevant parts of the mainland are also ‑ ‑ ‑

MR BASTEN:   Indeed.

CALLINAN J:   They are vested in the trustees.

MR BASTEN:   Yes.

CALLINAN J:   I do not know what the trusts are, but certain beneficial interests to be enjoyed by, I take it, people, perhaps including your clients’ people, is that right?

MR BASTEN:   That is so, your Honour, under the Land Rights Act the vesting of the fee simple estate is for the benefit of the traditional owners, which is a defined term under that Act.

CALLINAN J:   Why would not that vesting of freehold be inconsistent with any other rights or interests to use or occupy that land for the purpose of launching boats or otherwise?

MR BASTEN:   There are a number of answers to that, your Honour. One is that the fact that the land is held in a freehold estate by Aboriginal people is not itself inconsistent with the existence of native title. Perhaps I can make this point at this stage so that there can be no misunderstanding about it. Although it is no doubt true to say that section 223 of the Native Title Act provides a definition of “native title” which includes recognition by the common law of Australia, it does not follow that native title which has been extinguished under the common law is not also recognised. The reason for that is of course that one needs to read the Act as a whole. So that even where that has been a freehold grant, if the land falls, as this land almost certainly would, within the terms of section 47A of the Native Title Act, then all prior extinguishment is disregarded.

In other words, despite what this Court might have said about the common law in Fejo, it does not necessarily follow in any particular case that a freehold grant has extinguished native title.  By that of course, I am not referring to the suggestion that a grant to Aboriginal people in freehold necessarily extinguishes native title.  It may well not.  It may well be one of those qualified exceptions to Fejo but, had there been a grant to a third party settler, for example, which had later been surrendered or resumed, that grant also would be disregarded.  So that one has to be careful about generalisations perhaps in relation to this legislation.

Having said that, your Honour, there are a number of further answers one would need to give to your Honour’s question if it were in issue, including a proper understanding of the operation of section 71 of the Land Rights Act of the Northern Territory and no doubt questions of consent and so on in relation to how the use of that land by the native titleholders would arise.

CALLINAN J:   Are the parties agreed that that is not in issue?

MR BASTEN:   Yes.  It was never put in issue, your Honour.  The Land Trust itself was made a party to the appeal and is a party here but has taken no part in these proceedings.  It does not oppose what the native titleholders are in effect putting in this Court.

Your Honours, may I then turn to the question of the effect of a claim by the Crown of sovereignty over a new area.  In this respect, I suppose one might start with the proposition that the case, perhaps aptly described by Professor Crawford in some material that the Commonwealth has provided as the disputatious case of Keyn, itself of course has no application in relation to Australia.  There is obviously and always has been land since colonial settlement beyond the low‑water mark of England to which the common law applies.  But the operation of the Seas and Submerged Lands Act Case is itself an example, if one might say so, of this Court identifying what are the results of a claim of sovereignty by the Crown.

The claim of sovereignty itself, of course, is something which cannot be challenged, is not justiciable in a court in this country, and for that proposition Justice Gibbs in Seas and Submerged Lands Case relied upon a passage in Post Office v Estuary Radio.

GUMMOW J:   It is Lord Diplock and the pirate radio station.

MR BASTEN:   It is, your Honour; it is Lord Justice Diplock I think his Honour then was, and I just wanted to very briefly take your Honour to that passage. I have now mislaid my copy of the case. Perhaps I can come back to that, your Honour. The proposition which I wanted to – I am so sorry. It is [1968] 2 QB 740 and the passage which was referred to and applied by Justice Gibbs in Seas and Submerged Lands Case is at 753 where Lord Justice Diplock said at about point six:

It still lies within the prerogative power of the Crown to extend its sovereignty and jurisdiction to areas of land or sea over which it has not previously claimed or exercised sovereignty or jurisdiction.  For such extension the authority of Parliament is not required.  The Queen’s courts, upon being informed by Order in Council or by the appropriate . . . must give effect to it and are bound by it.  And so, when any Act of Parliament refers to the United Kingdom or to the territorial waters adjacent thereto those expressions must prima facie be construed as referring to such area of land or sea as may from time to time be formally declared by the Crown to be subject to its sovereignty and jurisdiction –

and so on.

