Henville & Anor v Walker & Anor
[2001] HCATrans 13
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 WEDNESDAY, 7 FEBRUARY 2001, AT 10.17 AM
(Continued from 6/2/01)
Copyright in the High Court of Australia
________________
GLEESON CJ: Yes, Mr Basten.
MR BASTEN: Thank you. Your Honour Justice McHugh asked a question yesterday and I gave your Honour a reference to Robinson v Western Australia Museum. Your Honour probably has the reference but I said I would give you the pages to which I was referring. It is (1976) 138 CLR 283, and the particular discussion which I thought might be of assistance was Justice Mason’s judgment at 329 to 330, and in Justice Jacobs at 338 to 340. I do not intend to take your Honour to that.
Your Honour also mentioned the notion of settlement yesterday, and the acquisition of sovereignty, and I think, your Honour, Justice Gaudron asked a similar question in relation to the time at which the common law was received. This was a matter which was discussed briefly in Mabo [No 2] 175 CLR 1, and particularly in the joint judgment of your Honour Justice Gaudron and Justice Deane at pages 77 through to 78. And, as I understand your Honour’s conclusion at 78 at about point 3, it was that settlement was:
effected when, after the arrival of the First Fleet, Governor Phillip complied with his Instructions and caused his second Commission as Governor to be read and published “with all due solemnity”.
Now, we understand that your Honours were saying that that was the time at which sovereignty was established, and, of course, within the boundaries defined by the commission, itself, and that was, as it were, the legal act of settlement. That appears to be consistent with the discussion at page 31 in Justice Brennan's judgment by reference to the principles. His Honour refers to the letters patent, and also at page 34 to 35 where his Honour quotes from Blackstone.
We would have thought that, perhaps, it did not matter in this case, but that that was consistent with the approach which is outlined as a history in the article by Mr McLelland, as he then was, in 1971 volume 45 of the Australian Law Journal at 671 where his Honour dealt with the colonial and State boundaries in Australia and identified the times at which the changes occurred. The reason I say that perhaps it does not matter in this case is that we are concerned with the addition to an existing settled territory, and we would have thought that in so far as the date at which sovereignty was acquired over that by way of extension of the existing colony of New South Wales, that was a matter which would have occurred at the time sovereignty was claimed in Australia. Perhaps, I can merely note – I do not know whether I need to give your Honours a copy – but at page 672 of that article at column two Mr McLelland dealt with the extension in 1824 to cover this part of the northern coastline of Australia.
Might I also say, while we have the reference to Mabo at those pages, that I did refer your Honours, without taking your Honours yesterday, to the discussion of the Post Office v Estuary Radio principle, which was applied. The references are again at page 78 in relation to the joint judgment of your Honours Justice Deane and Justice Gaudron at the bottom half of the page and particularly footnote (95) and again at page 31 where Justice Brennan expressly quotes from Lord Justice Diplock.
Your Honours, it follows from the discussion in the Seas and Submerged Lands Case, to which I took your Honours yesterday, that the only difference identified between the effects of the acquisition of sovereignty over land and over the territorial sea was that which flowed from the qualification on sovereignty accorded by international law flowing from the right of innocent passage. Accordingly our primary submission is that the acquisition of sovereignty in relation to the territorial seas brought with it a common law as in relation to land and the qualification does not affect that legal mechanism, we say. The other proposition which I put to your Honours ‑ ‑ ‑
KIRBY J: How would one infer that? Is this on some theory of the interaction between statute law and common law or is it on some principle that has been expressed in general terms in the statutes? Why, if Parliament could have expressly provided that the common law shall apply, but did not, should a court, as it were, infer that which Parliament has remained silent about?
MR BASTEN: I think there are two answers to that, your Honour. One is the proposition derived from Estuary Radio, namely that what the courts are required to do is to recognise the claim of sovereignty, but then identify and give effect to the domestic law consequences. The second part of the answer is that that is precisely what we understand this Court to have been doing in Mabo [No 2] and the principle that Mabo established was that the acquisition of sovereignty over the land mass did not disturb the property rights, but by imposing a new sovereign with a new judicial system, permitted their protection in the common law courts or the courts as established by that sovereign and that protection was no longer available, as it were, under the existing system which had been to that extent replaced. That is the mechanism which we submit applies in relation to the seas as well.
McHUGH J: Do you accept that in this area the common law and its recognition of native title can both expand and retract? After all, the common law develops and in Mabo at page 59 Justice Brennan accepted that the common law had developed in Amodu Tijani’s Case to recognise an interest which at an earlier stage it had refused to do. If you accept that, it seems to follow that the common law can both expand and, in certain circumstances, retract.
MR BASTEN: Yes. I am sorry. I suppose my hesitation was an ingrained habit of thought about the declaratory theory of the common law, but, yes, I would accept entirely what your Honour puts.
McHUGH J: Yes.
MR BASTEN: The other aspect of the question which ‑ ‑ ‑
McHUGH J: Even if the Solicitor-General for the Commonwealth was correct in his analysis, do you see any problem of taking the step to say that in any event the common law should now recognise these interests offshore that at least are within the territorial sea and so on?
MR BASTEN: No, precisely. We do not see any difficulty in that and the reason, ultimately, is a similar reason to the policy underlying the discussion in Mabo (No 1), namely the desirability, so long as skeletal principles are not fractured, of extending in a just way the protection of the law to all citizens and what we say is the effect of a failure to recognise in the territorial sea rights of the indigenous inhabitants is an arbitrary distinction between those rights where they exist over the land mass and those rights which exist under their traditional laws and customs in relation to their sea country, and, as I will take your Honours in the next appeal, there is strong evidence that these people see themselves as salt water people whose existence and dependence for both their culture and their economy is the sea and the resources of the sea. It is the same principle of equality of treatment which will allow recognition of those rights in the sea, we would say.
May I go briefly to Attorney‑General for the Province of British Columbia v Attorney‑General for Canada [1914] AC 153. I do so for a limited purpose, namely for the proposition, or perhaps for two propositions. The first is that to which I adverted last night, namely that – and this appears in the speeches in the Privy Council at page 169 at about point 3 where it is said:
But their Lordships are in entire agreement with –
Lord Hale –
on his main proposition, namely, that the subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal water alike. The legal character of this right is not easy to define.
In other words, it was clear that the restriction on the prerogative right of the Crown to grant proprietary interests inconsistent with the public right to fish extended to the high seas. It was therefore part of that principle that there was such a prerogative power. Perhaps that is established for this Court’s purposes by Seas and Submerged Lands Act Case.
The second proposition to which I go to that case is to note that the fisheries are themselves an interest in property. May I take your Honours to page 167 in a passage beginning at about point 8, “The general principle is”, towards the foot of that page and a passage which runs over to the middle of the next page. Again, perhaps as a matter of completeness – and I will not spend time on it – those principles were, of course, accepted in a case which had nothing to do with possible native title claims, Harper v Minister for Sea Fisheries 168 CLR 314 in the judgment of Justice Brennan, with which the Chief Justice and Justices Deane and Gaudron agreed, in particular at page 329, where the relevant passages from Lord Haldane’s speech are set out.
Might I note as a matter of passing that this consequence of Magna Carta, of course, was a novel proposition. If one goes back to Magna Carta, this constraint on the prerogative power of the Crown is by no means apparent. It really only derived, as their Lordships noted from Malcolmson v O’Dea, which is referred to in the middle of page 329 in Harper, in 1863. So my point that the common law was capable of and knowledgeable of interests of a property nature in the high seas was really only established in 1863 in relation to Magna Carta. This is not some element of esoteric law.
The second aspect of Harper’s Case to which I should draw your Honours’ attention is that at the bottom of that page Justice Brennan says:
Accordingly, the right of the owner of the soil over which the waters flow (whether the owner be the Crown or not) to enjoy the exclusive right of fishing in those waters or to grant such a right to another as a profit à prendre is qualified by the paramount right to fish –
We understand his Honour would be dealing with the concept of radical title in that passage in which he certainly supposes that there might be a title in the Crown in the seas and at the next page his Honour refers to, without criticism, Lord Fitzhardinge v Purcell at about point 3 where:
Parker J held that the Crown might grant title to the bed of the sea –
and so on.
GLEESON CJ: Mr Basten, because of the order in which we are dealing with these appeals, from one point of view we may be approaching this problem from the wrong end.
MR BASTEN: Yes.
GLEESON CJ: We have not yet had to look at this, but what exactly are the rights and interest which your clients claim?
MR BASTEN: Yes.
GLEESON CJ: I am not inviting you to develop that because I realise that is the subject of the second appeal.
MR BASTEN: Yes. I was going to make a point about that, your Honour, because when we come to the second appeal there are a set of issues as to the limitations on recognition by the common law. The short answer to your Honour’s question is that we accept that the common law recognition of our rights is subject to the right of innocent passage because that is a qualification on sovereignty.
KIRBY J: By international law or by Australian law or by both?
MR BASTEN: By Australian law, for our purposes, probably by the common law prior to the Seas and Submerged Lands Act, but by that Act expressly, which contains the qualification in section 6, I think, expressly, your Honour. I may need to come to that at a later stage. What we say in relation to the public right to fish is that our fishing rights prevail over that.
GLEESON CJ: Accepting that there may be qualifications on your rights and interests, what exactly are the rights and interests which you claim under section 223 of the Native Title Act?
MR BASTEN: Which we claim or which we seek to have recognised in the determination?
GLEESON CJ: Yes, the latter. What are the rights and interests?
MR BASTEN: They are set out, your Honour, in a draft notice of appeal, which we amended and filed recently, largely to tidy up some of the drafting. Is it sufficient if I refer your Honour to that document, because we have suggested some alternative aspects of the determination? If your Honours see “orders sought” on page 4 through to pages 5 to 6 include the definition of our rights and interests as we seek to have them recognised.
KIRBY J: This is in D9.
HAYNE J: Is that identical with what you have in the submissions in D9, pages 39 and following?
MR BASTEN: In substance, yes, your Honour.
HAYNE J: But not in drafting?
MR BASTEN: Not in drafting, and we filed a copy with the drafting changes highlighted on it, if your Honour wishes to see precisely what has been done.
GLEESON CJ: The first right or interest that you claim is said to be a right to occupy, use and enjoy the waters of the determination area to the exclusion of all others.
MR BASTEN: Subject to the qualifications in paragraph 6.
GLEESON CJ: Yes.
MR BASTEN: Yes.
GLEESON CJ: Now, what do you mean by a right to occupy waters?
MR BASTEN: I am happy to answer the question now, your Honour, but it was really something I intended to spend some time on in relation to D9 as part of that argument. What we have sought to do in identifying those rights is to distinguish between occupation which we meant in a factual sense and possession which may constitute a legal translation of the traditional law and custom into common law terms and we therefore distinguish that in case it was thought there was a difficulty between those two concepts. If “occupy”, in this sense, is seen as a common law concept, then it may be subject to the same complaint. Ultimately, the rights which we say arise under traditional law and custom are probably best described as control of access to the area and control of use of the resources of the area.
GLEESON CJ: My question was prompted by the passage that you read from the Privy Council decision and from Harper and your point that since the decision in Malcolmson v O’Dea it has been accepted that the Crown could not in the exercise of its prerogative create exclusive rights of fishery.
MR BASTEN: Yes.
GLEESON CJ: Is the right that your clients claim a right that is more extensive than could have been created by the Crown after settlement?
MR BASTEN: Yes. Yes, it is, your Honour. We deal with that idea in the second appeal as it was dealt with below as part of an argument that to recognise such a more extensive right would fracture a skeletal principle of the common law. Adopting that terminology from Mabo, that was the analysis which was adopted below. But that seems to assume – indeed, I am sure it does assume – that the common law has application for the purpose of considering the recognition of such a right, and, accordingly, that issue is not properly dealt with in this appeal, we would understand.
KIRBY J: Putting it globally, and not, therefore, entirely accurately, is your client’s claim, therefore – and we will get to this in D9 – to, as it were, have exclusive right of fishing in the area claimed, but subject to the right of international and national traffic to freely pass within the space, and, secondly, subject to those fisher people and others who have licences under Northern Territory law?
MR BASTEN: Yes, yes.
KIRBY J: And does the matter include the parties to these proceedings, D7, who are pearling and other licensees?
MR BASTEN: Yes, indeed, your Honour.
KIRBY J: So you acknowledge their rights, do you?
MR BASTEN: Yes.
KIRBY J: So all you would, at the bottom line, be seeking to do as a matter of practicality and subject to any supervening, valid legislation to the contrary that came later, would be to exclude and control the entry of other pearlers and fishers who are not simply passing through, and who are not presently licensed, to enter into your sea country?
MR BASTEN: In broad terms, that is right, your Honour. One of the things we say in the written submissions in the other appeal is that, contrary to the Commonwealth’s view, the right of innocent passage and the right of navigation, for example, are purposive rights. They do not permit access for all purposes.
McHUGH J: What about the innocent fisher, the casual weekend fisherman, who wants to go out and fish for tuna or something?
MR BASTEN: Yes. We say we have a right to exclude a person who is simply relying upon the public right to fish.
GLEESON CJ: Or, in more practical terms, to make them pay you a licence fee.
MR BASTEN: That may be so. Perhaps one should explain: in the Northern Territory, unlike some southern parts of the country, they do not require licences. I mean, there is a tendency for everybody who exercises a right of fishing these days to be required to have a licence, but there is no statutory provision which gives them any particular rights in relation to any particular waters. So whilst that situation prevails, that would be the effect, your Honour, yes.
Might I say this, that the question of the rights of persons holding licences of course depends not so much on the recognition of the native title as on the future act regime, now under the Native Title Act, because the government has power to issue authority to people to do things which would impair native title. And, as we say in the submissions, it is probably section 24NA of the current Native Title Act which would need to be complied with. If that provision were complied with to give people rights of fishing in our waters, then they could validly enter for that purpose. So that the Native Title Act itself makes provision to the extent that the Parliament or the government seeks to override, as it were, or impair other ‑ ‑ ‑
KIRBY J: Does that provision provide for compensation to the native title owner?
MR BASTEN: Yes.
KIRBY J: And that is what you would be asserting: your entitlement henceforth to have that statutory benefit?
MR BASTEN: Yes, if there were impairment to that extent, yes.
KIRBY J: In respect of “foreign”, one reads of foreign fishing vessels entering Australian waters and being chased by Australian defence personnel. Is that under the basis that they are not licensed to fish under the Northern Territory statute, or some other basis, are you aware, or is that a third exception?
MR BASTEN: No, well, I do not think we make the exception specific to Northern Territory laws. The Commonwealth and the Northern Territory have a joint control over them, or joint in some areas and the Commonwealth alone in others, over the fishing zone around Australia which extends, I think, 200 kilometres, well beyond anything we are concerned about.
McHUGH J: Can I ask you, how do you seek to distinguish between the public right of navigation and the public right of fishing?
MR BASTEN: Only to the extent that they may not apply in the same waters. If they apply in the same waters, there is probably ‑ ‑ ‑
McHUGH J: But you seem to concede that there is a public right of navigation through the area you claim, but you say there is no public right of fishing?
MR BASTEN: No, that is a distinction that we seek to make in the other appeal. I can give your Honours ‑ ‑ ‑
McHUGH J: Yes. No, I was just wanting to know whether you make ‑ ‑ ‑
MR BASTEN: We do seek to make that distinction, yes, your Honour, for the reasons we have set out in the written submissions too, and ‑ ‑ ‑
HAYNE J: Just while we are at this level of generality of what you are seeking, do you use “waters” in the defined sense, that is, including the subsoil?
MR BASTEN: Yes, we have used “waters” in the defined sense in the Native Title Act. That was one of the reasons for the drafting.
HAYNE J: Thus, are we concerned with more than fishing?
MR BASTEN: Yes, indeed, yes.
HAYNE J: Yes.
CALLINAN J: Mr Basten, you mentioned section 24NA of the Act – I do not want to distract you from your argument – but under what head of power do you say subsection (7)(b) was enacted, which appears to impose upon the States, if they resume native title or acquire it, an obligation to pay compensation? Would that be the race power or ‑ ‑ ‑
MR BASTEN: I am sorry, I have just forgotten for the moment whether, if the Act is attributable to the State, there is State legislation required in order to ‑ ‑ ‑
CALLINAN J: There may be. Perhaps there is mirror legislation.
MR BASTEN: Mirror legislation, yes.
CALLINAN J: In any event, I do not want to take you off your argument. If you can help me on it later, I would be grateful.
MR BASTEN: Yes. The general principle is not new to the 1998 amendments that the current Government – I am sorry, 24NA is one of the extended future Act provisions which the present Government enacted in 1998. Before that, there were similar but no so detailed provisions. The analysis of those appears in the Native Title Act Case and perhaps I should simply give your Honour the relevant references in that because the question of compensation for impairment was considered by the Court in that case.
CALLINAN J: Thank you, Mr Basten.
MR BASTEN: I appreciate that the form of the Act has changed significantly.
Your Honours, I think prior to those comments I had said what I wanted to say in relation to our primary argument, namely, that sovereignty in relation to the territorial seas brought with it the common law. Might I, before going on to the statutory provisions which we discuss in our written submissions, make one other point, though.
The common law relevantly has two aspects. One is a substantive operation in relation to native title, which is what we say is picked up by section 223(1)(c). The other is a geographical operation which, given the terms of section 6 of the Act, we would say section 223 says nothing about. In other words, one goes to section 6 to identify the geographical operation of the Native Title Act. If our first submission is not accepted, then one goes to the plethora of statutory provisions which either declare or enact, we say, a similar result in relation to the territorial seas.
The Seas and Submerged Lands Act is the first of those. I do not intend to take your Honours to that in any detail. We say the effect of it is as indicated by Justice Mason and others in their Honours’ judgments in the case. The only point which I would draw your Honours’ attention to, which I think the Solicitor for the Commonwealth may not have taken your Honours to yesterday, is the terms of Article 1 at page 279 of the bundle provided by the Commonwealth, namely:
The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.
Article 2 refers to the air space over and the bed and subsoil below that sea. That is the basis of the statutory provision to which your Honours were taken in section 6 of the Act, which appears at page 276, and I think I need say nothing more about that.
Your Honours, after the Seas and Submerged Lands Act, there were changes made to the Acts Interpretation Act, including the introduction of section 15B in terms which provide that legislation of the Commonwealth extends to the coastal sea, and coastal sea in that context is defined in an ambulatory sense which picks up the variations which occurred over time. Section 15B is set out at page 268 of the Commonwealth’s bundle. The definition of coastal sea is at subsection (4) on the following page.
In our written submissions at page 28 and footnote 147 we refer to the second reading speech of the Attorney-General, Mr Ellicott, in relation to the reason for the introduction of that provision. We also suggest that it may be that the purpose of making express the application of Commonwealth laws to the territorial sea was actually the indication from the Court in Pearce v Florenca that the mere grant of power in relation to the territorial sea may not have meant that the statutes of the Commonwealth were therefore inconsistent with State laws. This was intended to make clear the intention of the Commonwealth statutes that they applied in relation to the territorial sea. That aspect of it is not relevant for present purposes, perhaps.
The operation which it has for present purposes is, in our submissions, that it picks up, if it were not otherwise the case, section 80 of the Judiciary Act and, thereby, makes the application of the common law provided by that Act clear in relation to the territorial sea of Australia. Might I just say in response to the Solicitor’s argument that section 80, which is set out, if your Honours are still with his bundle, at page 235, is not to be read down, we would say, by some implicit restriction that may be found in the common law itself in its geographical application by the words which appear in the fourth‑last line, “so far as it is applicable”. We would read that phrase as a reference back to the opening line of section 80, which says:
So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient –
and so on, then the common law will apply and the concept of applicability is mirrored, we say.
