Commonwealthv Yarmirr & Ors - Yarmirr & Ors v NT

[2001] HCATrans 12

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

NORTHERN TERRITORY SEAFOOD 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

NORTHERN TERRITORY SEAFOOD 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 FRIDAY, 9 FEBRUARY 2001, AT 9.32 AM

(Continued from 8/2/01)

Copyright in the High Court of Australia

________________

GLEESON CJ:   Yes, Mr Lloyd.

MR LLOYD:   Your Honour, the position I had reached yesterday afternoon was in relation to the first point I wish to develop from the Commonwealth’s submissions, that point being that the findings of fact by the trial judge provided no basis for the appellants’ submissions.  The point I had reached was that it was common ground as between the parties that these matters have to be determined on the evidence according to the traditional laws and customs.

In my submission, that would involve naturally a consideration of who, and the obligations that arose under those laws and customs, were directed to, that it was open and appropriate, contrary to the appellants’ submissions, for the trial judge to consider whether, on the facts, the laws with the Aboriginals, appellants in this case, were, in fact, directed to people other than Aboriginals and that his Honour did consider that question and found that it extended beyond the community concerned to other Aboriginal persons, but not to non-Aboriginal persons.

GAUDRON J:   But did his Honour even find that?  Was there not something about there was general permission – it was said general permission – but seemingly Aboriginal people who lived on Croker and the other islands, who were not part of the native title claimants, were able to travel to and from each island?

MR LLOYD:   Absolutely, your Honour.  My next point is his Honour was looking appropriately at the ambit of the permission system and then he turned to the question or concluded with what was the impact of that permission system and he found that that permission system was insufficient to support any exclusive rights.  That is at page 2048 of volume 8 of the appeal books.  Now, perhaps it is appropriate at this point to start earlier.  At page 2035 paragraph 101 his Honour observes that ten rights were raised by the anthropologists.  They:

do not expressly include a claim to exclusive possession, occupation, use and enjoyment –

although, as he says over on page 2036, the sum of the claims may well justify, if they be established, the claim made by the appellants in the determination which was, in fact, exclusive possession, occupation, use and enjoyment.

Now, the particular integers or elements of the rights that his Honour considered was the claimed rights at the top of that page 2036:

the right to make decisions about all aspects of the estate, the right of free access to the estate, the right to control the use of and access to the subsistence and other resources of the estate and the right to close off areas of the estate –

What his Honour then does in the succeeding several pages is consider each of those rights in turn.  The first one is the right to make decisions.  He considers that and finds, in substance, that what is established is that in the past 20 years or so, on several occasions, the appellants have sought to be consulted and have been involved in decision making in relation to the estate. 

Now, paragraph 07 on page 2041 – this is a paragraph which my friend put quite some stress on.  In my submission this is, as it were, his Honour’s conclusions in relation to this first aspect, the claim to make decisions, and his Honour accepted that there had been evidence which established that – certainly in recent times it has been “consistently asserted”, however, his Honour considered that there was no evidence to suggest that such a right would have ever been asserted “in pre-contact times”.

I note, also – this is in the middle of the paragraph – there is a sentence:

But whether there was ever an occasion in pre-contact times for the applicants’ ancestors to assert this particular right –

and that right is distinguished from the right to control access -

is not a matter upon which there is any evidence –

On that basis, because as my friend said yesterday, his Honour approached the question as a matter that the rights needed to be established, and we would say correctly, from pre-existing rights, that is to say, rights that existed prior to the acquisition of sovereignty, this right was not established.  His Honour at paragraph 108 noted “the right of free access”.  That right was established.

GLEESON CJ:   I assume that you rely upon the third-last sentence of paragraph 107 which I think was the subject of some discussion yesterday.

MR LLOYD:   Yes, your Honour, I do rely upon that paragraph.  At paragraph 109 on page 2042 his Honour then considers the next on that list of rights, which is the right, in effect, to exclude.  His Honour considers that the permission system is not obviously all‑embracing.  His Honour considered that that system, whatever later he considers it to support, is only directed to Aboriginal people, the appellant and other Aboriginal people, that it is not necessary to seek permission on every occasion.  Then at 112 to 113 his Honour considers the right to close off areas.  At 114 on page 2047 his Honour notes the conflict on one aspect, which I suppose affects the last two rights, that there is a conflict in the evidence as between whether or not it is directed solely to Aboriginal people or also to non‑Aboriginal people.

At paragraph 115 his Honour comes to his conclusion.  His conclusion in the first sentence, in my submission, is a rejection in substance of the claim to the exclusive element of the right.  He does that because at the highest the evidence does not support the claim to exclusive possession, occupation, use and enjoyment that had been made.

However, as the Court is obviously aware, his Honour did accept one of the sub-integers of the right, which is the one dealt with in paragraph 108, that the appellants had made out access to the claimed area and they had a right to access the area, but it was non-exclusive.  That particular element did find its way into the determination.

In my submission, on a fair reading of the reasons as a whole – I will take the Court to two further passages – it is abundantly clear that the trial judge did not accept any right to exclude whatsoever.  He did not accept that the permission system could support that.  That is what he means at paragraph 115, but that can be tested and shown on two further occasions.  If there had have been a right to exclude, as my friend suggests, it would have been necessary for his Honour to consider whether or not the public rights, as it were, overrode the right to exclude.  It would have been necessary to consider whether the fishing legislation overrode the right to exclude.

Now, those questions were, of course, addressed by his Honour, starting at paragraph 128.  On page 2056 there is some general discussion.  I turn then to page 2061.  At paragraph 134 on that page his Honour talks about the public right of navigation and at this stage he is still talking about claimed rights, the claimed rights of exclusive possession.  Then on the next paragraph – and he says that could not resist the public right of navigation.  He comes to the same conclusion at paragraph 135 in relation to the fishing rights.  In paragraph 136 he sets ‑ ‑ ‑

KIRBY J:   Could I just ask you a practical question, and it may come from my lack of understanding of all of the details, but when one looks at what is called his Honour’s “determination”, which is on 2092 and 2093, and he lists the native title rights and interests that he considers have been established in paragraph 5, and following these passages that you are taking us to, there is no right to exclude.  Is there any practical value at all to the Aboriginal people, the claimants, in those determinations that his Honour made?  I mean, they could go on fishing and hunting and gathering and so on, as they have from time immemorial.  Was there any economic value to them of that determination, or was the real substance of this claim and the real battleground the question of exclusion and, therefore, the power, as other property holders have, to exact compensation for the taking and licences or benefits or payments for the intrusions?

MR LLOYD:   I suppose, your Honour, it would be fair to say that the Commonwealth’s position was, of course, as you have already heard, that they would be entitled to no native title rights offshore.  In relation to the facts, the position  ‑ ‑ ‑

CALLINAN J:   Is not the benefit this, that licences and other things that might be intrusive to these people could be granted to anybody else at all;  that if there were any grant that interfered with, for example, the relief given in 5(a) on page 293, then the Aboriginal people would be overly compensated.

GLEESON CJ:   And does not section 211 have an impact; section 211 of the Native Title Act?

MR LLOYD:   Perhaps, I should have started the answer to my question the other way around.  It is not denied by the Commonwealth that non‑exclusive rights would have value to the appellants, especially as a result of the Native Title Act.

CALLINAN J:    Might not be a huge value, but it could be significant, the right to do this for in perpetuity.