KIRBY J:   Is that a reference to the exercise by the Crown under statute or by the virtue of its prerogative powers or by virtue of the common law?

MR BASTEN:   I will come to that in terms of the Seas and Submerged Lands Case itself, your Honour, but it is clear that it is there discussed in terms of an exercise of the prerogative power.  His Lordship starts:

It still lies within the prerogative power of the Crown to extend –

and he refers to Executive Orders in Council as being the basis in issue in that case.

So it does not depend upon an exercise by the Parliament of a claim of sovereignty.

KIRBY J:   Does the prerogative of the Crown in Australia extend in this way, given that the Crown in Australia is a divided phenomenon of the Constitution?

MR BASTEN:   Your Honour, I am not sure that we would ask the Court to answer that question finally. We would say there is no difficulty in that proposition in relation to external areas. This is if the exercise by the Crown is under the Constitution, 51(xxix), then it may not matter whether the effect is by way of executive act. Perhaps the prerogative of the Crown is no longer appropriate, as your Honours have noted, but by way of exercise of executive power or legislative power, perhaps does not matter. In the present case we are concerned with the Seas and Submerged Lands Act which itself, of course, provides a legislative answer to your Honour’s question and really it is the operation of that legislation which constitutes both an enactment and a declaration to the relevant effect.

Might I take your Honours to that case in 135 CLR 337 in order to make good the propositions I put earlier in relation to the questions in issue and in relation to the second point which was raised by the Commonwealth, namely the ability of the common law to recognise proprietary interests beyond the low-water mark. We differ from the Commonwealth on both of those matters.

Firstly, might I invite your Honours to turn to page 366 where the two questions are identified in the judgment of the Chief Justice.  The first question which his Honour completed an answer to at the beginning of that page concerned the validity of the Act.  The Court upheld the validity of the Act.  In the middle of page 366, his Honour turned to the second issue which involved the claim by the States that they:

had proprietary rights in the subsoil of the territorial sea washing their shores and dominion over those seas as in international law.

Now that, of course, was the question and the only question which the court was relevantly concerned with for present purposes. 

His Honour at 367 at the top of the page after reference to Bonser v La Macchia perhaps states what your Honour Justice McHugh put a moment ago in argument, at point 3:

I am confirmed in the opinion which I then expressed, namely, that the colonies in 1900 had neither proprietary rights in, nor legislative power over, the territorial waters which washed their shores, nor in or over the subjacent soil or superjacent airspace –

and so on –

except in so far as they had legislative power to enact extra‑territorially operating laws.

Further down that page, his Honour talks about “the undoubted sovereignty of the United Kingdom” in relation to any claim to any part of the high seas.  His Honour then notes what was the real argument put by the States at the bottom, about point 7 on that page:

A great deal of time and effort was expended in the preparation for and in the hearing of the cases in an endeavour to establish that Great Britain claimed, and it was submitted rightly claimed, vast areas if sea and seabed…..there is no need to express any definitive opinion on these submissions in order to decide the present case.

At the bottom of the page:

But, in my opinion, the question of what Great Britain or the Imperial Crown claimed to own or to control is not really relevant to the question which lies at the root of the solution of the problem which is raised by this second issue.  Suffice it to say that the Imperial Crown, as representing the Empire, had at all relevant times dominion according to international law over the Imperial territorial seas.  Had the Imperial authorities been minded to do so, they could have placed such part of these territorial waters as washed the shores of a colony within the control of the government of that colony –

and that, his Honour says in the ensuing passages, was not done.

Now, if one then turns to 370 to 371, his Honour at the top of 370 in the first full paragraph:

Not only was the territorial sea or its subjacent soil not part of the waste lands of the Crown, the disposal of which was thus placed by the Imperial legislation under the control of the colonial governments, but the fact of that legislation clearly indicates that the legislative control of the territorial seas and subjacent soil could not have been given to the colonial governments at any earlier time.  To have given proprietary or legislative rights over part of the sea and seabed whilst denying any right or power in the disposal of the land would have been absurd.