HAYNE J: But the reference to section 80 draws attention to the fact that asking where the common law applies, if that question is framed in a vacuum, may not be useful.
MR BASTEN: I agree.
HAYNE J: The question is, what will a court sitting in Australia do? What will it do in respect of events or claims or people that may have some territorial nexus? To ask where the common law applies is to ask a question at too high a level of that extraction.
MR BASTEN: I accept that, your Honour. In making these points I was really seeking to answer quite specific points made by the Commonwealth. We would have thought that once one has a court which by agreement has jurisdiction to deal with a matter then the only question is what law, if any, the court can apply in resolving a particular dispute.
HAYNE J: And what rights it recognises. What duties it will impose.
MR BASTEN: Indeed. The way that the Commonwealth puts that argument, as we understand it, is that in relation to the territorial sea the common law of Australia will apply so that disputes, rights and obligations giving rise to disputes in relation to matters which are personal to the parties may be resolved but that there is a principle identified by them as the lex situs which says that that cannot apply in relation to rights which arise from a relationship with land. We say that merely restates the question because the lex situs, if it has any meaning, has meaning as a choice of law rule and one simply asks again, “Well, what is the law of that place where the rights and obligations are said to have arisen” which merely rephrases the question rather than answering it.
We say that the common law is not so limited. We say that there is no authority which would so limit it and that in fact the common law applies, as the Commonwealth concedes, whatever the nature of the rights may be in the territorial sea, but we accept the way that your Honour puts the substantive question to be answered in these proceedings.
May I then just briefly note, for the purposes of answering one or two points made by the Commonwealth, the subsequent legislation because the Solicitor argues that one does not get to the operation of the common law – and I am sorry to keep putting it in those terms but I understand the argument is put in that way – until rights are expressly identified in those terms under the offshore constitutional settlement and he accedes to the proposition, as I understand it, that the 1985 Northern Territory Ordinance to which he took your Honours has the effect of allowing courts to apply the common law for the first time in relation to that part of the territorial sea which is adjacent to the Northern Territory.
He says, however, that there are no rights which can then be recognised by the common law because they have been extinguished by the Coastal Waters (Northern Territory Title) Act 1980, vesting title by section 4 in the Territory. We say three things in response to that. Firstly, the vesting which occurs under that provision is a vesting of the radical title in the same way that radical title was vested in the Territory pursuant to the Self-Government Act, and think Justice Gummow referred yesterday to Newcrest. The passage specifically upon which we rely is at 190 CLR 513 is the beginning of the case and your Honour made that express at page 615 in the first full paragraph in the judgment we understand other members of the Court concurred in.
Might I say then just by way of parenthesis that this vesting took place after the commencement of the Racial Discrimination Act on 31 October 1975. If, as the Commonwealth says, the vesting had an effect in relation to native title or could have had such an effect, then one must be conscious of the operation of sections 15, 229 and 232 of the Act. If the act in any way impaired or extinguished native title, it was validated by section 15. The validation depended on it being a past act of one of the kinds identified. At section 229 the principal category of extinguishing past acts, category A past acts, are described. They include the grant of freehold estates and not the creation of a freehold estate by a statutory vesting, although section 15 clearly envisages the creation of an estate in any way by legislation.
That is not the point for present purposes, but if one looks at grants, 229(3)(d)(i) expressly excludes from this category:
a grant by the Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity –
In other words, the Act seems to reflect the concept that even a grant by the Crown to the Crown is effective to transfer a radical title which will not extinguish native title. If one is not within the concept of a category A past act, category B past acts relate to leases granted, category C at section 231 to mining leases and category D includes any other past act which must include the vesting of the kind referred to here, to the extent that it does affect native title if it does, in which case section 15 provides that the non‑extinguishment principle applies.
One finds a similar scheme in section 23B excluding Crown‑to‑Crown grants from what would otherwise be the effect of a grant of a freehold estate, but that is merely consistent, we say, with the concept that what is transferred by this statutory provision is a radical title which would not affect native title. If that were not the case, then we would achieve the same result by different means. Mr Solicitor says that section 4(2)(a) of the 1980 Title Act at page 231 of his bundle does not pick up subsisting interests which are native title interests because, as part of his argument, he says those interests have not been recognised by the common law.
If it is possible to interpret that provision in a way which does not interfere with those interests, that would be consistent, we would say, with the Native Title Act but, in fact, that is the suggested interpretation, namely, that subsisting interests include native title. It follows from the fact that the Racial Discrimination Act has already provided a level of protection in relation to those Acts. That is because what is protected by the Racial Discrimination Act are not simply rights in property which were legally enforceable under the common law as the municipal law of Australia but the human right identified in the convention.
Accordingly, with the enactment of the Racial Discrimination Act, if the common law had not by that stage provided protection to these property rights, we say they would have thereafter been protected. May I simply refer your Honours to the passages in Mabo (No 1) which were cited with approval by this Court in the Native Title Act Case, 183 CLR 436 to 437. If those interests are for this purpose subsisting interests, then they are protected in any event upon the transfer under the Title Act.
Your Honours, those are the matters of detail that I sought to deal with in addition to what we have said in our written submissions, which the Court has and which I will not take the Court to now. May I simply say that we continue to rely upon them.
The final proposition I was going to put to the Court was that which I put in answer to your Honour Justice Hayne’s question as the way in which we understand the question to arise and I think I have indicated the answer we say should be given in relation to that question as to the law which is to be applied and why.
May I turn very briefly to ground 4 of the Commonwealth’s appeal which relates to New Year Island and the land to the north and to the east of New Year Island. Firstly, your Honours, might I refer your Honours to the passages in our written submissions in which we set out our response in some little detail. It begins at page 35 of the written submissions and I would not intend to take your Honours through it in any detail except to emphasise two points.
Firstly, and I will not take your Honours to it, but in the extract from page 622 of the transcript, which is set out at the top of page 36 we omitted to include a line which was read to your Honours yesterday indicating that Mr Howie, then counsel for the claimants, who was asking questions of Mr Wardaga, records on the transcript at line 25 on page 622:
You are pointing to the north and to the east at about 40 degrees.
In other words, north‑east:
You say that is outside and that is Government?
I say that to point out that there was clearly an indication being given at this place on New Year Island which is only by inference and brief description before your Honours.
GAUDRON J: I just do not have any concept of pointing to the north and east at 40 degrees.
MR BASTEN: Forty degrees is a little short of north‑east. I think that was the intention.
GAUDRON J: I see.
MR BASTEN: It is not pointing in two directions but at 40 degrees, which is between north and east, but your Honour illustrates one of the problems with this ground.
GAUDRON J: So you would say that means at 40 degrees north‑east.
MR BASTEN: Yes, and certainly not pointing simply to the east. The point is secondly made at the bottom of page 36 where we extract the passage from Mr Pauling’s cross‑examination. He says he was:
here for the Northern Territory Government –
The Commonwealth was not there separately. They were not there to cross‑examine this witness, although they now challenge his evidence. That was by an arrangement. As I understand it there were limited places available on the helicopter and Mr Pauling undertook the cross‑examination, but he says at the bottom of the page:
You were mucking around with bits of coral there with Ross and saying this island was McCluer Island and that island was Oxley –
and so on. In other words, it is perfectly clear that whatever your Honours might make of the bits of coral in the sand would not be as advantageously interpreted as the trial judge’s interpretation.
The other point that we sought to make in these submissions was that it was not simply Mr Wardaga’s evidence. There was the report of the anthropologists, Drs Peterson and Devitt, which is set out and your Honours may not wish to go to it but it is in volume 7 of the appeal papers and there maps in which they indicate the extent of the various estates of the people in relation to the sea.
CALLINAN J: But Mr Basten, did not Justice Olney hold that he would only treat the anthropologists’ report as probative to the extent that it was confirmatory of oral evidence given?
MR BASTEN: He said a number of things about it, your Honour, but he accepted as uncontroverted many aspects of the facts which were set out in it.
CALLINAN J: But the general proposition I have put to you, I thought – I may be wrong – I thought it ‑ ‑ ‑
MR BASTEN: You said that. No, no, you did, your Honour, to the extent that that was so. There is a question about whether this evidence of Mr Wardaga confirmed what they said in this respect. All I am trying to say is that there is a huge difficulty with this Court in assessing that aspect of the matter.
CALLINAN J: It is hardly appropriate to refer to something that may - depending upon the view that you take of it, there may be contradictory of the oral evidence when his Honour ruled, in my view, provisionally anyway, correctly, that the anthropologist report needed to have as a basis oral evidence to the same effect or admissions or agreements or something of that kind.
MR BASTEN: My point is only, your Honour, that the Commonwealth says that the oral evidence was inconsistent with, rather than consistent with the report.
CALLINAN J: I see, right.
MR BASTEN: They did not cross-examine the witness to establish that nor did they cross-examine Peterson and Devitt to establish that.
CALLINAN J: But one can read the report and one can read the oral evidence, the transcript of it, and it is either consistent or inconsistent on its face, I would have thought.
MR BASTEN: Well I think what I was seeking to say was that one cannot really read the transcript usefully in a case like this and understand what inferences his Honours may have derived from particular aspects of the evidence; there are particular difficulties. I do not wish to accentuate that point. We set it out in the written submissions. I was merely going to say that at page 1622 of volume 7 is the indication given by the anthropologists as to the approximate location and extent within the application area of the Mangalarra estate.
KIRBY J: What is that page again?
MR BASTEN: Page 1622, your Honour, in volume 7. The point, of course, is firstly that the indication is only within the application area. It may have extended beyond. It and it was in that sense, I think, that his Honour referred to the lines drawn for the purposes of the claim as somewhat arbitrary and we say that, at least so far as the eastern boundary is concerned, the Court would be entitled to infer that there may be other claims by other estate groups are going beyond that sharp line drawn from Cape de Courcy to a point to the east of Gurrmurl. Your Honours, I do not wish to do more otherwise than to rely upon what is said in the written submissions in response to that ground, if that is a convenient course for the Court. Those are our submissions on this appeal.
CALLINAN J: Mr Basten, before you sit down could I ask you a question please. Could I draw your attention to something that Justice Toohey said in Mabo at page 180, where he cites with approval a passage from McNeil “Common Law of Aboriginal Title” about halfway down the page.
MR BASTEN: Yes, your Honour.
CALLINAN J:
The blurring of the distinction between sovereignty and title to land should not obscure the fact that:
“the former is mainly a matter of jurisdiction” –
and so on. Do you have any submission in relation to the application of that passage to the sea and to the assumption of sovereignty over the sea?
MR BASTEN: I perhaps need to pick up the context of this, your Honour, but his Honour is there talking about the effects and the consequences of annexation and therefore the consequences of the acquisition of sovereignty.
CALLINAN J: Yes, but the thrust seems to be that sovereignty and title are quite different concepts and sovereignty does not necessarily embrace title. That seems to be plainly the thrust of it.
MR BASTEN: Yes.
CALLINAN J: Which is not inconsistent perhaps with the Solicitor’s argument, but it may not be inconsistent with yours either.
MR BASTEN: Yes. Well that may be so. I am not sure whether it is in the passage which his Honour there cites from the Western Sahara Case, but there is an indication in the judgments of Judge Ammoun, I think. It may be in the passage which Justice Brennan cites from that case, that there is some difficulty in distinguishing sovereignty and title particularly under traditional law and custom, and we make this point in relation to the next appeal and I will come back to it perhaps, your Honour.
CALLINAN J: Yes, whatever is convenient, Mr Basten.
MR BASTEN: Yes, obviously in a society which does not have a separate parliament or body which is the supreme law‑giving authority, but where rights arise, as it were, from the relationship with the land and which are to that extent dependent upon title, there may be a significant difficulty in making that distinction. For the purposes of a court, of course, sovereignty has gone, but title may remain, so that those aspects of traditional law and custom need to be distinguished. But what I think that his Honour was dealing with in this passage was rather the failure to make that distinction in the common law cases such as Southern Rhodesia and, if I recall correctly, this is really the rejection of the terra nullius argument of the extended kind. In other words, where there is a people who have proprietary rights, then a change of sovereignty will not extinguish those rights.
CALLINAN J: I do not doubt that it is in that context, but the passage may have a broader application than that.
MR BASTEN: Yes, it may, your Honour. I think it is true to say that I come back to that aspect in the next appeal which will probably be reasonably shortly, so I can ‑ ‑ ‑
CALLINAN J: Yes, Mr Basten.
MR BASTEN: Yes, thank you, your Honour, I understand the question.
GLEESON CJ: Yes, Mr Solicitor for the Northern Territory.
MR PAULING: Your Honour, Ms Webb will present the argument in D7.
GLEESON CJ: Ms Webb.
MS WEBB: Your Honours, the Court has heard submissions from parties and interveners as to the effect of the Seas and Submerged Lands Act Case and the legislation enacted following the offshore constitutional settlement, and in respect of those matters, we accept the following: that the Seas and Submerged Lands Act Case establishes that at common law land law does not go beyond low‑water mark and that, as a result of the legislation enacted following the offshore constitutional settlement, and whether by the Coastal Waters (Northern Territory Title) Act or by the Coastal Waters (Northern Territory Powers) Act or by the Off-shore Waters (Application of Territory Laws) Act, the Crown in right of the Northern Territory obtained radical title to three nautical miles as later extended by straight baselines, and consistent with the position in South Australia, the internal waters of the Northern Territory include bays and gulfs.
Unlike Western Australia, we do not assert that the Crown acquired more than radical title to the seabed. Nevertheless, as is apparent from our written submissions, we do not say that radical title in the Crown is a basis for recognition of native title offshore, nor do we say that the acquisition of sovereignty is a basis for recognition of native title offshore, nor do we say that the application of the common law to an offshore area is a basis for recognition of native title offshore.
The real area of dispute in this appeal is the meaning of the words “recognised by the common law” appearing in section 223(1)(c) of the Native Title Act and it is native title as defined by section 223 of the Act to which sections 3, 10 and 11 extends statutory recognition and protection. We say that “recognised by the common law” in section 223(1)(c) means what it meant in Mabo [No 2] (1992) 175 CLR 1.
If I could take your Honours to appeal book 11, at page 2190 in the judgment of Justice Merkel, at paragraph 375. We say his Honour has put the position correctly there. His Honour says:
Mabo’s case, although concerned with a specific claim to native title to land held under an established land holding system on an offshore island, establishes the conditions for recognition of native title to other claims, whether on the mainland or to the sea or the sea-bed. However, as was said in the second reading speech, the NTA did not “codify native title rights”; rather, those rights were left by the legislature to be determined by the court on a case by case basis. Accordingly, as was observed by Mason CJ, Brennan, Deane, Toohey, Gaudron, and McHugh JJ in the joint judgment (at CLR 452; ALR 36) in the Native Title Act case:
“The common law concept of ‘native title’ is incorporated into the definition contained in s 223 (1) of the Act…”
Your Honours, the native title rights and interests recognised by the common law in Mabo [No 2] were the pre-existing rights and interests in land which were derived from the laws and customs of the indigenous occupants of the land at the date of acquisition of sovereignty.
KIRBY J: Just pausing there, can I ask: you have indicated certain differences from Western Australia, and certain commonalities with the submission of South Australia, as I understand it. Are you going to, at some stage, identify clearly where your line of departure from the Commonwealth’s submissions is?
MS WEBB: Your Honour, our line of departure from the Commonwealth’s submissions is that we do not say that you need to have the application of the common law offshore in order for the common law to recognise native title in that area.
KIRBY J: So that I will get it into my mind, is your notion that the Australian court which has the power to extend the recognition of the common law to this external orbit, having jurisdiction from the presence of persons in the jurisdiction before it, can invoke its common law to extend recognition to the native law system, and that that is something it can do, the common law developing and adapting to the explanation of the existence and respect common to native title stated in Mabo, or is it something different?
MS WEBB: We would accept that the common law could develop in that way to recognise the native title rights and interests offshore, but our primary proposition is that it does it in any event. And that is by virtue of the fact that these were rights and interests that were exercised in an adjacent sea area by the occupants of the land; and that that use and enjoyment of the sea area is inextricably linked with the occupation of the land; and that there is no differentiation in the terms of the connection that indigenous inhabitants had with their land and sea country.
KIRBY J: And all of this is by the force of the common law applied in an Australian court and does not in any way need to or in fact invoke the Native Title Act?
MS WEBB: We say the common law does that but on the enactment of the Native Title Act, then the enhanced protection of the Native Title Act was extended to native title offshore. Now, indeed, prior to that native title, as has been recognised by your Honour in Fejo v Northern Territory was fragile, susceptible to defeasance at common law, so there was certainly enhanced protection, but that is not to say that the perhaps limited or perhaps even problems with mechanisms for enforcement in itself prevented the recognition of native title by the common law in that area.
KIRBY J: Yes, thank you.
MS WEBB: The change brought about by Mabo [No 2] which was in itself a development was to accept a preferable rule that a mere change in sovereignty does not extinguish pre-existing rights. The reference to that, which I will not take your Honours to, is at page 57 point 3 in the judgment of Justice Brennan. It is those continuing rights that are recognised by the common law, although they are not derived from the common law, but upon recognition they become enforceable as common law rights. We say that enforceability of rights is not a precondition to the recognition of them, rather that enforceability flows from the recognition of the rights.
In Mabo [No 2] at page 61 point 3 his Honour Justice Brennan stated the proposition this way:
Secondly, native title, being recognized by the common law (though not as a common law tenure), may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal and usufructuary in nature and whether possessed by a community, a group or an individual.
As I have already posited, the enactment of the Native Title Act upon that enactment, recognition by the common law has given rise to a statutory protection of native title far more extensive than could have been found at common law.
A flaw in the Commonwealth’s argument which appears to proceed on the assumption that common law can only recognise rights and interests that the common law can enforce and protect is identified by Justice Merkel at appeal book 11, page 2212, through paragraphs [489] to [491]. In those passages his Honour points out that there is an inconsistency in the Commonwealth’s argument or submission that common law can only recognise native title or interest in an area where the common law applies where nonetheless their submission is also based on the recognition of common law public rights of navigation and fishing beyond ‑ ‑ ‑
GUMMOW J: The problem is this territorial notion of where the common law applies.
MS WEBB: It is, your Honour. We say you do not need to be bothered with that on our basis of recognition of native title offshore.
HAYNE J: It is not self-evident to me that the public right of navigation or the public right to fish could not or would not be enforced by a court if it could assert jurisdiction over the individual who is threatening to breach it. If the individual who threatened to impede the exercise of the public right could be brought before a court, could the Attorney, could the individual suffering special damage enforce the right? It seems to me it could.
GUMMOW J: It would be a species of nuisance.
MS WEBB: Your Honour, we would not put any other proposition. In these passages, however, Justice Merkel, while he suggests that it is not a problem, the difficulty is not that the common law only recognises native title which it can enforce or protect. Justice Merkel finds the difficulty with recognition of native title offshore in his conceptual basis for recognition of native title offshore depending upon it being a burden on the Crown’s radical title. With respect to his Honour, this approach, we say, also inverts the reasoning which underpinned the recognition of native title in Mabo [No 2] as pre‑existing rights which were not extinguished by the acquisition of sovereignty.
What we are concerned with are rights which survived sovereignty. Being a burden on the Crown’s radical title was not a precondition to the recognition. Rather, having recognised pre‑existing indigenous rights, those rights were accommodated into the doctrine of tenure, a basic doctrine of land law as described by his Honour Justice Brennan in Mabo [No 2], and they were accommodated by recognising them as a burden on the radical title of the Crown. That itself is a logical postulate required to support the doctrine of tenure.