MR LLOYD:   Well, it would be significant for them for a number of reasons.  They would have the advantage of the right to negotiate.  Anyone who wanted to do anything in the claimed area, they would then  ‑ ‑ ‑

CALLINAN J:   Well, only if what they wanted to do in the claimed area would interfere with what they were doing, for example, for their personal domestic or non‑commercial communal needs, but if it did do that, then there might be a right to insist on negotiation and if that were intruded upon, there would be a right to compensation, and as his Honour the Chief Justice points out, section 211 operates.

MR LLOYD:   Yes, well, I agree with your Honour Justice Callinan that that is the ambit of what would need to be shown to be affected in order for them to have the right to negotiate, but nonetheless, I hazard a guess that the appellants would still consider that to be of value to them.

CALLINAN J:   No, it has; it could have real financial value, I would think. 

MR LLOYD:   Certainly.  I mean, they sustain part of their diet on the basis of these fish, and it is not denied that the rights that were found by his Honour Justice Olney could be considered by them to be valuable. 

KIRBY J:   Yes, I just wondered whether the way in which we have approached the matter in – I suppose, logically, it was appropriate to take D7 first, because if your arguments there are correct then that is the end of the matter, in a sense.  Whereas D9 takes us into whatever is - what may be the real substance, economically, of the claim.  You have to get over the D7 threshold first.  But, anyway, thank you for answering that. 

HAYNE J:   Before you go on, Mr Lloyd, the structure of the judgment that you have been taking us to seems to me, at least, to owe a deal to the way in which the anthropologists had put the ten claimed rights.  Is that right? 

MR LLOYD:   I certainly could not disagree that it was affected by that, your Honour. 

HAYNE J:   Yes, those ten claimed rights appearing at pages 1611, 1612 of volume 7. 

MR LLOYD:   Yes, your Honour.  It is also set out, I think, by his Honour earlier in his judgment. 

HAYNE J:   Yes. 

MR LLOYD:   On page 2062, after considering the two public rights, his Honour begins paragraph 136 with the expression:

Quite apart from the conclusions just expressed, the evidence does not establish the existence –

as it were, of “exclusive” rights.  So, his Honour is not saying here that they did have some level of exclusive rights as between Aboriginals but it could not exist in parity with the public right to navigation; he is just saying, on the evidence, they do not have exclusive rights. 

Then his Honour considered whether or not the fishing legislation would extinguish any native title rights.  The argument had been put by the Commonwealth that the fishing legislation was inconsistent with any right to exclude persons from fishing in the region.  My colleague, Dr Perry, will address that issue today.  I do not need to address the substance of it.  I just ask your Honours to turn to page 2073.  This is the very conclusion his Honour makes in relation to the fishing matters.  Paragraph 154 recites various conclusions on his construction of the legislation.  The last two sentences of paragraph 154 read:

Nothing about the history of the legislative and administrative control of fishing in relation to the claimed area is indicative of an intention to extinguish a non‑exclusive, non‑commercial native title nor to create inconsistent third party rights. 

GLEESON CJ:   Is it the case that there was an argument here that cut both ways?  The more extensive the rights, the easier it would be to conclude that they collided with the fishing legislation, and the more modest the rights, the more easy it was to conclude that they did not collide with the fishing legislation.

MR LLOYD:   The only argument was that there was a collision if there was a right to exclude, a right to control access.  It was not argued that their right to fish was inconsistent with the fishing legislation, only that their right to exclude others from fishing was inconsistent.

GLEESON CJ:   Why did his Honour need to consider this issue?

MR LLOYD:   In essence, that is precisely my point.  He does not need to consider it.  He did it because, I suppose, he heard some hours of argument on the beauty of fishing legislation, but he comes to the end and says:

The native title rights which have been established by the evidence are capable of co‑existence –

which, given his previous sentence, must mean the evidence only establishes non‑exclusive, non‑commercial rights, which is, of course, what he found.

KIRBY J:   Presumably he had to deal with it because a submission was put that this extensive fishing legislation would even have been inconsistent with the rather modest set of rights that he ultimately determined in paragraph 5 on page 2093?

MR LLOYD:   I am sorry, your Honour.  I think I may have inadvertently misled the Court.  The Northern Territory, I am reminded, actually argued that the fishing legislation completely extinguished the native title.

KIRBY J:   Yes.

MR LLOYD:   As a result, he had to consider the fishing legislation to consider that question.

KIRBY J:   Was that a point of difference between the Commonwealth and the Northern Territory, was it?

MR LLOYD:   Yes, it was, your Honour.

KIRBY J:   You did not suggest that but the Northern Territory did?

MR LLOYD:   Yes, that is right, your Honour.

KIRBY J:   There seems to have been a bit of disharmony between the Northern Territory and the Commonwealth in these submissions.

MR LLOYD:   I do not know that I should comment upon that, your Honour.

KIRBY J:   I am still trying to puzzle out why but, no doubt, it was legal analysis.

MR LLOYD:   I am sure it was, your Honour.  That brings me to the position that, in my submission, on a reading of his Honour’s reasons, there simply is no support for the proposition that the paragraph at the bottom of page 2044 over to 2045 can be read as an independent finding that the appellants had an exclusive right, vis‑a‑vis, Aboriginals, to control access to the area.

GUMMOW J:   Now, Mr Lloyd, you took us to paragraph 154.  Some of us are wondering about 136.

MR LLOYD:   The point in relation to 136 was that once again his Honour found that, independently of the public rights, the evidence did not give rise to an exclusive right.

HAYNE J:   But his Honour explains that and goes on and elaborates upon that, it seems to me.

MR LLOYD:   Yes.

HAYNE J:   It seems to me, at least, 136 may have some quite significant importance for present purposes but everybody resolutely ignores it.

MR LLOYD:   Well, I certainly do not ignore it, your Honour, but paragraph 136, what his Honour sort of goes on to say is in very similar terms to the second sentence of paragraph 115.  That was the point that I made when I mentioned 136.

HAYNE J:   I will not dwell on it if you do not want to, Mr Lloyd, but the fact remains that at about line 4 of 2063 his Honour speaks of “use . . . for the purpose of passage”.  His Honour speaks later in that same paragraph of the permission system, describing it as:

on occasions . . . one subgroup . . . of another subgroup or Aboriginals from other areas –

seek permission, and it is notable what permission they seek:  “to hunt, fish or gather”, not to traverse.  Now, as I say, it would seem to me to be a paragraph of some importance but if it is not, then no doubt I should be told that.

MR LLOYD:   I certainly do not suggest it is not, your Honour, but I had in the arguments I propose to develop a separate point which was to say simply that on any view of the evidence, on the most generous view to the appellants, the case could not support anything more than a right, an exclusive right, in relation to fishing, hunting and gathering.  My point, however, is that it does not even support that, because his Honour did not say that the permission system was enough to find that exclusive right.  Because it was only on occasion, it was not a thorough requirement.  At paragraph 115 his Honour does not refer to it in terms of a right.  He speaks about Aboriginals deferring to the claims of others “to the extent that on occasions permission is sought”.  In my submission, that is consistent with the previous sentence of his Honour that there is no exclusive right.