Then, at the bottom of the following page his Honour talks about the “low water on the coasts of the colonies” and says:

These and their control as such remained with the Imperial Government.  Such territorial seas as washed the shores of islands forming part of the colony are, in my opinion, in the same position as the territorial waters washing the shores of the mainland of the colony.

In other words, there is no doubt that the Imperial Crown prior to Federation had such rights as his Honour there describes and at 373 he treats the creation of the Commonwealth at about point 7 on the page as vesting:

in the Commonwealth any proprietary rights and legislative power which the colonies might have had in or in relation to the territorial sea –

they, in effect, coming from the Imperial Crown, as I would understand his Honour. 

I will not take your Honours through all of the judgments.  Justice Mason, though - I would trouble your Honours with two passages: one at page 469 and it is a lengthy passage in his Honour’s discussion of these issues which commences with Keyn’s Case, at page 462, but at 469, at about point 3, his Honour concludes after the reference to Bull:

This power was large enough to enable the colonial legislatures –

this is the extraterritorial power –

to authorize the grant of leases and other estates or interests and the construction and maintenance of works in the seabed below low‑water mark.  No doubt a colony could, if it were so minded, legislate so as to vest in the Crown or an instrumentality of the Crown proprietary interests in the seabed.

As between the Crown and a subject, instances may be found of the grant by the Crown without legislative authority of proprietary interests in the foreshore or seabed.  As against the Crown the subject could not dispute the Crown’s title.

Now, some of the instances of that were discussed earlier by his Honour, and I will not take the Court to them, and were also discussed at some more length in Justice Gibbs’ dissenting judgment.  His Honour’s conclusion in relation to the continental shelf and the territorial sea as being within the power of the Commonwealth Parliament to make laws affecting ownership, regulation and control is identified at 472 at about point 3.  At page 475 his Honour discusses:

The concept expressed by the word “sovereignty” in Arts 1 and 2 of the Convention –

His Honour says, at the top of page 475, that the term:

is that of supreme authority, the supreme authority which a State is recognized by international law as having over its land territory, howsoever the exercise of that supreme authority may be divided –

and at about point 4:

This is not to say that the seabed is territory in the sense that the land territory of the coastal state is territory.  But it is to say that subject to the Convention and to the rules of international law the coastal state possesses that supreme authority over the bed and subsoil of territorial waters which it enjoys over its land mass, and that in the exercise of this authority the coastal state may in accordance with international law assert ownership and dominion if it chooses so to do.

With respect, we would say that the views which his Honour is expressing at 469 and at 475 sound like a form of qualified radical title, as one would understand that term after Mabo, because they must be the logical postulate on the basis of which the government can create interests in third parties or assert dominion itself.

Finally, your Honours, two passages from the judgment of Justice Jacobs, also in the majority.  Firstly, there is a passage at page 487, where his Honour discusses in some more detail concepts which commence with the discussion of Keyn’s Case on the previous pages.  At 487 point 6 his Honour says:

The King’s rights in or over the open seas adhered to him as a jus regale in right of his Crown of England.  These rights adhered to him by virtue of his kingship in its national rather than its feudal aspect.  The royal right was a prerogative recognized by the common law and to that extent it was part of the common law but it did not have its source in that law.  His rights therein were not governed by the common law and the extent thereof was not determined by that law.  So far as his rights were governed they were governed by statute, most importantly in ancient times by the Great Charters. 

But since the King’s claim was recognised by the common law it could be said to be a right under the common law.

And I leave out the discussion of the cases which illustrate aspects of his Honour’s conclusion.  I simply turn to page 493, if I may, because it is there that his Honour picks up reference to Attorney-General (British Columbia) [1914] AC, to which I wish to return later.  Halfway down 493, his Honour said:

Not only is there no basis in English legal theory for the view that the seas adjoining the Australian colonies came to be held by the Crown in right of those colonies and not in right of the United Kingdom, but also in practical effect such a view is untenable.  The claim of the Crown to the sea is an assertion of sovereignty.  It may or may not be recognized by the rules of international law currently accepted as the law of nations.  It happens that a three-mile limit came during the nineteenth century to be recognized . . . not universally accepted.