McHUGH J: There is some problem about the use of the term “recognition”. Is it not one of the most fundamental principles of the common law that where there is no remedy, there is no right? Earlier you said the common law could recognise a right without having a remedy. Maybe you did not say it; maybe Justice Merkel said it. I have difficulty with that. Can you give me any illustrations of the common law recognising a right for which it did not have a remedy? The forms of action were all based on the notion of a remedy. The remedy in effect preceded the right.
MS WEBB: Your Honour, I confess I cannot. However, the answer may well lie in the situation here where we are dealing with an intersection of common law and rights that are derived from another legal system. So that here we have the common law recognising the fact of pre‑existing rights and interests which then it says will continue after sovereignty and will be enforceable as common law rights but they are not derived from the common law. The answer may well lie in that. I otherwise cannot assist your Honour on that.
HAYNE J: But that intersection where you have rights derived from one legal system being enforced by this is a commonplace of the common law. The whole conflict of laws is directed to dealing with just that sort of case. So that the bare fact that the right finds an origin - perhaps not its origin or its only origin but finds an origin - in another legal system is not conclusive, it seems to me, of the question whether the common law will do anything about interference with that right. Rather, that question is dealt with in the ordinary sequential steps of jurisdiction, “Can we get the case into court? If we can get it into court, then which law do we apply?” A commonplace of the common law.
MS WEBB: Yes, indeed, your Honour, and that is our submission, that the recognition precedes the enforceability.
HAYNE J: The difficulty I have with Justice Merkel’s statements at paragraphs [489] and following is that they appear not to address the question of enforceability as at first a question of jurisdiction and then later a question of choice of law, which, at least at the moment, seems to me to be a way in which the problem can be analysed.
MS WEBB: Your Honour, we would not differ from that proposition that you put. The other difficulty that we would identify with Justice Merkel’s approach is that in the absence of radical title offshore, Justice Merkel instead finds native title offshore being a burden on the Crown’s sovereignty. It is for the same reason we identify with respect to radical title we say there is no requirement that native title burden anything before it can be recognised and that is to say that on land ‑ ‑ ‑
GAUDRON J: Do you say that in respect of land and sea?
MS WEBB: We say that in respect of land and sea, your Honour. On land and in the discourse of land law recognition results in the burdening, not the reverse. It is the accommodation of rights derived from another legal system that are then seen as the burden on the radical title of the Crown in order to accommodate it into the doctrine of land tenure.
We say that it is by reference to the traditional laws and customs that common law recognises and defines native title rights and interests possessed by indigenous people in relation to land and waters, not by reference to the Crown’s radical title or to the assertion of sovereignty.
As Justice Olney at first instance found on the evidence, no distinction is made by the first respondents between the sea and land components of their country in terms of their connection with country, that is to say their connection with sea and land is undifferentiated. I can give your Honours the reference to that at appeal book 8 at page 2012 paragraph 70. There his Honour is referring to the evidence with respect to the estate which could also be described as the country of a group of people called an “estate group” in anthropological terms and the estate group are people with rights and interests in country, and at paragraph 70 his Honour said:
An estate is usually made up of a single continuous tract of land and sea but it may have separate smaller tracts as well. No distinction is made between the sea and land components of an estate but as a matter of convenience the sea component of an estate is referred to as the “sea country” of the relevant estate group.
However, that is not to say that the nature of the rights and interests in respect of sea country and land country are undifferentiated. The plain differentiation between land and sea in terms of possession and occupation of land on one hand, and use and enjoyment of the sea on the other, and accepted by all the judges in the case, means, in our submission, that possession and occupation of the land is what provides the foothold for rights of use and enjoyment of the sea.
GAUDRON J: Possession “and” occupation or possession “or” occupation?
MS WEBB: Perhaps, it is, your Honour, possession or occupation. Although, Justice Toohey finds native title grounded in occupation, and it would seem that in the sense of people occupying land country and deriving sustenance from the sea, perhaps, the emphasis should be on occupation rather than possession.
GAUDRON J: It certainly could be disjunctive. It does not have to be the conjunctive, yes.
MS WEBB: In determining whether the rights and interests that are asserted by the first respondents fall within section 223(1) and were, thus, capable of being the subject of the determination of native title, the learned trial judge had defined, firstly, that the rights and interests claimed were possessed under the traditional laws acknowledged and the traditional customs observed by the first respondents, and that is the first requirement at section 223(1)(a) of the Act.
As to the question of what is meant by “traditional,” in that subsection, we would, respectfully, adopt the approach of his Honour Justice Olney. If I could take your Honours to page 2019, and at paragraph 85 his Honour there deals with the word “traditional” in section 223. He say:
First, there is the word “traditional”. The question of what is a traditional law or traditional custom has excited some interest in cases in overseas jurisdictions but the law in Australia is readily capable of understanding without reference to external authority. The general thrust of the majority judgments in Mabo No 2 indicates that the traditional laws and traditional customs of Aboriginal peoples and Torres Strait Islanders are the laws and customs which have their origins in the culture and social organisation of the relevant group as it existed prior to the advent of non-Aboriginal interference with that culture and social organisation.
GAUDRON J: So you accept it is not static?
MS WEBB: We accept it is not static. In Mabo [No 2] Justice Brennan said, at page 61:
Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.
It is the traditional basis of the currently acknowledged and observed laws and customs which attract recognition of native title.
His Honour then goes on and says:
The task of the Court is to identify those laws and customs which regulated the lives of the forebears of the present members of the applicants prior to European settlement which are currently acknowledged and observed.
His Honour says he does not find assistance from :
Canadian authorities which speak of rights which are integral to the distinctive culture of the claimant group. In Australia, Parliament has provided a definition which says all that needs to be said and is readily capable of being understood and applied.
To add to that, might I draw your Honours’ attentions to the words of Justice Brennan in Mabo [No 2] at 53 point 3, where his Honour talks about “the law’s protection”. He says:
there is no reason to deny the law’s protection to the descendants of indigenous citizens who can establish their entitlement to rights and interests which survived the Crown’s acquisition of sovereignty.
So what we are talking about is a present day entitlement to those rights and interests that were recognised, at acquisition of sovereignty, as continuing past that date; they were not extinguished.
GAUDRON J: Why is it necessary that they be recognised at the date of sovereignty, as distinct from merely not being extinguished at the date of sovereignty, when you have regard to the definition, whatever may have been the case in Mabo?
MS WEBB: The requirement, we say, your Honour, is that it is those rights and interests which have been afforded, in a sense, or can be afforded the protection of the Australian legal system. So it is necessary, in our submission, to go back to the situation at acquisition of sovereignty and say what were the rights and interests that were then ‑ ‑ ‑
GAUDRON J: I do not see why. Why do you not just simply have to go back, see that there was a culture at that point, look to the rights and interests that are presently asserted by reference to that culture, ask whether, proceedings having been brought in a court, they are now recognised? Now I say that, not by reference to what was said in Mabo, but by reference to what is in the definition. It may well make a very big difference, although perhaps not to the outcome of this particular case.
MS WEBB: Indeed, your Honour, but our answer to that is to say that section 223 indeed incorporates the common law concepts of native title as found in Mabo [No 2].
GAUDRON J: Yes, but in a particular form. It may incorporate aspects of it, but it is now a statutory definition, is it not?
MS WEBB: A statutory definition one part of which being section 223(1) is defining native title rights and interests, we would say, by reference to what was recognised – what Mabo [No 2] says about “recognised by the common law”. And that is indeed what was said in the Native Title Act Case.
GAUDRON J: Yes, but I do not think anybody went, in the Native Title Act Case, to the time at which they are recognised. You see, what you have in 223(1)(c) is a use of a test which is at least present, and would, one assume, be ambulatory. It is usually referred to as the “continuous present” but that is perhaps not a terribly useful thing in terms of statutory interpretation, but there is nothing that I can see in that definition which requires recognition by the common law at the time of sovereignty.
MS WEBB: Your Honour, except we say that that requirement comes within the word “traditional” and that “traditional” is the reference back.
GAUDRON J: But if you say that - which is I why I asked, did you accept that they are not static - that it seems to me you may have to assume, contrary to what was said in Mabo [No 2], that they are static.
MS WEBB: We do not say that they are static and, indeed, if your Honour would bear with me, at page 61, point 6 of Justice Brennan’s judgment in Mabo I think his Honour deals with this very point, as we see it. His Honour said:
Of course, in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed.
We say it incorporates an element of continuity as well because one of the conditions for recognition of native title in Mabo [No 2] was that there had been continuity of connection and that there had been continued acknowledgment of traditional laws and observance of traditional customs.
GAUDRON J: But I still do not see why that requires recognition by the common law at any time prior to a native title holder or native title holders seeking to protect those rights.
MS WEBB: Your Honour, I do not think we are saying that in seeking to protect the rights or having a determination made of the rights and interests that exist that we are talking about a previous recognition of rights, but we are saying, and perhaps not very clearly, that the requirement that they be traditional laws and customs is the mechanism – and traditional is understood, as Justice Olney puts it, as being the laws and customs prior to the advent of European interference and that is what directs it back to that time. That is so, your Honour. The recognition that we are concerned about here is the recognition at the time the determination is made, indeed.
GAUDRON J: Thank you.
MS WEBB: Just on that point, at paragraphs [398] to [410] in appeal book 11 at pages 2194 to 2197 Justice Merkel, indeed, deals with the difficulties he sees with the approach of Justices Beaumont and von Doussa as to what he calls the “the tradition based approach”. That is simply to say you require only:
that the native title right or interest possessed at 1 January 1994 by the claimant community in accordance with its traditional laws and customs –
with no reference back to sovereignty and requiring only that tradition means handed down from generation to generation, with one qualification, that qualification being the one we put continually through this. We would accept Justice Merkel’s – or adopt Justice Merkel’s reasoning on that. Our qualification, of course, is that we do not accept that native title offshore requires that native title is a burden on either radical title or the sovereignty of the Crown.
That is, indeed, what leads to Justice Merkel’s alternative approach in requiring that inquiry be made at four different dates in respect of the four applicable maritime zones in the region, and we say that relies erroneously on that particular proposition that it has to be a burden on what his Honour says is the sovereignty of the Crown offshore.
The second precondition to determining that native title exists is that the rights and interests defined in section 223 are:
rights and interests . . . in relation to land or waters –
whereby:
under the traditional laws acknowledged, and the traditional customs observed –
The first respondents have a connection with the land and waters, and that is the requirement in section 223(1)(b).
Then, having identified those rights and interests which fall within those two subsections, it is then necessary to determine whether the rights and interests so identified are recognised by the common law as required by section 223(1)(c). There again, your Honours, we go back to what Justice Olney said in appeal book 8 at pages 1988 to 1989, in paragraph 35 and there his Honour sets out and discusses the conditions for recognition established by Mabo [No 2].
GUMMOW J: What do we mean by “recognition”? Was that ever explained? They talk about something being recognised by the common law. Was it ever explained in Justice Brennan’s judgment what he means?
MS WEBB: Your Honour, in the context, I do not think there is a discussion of it ‑ ‑ ‑
GUMMOW J: I am not saying it does not, but does it mean a native titleholder can obtain an injunction against interference with one of these rights?
MS WEBB: It would be one method of enforcement. Having been recognised, he would be entitled to enforce it by those mechanisms, whatever legal remedies are available.
GUMMOW J: Including an injunction under 75(v) of the Constitution against an officer of the Commonwealth, for example, who is interfering with the right?
MS WEBB: Your Honour, we see no reason why not, if that were the case.
GUMMOW J: But would there be any common law action for damages?
MS WEBB: Arising from the recognition of native title?
GUMMOW J: Yes, an interference with that which has been recognised.
MS WEBB: There would be no reason why not we could see, your Honour.
GUMMOW J: It comes back to what Justice McHugh was asking. What would the form of action be?
MS WEBB: Whatever remedy is available in the courts, it is recognised and then enforceable as ‑ ‑ ‑
GUMMOW J: You have to find a common law wrong before you get some damages. What is the common law wrong?
MS WEBB: Your Honour, it could be nuisance.
GUMMOW J: Yes.
MS WEBB: But once you have found that, it could be protected and enforced.
GUMMOW J: Yes.
GAUDRON J: You would also have trespass, and possibly conversion.
MS WEBB: Indeed. If I could return to the conditions which Justice Olney identified, we say in conformity with the conditions which were established in Mabo [No 2]. In paragraph 35 he sets them out to summarise them.
What is said there is that the rights and interests which are recognised by the common law are rights and interests which have not been extinguished, rights and interests the recognition of which would not fracture a skeletal principle of the Australian legal system; rights and interests which have not ceased with the abandoning of laws and customs; rights and interests which are possessed only by indigenous inhabitants and their descendants; rights and interests arising from the presence on land which is not coincidental or random; rights and interests which are not derived from laws and customs which are repugnant to natural justice, equity and good conscience.
Thus, we say Justice Olney correctly identified some of the factors that may call for consideration in determining whether or not any rights and interests of the type described in section 223(1) are recognised by the common law. We note here that his Honour does not use rights of a type or kind, he is talking about rights that are recognised.
We support the conclusion of the learned trial judge, which was affirmed by the majority on appeal, that the first respondents are entitled to a determination that native title exist to the effect that native title exists in the sea and seabed of the claimed area and that the content of that native title is, in essence, non-exclusive rights to use and enjoy the sea and seabed in accordance with traditional laws and customs of the first respondent.
The amendment, which my learned friend, Mr Basten, has suggested is an inconsequential amendment in changing the word “sea” and “seabed” to “waters” is perhaps not so inconsequential, because, of course, that extends his appeal to the subsoil below the seabed and the space above, which is not encompassed by the words “sea” and “seabed”. However, I will leave that for my learned leader to address you on in the appeal in D9 and we will also address you on non-proprietary and non-exclusive native title rights as part of those submissions.
HAYNE J: Could I just come back a moment to this question of enforcement. Let it be assumed that the relevant native title right concerns places or conduct having spiritual significance. That is, the values in issue are spiritual values rather than proprietary or tangible values as might be the case in taking fish or taking produce. Let it further be assumed, for the purpose of argument, that under traditional laws the punishment or the sanction for breach of that right is personal; personal punishment of the offender. What remedy would the common law give, first, for the anticipated or threatened breach, assumedly your answer is injunction, but what remedy would it give for that which has happened?
MS WEBB: Your Honour, the first point might be that if it is simply spiritual it may not be a native title right unless it connects people to land or waters. That is the first point.
HAYNE J: Well, let it be assumed that there is a connection with a place where only certain people may go. Let it be further assumed that someone not of that group goes there and thereby commits a breach, perhaps a very serious breach of the traditions and customs observed by the particular group. What remedy does the common law give in such a case?
MS WEBB: Your Honour, I cannot identify any unless it is a breach of the ordinary law in respect of that.
HAYNE J: Which brings us back to what is meant by recognition.
GAUDRON J: But why would there be any difference in that situation between the remedies that might be given for nuisance or trespass? I mean, there were always damages for trespass even though there was no actual damage to land. The damage was to your legal right and, as I understand it, there are a whole lot of ancient torts, in respect of which damages are awarded for the insult to your legal right.
HAYNE J: And for the assertion of that right or recognition of that right and for no other purpose than to assert the right and to recognise it. But is that where all this comes out?
MS WEBB: The focus, your Honour, really must be on what is the right to be protected. If, indeed, the right were a right to exclude others from a particular place, that may be what is injunctable, so the focus is on ‑ ‑ ‑
HAYNE J: I have much less difficulty dealing with the anticipated or threatened conduct. That equity might intervene and protect that I can more readily accommodate. It is where there is a disconformity, perhaps serious disconformity, between consequences according to traditional law and customs for breach and consequences available under the common law system. I ask. I do not say. I ask: is there some tension? Is there a tension that we should fuss about?
MS WEBB: This may be, your Honour, what falls within the concept that the common law does not recognise, rights and interests that are derived from laws and customs that are repugnant to natural justice, equity and good conscience and so will not enforce those rights, will not recognise them because it will not enforce them, rather than have difficulty in finding a mechanism for enforcement. That may be where we are falling in that area.
McHUGH J: That is the problem I had about divorcing recognition from remedies. You do not seem to accept that you have an Ashby v White type action on the case for any breach of a right. Somewhere in the material I read about some area in the ocean and the owners do not like boats going over because there is some spirit there, I think, and seizes boats and they do not like people going near there without permission. Supposing somebody went over that area, some yacht went over that area. Would there be a right in the traditional owners for damages or some other remedy against the yacht owner for interfering with that spirit or whatever it is?
MS WEBB: It is suggested that the remedy will only come if the rights and interests have been recognised in the sense now and made the subject of a determination. Once that is the case, then it would be a question as to whether there was damage, what was the damage, and the principles of the action would apply.
GAUDRON J: But it is sufficient, according to legal theory, is it not, that there is something which equity will protect?
MS WEBB: We would accept that, your Honour.
CALLINAN J: Do you need damage? Do you need actual physical damage or financial damage to be able to invoke equity?
MS WEBB: Your Honour, there has been a case involving an injunction granted in respect of disclosure, I think, of confidential information or secret sacred information, and perhaps it falls into that category. If you can show that, you may get there. There was an injunction granted in respect of that case. I am sorry, I do not have the name of the case.
McHUGH J: But even at common law you can get action for damages for breach of intangibles, leaving aside such things as contracts. Ashby v White declared an action on the case for interference with your right to vote in an election.
GLEESON CJ: I suppose the development of declaratory relief has closed the gap between right and remedy to a substantial extent.
MS WEBB: That may well be, your Honours.
HAYNE J: Moreover, it may point to a point that underlies much of this. Much of the discourse occurs with an unstated premise that we are in the realm of real property. For the purposes of a common law taxonomy I would have thought real property is where much, perhaps all, but at least much of this debate occurs. But it may also be necessary to step back one step from the automatic application of a common law taxonomy.
We are at a point of intersection between two legal systems. It is not inevitable, it seems to me, that the common law’s classification is the one that governs how these things are to be viewed. In at least some aspects of the rights asserted, if they exist, they are rights that would lead to personal actions. They would not lead to actions in rem, they would not concern questions of status, but they would be very much personal actions in which personal jurisdiction over the defendant would be the governing feature or the premise from which debate would begin.
I just, more for the articulation of my own thoughts than for your comment, suggest that we may need to avoid unthinking application of what I have described as the common law taxonomy.
MS WEBB: Unless there is anything further, your Honours, those are our submissions.
GLEESON CJ: Thank you, Ms Webb. Yes, Mr Jackson.
MR JACKSON: Your Honours, the Court will have seen that our written submissions deal with three particular aspects in relation to D7. I only propose to say one or two very brief things about the third of those and may I proceed to deal with the first and second.
Your Honours, may I commence by taking what is, in our submission, the correct starting point and that is the Native Title Act itself because what ultimately the case is about is that what is sought is a determination under that Act.
Now, your Honours, could I say in relation to that that one does need to go to several of the provisions of the Act to see what is contemplated and this relates to the thing that I think was last said by your Honour Justice Hayne. Although the Act speaks in terms of native title, that, of course, is a defined term and it goes rather beyond rights in land but rights in relation to land and, of course, waters.
Your Honours, may I go first to the nature of a native title determination. That is provided for by section 225 where the term “determination of native title” is defined and your Honours will see that it requires the determination of a number of issues, the first being:
whether native title –
itself defined, and I will come to that in a moment –
exists –
and your Honours will see the expression –
in relation to a particular area of land or waters –
and then in paragraph (b) one sees set out a number of potential aspects of it that have to be the subject of the determination:
(i) who holds it; and
(ii) whether the native title rights and interests confer possession, occupation, use and enjoyment –
et cetera in an exclusive way and your Honours will then see that the native title rights and interests that are “of importance” have to be also determined.