Now, it is my submission that the appellants’ case, the appeal is based entirely on the proposition that his Honour found that there was an exclusive right.  That proposition is based primarily upon the sentence at the bottom of 2044 to 2045.  That sentence is inconsistent with both paragraph 115 and what your Honour has just observed, paragraph 136, because the sentence read alone would say that they should seek permission before entering the estate, but his Honour did not even find that.  His Honour found that the permission system was not that expansive, which supports the view that I put yesterday that all that sentence is saying, at the bottom of 2044 over to 2045, is identifying the subject matter, which is what the paragraph begins with, that it is Aboriginal people and not non‑Aboriginal people who are the subject of the permission system.  He then separately concludes the permission system is itself inadequate to support an exclusive right.

If the Court is with me on that point, it is my submission that what would naturally follow is that none of the issues raised about public rights, about the right of innocent passage, need even be got to.  This is simply not a vehicle which raises those issues, because there would be no exclusive right which would touch upon or call for the Court to address those issues.

KIRBY J:   Is there a fallacy in this, and I raised this yesterday, I think, that of course before the arrival of settlers, the law of the Aboriginal people and the rights would only be addressed inter se and maybe occasionally to intruders from Indonesia, but that the essence of the law would be the exclusion of strangers.  When the strangers came and they had guns, then you could not enforce that law against them but, once the common law recognised the title, then the fact that originally it was just vis-a-vis Aboriginals is really simply historical, because that is the environment in which Aboriginal law and custom operated.

MR LLOYD:   I suppose there are two things to say about that, your Honour.  First of all, his Honour’s findings are based upon evidence given by the appellants about what they understand their law to be now which is, at the end of the day, even if the law used to be broader, that is what the law is understood by the appellants to be now, as a question of fact.

KIRBY J:   Just pausing there, do you accept that the question is what the law is now and not what it was in 1824?

MR LLOYD:   I do not accept that as the only test but that is part of the test.  If the law now is something less than it used to be, then it is the law now.  If, however, they never ever had the law and it is some expansion of what it used to be, then, in my submission, that would not be supported by the common law.

GLEESON CJ:   The fallacy to which his Honour Justice Kirby refers might exist if his Honour had made different findings of fact in relation to some other aspects of the matter, but, for example, if he had found that the permission system was of a breadth contrary or different from that which he actually found, then the problem might have arisen.

MR LLOYD:   It may have, although the other answer I would proffer to his Honour Justice Kirby’s question is that, in any event, this is not a situation where prior to contact there was just this closed community and so, therefore, it was defined in itself.

At page 2002 the evidence relating to the Macassans is set out.  That evidence is not of an occasional visit.  The evidence is that for 100 years prior to acquisition Macassans, in huge numbers, had come to the area for four or five months of the year and that, as his Honour found, was not done with their permission or in accordance with their law, which leads to the next point I was going to make which is, in my submission, in any event, for a right to be recognised it must be a right that was asserted and asserted effectively at the time of the acquisition of sovereignty.

One of the people who spoke earlier took your Honours to page 51 of Justice Brennan’s decision in Mabo where he uses that expression.  I know my friend’s answer to that is, “Well, that is just about sovereignty and it does not apply in this kind of case”.  In my submission, the principle underlying his Honour Justice Brennan’s reasons is that the common law will only recognise rights at that time that actually truly existed.  So, if someone was asserting a right which did not truly exist, they did not enforce it, whether they did not enforce it or just could not enforce it, it was not a right the common law would recognise and there is a very good reason for that.

If the contrary view were taken that rights would be recognised on the basis of what they believed rather than what was actually truly existent, then there would be no obvious capacity to resolve conflicts as between different beliefs of neighbouring Aboriginal people.  For example, it would be possible for two Aboriginal groups to both believe that they had the right to control access to the same area.  Now, they could not both have that right.  The common law could not recognise that they both had that right and, in my submission, that is why his Honour Justice Brennan required this asserted and asserted effectively test at the time of the acquisition of sovereignty.

What his Honour Justice Olney found was that they did not have that power, did not have that capacity, had not asserted the right at that time, vis‑a‑vis the Macassans.

GLEESON CJ:   But from one point of view, the evidence referred to in paragraphs 52 and 53 on page 2002 and 2003 is simply an illustration of the more general point that is being made in the third‑last sentence in paragraph 107, that is:

The very nature of the sea renders it inappropriate to strictly apply concepts such as possession and occupation ‑ ‑ ‑

MR LLOYD:   I would accept that as well, your Honour.  I note also paragraph 121 on page 2053, just where his Honour made the findings that the Macassans did not seek permission in relation to their presence or use of sustenance resources for those periods when they were there.

To address a matter which your Honour Justice Gaudron raised earlier and has arisen this morning is the question of the development of rights since the time of acquisition.  It is not the Commonwealth’s position that the rights are absolutely static.  The position is this, that the acquisition of sovereignty brought about an important change to the legal system of the Aboriginal Australians, namely, that they ceased to have a capacity to create rights under law.  Their legal systems may have continued in fact but, not being sovereign any more, they could not create laws that would create rights or affects other people’s rights.  So in that sense laws can evolve over time but only within the ambit of the laws that existed at the time of the acquisition of sovereignty.

So, for example, in this case there is a communal title, his Honour found, to a non‑exclusive right to hunt and fish.  It would be within the ambit of traditional laws to adjust to time such that, for example, although his Honour does not note it, my recollection is there was evidence that in this community only men can hunt for dugongs.  It may be that in the fullness of time their traditions may evolve to a position where women can hunt for dugongs.  That would be within the kind of change which, in my submission, his Honour Justice Brennan was talking about as an evolutionary change.  It would not allow a position where there was no effective right to control access to evolve into a position where there was an effective right.  That would mean that the appellants must have had, for that new right to be created, some sovereign power to create a law that would give rise to that right.  It is the Commonwealth’s submission that they have no such power.

KIRBY J:   Is that to stamp on Aboriginal society concepts of the way law is made, institutional concepts, concepts of sovereign power that are simply like anthropomorphism, as it were, seeing what is other features of our own system?

MR LLOYD:   I certainly do not mean to do that, your Honour.  My point is simply not how they make their law but what the impact of the acquisition of sovereignty and the bringing of British sovereignty was on them.  They may have whatever system they have to change their law but, if they purport to change their laws in a way that would affect other people’s rights or create new rights, then it is my submission that they have no sovereign power to create such rights.  However their institutions work, they just do not have the sovereign power to create new rights, and that is the import ‑ ‑ ‑

KIRBY J:   Is it that they do not have the sovereign power or that our common law will not recognise any purported attempt by them within their own world?  This is two orbits here and they have within their orbit as much power to do things as Aboriginal society permits.  It is just that our law will only give a limited recognition to it.

MR LLOYD:   I think, your Honour, that the Commonwealth would have to separate with your Honour from there. It is the Commonwealth’s position that only people who have sovereign power derived under the Constitution, in effect, from the Crown have the capacity to create rights. Now, as between themselves, if they have a communal title to hunt and fish, then the controllers of that communal title can say who can hunt or fish. That is a separate sort of issue which does not involve the affectation of other people’s rights, it does not involve the need for sovereign power.

But to the extent which it might be suggested that they can evolve rights which are entirely different to that which they had at the time of the acquisition of sovereignty, it is the Commonwealth position that they simply lack the power under our law.  Our law would not recognise that they could do that, as a result of which they could not do it, is my submission, your Honour.