And his Honour refers to British Columbia.

Nor was it agreed that a sovereign state owned the seas in the same way as it owned the land.  It has never been so agreed.  The right of innocent passage denies that proposition.  And it may now be asked‑could the Crown in right of a colony deny innocent passage to foreign ships in the adjoining seas?  The answer must be negative.  Yet the Imperial Crown could do so by virtue of its prerogative.  The repercussions among nations could be very serious.

His Honour says at the bottom of the page:

But the legality of the act would not have been cognizable by any municipal court.  The international law, whatever it was, on the extent of territorial seas was and is no part of municipal law as a majority of the judges in Reg v Keyn made clear.  Yet it is said that the prerogative of the Crown in respect of adjoining seas adhered to the Crown in right of a colony provided that the Crown did not break the rules of international law.

That, he says, does not make sense. So that the propositions we seek to derive from these passages are twofold, in effect. One is that there undoubtedly was a claim of sovereignty in relation to the territorial sea to three nautical miles. It was recognised as adhering to the Imperial Crown prior to the creation of the Commonwealth. It was accepted as transferred to the Commonwealth at the creation of the Commonwealth under the Constitution. Secondly, it is clear that there are proprietary interests in relation to land below the low‑water mark which would be recognised in courts, whether they arose by way of an exercise of statutory power or by the prerogative to which Justice Mason expressly referred in the passage to which I took your Honours.

Might I take the matter one stage further.  In Keyn’s Case, to which I will not take your Honours, the Lord Chief Justice at page 199 discussed the concept of mining below the low‑water mark, which your Honour Justice Callinan raised this morning, and appeared to accept that occupation acquired by mining in land otherwise unappropriated:

if capable of being appropriated, would become the property of the first occupier.

So, even Keyn’s Case, we would say, is not inconsistent with the proposition that common law was able to accept the existence of proprietary interests below the low‑water mark.

McHUGH J:   Did not some of those mines in Cornwall extend well out?

MR BASTEN:   They did, your Honour, yes.  There are numerous examples of that.  We tried to put together some references in relation to the other matters to which your Honour referred before about common law interests in salvage, flotsam, jetsam and so on.  Might I take the opportunity, rather than reading the passages to your Honour, simply to say that in Robinson v Western Australian Museum there is a lengthy discussion.  I think most fully in the judgment of Justice Jacobs in that case – and perhaps I can give your Honours the reference tomorrow to those concepts.  I am sorry, I made a note of them.  I have just mislaid them for the moment.

Might I say one other thing before I finish today, your Honour.  When we come to the next appeal there will be an important question as to the relationship between the so‑called public right to fish and the interests of the native title holders in fishing in their sea country.  The underlying premise of the argument put against us will be that since Magna Carta the common law has not accepted the ability of the Crown in exercise of its prerogative to create interests of a proprietary nature which are exclusive of that public right.

All of the authorities which support that proposition, including Attorney-General for British Columbia [1914] AC, accept the proposition, as we understand the Commonwealth does, that that public right extends to the high seas.  If the Commonwealth’s proposition as they put it this morning is correct, namely that the common law can recognise a public right but not a private right beyond the low‑water mark, those who spent so much effort in establishing the rights under the Magna Carta were engaged in an exercise in futility so far as the high seas were concerned.

They obviously thought, and they thought on the basis of existing proprietary interests, that the Crown in exercise of its prerogative could create such proprietary rights in the high seas and that was the whole purpose of the protection they sought.  That purpose becomes futile if the Commonwealth is correct and that is the point that I will develop tomorrow morning if I may.

GLEESON CJ:   All right.  We will adjourn until 10.15 tomorrow morning.

AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 7 FEBRUARY 2001