Now, your Honours, the provisions of section 225 involve terms that are themselves defined of which three are particularly relevant. The first of them is the term “interest” and your Honours will see that defined in section 253. If I could before going to the terms of the definition just say this about it that your Honours will see that it contemplates, certainly, rights that may be rights in land but it also contemplates that there are rights which may be in relation to land, and I use the expression “land” to cover waters as well. Your Honours will there see that the definition of “interest”:
in relation to land or waters, means:
(a) a legal or equitable estate or interest . . . (b) any other right . . . charge, power or privilege over, or in connection with:
(i) the land or waters; or
(ii) an estate or interest in the land or waters(c) a restriction on the use of the land or waters, whether or not annexed to other land or waters ‑ ‑ ‑
CALLINAN J: Mr Jackson, under what constitutional head of power would that be enacted?
MR JACKSON: It could be enacted under the race power, in the first place; so far as it concerns the areas external or outside the low‑water mark, to put it shortly, under the external affairs power as being external to Australia, and again under the race power. If, of course, our learned friend from Western Australia’s submissions were correct and the Commonwealth owned the area in the territorial sea then a curious situation would arise and that would be that it would seem to be a Commonwealth place in relation to which the States had no power at all and the Commonwealth could not ‑ ‑ ‑
CALLINAN J: What about in the States themselves? On the mainland it would have to be the race power, would it not?
MR JACKSON: Yes, your Honour.
CALLINAN J: It could not be any other power?
MR JACKSON: The external affairs power in relation to the Convention on Racial Discrimination and the implementation of the provisions of the Convention on Racial Discrimination by there being special measures.
KIRBY J: Section 6 also appears to relate to the Territory’s power.
MR JACKSON: Yes, I am sorry. In relation to the Territory, yes. Those are the bases for it, your Honour. There may also be an independent basis for it in its application to fisheries outside what is described in the provision of section 51 as territorial waters.
CALLINAN J: On the application of the provision to land within a State might conceivably involve, in some circumstances, an acquisition power.
MR JACKSON: Quite, your Honour, yes.
CALLINAN J: A proper exercise of the race power but involving an acquisition requiring just terms.
MR JACKSON: Yes. That is why the just terms provisions are contained in no doubt, your Honour.
CALLINAN J: But just terms in respect of acquisition of native title. There are not special just terms provisions, are there, resulting from an establishment or a declaration of native title, pursuant to the Act. Do you follow what I am asking?
MR JACKSON: Yes, I do. May I have that checked, your Honour.
CALLINAN J: Yes, certainly, Mr Jackson.
KIRBY J: I mentioned section 6. That relates to the external territory and section 5 to the Crown in right, inter alia, in the Northern Territory.
MR JACKSON: Yes. I was going to come back to section 6 in a moment, and may I do that shortly, but ‑ ‑ ‑
GUMMOW J: Did you mention 51(x), Mr Jackson?
MR JACKSON: I am sorry, your Honour?
GUMMOW J:
fisheries in Australian waters beyond territorial limits.
MR JACKSON: Yes, your Honour, that is what I was referring to Justice Callinan. That was the last of those provisions. Could I go then to say this that it is apparent in relation – I am staying with the definition of “interest” for the moment – it is clear enough, in our submission, from the language of that provision that is not concerned only with interests in, in effect, the land or waters but also interest in relation to the land or waters and the rights and interests need not be, indeed they are unlikely to be, the same as those which might derive from the laws or the polities of the Federation otherwise generally applicable.
Your Honours, that that is so was recognised in Mabo [No 2] (1992) 175 CLR 1, pages 49 to 50, where your Honours will see Justice Brennan quoting Tijani v Southern Rhodesia [1921] 2 AC 399, pages 403 to 404. I will not read it out, your Honours. It is the passage at the bottom of page 49 going over to the top of page 50. But, your Honours, the fact that the ‑ ‑ ‑
KIRBY J: Could I just ask a factual question. I have noticed the affidavit by Mr Chalk. Mr Chalk is your solicitor?
MR JACKSON: Yes, your Honour.
KIRBY J: But could you just give me, in a sentence, where your clients fit in as against the respondents?
MR JACKSON: Your Honour, we are here because we have a claim which has some similarity to the claim presently in question and the determination of some of the issues would determine, in effect, our claim. Our claim is in relation to an area of the Gulf of Carpentaria.
KIRBY J: I see.
MR JACKSON: All the area that is the subject of our claim is within territorial waters and some of the land too, some land areas. Your Honour, a summary of it can be ‑ ‑ ‑
KIRBY J: You are within the State of Queensland or the Northern Territory?
MR JACKSON: Queensland, your Honour.
KIRBY J: Queensland?
MR JACKSON: Yes.
KIRBY J: I see.
MR JACKSON: Your Honours, a summary of it can be found in an annexure to Mr Chalk’s affidavit in I think it is D7, but it may be in the other.
KIRBY J: Yes.
MR JACKSON: There is also a statement of claim in one of them.
CALLINAN J: This is the case that Justice Cooper would not hear.
MR JACKSON: Yes. Your Honours, the point I was seeking to make a moment ago was that the types of interests that are contemplated are unlikely to be the same as those which might derive from ordinary laws. As well as being found in the passage in Mabo, of course, one sees that very concept referred to in the definition of “native title” and “native title rights and interests” in section 223(1)(a), because your Honours will see that that provision contemplates that:
the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the ‑
classes of persons there referred to. Your Honours, may I come back to that definition in just a moment, but could I go to the second of the terms which is relevant, the second of the terms used, in a sense, in the definition of determination of native title? That is the definition of “waters”, which is the last definition in section 253 in the Act at the relevant time. Your Honours have been taken to the definition of “waters” already, but may I just say this about it: that it is apparent, in our submission, that the term “waters” covers all waters, including the waters of the sea. That is apparent, we would submit, from two things: first, the fact that the term “sea” is used in a context where tidal inlets, bays and harbours are already mentioned specifically and, of course, a lesser feature, the use of the term “includes” in the definition itself.
But, your Honours, there are, of course, some limitations on the geographical ambit of the waters, and the limitations come about from two things: one, the nature of what is being spoken about, and, on the other, the legislation itself. When I say the nature of things, your Honours, one is, of course, speaking in the context of Aboriginal peoples and Torres Strait Islanders. It is unlikely that any rights of interests of the kind in question will extend to elaborate distances from the lands forming part of Australia. In any event, there is the legislative provision of section 6, which says that the Act extends, and your Honours will see, the area of operation of the Act.
Your Honours, that takes me then to the third definition, and to which I have been already in passing, and that is the term “native title” or “native title rights and interests” in section 223.(1). Could I first submit in relation to it that one notes immediately that subsection (2) makes it clear beyond measure that the rights and interests which are spoken of in subsection (1) include hunting, gathering and fishing rights. Each of these terms has potential application to the sea and to the seabed. One would, for example, be more likely to hunt than fish for crocodiles, to gather molluscs, and, of course, to fish for fish. Your Honours, one also sees, in terms of the ambit of the Act, that section 211, the provision which was the subject of the Court’s decision in Yanner v Eaton, deals specifically with native title rights and interests which it defines in subsection (3) to include as hunting, fishing and gathering.
One sees also in section 212(2)(c) and also (3) that the Act very clearly contemplates that the waters in respect of which there may be native title rights and interests will include the coastal sea, because your Honours will see that one of the provisions of section 212 is where is says in (2)(c):
A law . . . may confirm any existing public access to and enjoyment of coastal waters.
“Coastal waters”, as your Honours have seen, is defined by section – as your Honours, I think, have been taken to it – it has the meaning given by section 15B(4) of the Acts Interpretation Act which covers the whole of the territorial sea.
It is then, going back to the definition in section 223(1), one comes to the relationship which is required to exist between the native title right or interest and the common law. Your Honours, it cannot be, of course, that the right is one ‑ ‑ ‑
GUMMOW J: It never uses the expression “right or interest,” does it? The statute uses the composite “right and interest,” and it does it in the plural. It does not say “right or interest,” does it?
MR JACKSON: No, it does not, your Honour.
GUMMOW J: I just wonder what your first definition does relevantly here. That is interest per se.
MR JACKSON: Could I submit first of all, an underlying question of something anterior to what your Honour put to me really is this that when section 223(1) speaks of “individual rights and interests”, it is not describing something that, in each case, requires there to be something that could attract the composite description of a right and an interest, but rather is intending to sweep up, as it were, all the ‑ ‑ ‑
GLEESON CJ: It states what the expression comprehends.
MR JACKSON: Yes, your Honour, and it comprehends rights and it comprehends interests. Most often one would think that the same term would be appropriate as a description of the right or interest in question, but sometimes one might be more apposite than the other.
GUMMOW J: Yes, I know, but there is no further definition of “right”.
MR JACKSON: No, your Honour.
GUMMOW J: It is curious that there is one of “interest”, if they are both exegetical of this composite expression “right and interest”, that is all I am saying.
MR JACKSON: Yes, what your Honour says is correct but, your Honour, what I would seek to say in relation to it is that perhaps the term “rights” is one that is more capable of ready legal recognition or its application is more capable of that; “interest” is perhaps a rather broader term and it is defined so that its breadth is apparent.
GLEESON CJ: And it is defined to include “rights”?
MR JACKSON: Yes. Your Honours, the point I was seeking to make is that if one goes then to section 223(1)(c), it does not use the expression that the right has to be given by the common law and, ex hypothesi, the right is not, in the first place. But, your Honours, the provision does not require more than that the right be recognised by the common law. Now, in the ordinary course of events, your Honours, recognised in the context would seem to comprehend some things: one is that it is not something which the common law will not recognise. Your Honour, I put it in that perhaps curiously negative way, because one thing that the common law does do is not to recognise rights given by some other laws in particular circumstances. I will mention some of those in just a moment.
Another thing, your Honours, is that, in the ordinary course of events, the right is one which, if called into question or infringed - and I use the term to cover both rights and interests - is one that would be enforced by some appropriate form of remedy tailored to the right or interest in question in Australian courts.
Now, your Honours, one may, of course, start from the proposition, the Ashby v White notion, that if there was a right then there will be a remedy for it. But, your Honours, in relation to that, the third circumstance is that rights and interests may well be recognised by the common law, but yet not be themselves in issue in particular proceedings.
It may well be that the rights that are native title rights are ones that would need to be taken into account and, in that sense, recognised by the common law in relation to proceedings in which the enforcement of that right is not itself in issue. There may be proceedings between other people.
So, your Honours, a further feature which would arise in relation to that is that – and I perhaps could go back to the question your Honour Justice Hayne was putting earlier – if it be that in relation to a particular right or interest that the sanction for breach of it is provided for by the traditional law or traditional customs, then that may or may not give rise to a question of some difficulty in determining whether that should be recognised by the common law.
I need to explain that a little. What I would seek to say is this: if it be that the sanction provided for was a personal one of a condign nature, meaning by that that there would be some personal spearing or something of that kind, then it may well be that either the whole of the custom, so far as it related to the right or interest, would not be recognised or only the sanction part of it would not be recognised. It would be a difficult question, your Honour, depending on whether the two could be regarded as things that were inseparable or capable of separation. That would be perhaps a question of determining the precise nature of the righter interest. So, if they were severable, then it would be a case where the remedy would be that appropriate to the circumstances as they arose.
Your Honours, sometimes, of course, the court is dealing with cases where the gate is open and the horse has bolted some time ago and the only relief that can be given is either declaratory, or in an appropriate case, an award of damages to vindicate the breach of the right.
Your Honours, I was going to say that there are many circumstances where the common law recognises rights which it does not itself create and which owe their existence to laws enforced outside Australia. Your Honours, in relation to the laws of other countries, the general position is that effect will be given to that law in Australia, provided that the law is not a revenue law or penal or contrary to public policy.
We have given your Honours – and I do not think I need to take your Honours to them now – extracts from Nygh’s “Conflict of Laws” and Dicey & Morris dealing with these topics. The relevant passages in Nygh are pages 275, 279 and 282 and in Dicey & Morris paragraphs 5006 to 5008. Your Honours, I am sorry, I said we have given, I should be using the continuous present. Could I just give your Honours two ‑ ‑ ‑
GLEESON CJ: Right. Now, there is a use of that expression “recognise and recognition” in the first document at the top of this bundle. He talks in terms of public policy causing a court to refuse to recognise, for example, a contract of marriage.
MR JACKSON: Yes. Now, your Honours, one may, of course, have a situation where something that the law of the forum would not be prepared to recognise, not being part of the right giving rise to the claim for relief but part, in effect, of the history of the matter - for example, a marriage that would not be recognised might not be at issue but might be something, in effect, in the chain of title going in a particular case. Your Honour, I do not want to make too much out of that but all I am saying is the non‑recognition may not entirely be in cases where the right itself is in issue.
Your Honours, could I give two examples. Your Honours will see at the bottom of page 275 of the extract from Nygh that Australian courts:
will generally give effect to a change of title –
to property, for example –
effected by governmental command within the territory of the foreign State –
and also will give effect to contracts formed without consideration in a jurisdiction where there is no need for consideration, the example of that being Re Bonacina [1912] 2 Ch 394 at 402.
Now, your Honours, the second thing we would say is that speaking rather more generally, private international law does reflect the recognition of the laws of other places.
Your Honours, the next thing we would seek to say about the common law is that the common law does recognise rights existing by virtue of, to use an expression, native law in places not subject to the common law. Your Honours will see that in a decision of this Court in Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353. We have given your Honours an extract from the principal judgment of Justice Gibbs, with whose reasons Justices Stephen and Menzies agreed, and it was held that the law would give effect to a purchase of land in Papua, a purchase of land by the government from holders by virtue of native title at a time before Papua was part of the Queen’s dominions and at a time when it was a protectorate and nothing more.
Could I give your Honours the relevant passages. At page 436, about point 7 on the page, where the issue is raised, his Honour said:
The question that then arises is whether the purported acquisition in 1886 of sections I to VIII was valid and effectual.
Your Honours will see in the next sentence the argument put was that it was an act of State. His Honour then says a little further down that paragraph:
The declaration of a Protectorate did not make British New Guinea part of the Queen’s dominions, nor the natives British subjects.
Then his Honour went on to say at page 437, about point 7 on the page:
The question then is, under what law is the validity of the purchases to be tested? It follows from the fact that a Protectorate is not part of the Queen’s dominions, that Englishmen who settle in a Protectorate do not carry the law of England with them. After the passing of the Foreign Jurisdiction Act –
et cetera. Then in the passage that goes over to the top of the next page, at the end of the paragraph that continues, your Honours will see:
Since nothing was done to introduce English law governing sales of land into the Protectorate, the purported sales can only be upheld if they were valid in accordance with the native law then in force.
They were held to be valid. Your Honours will see that at page 440, about point 1 on the page in the first new sentence.
KIRBY J: I am not familiar with this case. Was the question whether or not a root of title could be traced back to a valid sale at a time before Papua became part of the…..Crown?
MR JACKSON: Yes, your Honour. I am sorry, I have just lost the particular issue in it. There were two sides of a particular clan claimed to be entitled to some land and the land board was deciding issues of ownership. I think what had happened had been that the land had been purchased by the administration before Papua New Guinea became part of the dominions and then later disposed of. I would refer also to Justice Stephen at page 459, about point 6, I think. It may not be in the extract that your Honours have, but his Honour in the second paragraph of his reasons reached the same conclusion.
Now, the next feature we would seek to mention is this, that the public right to fish is of course a right to fish outside the territorial limits of a polity but it is clearly a right which the common law recognises. Your Honours have been referred to the passages in Attorney‑General for the Province of British Columbia v Attorney‑General for Canada [1914] AC 169 and Harper v Minister for Sea Fisheries 168 CLR 330, about point 4, which set out that view. Once one takes the view that the common law will enforce a right to fish in the area beyond the territory of the polity, there seems no great objection, in our submission, to recognising such a right, if it exists, by virtue of traditional customs of people who have had it from time immemorial, namely, Aboriginal people, “time immemorial” being likely to mean in the context a far longer period than the “time immemorial” referred to in Attorney‑General for the Province of British Columbia v Attorney‑General for Canada.
Your Honours, one is speaking there about a time which, even if one took into account the 400 or 500 years of Roman settlement of Britain, is only about 2000 years. Your Honours, we would also say that there is nothing very new in the judicial recognition of the possibility of interests of this kind. The possibility was adverted to in two cases: Mason v Tritton, to which reference has been made already, and in a decision of Justice Minogue in Papua New Guinea, in Tolain & Ors v Administration of Papua New Guinea; In re Vulcan Land [1965-1966] P7 NGLR 232. Your Honours, could I just give two references to it: pages 242 to 243, and 270 to 271. In the end, it was held the rights were not established; the claim was one in relation to land that had risen in the area of New Britain in consequence of volcanic eruptions, and claims were made, in relation to the land which had arisen, based on the fact that there had been native title to fisheries on the area where the land had risen.
Now, what I have submitted so far really deals with the first part of the first of the three propositions we put in our written submissions and that is that we would submit native title is not limited to native title that exists within the limits – assumed limits we would say – of the territorial application of the common law. Could I take your Honours to our written submissions for just a moment.
McHUGH J: Just before you do, why would the common law recognise a right of native title to fish in respect of areas where the common law recognises a public right to fish?
MR JACKSON: Well, because it would be a pre-existing right, really, your Honour.
McHUGH J: But so is the common law right of public right. Why should the common law right which it gives to everybody give way to the native title right?
MR JACKSON: Your Honour, I suppose in that regard one really starts from the proposition that one does have, if one is looking for which is a superior law, in a sense, one does have the provision made by the Native Title Act saying there can be a determination of native title, and I appreciate that involves the common law as well, but can I come to that. One does have a situation where, by virtue of the early provisions of the Native Title Act native title, if established, is protected by the Act. Now, what is contemplated by ‑ ‑ ‑
McHUGH J: It must be recognised by the common law.
MR JACKSON: Yes, your Honour. I am coming to that, but the very nature of what may be a native title is such that it may be different from, it may be antithetical to, some rights that otherwise would be given by the common law. All that is required is that there be recognition of its existence. If one goes back to Mabo [No 2], then there really are only two conditions which are imposed, absent legislative intervention, of course – only two other conditions that are imposed as circumstances where there would be non-recognition. One is if there is the interference with the skeletal nature of the common law.
McHUGH J: Yes, but judgments, as I have said recently and as Lord Reid said at an earlier stage, are not to be read as if there are Acts of Parliament. Sir Gerard Brennan was stating a principle, not a definition.
MR JACKSON: I understand that, but what I would put in rather humble language, as it were, would be simply to say that it is apparent that if one takes the burden of the decision in Mabo that what was contemplated was that native title rights and interests would be recognised by the common law, if, on the one hand, they were not in some way offensive to the common law – and that is why I would say in relation to that, your Honours, it is analogous, their rights to fish. There is nothing wrong with a right to fish. The two are analogous. So there is no offensiveness in that regard. But so far as the other aspect is concerned, it simply is a question of the extent to which to recognise the right would affect the operation of the common law.
McHUGH J: But it does, does it not? If the common law says that there is a public right to fish, a public right to navigate, why should the common law then say, “Well, we will recognise native title even though it is inconsistent with the rights which are part and parcel with the common law”?
MR JACKSON: Well, your Honour, may I say two things about that: the first is, with respect, that is not quite what the common law says. What the common law says - and we have set this out in paragraph 3.4 of our submissions in the other appeal - but the classic statement is the one that you see quoted in Attorney-General for the Province of British Columbia v Attorney-General for the Dominion of Canada, and that is that the common right exists unless - this is picking up Lord Hale’s observation – “the King or some particular subject hath gained a proprietary exclusive of that common liberty”. So the common law itself contemplates that there may be exclusivity that has the effect that the right that otherwise would exist by virtue of the common law does not exist in a particular area and, in fact, your Honour, if one looks at the history of it, there are enormous areas around Britain where there had been the rights taken away.