KIRBY J:   You ultimately came down to what I think I was putting to you.  They can do what they want in their orbit.  It is just that we will not recognise it if it interferes with the rights of other Australians and other international persons.  We will not give it the recognition of the common law.

MR LLOYD:   Perhaps to that extent, there is no difference then, your Honour, between us.  The third proposition is that it is submitted that the evidence did not support exclusive rights throughout the claimed area.  I do not propose to develop this in any length.  It is set out in paragraph 2.7 of the Commonwealth’s submissions.

It relates to two matters.  Firstly, the references and the arguments set out there support the proposition that his Honour would not have found exclusive rights because of the evidence against it; but also it relates to another proposition I will come to later and perhaps should foreshadow, which is that should the Court agree with the appellants in this matter, that they have established some measure of exclusive rights, it is the Commonwealth’s submission that his Honour did not deal with an entire line of argument which was raised before him which was where the limits of exclusive rights would be.

The argument was put strongly – well, perhaps I should not say strongly – the argument was put by myself.  It does not actually find its way into his Honour’s reasons, so maybe it did not impact on him that much, but in the end, his Honour did not need to decide where the limits of exclusive rights would be.  His Honour Justice Merkel said that he obviously differed from the Commonwealth’s position, but he was also of the view that the matter should, if the appellants were successful, go back to a retrial on issues as to where any exclusive rights would be because they surely could not be through the entire claimed area.

The references referred to in paragraph 2.7 support that.  In particular, I note the statement by Mr Wauchope, a senior spokesman for one of the clans, who indicated that no one had ever spoken of sea rights in the deeper waters.  In my submission, if a senior spokesman is unaware that they have rights in the deeper waters, that would indicate that there simply was no permission system there.  He never gave permission, presumably, and never sought permission to go there.

I have covered the fourth point.  The fifth ground, which I do not propose to deal with at length, unless the Court should wish me to do so, is that the appellants misconceived the nature of native title in so far as they contend that it is sufficient to show a usufructuary right in order to imply that there is an underlying right of exclusive possession.  This, of course, will come up more fully in the Ward Case.

I simply note that at footnote 59 of the Commonwealth’s submissions there is a list of references from virtually all of the Justices of this Court which have adhered to the view that the content of native title there is according to the facts that are established on a case-by-case basis.  It is the Commonwealth submission that implicit in that proposition is that there is no underlying right of exclusive possession, otherwise it would be entirely unnecessary to have made that observation.  It would be unnecessary to indicate that the content varies.  It would be just enough to show that native title existed and then they would have full exclusive rights.

That is not what any of the Judges in this Court have, in my submission, said.  In essence, the Commonwealth submits that as, your Honour Justice Gummow indicated yesterday and has indicated earlier in Wik, and perhaps other cases, that in the same way that rights that depend upon statute do not require or depend upon in any way the logical postulate of the radical title, they just have force as of their own right, the effect of the common law is to recognise native title rights in relation to land and waters as of their own right.  Whatever the rights are, under the Aboriginal laws, they are recognised for what they are.  The common law does not impute or suggest or add anything to those rights.  It is simply recognition.  If, of course, the appellants can show, in any particular case, that they have in fact an underlying title, that is because they have shown it on the facts, not because the common law has implied a right they have been unable to show on the facts. 

CALLINAN J:   Does the Act in fact enlarge, or have any capacity to enlarge, the rights? 

MR LLOYD:   When your Honour say “the rights” ‑ ‑ ‑

CALLINAN J:   It has been suggested that that may be the case. 

MR LLOYD:   In my submission, the Act works in this way:  that, first of all, there needs to be recognition by the common law. 

GUMMOW J:   What does that mean?  It is just a word at the moment.

MR LLOYD:   “Recognition by the common law” means that, from the time of the acquisition of sovereignty, there were rights that relate to land and waters which the common law would enforce by way of legal and equitable remedies.  Those rights must have been maintained by the claimants maintaining a connection to the land and that their traditional laws ‑ ‑ ‑

CALLINAN J:   I understand all of that, but that is not the question I am asking.  Does the Act in fact either enlarge, or have the capacity to enlarge, the rights? 

MR LLOYD:   What I was trying then to say, your Honour, was that when the Act was passed – depends on when you say “does it enlarge the right?”  It confers additional rights, for example, the right to negotiate.  It also, by sections 47, 47A and 47B, allows certain native title rights which have been extinguished, for the act of extinguishment to be disregarded by the court. 

CALLINAN J:   For the rights to be revived, in certain circumstances. 

MR LLOYD:   Yes.  That is the effect of the legislation.  So, to that extent, maybe you could say that the Act extends life to rights that would otherwise be extinguished, but, in my submission, the Native Title Act does not extend the content of native title rights.  I have already foreshadowed the submission in relation to ‑ ‑ ‑

KIRBY J:   What was therefore the meaning of the preamble “the rights and interests under the common law need to be significantly supplemented”? 

MR LLOYD:   What that means, your Honour ‑ ‑ ‑

KIRBY J:   Was that just window-dressing, was it? 

MR LLOYD:   Certainly not.  It has been significantly supplemented in two ways.  First of all, there is the right to negotiate, which is a right enormously valued by native title holders.  And, secondly, a greater protection against defeasance provided by that, which is a very significant supplementation of the rights as recognised by native title. 

CALLINAN J:   There is a restriction on defeasance, is there not?

MR LLOYD:   Precisely, your Honour.

CALLINAN J:   There cannot be any alienation but that is because under traditional law alienation was impossible.  Is not that right?

MR LLOYD:   That is right.

CALLINAN J:   So that is doing no more than recognising something in the nature of the right pre‑contract anyway or pre‑common law.

MR LLOYD:   No.  I think, your Honour, that the Native Title Act would go further than simply recognising that it cannot be alienated.  It prohibits, apart from anything else, the States and the Commonwealth from extinguishing rights in a great many circumstances which would otherwise or could otherwise have done so.  Possibly the Racial Discrimination Act offered some protection.  The Native Title Act offered additional protection and especially protection from Commonwealth ‑ ‑ ‑

CALLINAN J:   It may or may not raise a constitutional question.  I mean, I am not suggesting it arises in this case but in some case it might.

MR LLOYD:   It may do, your Honour, but I do not propose to address it.

CALLINAN J:   No, and I am not asking you to.

MR LLOYD:   I do not need to address the question of subsoils any further.  I rely upon the written submissions in relation to no right to trade.  The Commonwealth understands it has not been pressed as a separate right but is dealt with at 2.18 to 2.20.

In relation to what my friend said in relation to the draft determination, the draft determination is only put down as an alternative order.  The Commonwealth relies upon its criticisms of that draft determination in its written submissions.  It submits that should it be unsuccessful when resisting the appeal the matter should be remitted for a determination to be determined finally by the trial judge rather than for this Court to do so.

Perhaps I should also note that in so far as the definition of “waters” will include airspace, that was not something found by his Honour and obviously the Commonwealth would resist any suggestion that the appellants owned the airspace over the claimed area or could prohibit or control access to that airspace whatsoever.

KIRBY J:   Remember that yesterday Justice Gaudron raised the question of the freedom of movement within the Commonwealth, which is a constitutional norm.  I do not think that has been, as it were, debated below but, nonetheless, in considering what the common law of Australia is, Longley and many other cases make it clear that it cannot develop in a way that is antithetical to the Constitution. Is there anything that you wish to say on that matter or is Dr Perry going to deal with that?