McHUGH J: Yes, but the theory of the public right of fishing is that the Kings had ceded it to his subjects. So, that being so, why when the Crown takes possession of a colony should it then be regarded as abrogating the right of its citizens in favour of recognising native title rights? After all, the Aboriginal inhabitants have those same rights of public fishing as the ordinary members of the public.
MR JACKSON: Your Honour, could I say in relation to that, that is one way of putting the question, I suppose. Another way of putting the same issue would be to say: why should one assume that on acquiring sovereignty those rights are expropriated, brought to an end?
McHUGH J: But it is not a question of being expropriated because they are not common law rights. It is what the common law will recognise and enforce.
MR JACKSON: Well, with respect, your Honour, what the common law does recognise and enforce, in our submission, is that the laws, et cetera, that are applicable in a particular area at the time of settlement – I leave aside the question of the manner of settlement – will be ones that will continue to operate and not be extinguished by the mere fact of settlement. Now, your Honours, if one is looking at the particular case, and I do not mean the facts of the particular case, but if one is looking at fishing rights, one is speaking about areas where the claim of the Commonwealth in that regard could only be one that exists in respect of the area beyond three miles from a relatively recent time, not a question of - was it brought to an end then if the right existed?
KIRBY J: Is there anything in the jurisprudence of other societies, such as Canada or New Zealand, which have been going through the process of legal adjustment which Mabo [No 2], in a sense, signalled, which suggests that the answer to Justice McHugh’s question may be found in the adjustment of the common law, on the one hand, the general principles that are applicable to all and, on the other, the special deference or respect or recognition of the rights of indigenous people who were there before the settlers came and whose rights have existed for aeons?
MR JACKSON: Well, your Honour, the reference is in some of the submissions which endeavour to summarise that, not in ours, I do not think, but could we endeavour to give your Honour’s those a little later?
GLEESON CJ: Is that a convenient time, Mr Jackson?
MR JACKSON: Yes, your Honour.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.49 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Thank you, your Honour. Your Honours, may I deal with two matters raised with me by the members of the Court before lunch. First, your Honour Justice Callinan asked was there a compensation provision. Section 53(1)(b), your Honour, I suppose, is the most relevant provision, I think, generally expressed provision.
CALLINAN J: That is consistent, Mr Jackson, with an intention, perhaps, to enlarge the concept beyond what it might have been stated to have been or perceived to have been in Mabo.
MR JACKSON: Your Honour, possibly. It is a provision so generally expressed that in the context of the act there are, perhaps, not so much difficulties but the identification of the issues to which it might apply is one of some difficulty in a sense, your Honour. One would need to see what the precise ‑ ‑ ‑
CALLINAN J: I put it in a confined way. Perhaps it may be consistent with an intention or the possibility of an enlargement in some way.
MR JACKSON: Possibly, your Honour, yes. I do not know that I can say more about it than that. Your Honour Justice Kirby asked me if I could find some references to the overseas situation. Your Honour, it is dealt with in three places in the written submissions and quite fully. Can I give your Honours the reference to where they are. First of all, in the Commonwealth’s submissions in Appendix 1 to those submissions in D9; secondly, in the appendix to the Yarmirr submissions in D9 and, thirdly, in the Mirimbiak Nations Aboriginal Corporation’s submissions in D7 in paragraph 6.3 to 6.5.
KIRBY J: Do they yield any principle in response to the problem that Justice McHugh raised?
MR JACKSON: Your Honour, it is difficult to speak broadly across them for two reasons. The first is because as your Honour will see from the first two references I gave the Commonwealth on the one hand and Yamirr on the other would draw different conclusions from them.
KIRBY J: It might be just different passages in the same case. They are all trying to be helpful.
MR JACKSON: Of course, your Honour, yes. The point we would seek to make about them is that if one goes, for example, to the United States cases they appear to have a different view of the ambit of the sovereignty in respect of the offshore areas, a larger view in the sense that it would encompass ownership and in the light of that one would need to take a different view in relation to the subsistence of native claims in relation to it. The New Zealand position has been partly dealt with by legislation and, in a sense, there has been an ongoing question arising about the effect of the Treaty of Waitangi.
Your Honours, a third in relation to Canada, I think it is probably right to say the position is not clear, so I am trying to put it in that diffuse way.
Your Honours, I was going to refer, and I will do so very briefly to our written submissions on the first issue and, in a sense, the first half of the issue to which we refer in those submission, and that is the question of the territorial application of the common law. All I wanted to say, your Honours, further in relation to that, was that your Honours will find that aspect dealt with in our written submissions in paragraphs 2.1 to 2.4 and 2.7 to 2.8.
As we submit there - your Honours, the first thing we would say, to put it shortly, is that any limitation on the ability to create rights or interests in the territorial sea is not a barrier to the recognition of rights owing their existence to some other law and customs and such rights are recognised by the common law. Mabo [No 2] decided that the rights given by Aboriginal and Torres Strait laws and customs are recognised by the common law. This Court in Fejo 195 CLR at page 128 in paragraph 46, in speaking of the effect of Mabo, used the language of recognition and your Honours will see that in paragraph 46, speaking of native title and six members of the Court there said:
Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title.
Your Honours, I will not read out the paragraph, but your Honours will see in the next sentence an expression “it is recognised by the common law” is there used. Your Honours, that is all I wish to say about the first aspect of that submission.
The second is a very short point, and that is the one to which we refer in paragraphs 2.4, 2.5 and 2.6 of our submissions, your Honours. This relates to the contention on behalf of the Commonwealth that there has to be a radical title in respect of the area before there can be a recognition of native title. Your Honours, the point we would seek to make is that to which we put in the first sentence of paragraph 2.6. Now that really is an inversion of the whole doctrine in relation to native title to postulate that there must be a radical title as a pre-condition for the recognition of native title by the common law. Could I say one other thing about it, your Honours. In paragraph 2.5 - we have not, I think, given the page references in Mabo [No 2] - the propositions that are there set out. They are between, your Honours, pages 46 and 54 in Mabo [No 2].
Could I go, then, your Honours, to the second of the submissions we make in our written submissions, commencing at page 9 of those submissions, and that is the issue of sovereignty. Could I mention in passing one aspect raised by your Honour Justice McHugh and, I think, Justice Gaudron yesterday, also: the relationship between the claim of sovereignty and settlement. Your Honours have been given some references to Mabo [No 2]. Could I refer also to pages 77 and 79, dealing with it. Your Honours, whilst the claim to sovereignty may be made, the sovereignty will not be held to exist unless there is some settlement in consequence of the claim. The difficulty of course does not really arise if one is speaking of addition to territory of an already settled colony.
Could I come then to what has been submitted about the effect of Reg v Keyn and the Seas and Submerged Lands Act Case. In Keyn there had been no legislation or Act of State which asserted sovereignty over the territorial waters. That can be seen from a passage from Chief Justice Cockburn which we have quoted in our written submissions halfway through page 14. Your Honours will see part of the quotation underlined. His Lordship concluded:
But the claim to such sovereignty, at all times unfounded, has long since been abandoned.
Your Honours will see also at the top of page 15 he says:
Can a portion of that which was before high sea have been converted into British territory, without any action on the part of the British Government or legislature – by the mere assertions of writers on public law –
In relation to the States of Australia, the instruments establishing the colonies had defined their boundaries in such a way that they came to an end at low‑water mark, and that was decided in the Seas and Submerged Lands Case. The sovereignty in the territorial waters, if held by anyone prior to Federation, was held by the United Kingdom. Once that view was taken by the court, the polities which had sovereignty were not the States. Their common law, as it was then perhaps perceived to be the common law of each State, did not apply.
But, your Honours, once one has a situation where sovereignty is asserted, the question is, “What does it give?”. If one goes first to Keyn, the observation of Chief Justice Cockburn, which we have quoted in the middle of page 14 of our written submissions, supports the notion that the common law goes with the claim of sovereignty. Your Honours will see the passage that we have underlined:
If, indeed, the sovereignty thus asserted had any real existence, and could now be maintained, it would of course, independently of any question as to the three-mile zone, be conclusive of the present case.
Your Honours, Justice Brennan’s reasons in Mabo [No 2], in our submission, proceed on a rather similar footing. Could I refer your Honours to pages 48 to 52. It commences really about 10 lines into page 48 and goes through to page 52. I will not read it to your Honours, but your Honours will see in various passages there his Honour is speaking of the common law and the application of the common law and your Honours will see that the underlying assumption of the passage there referred to is that, on the acquisition of sovereignty, what came into being and what operated was the common law. Could I give your Honours just one example and that is in the first new paragraph on page 48, where his Honour says:
By attributing to the Crown a radical title to all land within a territory over which the Crown has assumed sovereignty, the common law enabled the Crown –
and your Honours will see similar references throughout the passage to which I have referred.
In relation to the Seas and Submerged Lands Act Case 135 CLR, your Honours will see that the term “sovereignty” is there treated as being supreme authority, but supreme authority not just for purposes external to Australia; specific reference is made to the fact that the authority is also for internal purposes.
Could I give your Honours a reference to Justice Mason at page 475, in the first new paragraph on the page where his Honour referred .
The concept expressed by the word “sovereignty”. . . is that of supreme authority, the supreme authority which a State is recognised by international law as having over its land territory, howsoever the exercise of the supreme authority may be divided between the municipal organs of government within the state.
Your Honours will see he goes on through that passage to refer to the sovereignty in relation to the seabed and goes on to say towards the end of the paragraph:
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 it land mass -
and so on.
Justice Jacobs, page 479 about point 8 on the page deals with the question of sovereignty going over to about point 2 on the next page, and refers both to the external and the internal sovereignty, and so, too, Justice McTiernan at page 376. Those views or the view that the common law becomes applicable is consistent with what was said by Justice Diplock in the Post Office v Estuary Radio Ltd [1968] 2 QB 740 at 754 where, at the top of page 754, speaking of the “accreting shingle bank at Dungeness”, he said:
It was no Alsatia in which a citizen enjoys immunity from the law of the land.
That comes from the preceding page as well. One sees also ‑ ‑ ‑
HAYNE J: That may be coextensive with and, in that sense, connected with external sovereignty. That is what other nations regard as within the sovereignty of the nation or State concerned. But for immediate purposes it is a question wholly internal to the State, is it not, whether, if you like, the courts of that State extends to or the courts will enforce rights or duties in respect of a particular area?
MR JACKSON: Is your Honour using State in a federal or general sense?
HAYNE J: No, not in federal as opposed to unitary but in the sense of the government, be it unitary or federal.
MR JACKSON: Yes, your Honour. Perhaps if I could put it this way? Speaking externally for just one moment by way of contrast, really the recognition of sovereignty by other States is a recognition that the particular State having the sovereignty is entitled to apply its own laws in that area. It is in one sense a territory of that State.
Now, the way in which those laws are applied internally and the internal polity whose laws are to be applied must depend on the internal laws and Constitutions of that nation. Your Honours, that is where one sees sometimes a difference between the position in countries that – leaving aside federal country as well – but one sees countries that have the common law and countries that have another form of law.
Now, in relation to countries having other forms of law, the issue concerning the common law is not one that really arises in the same way as it does for common law countries and, your Honours, if one is speaking about a common law country without regard to there being any geographical or any polity divisions in it, then one would expect the situation to be that by making the sea or additional area part of the polity, then the laws of the polity otherwise applicable would apply to it. When I say “otherwise applicable”, statutes may or may not be expressed to apply there but the general law that would apply, absent statute, in our submission, would apply to the extent to which it is capable of so doing.
In that regard that is really, in a sense, what was said by Lord Watson in Cooper v Stuart in a passage which we have referred to at page 11 of our written submissions, paragraph 3.4, where - your Honours will see the quotation there – in the absence of some specific legislative or executive declaration to the contrary the law becomes the law of – they are speaking of the colony but we would say of the place and in speaking of circumstances where territory is acquired by a form of Act of State then, prima facie, the law applies. In the case of Australia that is, relevantly, the common law. Your Honour, I do not know that I can ‑ ‑ ‑
HAYNE J: But it is essentially self-defined. By that I mean this, that the common law defines the points to which the common law will, if we are to continue this territorial language, will reach.
MR JACKSON: Yes. What your Honour puts to me I would accept but one does have to add to that, of course – and this goes back to the first argument – that the reach of the common law may be something that in terms of enforcement has to take place in a country that applies the common law system, subject to a qualification I will mention, but part of the common law is to recognise laws of other places and to apply them.
HAYNE J: Just to pursue it one moment more, the reach of the common law might, but for the deferential relationship between judicial and executive on these matters, might reach to points provocative of international difficulties for the nation but what draws it back is the relationship between judicial branch and executive branch in identifying where the common law can reach.
MR JACKSON: Yes. The issue can also arise, of course, in relation to the legislative action because if one takes, for example, in relation, say, to external affairs, a law that says Australians in Paris or Parisians in Paris have to behave in a particular way, it may be officious but it may well be valid. That is, in a sense, a trivial example, but if one looks at examples of requirements of various countries for people who are their nationals, wherever living, just to engage in military service, for example, that can give rise to difficulties.
I am sorry, your Honours, the next thing I wanted to say was that in the passage to which I have already referred from Justice Gibbs in Administration of Papua and New Guinea v Daera Guba 130 CLR 437 there is an observation of his Honour which really assumes the correctness of what I have said but does not deal with the issue specifically. Could I just say something more in relation to the contention of Western Australia about the effect of section 4 of the Coastal Waters (Northern Territory Title) Act 1980.
We would submit that it is clear that section 4(1), which is at page 231 of the book of materials, is intending to do no more than to place the seabed under the coastal waters to put it in the same position as the bed under internal waters, but that simply means that the title given is radical title and that native title, rights and interests can be as much recognised there as on the land.
Your Honours, that is all I wanted to say about our first two propositions. May I simply say in relation to our third proposition, which your Honours will see is dealt with at page 16, first, that we rely of course on our written submissions, and I just seek to add this: that it is clear, we would say, that there is recognition at common law of fishing rights in the high seas. There is nothing especially heterodox in recognising the fishing rights of indigenous peoples. In England, one has to look to the fishing rights that may have existed before Magna Carta, but, your Honours, Magna Carta, relevantly, for present purposes, is an irrelevance so far as the waters with which we are concerned are concerned. Your Honours, the other thing about it is that if the antiquity is a relevant matter, then it may
well be that, in many cases, the antiquity of claims of the present kind could be much greater than those contemplated in the United Kingdom.
GLEESON CJ: Thank you, Mr Jackson.
KIRBY J: On one view, different in character, the relationship of the different people in the British Isles to each other was in many ways different from the relationship between settlers and their descendants who arrived, and the indigenous people and their descendants who were there before.
MR JACKSON: Yes.
KIRBY J: And that is borne out if one looks historically at the way in which, in the last 30 years, in Canada, New Zealand, South Africa, Zimbabwe - to some extent the United States, there has been this journey to try to find a new relationship between the law of the settlers and the law or legal customs of those who were there before.
MR JACKSON: Yes. Your Honour, could I also say, in relation to that, the common law is, in a sense, fundamentally founded on common sense, and it is one thing to say, in relation to the United Kingdom, that there have to be – everyone has a fishing right, and that, by a particular limitation as to executive power that was imposed 900 years ago, because of that, the executive in relation to the United Kingdom cannot create new rights of a particular kind. Australia is a much larger country geographically, with huge areas of water surrounding it, very few people, relatively speaking, in relation to those waters.
If, in relation to a particular area of it, it is established that the inhabitants of the area - at least if one has to pick any time, the inhabitants of that area have had, for a long time, in relation to a small area compared with the whole of the waters around the nation, rights by their own laws and customs to utilise parts of that; and that those are ones that do not give any particular offence to common law notions; then it seems very difficult, in our submission, to say that rights that existed in relation to the land cannot be utilised as soon as one gets off the land and goes into the water. Your Honours, those are our submissions.
GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Keon-Cohen.
MR KEON-COHEN: May it please the Court, your Honours, we have filed written submissions and we seek to rely upon those. Those written submissions are accompanied by some materials provided to the Court Officer yesterday and served at lunchtime. We would seek, your Honour, to rely upon those. They are in the nature of extrinsic materials. I apologise that there is no section 15AB notice, but those are materials I will seek to come to in the course of submissions. Thirdly, your Honour ‑ ‑ ‑
GAUDRON J: This is an appeal? We are dealing with an appeal?
MR KEON-COHEN: Yes.
GUMMOW J: You are an intervener.
GAUDRON J: Yes. Why do we have extrinsic materials, for what possible purpose?
MR KEON-COHEN: They are materials in the nature of opinions issued by the UN Human Rights Commission and a law article from an American law journal.
KIRBY J: Is this argumentative material or evidence? If it is evidence, we cannot receive it.
MR KEON-COHEN: No, your Honour, it is not evidence. It is material which, in our submissions, as our written submissions indicate, go to the burden of our submissions, ie, that there is evident an emerging trend or an emerging view amongst the international community which encourages protection of indigenous fishing rights, and these are in the nature of draft declarations on the rights of indigenous people, for example, the Rio Declaration on Development and the Environment, ILO Convention No 169, a Canadian comprehensive land claim settlement called the Yukon Agreement. That is the character of the materials and they are set out in very summary form on a facing page, nos 1 to 8.
GLEESON CJ: What is the relevance of it?
MR KEON-COHEN: The relevance, your Honour, is that it goes to the point we wish to submit and that is that they evidence an emerging view, a developing trend, not an established principle – we do not put it that high – nevertheless, an emerging view in international law which would allow this Court to, should it wish, declare indigenous traditional rights to a fishery confident that it would then be moving in concert with international law trends. That is the burden of it. To that extent and that extent only, we would seek to rely upon those materials as part of the background to our submissions.
Your Honours, the burden of the written submissions focuses on two points ‑ ‑ ‑
KIRBY J: Could you just clarify in a sentence who you are, that is to say, who your clients are and their interests?
MR KEON-COHEN: If your Honour pleases, my client is a statutory body under the Native Title Act called Mirimbiak Nations Aboriginal Corporation. It is the representative body established in Victoria to assist and prosecute native title claims and like matters on behalf of indigenous groups in Victoria and in the materials supporting our application to intervene we indicate where those claims are broadly in Victoria and that there are two substantial claims involving claims to the seas and the resources of the seas offshore Victoria. So we appear as that statutory body with an interest in this case.
KIRBY J: I suppose it is relevant to this extent, that the ancient doctrine of the common law, with the public right to fish, is going to be chiselled away in all parts all around our coastline if the doctrine that is being propounded succeeds. That may be a reason for you to be allowed to intervene and put the arguments, but it may also be a reason, when you add up all the possibilities of chipping away at a pretty ancient principle of the common law inherited in this country, for a degree of caution in allowing the chipping away to aggregate.
MR KEON-COHEN: Your Honour, just as my learned friend Mr Jackson’s clients come from Queensland and involve claims to the seas, we would say we are concerned to the same degree, that is, the decision of this Court may have a significant impact on the ability of our clients in Victoria to prosecute these aspects of their claims. The second point of our submissions, which I would only mention briefly, the submissions speak of the statutory and administrative arrangements in relation to fishing offshore Victoria.
GUMMOW J: Look, we went through this at the directions hearing, Mr Keon-Cohen.
MR KEON-COHEN: Yes, your Honour.
GUMMOW J: You seem to be at it again.
MR KEON-COHEN: No, your Honour, I am indicating the second point that our submissions make.
GUMMOW J: You are here. No one at the moment is seeking to revoke your leave to intervene. What people are trying to get from you, I think, is: what is it that you are about to say, one, that no one else has said; two, that is relevant to what we have now to decide?