MR LLOYD:   I must say I would gratefully allow Dr Perry to deal with that question.

HAYNE J:   That is the joys of speaking third.

MR LLOYD:   Should the Court have any further questions of me I am happy to address them, but otherwise I will hand over to ‑ ‑ ‑

GAUDRON J:   Should I ask you or Dr Perry about paragraph 6 at page 293 of volume 8?  It is the order of Justice Olney.

MR LLOYD:   Page 2093.

GAUDRON J:   Sorry, yes.

MR LLOYD:   What was your question exactly, your Honour?

GAUDRON J:   First of all, I am not too sure what the paragraph means.  I would want assistance in that and secondly, given, if his Honour’s determination otherwise stands, is that necessary and is it any more than a hint of a suggestion of things that may hereafter develop?  I just do not understand what is said.

MR LLOYD:   I suspect, your Honour, that – well, if I take your Honour to section 225 of the Native Title Act as originally enacted, it requires a determination to include:

the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests.

Now, it might be said fairly that paragraph 6 is not profoundly descriptive of the nature and extent of those other interests, but, in essence, it was meant to be a simple summary that they are the other interests, basically statutory interests.

GAUDRON J:   Thank you.

GLEESON CJ:   Yes, Dr Perry.

MS PERRY:   Thank you, your Honour.  What I would like to do is to stand back from the detail of the cases which are analysed in our written submissions and to focus primarily upon the critical concepts and principles on which we rely.  It would perhaps be convenient for the Court if I began by giving the Court a short summary of those propositions.

First, the public rights to fish and to navigate are an expression in terms of right of two fundamental concepts.  The first is the concept that such waters are incapable of appropriation by individuals and even by the Crown.  They cannot be the subject of rights of exclusive possession.  This principle derives in part from the physical nature of such waters.  The second is the policy which also ‑ ‑ ‑

McHUGH J:   But was not the King or the Crown regarded as in possession and occupation of the waters, and, as I mentioned yesterday, did it not have practical effects in the running of actions?  The King could not make any claim in respect of land or possessions without office found.  You had to summon a jury and the jury had to find that the King was entitled, unless the King had some record proving title.  But in the case of any intrusions in relation to the sea, it was the contrary.  The King could simply bring a writ, an information of intrusion, which was in the nature of an action for trespass; did not have to prove a title because the King’s title was presumed and anybody who set up a title against the King in respect of the sea or anything in the sea or the seabed had to prove a title to it; is that not so?

MS PERRY:   We would depart from your Honour in so far as we speak of a title to the seabed which comes by way of the prerogative and in some way divorced from the common law.  In relation to the specific proposition that at some point in time the Crown was regarded as being both owner and in occupation of the seabed off the territorial coast we would say that that doctrine derived from the doctrine of the narrow seas which arose out of England’s claims in the 16th and 17th century to extensive areas of sea territory in common with other nation states.

McHUGH J:   But did it not also apply in respect of any other territories within the King’s Dominions?  If an island suddenly erupted, as they had around places in the Yorkshire coast, the King was regarded as owning those islands because it was part of his subsoil, that is the soil of the sea.

MS PERRY:   Your Honour, I appreciate that within the King’s domain the King did own the subsoil in areas, for example, such as the tidal navigable rivers and those areas and they were held, as I will come to in due course, under a public right, or subject to the public rights.  I think our point of departure lies really in this question of whether the Crown owns the seabed beyond the low‑water mark.  If it would be of assistance to your Honour, as we have not had an opportunity overnight to explore properly the concepts that your Honour is raising, we would ask to put in a short paper with some of the references to the matters that your Honour is raising.  We would be very happy to do that.

McHUGH J:   Yes

MS PERRY:   If I may come back, then, to the concepts which we say underlie the public rights.  The second is a policy that such waters are open in the nature of public and in the territorial sea international highways and that the resources of the sea are open and to be shared.  These concepts have formed the essential structure of the law as it applies to the intertidal zone and to the extent to which it is applied to sea territory.  To admit of the possibility of rights of exclusive possession and occupation of the waters of the sea we would say directly contradicts these fundamental principles.  It is not a question, as I will develop, of recognising what is described as a right of exclusive occupation and possession, subject to a limited concept of the public right to navigate, of excluding, in some way, according to purpose.

Neither authority nor precedent of the common law would, in our submission, admit of such qualifications on the pubic right.  Nor, as I will also develop, does the fact that the English common law has accommodated several fisheries, at least within the limits of the realm, mean that such rights ought now to be recognised by the Australian common law.  Equivalent claims in overseas jurisdictions have not succeeded, even as against constitutionally entrenched rights, nor did they succeed, of course, in the court below or before the trial judge.

I then propose to briefly address the Commonwealth’s alternative submission that the fisheries legislation, which has applied off the coast of the Northern Territory over the last century, quite some number of volumes to read, while regulating on exclusive rights, is inconsistent with their continued existence of rights of exclusive occupation and use and such legislation has either precluded recognition of native title rights, to the extent that exclusive rights are asserted, or, alternatively, they have extinguished them.

In view of the limited time available, however, I intend to focus primarily on rebutting, in that part of our argument, certain contentions, including a number of new contentions which are raised in the submissions in reply in this appeal, but perhaps I will see where I am in terms of time at that point in the argument.  Finally, I propose to deal with your Honour Justice Gummow’s question in relation to the processes under the Native Title Act which would apply if a determination were made in favour of the appellants, if your Honour is happy for me to deal with it in that order.  I will also, if there is time, deal with a couple of other very short and discrete points.

Perhaps it is as well just to clarify at the start of the argument exactly what the claim is and where it is made.  Some of the distinctions which I wish to draw have not perhaps come out of the oral addresses so far.  The appellants’ claim is to exclusive possession, occupation, use and enjoyment of, first, the waters of the intertidal zone, and only the waters, and, secondly, over the waters and seabed beyond over an area which extends past the old three‑nautical‑mile limit of the territorial sea but lies within the 12‑nautical‑mile limit which Australia proclaimed in 1990.

Before that time, of course, between three and 12 nautical miles, the sea territory was high seas.  There was superimposed on that Australia’s contiguous zone which enabled it to exercise certain jurisdictional rights such as in relation to customs, but essentially the waters were subject to the freedoms of the high seas.  Consequently, aside from the claim to the waters over the areas between high and low-water mark, the question which is raised in this appeal will, of course, only arise if the Court should find against the Commonwealth in relation to its first appeal and to the extent that the Court should find against the Commonwealth.

The first issue which I will address is the question of whether there can be a right of the nature which is claimed.  Our first contention is that there can be no right to possession or occupation of the waters of the sea and the intertidal zone.  As their Honours Justices Beaumont and von Doussa at paragraph [52] of their reasons and Justice Merkel in his dissenting judgment at paragraph [659], the seas are not physically occupied or possessed, but they are used and enjoyed.  For these purposes we would say that there is no substantial difference between that claim and a claim framed in terms of a right to exclude others and to control access, for those elements themselves comprise the right of exclusive possession.

The principle that the seas are open and to be shared does, of course, have a very long history, as comments already from the Court have indicated.  It is referred to, for example, in the writings of Justinian and subsequently in the writings of Hugo Grotius in the 17th century.  In Grotius’ thesis, of course, he contended that the seas and the air, but primarily the seas for his purposes, were not susceptible to occupation and its common use was destined for all mankind.