MR KEON-COHEN: Yes, your Honour. The first point ‑ ‑ ‑
GUMMOW J: Mere repetition of what other people have said at this stage of things is not going to help much.
MR KEON-COHEN: We do not seek to repeat, your Honour, and, in our respectful submission, our written material does not.
KIRBY J: I think I led you into the error that the other members of the Court detected, but I was inspired to do that by the map which is attached to your document which shows that at the moment there appear to be native title claims on almost half of the coastline of Victoria.
MR KEON-COHEN: Yes, your Honour. The Commonwealth puts the proposition that there is no common law extended to the relevant areas of seas, that it is, as your Honour indicated yesterday, a vacuum. If that is correct, then our primary submission is that reference to international norms, materials, are materials that the Court can refer to and to assist it in the interpretation of the only remaining law that must be there, being statutes or international principles. If the Commonwealth is correct in that, we would respectfully say, radical proposition, then, in our submission, that is the relevance of the submissions that we put.
Secondly, if the Commonwealth is correct and there is no common law in that part of the seas, then reference to international law may avoid an injustice which might otherwise occur in the administration of statutes or otherwise that do apply there.
GLEESON CJ: Reference to international law?
MR KEON-COHEN: In the specific sense that our submissions indicate, your Honour, and that is not to establish principles but to emerging trends on the particular point in issue. That is whether, in the State practice and opinio juris of the international community, indigenous rights to fish are recognised. We would seek to draw the Court’s attention so far as our research has revealed to those various emerging State practices and opinions. So that is the second point of relevance that we would submit.
The third point is that if the Commonwealth is wrong and the Commonwealth does extend beyond the low-water mark, but the content of that common law is unclear, then on the well-established principles this Court may refer, if minded to do so, to the international emerging norm that I seek to refer to, to understand and, if necessary, to develop that common law. The Commonwealth has put this position. We seek to supplement, as far as we are able to read, all the submissions of the other parties and interveners in that way and, in our respectful submission, that is not duplicating material already before the Court.
Your Honours, the content of the international norms that we refer to are in the nature opinio juris, that is, the subjective or psychological element, beliefs that States have that they are obliged to act in a certain way, and secondly, uses or State practice of what States do, including domestically. The examples that we would seek to refer to - and I do not wish to spend time going to all the details - are set out in the supplementary hand-up materials. There are eight documents there and they fall into, we would submit, six categories of international materials. Firstly there are international conventions and articles specifically cited amongst those materials. Thus we have referred, for example, to a well-known convention, ILO Convention No 169 and specific articles of it. I need not detain the Court by reading all that material to the Court, but I rely upon those specifically cited articles in support of the contention we seek to make out.
KIRBY J: Is Australia a party to ILO Convention 169?
MR KEON-COHEN: No, your Honour, and nor is, for example, Australia a party to the draft declaration on the Rights of Indigenous People nor the Rio Declaration but these are not conventions in the conventional sense. They are, however, in our submission ‑ ‑ ‑
KIRBY J: The ILO Declaration is in the nature of a convention; we are a party to a number of ILO declarations and conventions and some of them I think are attached to federal statutes.
MR KEON-COHEN: Yes, your Honour.
KIRBY J: We have looked at them in some cases relating to discrimination, for example.
MR KEON-COHEN: Yes. Well that is the first area of materials that we would respectfully rely on.
GLEESON CJ: Well now, in relation to that material, which is the specific provision or which are the specific provisions of the ILO ‑ ‑ ‑
MR KEON-COHEN: Can I take your Honour to document No 6 in the pile, which is the ILO Convention No 169.
GLEESON CJ: It is sufficient if you just refer to the number of the article.
MR KEON-COHEN: Yes, numbers of the articles, your Honour, are on the facing page. Does your Honour have that to the entire bundle?
GLEESON CJ: That is what I have.
MR KEON-COHEN: Yes, your Honour, and your Honour will see the articles mentioned under document No 6 on that page.
KIRBY J: So this is a convention so described, and therefore it would be open to signature and ratification by Australia?
MR KEON‑COHEN: Yes, your Honour.
KIRBY J: You tell us Australia has not done so.
MR KEON‑COHEN: That is my understanding, your Honour.
KIRBY J: Do you know how many State’s parties have adhered to it?
MR KEON‑COHEN: We understand 14, your Honour.
KIRBY J: That is not a very large number of the ILO members.
MR KEON‑COHEN: No, and it is for that reason that we do not put our submission at the elevated level of seeking to refer to established principles. We put our submission at the level of a discernible trend. Does your Honour the Chief Justice have the ‑ ‑ ‑
GLEESON CJ: Yes, I have the facing page. I have looked at Article 1.1. I have looked at Article 2.2(b), Article 5(a), Article 8.1.
MR KEON‑COHEN: Yes, and following those, your Honour, Article 13.
GLEESON CJ: Now, which of those that I have looked at so far have any bearing on the present case?
MR KEON‑COHEN: They are background, your Honour, to Articles 13 and 14 which your Honour is about to come to, and might I refer to those?
GLEESON CJ: Yes.
MR KEON‑COHEN: They say headed “Part II. Land” if your Honour will read Article 13.2:
“lands” in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use.
In our submission that embraces seas.
GLEESON CJ: Yes.
MR KEON‑COHEN: Article 13.1:
In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.
GLEESON CJ: Right. Now, how does that have a bearing on the arguments with which we are concerned?
MR KEON‑COHEN: Because, your Honour, it touches upon, in our submission, the “culture and spiritual values” of the indigenous peoples that we speak of which embraces, in our submission, the very foundation of native title as stated in Mabo [No 2] and in section 223 of the Native Title Act.
GLEESON CJ: I have not followed the way you get from that to some particular submission concerning an issue which we have to resolve.
MR KEON‑COHEN: Yes, your Honour, but what follows, in our submission, is this. If the Court, on a review of these international documents, forms the view that there is in the international legal community an acceptance of the importance and in some countries an introduction of an acceptance of treaty obligations with regard to indigenous rights to fishing, then this Court may be guided by reference to those international emerging norms in the resolution of the question what should the common law accept or recognise in relation to indigenous rights to the seas.
GLEESON CJ: Right. Now, what is the guidance?
MR KEON‑COHEN: The guidance, your Honour, is that should this Court wish to issue declaratory rulings about that it can be confident that it does so, assuming the rulings ‑ ‑ ‑
GUMMOW J: We do not issue declaratory rulings.
MR KEON‑COHEN: I withdraw that then, your Honours. Should this Court uphold ‑ ‑ ‑
GUMMOW J: You would be in big trouble under Chapter III if you started that activity.
MR KEON‑COHEN: If this Court decides this case in favour of the first respondents, ie, that the common law or sovereignty or radical title, or absent radical title, nevertheless traditional rights to fish do extend to these sea areas, then the Court does so in conformity with these emerging trends of international law.
GLEESON CJ: Let me put the question this way. What, if anything, in the decision of the Full Court of the Federal Court under appeal to this Court is inconsistent with anything in this convention?
MR KEON-COHEN: There may be an inconsistency, your Honour, touching upon whether the traditional right to fish is a several right or an exclusive right.
GLEESON CJ: And how would that inconsistency be found by a reading of this convention?
MR KEON-COHEN: The inconsistency will not be found, your Honour, but in resolving that issue, as a matter of common law and construction of the Native Title Act, these materials might encourage the Court or give the Court some comfort that they may find an exclusive right. The materials, your Honour, include reference in ‑ ‑ ‑
GLEESON CJ: You mean there is nothing in the convention that contradicts any step in the reasoning taken by the Full Court of the Federal Court, but if we were minded to disagree with that reasoning, we would get some psychological balm from this?
MR KEON-COHEN: We respectfully submit, your Honour. you would receive the same nature of assistance as his Honour Justice Brennan received in his discussion of the relevance of international law in Mabo [No 2], that is, if the Court is engaged in the process of developing the common law, it is clearly, as a matter of principle, relevant.
KIRBY J: Do you put it in this way, that if the Court is considering the first argument of the Commonwealth that the common law of Australia ceases and has always ceased at the low-water mark and if the question now in light of Mabo [No 2] is whether that is still an appropriate exposition of the common law of Australia, it is relevant in resolving that uncertainty or controversy to inform yourselves of what has occurred in other jurisdictions such as Canada - I notice there is some reference to something in Canada here – and in developing principles of international law ‑ ‑ ‑
MR KEON-COHEN: Yes, your Honour.
KIRBY J: ‑ ‑ ‑ which appear in other places to contradict the notion that a country has no real interest in the context of indigenous people’s rights beyond the low-water mark?
MR KEON-COHEN: Yes, your Honour, and we would respectfully submit that there is nothing unusual about such course.
KIRBY J: The only thing that is unusual is that Justice Brennan and other Judges, including Justice Gibbs in that case from Papua New Guinea which we were referred to, invoked the authority of decisions of the International Court of Justice. What you put before us seems to be rather lower on the pecking order of international law.
MR KEON-COHEN: Yes, your Honour. That is true, your Honour, and we regret that, but our researches have not found such a decision of the ICJ that seems to touch upon these points.
GUMMOW J: But where out of all these very general words – and, of course, they expressed in generalities – of these international instruments do we get this notion of exclusivity, which is D9, is it not, and not D7? Assuming it is within the range of D7, where do we get exclusivity?
MR KEON-COHEN: That is addressed in our written submissions. I will take you to that.
GUMMOW J: Where in these international instruments? It is not, is it?
MR KEON-COHEN: Your Honour, you will find that notion ‑ ‑ ‑
GUMMOW J: If it were, it would be a highly sensitive issue, I would imagine, for the people drafting these instruments.
MR KEON-COHEN: I imagine so, your Honour.
GUMMOW J: Yes.
MR KEON-COHEN: Part of the materials that we refer to are in the nature of State practice or usus and this takes us to domestic decisions. So whether one approaches it as an international law discourse or simply by reference to other common law countries perhaps does not matter. At paragraph 6.3 of our written submissions we touch upon Justice Merkel’s discussion of Kauwaeranga below and his conclusions as to exclusivity, his references to Magna Carta, that is at 6.3.1. Over the page we refer to R v Symonds as its reasoning supporting a finding of exclusivity in that case.
We also refer at 6.3.3 to a further New Zealand decision , Te Weehi, which speaks of exclusive fishery rights. In addition, your Honour, in that material we refer to the Maori Fisheries Act 1989 of New Zealand at 6.3.4 and the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992. Those pieces of legislation developed significant administrative and legal reforms which delivered substantial rights to the New Zealand fishery to the Maori people.
KIRBY J: But, presumably, that could have been done in the Northern Territory by legislation.
MR KEON‑COHEN: Yes, your Honour.
KIRBY J: The question is whether or not it is done subject to the Native Title Act by the common law.
MR KEON‑COHEN: Yes, your Honour.
KIRBY J: So I do not really see how it was the New Zealand courts before the legislation and the Treaty of Waitangi Fisheries Claim Settlement Act, did they develop any notion that it was not appropriate in the context of New Zealand and in respect of Maori fishing rights to say that the common law of New Zealand did not extend beyond low‑water mark.
MR KEON‑COHEN: Your Honour, I cannot answer that question.
KIRBY J: There have been a lot of cases in New Zealand on Maori rights. They have had 120 years or more of development of it.
MR KEON‑COHEN: Yes. I am unable to assist your Honour. We will try to explore that point, if your Honour wishes.
KIRBY J: What I had in mind was Sparrow which was the Canadian case which you refer to at 6.5.
MR KEON‑COHEN: Yes, your Honour, and in addition when we are referring to Canada we cite Gladstone’s Case and in the footnote touching upon that matter, at footnote 49 might I emphasis the Pacific Salmon Treaty which is referred to there. That is a treaty, as the footnote reads:
Conflict between Indian and non-Indian fishing interests led to the negotiation of the USA – Canada Pacific Salmon Treaty which came into force in 1985. This treaty balances the fishing and conservation interests of four US states, 24 US treaty Indian tribes, one province and one territory. Under the Treaty, a supervisory and decision making body was established with four Canadian and four US members. To ensure the protection of their fishing rights, Indian representatives are part of each group.
So, it is quite, in our respectful submission, a significant international Canada-USA treaty. It touches upon, squarely, the salmon resources, the very valuable resources of that part of North America and involves in its administration in the terms of the treaty 24 US tribes to respect and administer their traditional fishing rights. We would call that in aid in founding the proposition we seek to make.
KIRBY J: That decision in Reg v Gladstone which is referred to in 6.5.1 just after Sparrow and the epigram by Chief Justice Lamer concerning the priority to Aboriginal rights but that the recognition of them should be consistent with public access to fishery seems to bear out Mr Jackson’s statement that in Canada it is not all that clear but it does at least say this much that they do not appear to have accepted or at least continued to follow the notion that the common law, which was what his Lordship was referring to, extends only, in this respect, to the low‑water mark.
MR KEON‑COHEN: Yes, your Honour. The comment of the judge might also be considered in the context of the constitutional section 35 rights in Canada and this Court has often indicated a need to be wary of importing those notions holus‑bolus.
KIRBY J: Yes, but his Lordship says:
As a common law, not constitutional right –
So, he has addressed himself not to the Canadian constitutional situation but to the common law.
MR KEON-COHEN: The notion of priority, your Honour, of course is different, strictly speaking, to exclusivity but, in our submission, it trends in the same direction. That is to say, under these doctrines, those indigenous rights are given a priority which is accorded to them as against other interests in those resources held by other citizens. That, in our submission, is worthy of note in assessing the issue before this Court, as to whether indigenous rights to fish are properly described as “exclusive”.
KIRBY J: As to your document No 4, the Draft Declaration on the Rights of Indigenous Peoples, you say that Australia was not a party to that. Is that so?
MR KEON-COHEN: The Commonwealth, your Honour, in their reply, is critical of this entire approach. I refer your Honours to the Commonwealth’s reply of 30 January, paragraphs 3.41 and following, at page 22 of their reply, and indicates in those pages the state of play in relation to Australia’s relationship to the draft declaration. It indicates that Australia, in the Commonwealth’s view, has had no formal participation in it; that the draft declaration was not a formal UN process, and is largely managed by non-government people. Your Honour, we reject that Commonwealth attack to this extent: our submissions do not suggest that these are established or binding materials that we are referring to. Our submissions carefully level these materials at an emerging range of activities.
GUMMOW J: Some sort of pre-customary international law, is it?
MR KEON-COHEN: Your Honour, in certain parts of the world, it could be said that these rights are the subject of formal, codified convention rights, for example, the US-Canada - - -
GUMMOW J: All I am saying to you is, when you talk about international law, you are not really talking about that here.
MR KEON-COHEN: No, we are talking ‑ ‑ ‑
GUMMOW J: As traditionally understood.
MR KEON-COHEN: Yes, your Honour, we are talking in the sense ‑ ‑ ‑
GUMMOW J: You are not talking about state obligations inter se, and you are not talking about customary international law, either, because it is not yet custom.
MR KEON-COHEN: Indeed, your Honour, we indicate as much in our written submissions.
GUMMOW J: Yes.
GLEESON CJ: And when you are talking about the “international community”, in relation to the authors of a document like this, you are talking about a product of the effort of a group of people who are identified in a particular way.
MR KEON-COHEN: Yes, your Honour. But, equally, one can go to a range of texts and authors and commentators who assert, and, I believe, widely throughout the English-speaking world, that this is an important, emerging series of propositions, and that the draft declaration is one example of a continuing trend which continues to elevate these propositions. That is as high as we put it, your Honour.
Before leaving this part of our submissions in the time available, could I refer to document No 7, which is the Yukon Agreement. The first page of document 7 indicates the very large scope of that agreement. It is part of a comprehensive land settlement in Canada and it was settled in 1988, so it is in that sense well established. We have extracted chapter 16, again as an example of the proposition we seek to assert. Could I refer to the materials in 16.1.1, 16.1.3, 16.1.9.
KIRBY J: But what is the nature of this agreement? It is between ‑ ‑ ‑
MR KEON-COHEN: It is between Canada and the Council for Yukon Indians, being an indigenous group in the Yukon territory of north‑west Canada and it has the nature of a domestic ‑ ‑ ‑
KIRBY J: It is like a treaty then, is it, that sometimes is referred to in the Australian context?
MR KEON-COHEN: Yes, your Honour.
KIRBY J: This is the accomplishment of a treaty of some kind?
MR KEON-COHEN: It is the accomplishment of a document which is not an international treaty but a domestic‑type treaty. It is a very detailed arrangement between these two entities.
KIRBY J: I just do not see how an agreement of this kind, even taking the broadest view, can be relevant to the problem which is before us, which is to ascertain first what the common law says and, secondly, the requirements that the Native Title Act lead to.
MR KEON-COHEN: I have sought to indicate how we put it, your Honour.
KIRBY J: Yes, but it is one thing to say that you can use international declarations and conventions. I am not myself completely unsympathetic to that, but I just do not see how a purely municipal agreement between Canada, the Yukon and a body whose status I do not understand, the Council of Yukon Indians, advances our understanding of our common law or the interpretation of our statute.
MR KEON-COHEN: Your Honour, over and above the response I have already given, might I say this: these form part of a large network of international activity. This is an indicator of the intellectual debate amongst the international community. These are seen, for example, by those engaged in working on the draft declaration, which we have mentioned, as ‑ ‑ ‑
KIRBY J: But it cuts both ways, Mr Keon-Cohen, because there would be those who would say if the Court looks at this document, “Hands off the common law because the way to go is by way of a treaty or by way of some international development”. You do not change the established principle that has existed for a long while.
MR KEON-COHEN: Your Honour, I will not delay the Court further then with reference to that item. Could I leave those materials with the Court for such use as it chooses and in the time remaining move to a topic that seems to have arisen of importance. That is arising from the questions of Justice Hayne as to the intersect notion between what native title is and how the common law relates to it and questions of remedies and the like which touch, in our view, upon a question: precisely what is native title when extended to the seas or on the lands?
It seems to me if the Court is to decide what should the common law say about native title to the sea areas and right of fishery, then it may be of assistance to form some understanding of what native title is as a matter of content. Now, your Honours, this is not a part of the written submissions, but I would seek to make eight short points as to how native title can be properly described.
Firstly, in our submission, there are some well-established principles that need not delay us. It is a sui generis right of variable content. In the Wik Case 187 CLR, at pages 126 to 127, Justice Toohey said this in relation to native title:
at one end of the spectrum native title rights may “approach the rights flowing from full ownership at common law”. On the other hand they may be an entitlement “to come on to land for ceremonial purposes, all other rights in the land belonging to another group”.
Similar comments were made by Justice Toohey in Mabo 175 CLR at pages 178 to 179, where his Honour said this:
The rights claimed by the plaintiffs on behalf of the Meriam people do not correspond to the concept of ownership as understood by the land law of England . . . what is involved is “a special collective right vested in an Aboriginal group by virtue of its long residence and communal use of land or its resources”.
Those observations, in our submission, raise what seems to me an underlying confusion or conceptual difficulty which has been evidenced by the discussion about common law community rights to fish and common law community rights to navigation, on the one hand, and indigenous native title rights to fish on the other, that is, native title can be seen as an underlying title to the land; we would add to the land beneath the seabed.
Secondly, as a dependant range of rights and the nature of usage of that land. There seem to be two items to the concept. Native title, in our submission, embraces water, land and resources therein and other aspects of the environment and may include interests not otherwise known to the common law. These are well established. This Court in Mabo [No 2] 175 CLR at page 85 point 5 said such hitherto unknown aspects does not prevent the common law from recognising those titles. So that is the first proposition.
The second is equally well established that native title is founded on fact and the facts should be viewed from the Aboriginal perspective. The title is founded on the facts given in a particular case, in particular upon the occupation of the land and seas by the relevant indigenous group prior to the introduction of the common law and it is founded on the customs and traditions manifested then and now by that group. Justice Brennan has said, and it is worth recalling, at 175 CLR at page 58:
Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory.
Justice North, in dissent, in Ward v Western Australia 170 ALR 159 at paragraph 783 added the next proposition that I mentioned in this second point, that is, his Honour said:
The proper characterisation of native title thus depends on Aboriginal law and custom. The matter must be viewed from the Aboriginal perspective.
We would respectfully add that that perspective typically involves an holistic view of the environment which involves not only rights, but also obligations. I would note there that there is nothing novel in the idea that property is a responsibility as well as a privilege. I would refer to Justice Napier in Backhouse v Judd (1925) 16 SASR at 21. That was a case that concerned cruelty to domestic animals which are recognised as property.
Now, founded on fact in our submission, it is important to recall in the context of the discussion earlier concerning section 223 and the propositions as I understood it of the Solicitor for the Commonwealth, that one looks to the facts as at the extension of sovereignty of the original occupiers and today seeks to replicate those facts.
In our submission, 223 is not in its proper application frozen in that way. It has an ambulatory application. It focuses upon the current‑day manifestations of custom and tradition and that is the evidence that one brings. They may be sourced in. They are required to be sourced in and founded in the customs and traditions of the original occupiers, but they may, nevertheless, change and adapt and still be described as traditional for the purposes of section 223.
The question of fact, in our submission, also answers the difficulty asserted by the Commonwealth of the 100‑year plus gap between the extension of sovereignty in 1824 to the low‑water mark of the then colonies as against, on one argument, the overcoming of that difficulty with the creation of the Federation in 1901 and the extensions to the territorial seas ‑ ‑ ‑
GUMMOW J: Now, Mr Keon‑Cohen, are you differing in any respect from the detailed and clear submissions for the Northern Territory that we heard this morning in these seven points or any of them?
MR KEON‑COHEN: No, your Honour, no.
GUMMOW J: Matters not encompassed in what Ms Webb put to us this morning?
MR KEON‑COHEN: No, your Honour.
KIRBY J: If they supplement those submissions, may it not be in a more efficient way to get them to the Court rather than reading them out to have them put in as a supplement to your submissions?
MR KEON‑COHEN: Well, if that is of convenience, we will proceed that way, your Honour, and if your Honour will allow us, we will put in a supplementary document simply summarising these points. There are eight propositions I wish to present as to the nature of native title intended to assist in understanding how the common law in respect of the seas responds to that title and we can do it that way. Might I also, with the leave of the Court, take the opportunity to make some minor corrections to our written submissions in the nature of correcting citations and the like?
GLEESON CJ: Yes, that is a good idea.
MR KEON‑COHEN: If that is of convenience to the Court, then those would be our submissions, your Honour.
GLEESON CJ: Thank you, Mr Keon‑Cohen. Yes, Mr McIntyre.
MR McINTYRE: If I can take your Honours to our written submissions and, in particular, to paragraph 8. What the first eight paragraphs of our submissions do is to pick up what Justice Merkel said, albeit in dissent, where he felt constrained to follow the opinion of Chief Justice Sir Gerard Brennan in The Commonwealth v WMC where, as Justice Merkel understood it, Sir Gerard was saying that radical title cannot exist beyond the land. So he followed that and said:
that “the Crown’s enjoyment of supreme authority results in the sovereign enjoying the bundle of rights or powers acquired over the sea upon acquisition of sovereignty.
He referred to Seas and Submerged Lands Act Case and then he said that:
whilst those rights and powers do not constitute radical title they are equivalent to the ultimate and paramount rights and powers gained over land by the sovereign upon gaining sovereignty.”
So he seems to have decided that he ought to find some other way of describing what it was that the Crown had by way of sovereignty over the offshore area.
Now, what we do in our first seven paragraphs is to dissect what Chief Justice Brennan said in Commonwealth v WMC and suggest that perhaps that opinion might not be followed, that it really is not necessary to draw some distinction between radical title in what Justice Merkel calls the:
ultimate and paramount rights and powers gained over land by the sovereign –
that they really are the ‑ ‑ ‑
GUMMOW J: Is there anything else in any other judgment in Commonwealth v WMC Resources Limited bearing on this?
MR McINTYRE: No, I think that is the only judgment which deals with that topic. The case, of course, was about the question of whether or not the Commonwealth had acquired the interests of WMC when it varied the permit which they had offshore, and that is what most of the other judgments turned upon, the question of that acquisition of powers constitutional issue and it was only Chief Justice Brennan who seems to have expressed an opinion of this topic. He does so, in part, by relying on various dicta from the Seas and Submerged Lands Case, and just to use an example, Sir Ninian Stephen in that case said that the Commonwealth lacked a radical title and Chief Justice Brennan quotes that, but we suggest that when you read what Sir Ninian was saying in that judgment, what he was saying is that the Commonwealth did not have a radical title because the colony or the State had the radical title. He was in the dissent; one of the dissenting judgments in the Seas and Submerged Lands Case, and he took the view that, contrary to the majority view, the colonies did have offshore rights and therefore the claim that the Commonwealth had an interest in the offshore area he found against, in his opinion, and that is really the basis for why he says the Commonwealth did not have a radical title.
If one accepts our suggestion that you do look to see whether there is a radical title offshore then it is important to understand what one is talking about when one is talking about radical title. The Attorney-General for South Australia suggested that you can only have a radical title in company with the doctrine of tenure. That only exists onshore, therefore radical title cannot exist offshore. We say two things about that. We say that the doctrine of tenure is not a necessary coexisting element with radical title; that radical title can exist independently of the doctrine of tenure, a classic example, of course, is the existence of native title. It is our contention that native title is not part of the doctrine of tenure. I note that the Northern Territory Governments was suggesting that it was subsumed into the doctrine of tenure. It would be our contention that native title is not part of the doctrine of tenure. The doctrine of tenure deals with the English estates; native title is something outside that. Radical title is something which certainly assists in the application of the doctrine of tenure on land, but it exists beyond that, and if we ‑ ‑ ‑
GLEESON CJ: I notice that Justice Stephen in the Seas and Submerged Lands Case was cited by Chief Justice Brennan in WMC and Justice Stephens specifically said that there was, what he described as, a lack of radical title in relation to territorial waters.
MR McINTYRE: Yes, but what I am suggesting is that when he was talking about - in context, what he was saying is that the Commonwealth did not have a radical title, because he was of the view that the State had the radical title.
GLEESON CJ: Well, you are right, he was saying that the Commonwealth did not have a radical title.
MR McINTYRE: That is right, yes, so it is not that there is no radical title. We suggest he was not saying that. It appears that Justice Brennan has interpreted him as saying that and we would say to that extent Chief Justice Brennan has wrongly relied on that statement by Sir Ninian Stephen to support the view that he took.
What Chief Justice Brennan in Mabo [No 2] said about radical title is illuminating, because he describes it as a concept adapted from feudal theory and applied to the colonies and it would appear that courts were not using the term “radical title” until they had to consider it in the context of the colonies. It was not really necessary to talk about a radical title in England, because the position ‑ ‑ ‑
GUMMOW J: It had all been forgotten by the 18th century, because they thought they were moving into an enlightened age, but then they had to work out what was going on in their colonies so they revived all this medievalism.
MR McINTYRE: Yes. That is what Justice Brennan says in Mabo.
GUMMOW J: That is what land is all about.
MR McINTYRE: Yes. So, they brought back radical title in order to explain its relationship with the pre-existing rights of those whom they were colonising. Justice Brennan, for instance, refers to Amodu Tijani v The Secretary, Southern Nigeria and in that case the judicial committee described the radical or final title of the sovereign as a pure legal estate to which beneficial rights may or may not be attached.
Now, we would suggest that is quite a useful understanding of what radical title is, that it may not necessarily have a beneficial interest attached to it but it is nevertheless a legal title. We say that if you adopt that sort of conceptualisation of radical title, then it really is the sovereignty which is extended offshore plus the pure legal title with or without the beneficial interest. The beneficial interest may, for instance, as in this case, lie with the native title holders but there is a form of title, limited as it is, which extends with the acquisition of sovereignty.
GLEESON CJ: To take a simple example, on your analysis, what is going on in the following situation? Suppose a person goes to the Northern Territory Government and says, “I want to build a jetty out extending half a mile from low‑water mark and I want an appropriate form of title that will give me the right to do that and security against trespassers”. On your analysis, what then happens?
MR McINTYRE: Well, the Northern Territory Government exercises its pure legal title to make the grant. So, what clearly a radical title of that kind does is to invest in the holder of that title the power to grant interests. Now, obviously, in this situation if it was granted interest over an existing native title interest, it would have to take that into account in determining whether it could do that consistently with the native title interests and it would be governed by the Native Title Act and the processes for what are now called future acts under the Native Title Act of granting interests inconsistent with native title interests.
GAUDRON J: But I wonder do you need a notion of radical title to support the grant of title in the sea in any event. Perhaps you would never have had to have resort to it, even in Australian legal theory, except to explain how it was that native title got extinguished. I mean, as a matter of legal theory you surely do not need it once you have legislative power which extends so far.
MR McINTYRE: Yes, it really is ‑ ‑ ‑
GAUDRON J: I mean, you may need it for prerogative – for at least where grants issued under the prerogative you need the theory, and that explains the extinguishment of native title, but leave aside the prerogative, you do not need it.
MR McINTYRE: Yes, your Honour.
GUMMOW J: That was what Sir Maurice Byers was saying in the argument in Wik really, that one of the problems with Justice Brennan’s judgment in Mabo is that it does not really come to grips with the fact that most Australian land has been granted pursuant to statute. That is what it has all been, it has all been about statute, and for that you have legislative power. You are not worrying about common law, radical, this that or anything.
MR McINTYRE: That is right. I mean, it is very hard to identify what radical title adds to the concept of sovereign power or legislative power of the ‑ ‑ ‑
GAUDRON J: It certainly supports the notion of prerogative grant which in turn may extinguish native title, but beyond that it does not really serve much use in the law any more, does it?
MR McINTYRE: That is right, if you accept what Mr Justice Merkel said, that with the ultimate and paramount rights and powers, you have the capacity to recognise native title interests and that recognition would be in some legal form pursuant to an application such as this for a determination of native title or ‑ ‑ ‑
KIRBY J: Radical title is a complete fiction, is it not, at least in the Australian context, and it is one which lawyers who are brought up in the notion of tenures do not like to see slip through their fingers.
MR McINTYRE: I think that is probably so, your Honour, yes.
GLEESON CJ: Correct me if I am wrong, but it was used in the reasoning in Mabo, was it not, at least partly, as a way to avoid the consequence of the proposition, indeed as a means of denying the proposition, that the Crown had full beneficial ownership?
MR McINTYRE: Yes, that is right. It was the corollary to the argument that the Crown, upon acquiring Australia or the colony of New South Wales ‑ ‑ ‑
CALLINAN J: Radical title could be burdened with other rights or interests, whereas perhaps other titles could not be. Was that not the point?
GLEESON CJ: Part of the argument that was unsuccessful in Mabo, as I would have understood it, was that when whatever happened happened, the Crown became the full beneficial owner of all of the land in Australia and native title was thereby extinguished.
MR McINTYRE: Yes.
GLEESON CJ: Part of the answer that was given to that was: no, what happened was that the Crown acquired a radical title which, by operation of the common law in conjunction with native title, could be burdened with particular rights and interests.
MR McINTYRE: Yes, that is how it was dealt with. If you wanted to abandon the notion of a radical title ‑ ‑ ‑
HAYNE J: “Radical title” is the label applied to the theoretical analysis that is made. It is not a fiction. It is the label applied to the theoretical analysis. By all means jettison the label. Give us another label to describe, if one must, the analysis, but let us not get hooked on the labels and let us not argue from the label to the content of that which it is labelled. A lot of the debate seems to proceed in that order and not satisfactorily.
MR McINTYRE: Yes.
KIRBY J: It certainly was not a notion that was invented in Mabo. I mean, it had a long history.
MR McINTYRE: Yes, and I referred your Honours to the Judicial committee in Amodu Tijani, for instance, which was ‑ ‑ ‑
CALLINAN J: Mr McIntyre, what do you say about the passage that I put to some other counsel of Justice Toohey in Mabo at page 180 in which his Honour emphasises the distinction between sovereignty and title? Is it not possible to read that as meaning, for example, in respect of the seas that sovereignty may exist or does exist but that there needs to be some exercise of sovereignty perhaps before any titles of any kind can exist?
MR McINTYRE: Perhaps other than those which pre‑existed the assertion of sovereignty.
CALLINAN J: That is the common law, that sovereignty itself does not embrace title. There needs to be an exercise of sovereignty before you can get any title or any estate or interest in land or the waters.
MR McINTYRE: That is so, if you attach a certain range of connotations to the word “title”. If you ‑ ‑ ‑
CALLINAN J: You do no have to, do you? “Title” is just a right to use land or property.
MR McINTYRE: If it is radical title you are talking about, then it may be what can best be described as a pure legal interest, which perhaps does not go beyond sovereign powers, the power to grant titles. What sovereignty gives, and what radical title gives – and to that extent, they seem to be not indistinguishable – is the power to do what your Honour says, which is to grant titles to others.
CALLINAN J: But there is no title that pre-dates sovereignty, or the exercise of sovereignty.
MR McINTYRE: Native title pre-dated it ‑ ‑ ‑
CALLINAN J: The common law does not recognise title that pre-dates sovereignty.
MR McINTYRE: It was not here to recognise it, I suppose. Those who held such sovereign power as they did, prior to 1788, recognised it among themselves.
GUMMOW J: But the New Guinea case does recognise it.
MR McINTYRE: Yes.
GUMMOW J: That was Mr Jackson’s big point.
MR McINTYRE: Yes. Certainly ‑ ‑ ‑
GUMMOW J: One of them.
MR McINTYRE: ‑ ‑ ‑ the common law having come along ‑ ‑ ‑
GAUDRON J: It will not recognise title deriving from its own laws but it may recognise rights and interests deriving from laws that pre-dated sovereignty.
MR McINTYRE: Yes.
GAUDRON J: And that is just an ordinary application of choice of law rules, in one sense.
MR McINTYRE: It was not doing any recognising until it had acquired sovereignty, so it was ‑ ‑ ‑
HAYNE J: Does it amount to more than this: that the executive, with or without statutory authority – let us leave aside the answer to that question - had power, on acquisition of sovereignty, to deal inconsistently with native title, but having power to do so did not mean that the native title had been extinguished? It was not until the power was exercised that there was extinguishment.
MR McINTYRE: Yes. You could apply radical title to that concept.
HAYNE J: And if you describe the legal state of affairs as the executive having radical title, having pure title, having whatever – that is simply a description of that legal state of affairs.
MR McINTYRE: Yes. We would be more than content with that approach, your Honour. In general, following the latter submissions from 12 onwards, the views of Justice Merkel in relation to how sovereignty was extended gradually further and further out into the offshore areas and we suggest that there is no conceptual difficulty with that; that it can be equated to what happened with Murray Island, where sovereignty was extended to the Murray Islands in 1879 by letters patent. What the Commonwealth has done is to gradually declare that it regards itself as having greater degrees of sovereignty further out from the coast.
In paragraphs 18 through to 31 we have provided the Court with an analysis of what the various judges said in the Seas and Submerged Lands Act Case and we put the proposition that there is no clear view coming from that case that there is no property in the seabed below the oceans in the Crown, certainly out to the various limits which it has claimed from time to time.
It is sometimes said that the Seas and Submerged Lands Act Case decided that there was no property in the seabed. Certainly, Justice Gibbs and various other Judges put a strong view that there was a property in the Crown in the seabed. Chief Justice Barwick, for instance, seemed to not decide that issue and really the case is about the question of the jurisdictional issues and one or two of your Honours have already suggested that in the course of argument with other counsel.
To take up what your Honour Justice McHugh said about the question of the public right to fish as against the public right of navigation, we would suggest that there is a relevant distinction to draw between those two and we support the contention which our learned friend, Mr Basten, put that native title may override the public right to fish whilst it does not override the public right of navigation.
We would suggest that the distinction is this, that the right of navigation has historically been a co‑existing right with other interests. It serves a particular purpose to allow for those navigating the coast to do so safely and have an opportunity to do so and it allows for the possibility that there may be other proprietary interests of the differing kinds within the area which the person exercising the public right to navigate is doing so in a co‑existing way with those interests.
The public right to fish, we would suggest, historically can be overridden by the proprietary interests and Justice Merkel in his dissenting judgment examines the rights of several fisheries. Prior to Magna Carta there was the possibility that people owned several fisheries which were exclusive interests in inland waters and they excluded the public right to fish.
McHUGH J: They could not after. The King could not do it after Magna Carta, could he?
MR McINTYRE: That is right. We say, as a matter of principle, the public right to fish is not an absolute right. It is one which can be overridden where there is an interest which one would say is a more significant interest, if you like, than the public right to fish. We would suggest that a native title interest is a proprietary interest, or at least a quasi‑proprietary interest, which we would say ought to be found to be more significant than the public right to fish and, therefore, override it.
McHUGH J: But assuming that the common law recognises the native title right of fishing in the territorial sea and also recognises a public right to fish, why should it prefer one after the other? There are people – I am not one of them – who say that the common law is based on a doctrine of equality. In those circumstances, why should it prefer the right of one group to another?
MR McINTYRE: I suppose that is the nature of the property interests. I mean, if native title holders do not have the right to exclude even a person exercising a casual public right to fish, then they really have no property interest at all. If their rights as the Croker Island people are only to do what any member of the public can do, then what title do they have?
GLEESON CJ: Well, that is a question that will be asked during the course of the hearing of the next appeal.
MR McINTYRE: Yes, but that is why we say that if you accept that the native title interest is a property interest, then a property interest, we suggest, is a superior interest in the hierarchy than a public right to fish, which is a ‑ ‑ ‑
KIRBY J: The other theory would be that it simply happens that in this particular property interest that it coincides with and is equal in content to that which the common law of England gave to any member of the public, that the two circles for this particular moment intersected.
MR McINTYRE: Yes, well obviously it is a question we can contend for one view on.
GUMMOW J: The word “property” is conclusory really.
MR McINTYRE: Yes, conclusory of what?
GUMMOW J: …..otherwise, I think, really.
MR McINTYRE: Yes.
GUMMOW J: It is not a piece of cheese.
MR McINTYRE: Yes.
McHUGH J: And indeed, if you go back to what might be regarded as the similar case of Mabo, namely Amodu Tijani, where the notion of radical title is first mentioned from where Justice Brennan probably got the expression, Viscount Haldane spoke in terms of a right, native title the rights rather than property, if I recollect.
MR McINTYRE: Yes, well ‑ ‑ ‑
GUMMOW J: Lord Haldane being a famous equity lawyer.
MR McINTYRE: Yes.
McHUGH J: But Lord Haldane was also a lawyer who practised extensively in the Judicial Committee in the Privy Council. In fact, after the appointment of Lord Davey to the House of Lords, he probably had the largest Privy Council practice. He was in many of those case. You only have to read his autobiography to see how many cases from the colonies, dominions, India and places like that, Egypt, that he appeared in. So he was obviously very familiar with this whole doctrine of native title and rights.
MR McINTYRE: Yes, but I mean, “right” is a generic term in the same way as “property” is a generic term; I mean, they do not reveal much. They state a ceiling and you need to know what it is under that, that it is disclosed by.