KIRBY J:   It was, in fact, the source of the new international law principle that this is part of the common heritage of humanity, was it not, which has since been extended into other areas such as, lately, the genome, but also into space and, I think, the environment.

MS PERRY:   The moon treaty is a classic example of the common heritage principle being applied.  But it does arise, as your Honour says, out of these concepts which find their root particularly in Grotius’ work, which interestingly was of course originally written for commercial purposes to defend the Dutch taking part in the East Indian trade, and it was the product of a professional opinion.  But nonetheless, the concepts of which he wrote have of course endured very much and find their reflection in the common law.

Further, the physical difficulties confronted even by nation states in making a claim to jurisdiction over the seas finds reflection in the fact that originally the three-nautical-mile limit of the territorial sea was set by reference to the extent or limit of a cannon shot from the shore.  In other words, it was only to this extent, that even a nation state was considered capable of exercising effective control over the waters adjacent to its shore.

Closer to home, at least in terms of the common law, Blackstone in the passages to which the State of Queensland has referred, expressed a like view.  In common with the other elements of light, air and fire, he identifies water as incapable of absolute ownership.  Such elements as he describes in his commentaries are of a vague and fugitive language or, perhaps to put it in more modern language, are a movable thing which of its nature must remain common.

Your Honours will recall also that a similar concept was applied in relation to wild animals in respect of which only a qualified form of property was recognised.  I would refer your Honours in that regard to the decision in Yanner v Eaton (1999) 73 ALJR 1518, paragraph [24], and also to the quotation from Roscoe Pound at paragraph 29. I do not propose to read from those passages in view of the time but I do refer your Honours to them.

Your Honour Justice Callinan may recall that on Tuesday you referred to a distinction between airspace in which a title might be recognised and to the seas.  That is found at transcript reference line 1245.  Certainly, as Mr Bennett and your Honour, I understood, agreed or were of a like mind, it would seem that the landowner can own the lower stratum of airspace immediately superjacent to the land, control of which is reasonably necessary for the enjoyment of the land.  However, the upper stratum remains a common area open to exploitation by all, and in that sense analogous to the seas.

There is a useful discussion of this concept and also of the case law to which Mr Bennett referred yesterday in the article by Professor Gray, Property in Thin Air (1991) 50 Cambridge Law Journal 252, especially at pages 253 and following.  Of particular relevance at page 256 of his article, Professor Gray draws an analogy between the upper stratum and the high seas which he describes as remaining outside claims of property and “available to facilitate the commerce and intercourse of humanity”.

KIRBY J:   I see that in his article he is mainly dealing with local English cases, but within the field of international law.  My understanding is that the law of space is developed by analogy to the law of the high seas and on this theory of Grotius that this is all part of the common property of humanity, and the question which is now agitated in international law circles is:  into what other areas does this notion of common property extend?

MS PERRY:   And some of those areas are quite controversial, as your Honour would be aware, yes, but of the high seas at least, it is a settled thing.

The distinction between the title which may subsist in land and the rights which may subsist in water finds reflection in the fact that even such title as may exist in an area which is covered, for example, by tidal navigable waters has always been held to be limited to a title to the bed or the soil itself.  It has not constituted a grant to the superjacent waters.  I would refer your Honours for references in support of that proposition in paragraph 3.5 of the Commonwealth’s reply in its appeal in D7 and the accompanying footnotes.

This is not to say that under English common law it was not possible to have a several or exclusive fishery, if that were granted before Magna Carta, but that gave no right of exclusive possession over the waters which were subject to the fishery, nor did it give, of course, ownership of the fish prior to capture.  Nor even before Magna Carta did the grant of the right to the soil necessarily entail the grant of several fishery in the waters above.  Even where a right of several fishery did exist, that constituted the fullest extent of the rights which could be granted under the common law in such waters, and did not prevent the public from exercising the public right to navigate. 

At no time has the common law permitted the Crown to make a grant in tidal waters which could derogate from or interfere the public right to navigate.  I would refer your Honours, for example, to the decision of Gann v Free Fishers of Whitstable as an example of that, and the reference is [1865] XI HLC 192, especially at pages 207 to 208.  I do not propose to take your Honours to it, simply to refer your Honours to the citation.

This distinction between the types of rights which may exist in relation to the soil and those which may exist in the waters above also has its statutory equivalents, and I came across one of those in perusing the Northern Territory Fisheries Legislation a couple of evenings ago.  For example, the grant of pearling leases over land within the intertidal zone and the territorial waters under legislation in the Northern Territory vested exclusive rights to take and cultivate pearls within the area of the lease and granted exclusive possession of that area of the seabed.  But the statutory provisions expressly provided that such a lease did not grant the lessee exclusive possession over the surface of the sea, or the capacity to exclude others from that area. 

The two examples I have in mind are section 56 of the Pearling and Pearl Culture Ordinance 1964 which is found in volume 1 of the Northern Territory’s Fisheries Legislation, tab B25.  I do not propose to take your Honours to that.  Also simply to refer your Honours to the Fisheries Ordinance 1965 contained in volume 1, again, of the Northern Territory’s Fisheries Legislation, behind tab B26, and the relevant section of the Fisheries Ordinance is section 26.

The appellants’ submissions have failed to draw this fundamental distinction between the seas and the seabed.  Specifically in their reply, they contend that the existence of private interests in waters of the seas has always been well known to the common law, at paragraph 5.2(c) of their reply, and that the common law has never been troubled by any notion that the sea is incapable of possession and occupation.  But the very passage which they cite from the decision in Reg v Keyn at paragraph 5.9 of their reply itself demonstrates the failure to draw this fundamental distinction.

That passage refers only to property in the soil.  It also, of course, refers only to the area between low and high‑water marks.    In short, it is the Commonwealth’s contention that the claim to exclusive possession of the waters of the sea over the intertidal zone and beyond is not a claim, which of its nature, the common law can recognise.

HAYNE J:   How does that sit with the fact that you can have property rights in airspace, as for example, strata title to an apartment in a high‑rise building, the building is burnt down, and you still have the fee simple in that airspace?

MS PERRY:   Your Honour, we see no inconsistency between the two concepts.  The extent to which title exists in airspace is restricted to the lower substratum which is necessary to the reasonable enjoyment of the land below.  It does not apply to the upper stratums of airspace which remains an area common to use, in a sense the same as the high seas.

HAYNE J:   In the end, are you not driven to a circular argument which is that these rights are granted, these rights are not, not these rights can be granted, these rights cannot?

MS PERRY:   Your Honour, there are a number of reasons why we say that these rights cannot be recognised and one of them relates to the physical nature of territory and the nature of the relationship which exists between us as human beings and territory of that physical nature.  It is obvious that it cannot be physically occupied in the same way as land territory, more that it can be controlled in the same way as land territory.  Also we rely upon the policy which underpins these principles and that is judgment ‑ ‑ ‑

CALLINAN J:   But Dr Gray’s analysis would suggest that what airspace you may use, or occupy and own, is really measured by the capacity of the technology of the day to enable you to utilise it.  Now, current technology might allow you to build an airport right out into the sea – indeed, Osaka Airport extends out into the sea – and there are suggestions of putting airports out to sea, perhaps within the 12‑miles limit.  Why could you not get a title, if the technology allows that, consistently with the sort of title you can get for airspace?