McHUGH J: Well, exactly. I hold a radical view that property is only what the State will recognise, but I do not think that is the orthodox view. Whenever the State recognises as property and when it will not, it is not, but others have a different view. Somehow or other it pre-dates a society, at least a political society.
MR McINTYRE: Yes, and we, of course, put an argument in Mabo about whether or not recognition was necessary. Of course that is what the - in some of the Indian cases, they said that there was a requirement for recognition. Of course, our view would be that the majority in Mabo found against the necessity for recognition.
It may assist your Honours or it may not, but at page 110 of the Mabo [No 2] decision in the judgment of Justices Deane and Gaudron they say that:
The rights of an Aboriginal tribe or clan entitled to the benefit of a common law native title are personal only.
Now it is sometimes said that you conclude from that that native title is not a property interest, but a personal interest.
We would not necessarily advocate that view, because we would suggest that in fact what Justices Deane and Gaudron were saying there was that it was personal in the sense that it was an interest which was not alienable. What that really points to is that native title is, in fact, a sui generis interest, as Mr Keon‑Cohen mentioned. It is not susceptible to necessarily being put into any particular box and when you use the words rights and property and personal interest verses real property interests, those are boxes of the common law which really do not assist us much in coming to a view as to what native title is and, similarly, radical title and those sorts of concepts do not necessarily assist us in coming to an understanding.
We would suggest that the sui generis interest which has been recognised by this Court in Mabo is one which coexists with the sovereignty of Australia and can be recognised wherever it exists.
GUMMOW J: Now, Justice Toohey was always, I think, of the view that “title” was probably an unhappy choice of word fallen upon to describe all this.
MR McINTYRE: I know Justice Brennan did not like the word “ownership”. I am not sure that Justice Toohey – but, certainly, I mean all of these concepts ‑ ‑ ‑
GUMMOW J: It carries so much baggage with it from elsewhere.
KIRBY J: Bit late for us to change that now, I think.
MR McINTYRE: One can not change it but it needs to be explained what it is.
GLEESON CJ: If there are some loose threads, you had better be careful before you give them a tug.
MR McINTYRE: Thank you, your Honour.
KIRBY J: Your appendix to your submission refers to the controversy about dependent nations and groups and clans. It appears that that might be relevant in Ward, I do not know, but it does not seem to be relevant in this case, is it?
MR McINTYRE: It is a debate between the Commonwealth and myself, I think. The Commonwealth said that if they are right and radical title does not extend and the common law does not extend offshore, then it would seem that they would say that the consequences of the acquisition of sovereignty means that there can be no native title recognised offshore. For a start, we say that that must be wrong because it is inconsistent with Mabo. Mabo says that sovereignty by itself cannot eliminate native title; therefore the acquisition of sovereignty offshore without the application of the radical title or property law cannot, we would suggest, extinguish native title.
If the Commonwealth is right and property law has not extended beyond the three nautical mile limit, we would suggest that whatever sovereignty native title offshore was based upon has not been taken up by the Commonwealth, if the Commonwealth is right about that. We primarily say that they are not right about that but, if they are, then our interest is an allodial interest based in whatever sovereignty we had prior to the Commonwealth coming along, given that they say that they do not take up sovereignty to the extent of dealing with property rights offshore.
The Commonwealth perceived that we were arguing that we had that right because we were a domestic dependent nation. We do not argue it that way. The concept of a domestic dependent nation is not an international concept. It is a concept which is used in the United States authorities and we refer to them. The words themselves tell you that it is a domestic concept. The word “dependency” suggests that that group may be dependent upon the international sovereign, in this case Australia.
The word “nation”, of course, is the one which tends to mislead because that does have an international meaning. We suggest that in the concept “domestic dependent nation”, that word “nation” does not have its international meaning and that the Court in Mabo could as well have said that the Miriam people were a domestic dependent nation, without describing them as being anything different from what the Court found them to be, which is a community. The various judges used different words, some called them a people, some referred to the word “community”, Justice Toohey used the word “society” and none of them went to define what it was that they were talking about specifically in relation to any of those words and used them to some extent interchangeably. All we say is that the concept of domestic dependent nationhood is not one we contend for and it does not really assist, that the only argument in relation to any rights beyond the sovereignty of Australia would be if the Commonwealth right that their sovereignty does not take up the property interests, the allodial title which we say is held offshore.
There was just one final thing. The Commonwealth also put the proposition that Justice Moynihan in his determination in Mabo found that there was no title held offshore by the Miriam people. We would suggest that it is somewhat misleading to put that view. In the Mabo Case there was a claim originally going out as far as 10 nautical miles. That was in part adjourned. The statement of claim did continue to assert a claim out to the three nautical mile limit, but as it turned out in the final determination of this Court, this Court did not consider the issue of offshore interests, and as
will be recalled by one or two who were present at the time, the Chief Justice asked what relief was being sought. What Justice Moynihan was saying was that the rights of particular plaintiffs, Eddie Mabo, James Rice and David Passi, were asserting particular interest, exclusive interests as against one another. Justice Moynihan said that the evidence did not support a conclusion that they had interests as against one another and that is all that he decided. In fact, he said that so far as the adjacent reefs and reef flats are concerned, if any probability emerges from evidence it is that access to them and their produce was in earlier times in terms of a larger territorial or village groupings. It is just not the case that Mabo made any decision in relation to this issue. If it please the Court.
GLEESON CJ: Thank you, Mr McIntyre. Yes, Mr Solicitor for the Commonwealth.
MR BENNETT: If your Honours please. Yesterday, your Honour Justice Gaudron asked a question which, perhaps, is the hardest question in this case and perhaps one of the more important ones. It is a question to which no case has answered except perhaps the one dictum from Cooper v Stuart which was taken slightly out of context by my learned friend this afternoon.
The question your Honour asked was this. If one has a new volcanic island in the Pacific, as yet unclaimed by anyone, and the Australian Parliament passes an Act asserting sovereignty over it so that as far as Australian courts are concerned it is subject to Australian sovereignty with or without someone going out and planting a flag but without any settlement, does the common law apply on that island?
Now, that is a question which has not, as I say, apart from the dictum in Cooper v Stuart, been the subject of express decision. As Justice McHugh pointed out yesterday, most of the cases have talked in terms of the settlers bringing the common law with them. One reason for that may be that there has not heretofore been any reason to distinguish between the moment that settlers arrive and any prior legislative or quasi‑legislative declaration which extends sovereignty.
GUMMOW J: The settlers were, in many of these cases, worried about trial by jury. It is a very practical question.
MR BENNETT: Yes, precisely, your Honour. We would submit that in the ultimate it depends upon how and with what language perhaps sovereignty is acquired. If one looks, for example, at Australia – we have here for the Court a set of the instructions given to Captain Cook and the instructions given to Governor Phillip. Now, I do not want to go into these in detail. The relevance for present purposes is that ‑ ‑ ‑
CALLINAN J: Mr Basten has not really had an opportunity of dealing with this submission. It is, in a sense, new matter.
MR BENNETT: Your Honour, it is in answer to something that was asked earlier. It is not going to take any great length of time.
CALLINAN J: No, no, it is not that. I am just concerned that he might – well, he has an opportunity to deal with it, that is all.
MR BENNETT: In any event, your Honour, I am not sure I have given your Honours the correct one of Captain Cook in any event.
GLEESON CJ: That is all right then.
MR BENNETT: Yes, but, your Honours, the second commission to Governor Phillip did make it clear that courts were to be established. That appears – in fact, it is marked in ink – on page 4 of the fatter document your Honours have. So that is a document of 1787, a year before the First Fleet and the instructions are to constitute courts to administer justice and so on. So it is reasonably clear that the purport of it is to extend the common law. It is an example of a declaration of sovereignty having the effect also of bringing the common law.
GUMMOW J: Or some of it.
MR BENNETT: So much as is applicable to the conditions of the – yes.
HAYNE J: And with a touch of a marshal law as well as the common law, Mr Solicitor, I thought in the early years.
MR BENNETT: There is a bit of that, your Honour, no doubt.
GLEESON CJ: But the settlers brought the common law originally to New South Wales, but let us talk about bringing the common law to Australia. They did not bring it to Port Jackson. So they brought it to whatever happens to constitute Australia, from time to time, and if Australia annexes an island in the Pacific, even though the only inhabitants at the time are penguins, then the common law applies two things that happen on an island, does it not?
MR BENNETT: Well, it may depend on how Australia annexes it. If it says, “We annex it as a territory”, then there is a constitutional definition of what occurs. If it says it makes it part of Australia, then no doubt the common law applies to it as part of Australia as a matter of construction.
GLEESON CJ: I use the expression “applies to it” as distinct from “applies in it”.
MR BENNETT: Yes. But, your Honour, if it does something else ‑ ‑ ‑
GLEESON CJ: Because it really applies in a court in respect of certain things.
MR BENNETT: Yes.
GLEESON CJ: The question of where the common law applies is important when a judge comes to make a decision. It applies in that court.
MR BENNETT: Yes, and it applies in that court in the example of the volcanic island I suppose only where two Australians visit it, one commits a tort against the other and then there is an action when they come back to Australia.
GLEESON CJ: Or two Australians get involved in an argument over who owns a penguin.
MR BENNETT: Yes, well, no doubt in that situation, too. If one goes back to the ‑ ‑ ‑
HAYNE J: No, it does not depend on Australians being parties at all, Mr Solicitor. If a foreign person happens to catch another foreign person on the way through Australia and serves them with process, then that action will be litigated in the courts of Australia.
MR BENNETT: Yes, your Honour, although one has to distinguish jurisdiction to determine a dispute and what law applies to that dispute.
HAYNE J: Just so, and your submissions did not.
MR BENNETT: Well, your Honour, I am endeavouring to make the distinction clear at the moment, but if I can just finish these early instructions. The instructions to Captain Cook ‑ ‑ ‑
GUMMOW J: Are you going to take us to page 14 of Governor Phillip’s enlightened instructions?
HAYNE J: And the “compulsive measures” and “fallacious pretences” there referred to perhaps, Mr Solicitor?
GUMMOW J: Under the heading “To procure women from the islands”.
MR BENNETT: Yes. I was going to leave that, your Honour, to be dealt with, perhaps, in the next appeal. If one goes to the instructions to Captain Cook, which were earlier, there is no mention of anything to do with bringing the law to the colony and, indeed, it would seem that in the events which happened there was no instruction in relation to the ‑ ‑ ‑
GUMMOW J: Is there not an article by Sir Victor Windeyer on all of this?
MR BENNETT: There is one, yes.
KIRBY J: But is that because of the purpose of Captain Cook’s exploration, which was basically scientific, was it not?
MR BENNETT: Yes, it was, your Honour.
KIRBY J: Whereas Phillip, a decision having been made to set up the colonies here, had a different purpose.
MR BENNETT: Yes. Your Honours, the relevance of Captain Cook is, very shortly, that his instructions did not, in the events which happened, permit the claiming of sovereignty in a manner which reduced Australia to British sovereignty as a matter of British law. The sole instruction given to him was:
with the consent of the natives, to take possession of convenient situations in the country in the name of the King of Great Britain, or, if you find it uninhabited, take possession for His Majesty by taking up proper marks and inscriptions as first discoverers and possessors.
So one does not get from that, or from any contemporaneous proclamation, any assertion of sovereignty at that stage. So with Australia, we had a simultaneous acquisition of sovereignty and a bringing of whatever of the common law was brought to it in 1788, pursuant to the proclamation of 1787. But whatever ‑ ‑ ‑
GAUDRON J: You do not suggest, do you, that there was an assertion of sovereignty in 1770?
MR BENNETT: No, your Honour, I am saying the opposite.
GAUDRON J: The opposite, yes. So we have to ask what would have happened if there had then been an assertion of sovereignty but settlement did not occur until ‑ ‑ ‑
MR BENNETT: No, we do not have to ask that. In one sense ‑ ‑ ‑
GAUDRON J: Well, to answer the question that you say is posed. It may be helpful to answer that question.
MR BENNETT: Yes. The only direct reference to that question is the passage my learned friend, Mr Jackson, took the Court to in Cooper v Stuart (1889) 14 App Cas 286. If I can just show your Honours the context of that, the question was whether the rule against perpetuities had been brought to New South Wales. The passage there is a familiar passage of course. It draws the distinction between:
a Colony acquired by conquest or cession, in which there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time –
Of course, in one sense Australia was neither, as found in Mabo.
CALLINAN J: What page, I am sorry, Mr Solicitor?
MR BENNETT: Page 291, your Honour. Having drawn that distinction, his Lordship says:
The Colony of New South Wales belongs to the latter class –
ie, a territory practically unoccupied, and in essence Mabo of course, but that is not the case.
In the case of such a Colony the Crown may by ordinance, and the Imperial Parliament, or its own legislature when it comes to possess one, may by statute declare what parts of the common and statute law of England shall have effect within its limits.
So it is a matter again for the acquiring country to determine whether the common law goes or not. That is why I said it is ultimately a construction of the ‑ ‑ ‑
GAUDRON J: And the next sentence.
MR BENNETT: The next sentence says:
But, when that is not done –
this is the default rule, the default rule in the case of your Honour’s island –
the law of England must (subject to well-established exceptions) become from the outset the law of the Colony, and be administered by its tribunals.
Of course, the assumption that the colony has tribunals rather answers the question which is asked because, if tribunals have been set up, presumably a system of law has been set up and presumably that involves the common law.
GAUDRON J: But in this case we do not really have such difficulties, do we? Perhaps it goes to both, the three-mile sea and the 12-mile sea, and perhaps not, but we have in both cases assertion of sovereignty in one way or the other by the Commonwealth, and what you have practically contemporaneously with the assertion of sovereignty is section 15B of the Interpretation Act.
MR BENNETT: Can I deal with that separately, your Honour? That is a different issue.
GAUDRON J: But it does, to some extent, solve the problem, does it not, because one really is only going to get to the application of the common law if you get into a court and, assume it to be a Federal Court, which we are for this case, that brings with it immediately all the written laws of the Commonwealth, to the extent that they are not otherwise excluded or inapplicable, the laws of the State where the court is, et cetera, et cetera, and ultimately the common law.
MR BENNETT: So far as is applicable, your Honour.
GAUDRON J: Yes, well so far as is applicable.
MR BENNETT: And if one applies the Seas and Submerged Lands rule, it is not applicable.
GAUDRON J: That is the issue.
MR BENNETT: But that is the issue.
GAUDRON J: Yes. So you do not deny, for example, that it would be applicable to determine whether or not a binding contract had been made between two people in that area?
MR BENNETT: The question of a binding contract, your Honour, may have nothing to do with where it is made and, therefore, it would not ‑ ‑ ‑
GAUDRON J: No, it may or may not.
MR BENNETT: If it did, the result might be different than if it did not.
KIRBY J: But the law of the contract is taken ordinarily from where it is made and on your theory there is no law.
MR BENNETT: Precisely, your Honour, that is why I answered the question that way.
GAUDRON J: You do not say not precisely, do you? You said precisely or not precisely?
MR BENNETT: Your Honour, I am sorry, I did not think I said either. I said the law of a contract – if one looks to the law of the place where it is made, there would be no relevant law. If one applies a different principle to determining whether there is a contract, then there might be.
GAUDRON J: If one looks to the law that would be applied in a Federal Court where the matter was in issue, there being no evidence that there was any other law applicable or that there was any difference between the relevant law, then surely the common law of Australia would be applied.
MR BENNETT: Your Honour, one might apply that even though the place where the contract was made had nothing to do with Australia. For example, if a contract was made between two people swimming in the middle of the Pacific Ocean, not on any ship of any nationality, there would be no law of the place relevant in relation to the place where the contract was made. Now, as a matter of strict analysis, how one would deal with that in private international law ‑ ‑ ‑
GAUDRON J: Well, let us go back to section 80. You do accept, do you not, that via section 15B at least some of the common law would be applied by a court exercising federal jurisdiction in relation to matters or events occurring in the territorial sea?
MR BENNETT: I accept that certain statutes apply to it and it may follow as a matter of logic from that that the common law of the interpretation of statutes might have to be applied to that interpretation. Further than that, I would not accept that, your Honour.
GAUDRON J: That does not, it seems to me, take account of the fact that section 80 would, at least to some extent, render the common law applicable. Without being specific – I do not think one needs to be specific – assume litigation in a Federal Court with respect to matters or events occurring in the territorial sea.
MR BENNETT: Your Honour, we would not accept that section 80 applies to that.
GAUDRON J: At all?
MR BENNETT: At all.
GAUDRON J: It has no application?
MR BENNETT: Has no application.
GAUDRON J: Notwithstanding litigation in the Federal Court with respect to those matters and events?
MR BENNETT: Yes, your Honour, and the position would be the same if one were dealing with events which took place in the middle of the Pacific Ocean or for that matter, on the moon. One is dealing with a place where there is not a system of law.
GAUDRON J: That is not the question, whether there is a system of law or not. The question is whether, in the event of litigation within jurisdiction in a Federal Court, the common law would be applied.
MR BENNETT: The answer is no, your Honour.
GAUDRON J: No, because you say the common law is simply not applicable to anything below the low-water mark, in the absence of statute?
MR BENNETT: Yes, your Honour.
GLEESON CJ: Can two people who go out fishing, whilst they are on the fishing boat enter into a contract for the sale and purchase of the fishing boat?
MR BENNETT: Your Honour, on a boat they are on Australian territory, being an Australian boat, and that ‑ ‑ ‑
GLEESON CJ: All right. Suppose two surfboard riders go out, can they make a contract?
MR BENNETT: That would be a question whether a surfboard is a boat, your Honour. But if two swimmers go out, the ‑ ‑ ‑
GLEESON CJ: Suppose two surfboard riders are sitting alongside one another waiting to be taken by a shark, while they are waiting for it to come, can they enter into a binding contract for the sale of a car?
HAYNE J: Disposing of their testamentary estate.
MR BENNETT: Your Honour, if they are able to do so, they are able to do so because of the law applicable to their persons where they are and the law of the forum. They are not enabled to do so because of the law of the place they are in and there is no law of the place where they are in. Now that may or may not – and this is why I am not giving your Honour a direct answer – that may or may not be fatal to the validity of a contract. The answer is exactly the same as if two people go to the moon and make a contract and there is a dispute over it in an Australian court. My answer to your Honour would be the same in those two cases. I am not sure what the answer is for the reason I have given, but ‑ ‑ ‑
GUMMOW J: But the question is, why does one apply something other than the lex fori? It is a fortiori you would apply in lex fori because there is nothing else to apply. You say you would apply nothing.
MR BENNETT: If you apply the lex fori I have got no problem of giving a positive answer to the question but that does not affect ‑ ‑ ‑
GLEESON CJ: But it follows form that the common law of Australia applies to the transaction. You do not have to say the common law of Australia operates on the moon, all you have to say is that if two astronauts get involved in litigation in an Australian court the Australian court will apply the common law of Australia to the transaction they entered into on the moon.
MR BENNETT: In that case I am content with that analysis but that analysis simply does not affect my argument in this case because here, of course, we are dealing with rights in real property, but the ‑ ‑ ‑
GAUDRON J: No, not necessarily. There is nothing to say that we are dealing with rights in real property. What we are dealing with is native title rights, or native title rights and interests, as defined in the Act.
MR BENNETT: Yes, your Honour, and in my submission, that is rights in real property.
GLEESON CJ: Is that a convenient time, Mr Solicitor?
MR BENNETT: Yes, your Honour.
GLEESON CJ: We will adjourn, now, until 10.15 tomorrow morning.
AT 4.22 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 8 FEBRUARY 2001
Key Legal Topics
Areas of Law
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Contract Law
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Negligence & Tort
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Equity & Trusts
Legal Concepts
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Breach
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Causation
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Damages
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Duty of Care
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Reliance
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Remedies
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