MS PERRY:   I suppose the question of airports, perhaps, arises in a slightly different context because that would normally involve reclamation of land.

CALLINAN J:   That is just an example, but if you can have an airport, you could have a shopping centre out there.

MS PERRY:   The reason that we say that could not occur by the common law is because of the policies which underlie the public rights ‑ ‑ ‑

CALLINAN J:   I am merely suggesting your analogy with the airspace may not be a complete analogy.  You may have to demonstrate that there is, in fact, a difference.  In fact, there may not be the analogy that you seek to draw.

MS PERRY:   My argument does not need to rely on the analogy but, with respect to the question of airspace, of course, our capacity to enjoy airspace has increased as our technology has developed but nonetheless an area of the upper stratum has remained identified as an area which has to remain open to international commerce.  In a sense, the questions of airspace have really only arisen, in any event, in very recent jurisprudence because of our capacity to build high buildings and to fly has been largely limited to the last century.

CALLINAN J:   There is a balloon case of the early 19th century, is there not?

MS PERRY:   Yes, there is, yes.  Perhaps then if I might deal with the question of characterisation.  In particular, I would like to deal with the question of the public rights and the right of innocent passage and to address the question of characterisation of the rights to exclusive possession which are now claimed in a qualified form and these build to some extent upon the first propositions that I have outlined.

We deal with the question of characterisation particularly in paragraphs 3.6 to 3.26 of our submissions.  I would also refer your Honours to the more general discussion in Appendix 2 of the Commonwealth’s submissions in its appeal in No D7, which contains a history of the international legal status of the claimed area, and, specifically, at paragraphs 4 and following, we discuss the evolution of the nature and extent of the rights and obligations which exist in the territorial sea, including the concurrent evolution of the right of innocent passage with the territorial sea. 

In essence, it is now contended by the appellants that the right to exclusive possession which is claimed will be subject to the right of innocent passage by foreign ships and to a qualified form of the public right to navigate.  I will deal in due course with the qualifications, but perhaps if we just start with the simple propositions.

Even though no equivalent concessions are made in relation to the public right to fish, it is the Commonwealth’s contention, first, that even those limited concessions leave no room for rights to be characterised as rights of exclusive possession, occupation, use and enjoyment, or, as it has also been put, for a right to control access.  The difference between the right of exclusive possession and to control access seems to be a largely semantic one. 

MR BASTEN:   Yes, I think it extends to rivers too, your Honour.  It is not at all clear that it is simply based on a sort of public right to fish which is applicable in tidal waters.  None of the cases actually refer to the sea either, but I accept what your Honour puts in terms of the way that it has been dealt with and I think what Justice Kirby says is correct in relation to the reliance his Honour placed upon a line of authority going back well before Delgamuukw and the discussion in that case of rights in relation to land.  We do not seek to obtain any particular support from the Canadian authorities.  It just appears that the development of that line of authority long pre‑dated the cases which now come to Delgamuukw in 1998 and therefore ‑ ‑ ‑

KIRBY J:   But my question was addressed to what may, in a sense, be a type of policy question as to what the common law should say in Australia, what it does say.

MR BASTEN:   Yes.

KIRBY J:   It is at least arguable significant that no other settler society in its adjustment of its legal relationship with its indigenous people, Canada, the United States, New Zealand, has taken the step that you are urging us to say that the Australian common law should take. We do not have even the charter that the Canadians had to hang the common law on. On the contrary, in so far as our Constitution says anything, section 92 says that:

trade, commerce and intercourse  . . .  shall be absolutely free.

That would include on the high seas around Australia and in the coastal waters.

McHUGH J:   Section 92, the words in parentheses says, “whether by internal” transportation “or ocean navigation”.

MR BASTEN:   Yes.  This comes back, perhaps, to the right to control access.  We thought our qualification covered that aspect of the matter because we do not seek to interfere with transport through the area or passage of vessels in any way.

KIRBY J:   You do if you are asserting an exclusive right.  You do, you are asserting a right to exclude pearlers who at the moment can and do go there, fishermen, fishing vessels that do or can go there.

McHUGH J:   What about a charter boat that wants to take people from Perth to Darwin, or Perth and drop-off stops at different spots?  You would say you can stop them.

KIRBY J:   Mineral explorers.

MR BASTEN:   Your Honours give me a number of examples.  May I just take the tourist boat for the moment.  We do discuss in the written submissions the limits on the public right to navigate which is what would be relied on in that case.  We would not have thought that there was likely to be any problem with that boat complying with the conditions which attach to a public right of navigation, just as that is its basis for going over freehold estates up a river somewhere, a tidal estuary.

McHUGH J:   But if they wanted to stop, the boat would pull up along the side of some reef and would be there for three or four hours.

MR BASTEN:   I would have thought that that was squarely within the rights, your Honour.  The right of anchoring is expressly identified as one of the incidents of a public right of navigation.  A right of permanent mooring is not, so you could not put a ‑ ‑ ‑

McHUGH J:   No, but if you are using it for scuba diving or snorkelling and throwing food over the side at some of the areas, your clients would strongly object to that?

MR BASTEN:   Well, they would, your Honour, whether that was something that would be covered by any right that we have sought I doubt.  I just had not envisaged that, much as we would object, especially if it were meat ‑ ‑ ‑

McHUGH J:   Exactly.

MR BASTEN:    ‑ ‑ ‑ there is anything we can do about that.

McHUGH J:   I mean, that is why you want to keep people out because ‑ ‑ ‑

MR BASTEN:   Well, it is one of the reasons.

McHUGH J:    ‑ ‑ ‑ one of the reasons, yes.

MR BASTEN:   But I am not suggesting that we were seeking to go so far in the rights we claimed could be protected.  Fishing comes into a different category.

Your Honours, just to complete the review of the fishing legislation – I am sorry this taking a little longer than I had anticipated – in relation to New Zealand what we say at pages 43 and following is largely that the New Zealand position is still unsettled and that although the Treaty of Waitangi, again, influences the case law that has developed, as we say in footnote 178, there is pending a case in which a question as to an exclusive Maori right of fishing in the seas is being considered.

KIRBY J:   I suppose the best that you can say is that all of this is unchartered waters, unexplored territory, and all four societies and, perhaps, others are embarked upon a journey upon the unchartered seas and you can not be sure where that journey is going to take us.

MR BASTEN:   In a nutshell, that is so.  The Americans foreclosed the question in the biggest of native title claim, namely, Alaska.  The New Zealanders are hearing the case, I believe, in May in the court there, and the Canadians have dealt with it in other ways as well.

Your Honours, might I just make a number of very short points.  One was in relation to the submissions that Mr Lloyd made about the findings with respect to the permission system.  It is in the passage at 2045, to which your Honours were taken, noted by Ms Yarmirr that in a sense the permission system operates in automatic on a daily basis.

These are not people who see many strangers; they live on an island, they see each other day to day, face to face, and, as she says, there are only certain circumstances in which permission is sought.  If I failed to go, in answer to your Honour Justice Hayne, to paragraph 136 at page 2063, it was an error.  I had marked it in the material I was intending to read to the Court, but we say that the passage at pages 2044 to 2045 elucidates the basis of that aspect of the conclusion relating to the occasions on which express permission was required, which is very summarily dealt with in a conclusionary fashion in paragraph 136. 

I was going to put to your Honour some reasons why we said that even a limited right in relation to fishing was important, partly in answer to your Honour Justice Callinan’s question yesterday to Mr Jackson.  I am not sure that that has not been completely answered by the discussion both from your Honour and Mr Hiley this morning, so I will say no more about that.

In relation to Coulson and Forbes, your Honour Justice Gummow asked if there could be copies of the Commonwealth’s pages.  We refer to a number of pages also.  If it would be of assistance to the Court to have copies of that material provided, we can do that in the next two days. 

GLEESON CJ:   Thank you. 

MR BASTEN:   Two minor points.  Your Honour Justice Hayne referred to a whaling case.  I presume that was Fennings v Lord Grenville 127 ER 825, to which your Honour no doubt has a reference.

Mr Lloyd suggested that the right to negotiate in Part 2 Division 3 subdivision B applied offshore. The answer is that it does not and the Court should not consider that it does. That flows from section 24MC together with section 26A(3). And, if I might just come back to a matter which your Honour Justice McHugh raised with my learned friend, Dr Perry, we are not inclined to disagree with how your Honour put the old rule in relation to establishing rights against the Crown in the sea. Indeed, it seems to have been applied relatively recently in Fowley Marine v Gafford [1968] 2 QB 618 in Lord Justice Russell’s judgment – I think probably on the last page, your Honour, we could not get the Queen’s Bench reference this morning – but it may be that we will not disagree with anything in the Commonwealth’s proposed paper. We generally leave that to the States and the Territory, but we would like the opportunity to consider a response, if that is necessary, if the Court pleases.

McHUGH J:   Could I just ask you one question that I meant to ask at an earlier stage.  In this Court, and probably in the courts below, you have concentrated on claim to title in respect of the sea, but does that really reflect what the native custom is?  If I have understood the evidence correctly, it would appear to me that under the customary law you do not distinguish between the land and the sea, that there is a single country, so to speak, and that you have an estate which comprises both land and sea.

Now, that is quite inconsistent with any common law recognition of such a title like that.  Common law can recognise a claim in respect of land but the evidence seems to indicate that it is a single estate covering both land and sea and that there is no distinction between them from the point of view of the traditional law.

MR BASTEN:   Yes.  Your Honour, that is so.  As far as the traditional claim in this case is concerned, there is some evidence which suggests that these people who call themselves salt water people ‑ ‑ ‑

McHUGH J:   They call themselves island people.

MR BASTEN:   Or island people – would see the distinction between the bush and the waters as much more dramatic than the distinction between the hard land of the shore and the waters in which they fish, operate and so on.  I do not know that there is an inconsistency except in the fact that we accept that for the common law purposes when we need to do the exercise in translation we have to put the claims in terms which will properly accommodate the differences between sea and dry land and we do not pretend then ‑ ‑ ‑

McHUGH J:   I understand that.  That is why I asked you the question because I am not clear at the moment as to whether or not by doing that you have, in effect, rejected the essence of the traditional law claim.

MR BASTEN:   We think not, your Honour, for two reasons.  One is that the essence of the claim is that religious relationship with land to which Justice Brennan refers and that is common to the land and the seas but obviously that has to be translated into some questions of control over use or access in order to be meaningful in a common law sense.

The other aspect of the claim is fishing, hunting and gathering – the foraging, usufructuary aspects perhaps.  In the way that they are recognised, subject, of course, to the arguments we have been having, by his Honour in the determination, we do not see any distinction or inconsistency between that and what we sought to claim.  We sought to claim more but not something different.

Perhaps I might just say in that regard that although your Honour the Chief Justice mentioned it, hunting and gathering have featured very little in the discussion in the Full Court judgments, including in Justice Merkel’s, whose concentration was on fishing, and when his Honour thought it should be remitted for further evidence or the consideration of the evidence in that regard he says nothing of hunting and gathering.  We would suggest that those three elements are to be treated equally however the Court seeks to treat them.

CALLINAN J:   Mr Basten, could I just ask you one question?  I think the Act contemplates, does it not, that native title rights are inalienable?  Is that right?

MR BASTEN:   Yes, I think it is based on that assumption, your Honour.

CALLINAN J:   Indeed, I think that probably stems from what Justice Brennan said in Mabo.  He said that this was, in effect, something, I think that stemmed from the nature of the title.

MR BASTEN:   Yes.  And, the relationship of the people of the land which is one of mutual right and obligation.

CALLINAN J:   So, if you were to get exclusive rights here how could you, without alienating those rights or parts of them in some way, give people access and share around the fishing entitlement and things of that kind?  Would not that involve an alienation?

MR BASTEN:   Subject to a qualification I will come to, we would say no, your Honour, that the right is the right to control the use of the resource, fish or dugong or whatever it may be, not the actual activity of fishing or hunting.

CALLINAN J:   Is a regulation of the right rather than an alienation of it?

MR BASTEN:   That is so, yes, or a grant of permission to undertake the activity which the right envisages.

CALLINAN J:   There might in some circumstances be, perhaps, an alienation.  Care might have to be exercised to ensure that that was so.  Is the common law, or perhaps contemporary law, and indeed, I think, fairly old law that inalienability was contrary to public policy, was that the common law or does that stem from the statute quia emptores or does it have some other source?

MR BASTEN:   Depending on the nature of the interest ‑ ‑ ‑

CALLINAN J:   I asked that because I am interested in the compatibility of whether a title which involves inalienability in some fractures the skeletal nature of the common law?

MR BASTEN:   Well, I understand that point, your Honour.  I am not going to be able to do it, I think, but that was expressly addressed by the Court in Mabo in a passage which I may not be able to put my finger on, but I think it should be around page 51, where it was considering – I think, Justice Brennan considered alienability as an inherent feature of a proprietary interest under the common law and said that it was not for the purposes of native title a necessary element.

CALLINAN J:   Yes.  Is it compatible with the common law?

MR BASTEN:   That is what the Court found, I think, your Honour.

CALLINAN J:   I suppose the Court must have, otherwise it would not have held ‑ ‑ ‑

MR BASTEN:   I think it did expressly, your Honour.

CALLINAN J:   Yes.

HAYNE J:   There is another associated problem, is there not, that if you have the right to control access, the exclusive right to control access, based on traditional law which was founded in, amongst other things, gathering

for consumption and ceremonial use, it is perhaps use of a different order to say, “Pursuant to our exclusive right to control access, M.G. Kalis can come in and clean the whole prawn fishery out”.

MR BASTEN:   That may, indeed, be so, your Honour.  One of the qualifications which is sometimes expressed in determinations – I am not sure whether it is in this one – is that the rights must be exercised in accordance with traditional law and custom.  It may, therefore, follow that anything which would either alienate or destroy the underlying res, perhaps, it could not be so dealt with.  So that if one were, for example – sometimes the example is given of a development of a motel site or a hotel in a tourist development, it would be necessary to surrender the title and take back a grant in order to do that.  We would accept the condition or the restriction that is imposed by your Honour’s comment.

GLEESON CJ:   Thank you, Mr Basten.

MR BASTEN:   Thank you, your Honour, and thank you for your indulgence.

GLEESON CJ:   We will reserve our decision in this matter and we will adjourn.

AT 3.36 PM THE MATTER WAS ADJOURNED