Peters v Petersville & Anor

[2001] HCATrans 14

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 THURSDAY, 8 FEBRUARY 2001, AT 10.23 AM

(Continued from 7/2/01)

Copyright in the High Court of Australia

________________

GLEESON CJ:   Yes, Mr Solicitor.

MR BENNETT:   If the Court pleases.  Yesterday I was discussing with your Honour the Chief Justice the question of the law of contract in relation to a contract made more than three miles from the coast but less than 12 miles.  It is perhaps not the best example to raise in relation to the present problem, because the law of the contract is, of course, the proper law.  That is normally the law chosen by the parties, otherwise the place with which it has the most substantial connection.  The concept of the lex loci contractus is a fairly outdated concept in relation to contract law so in practice there is unlikely to be a problem.

In Appendix 3 to our submissions we have set out a whole range of legislation which applies aspects of the common law or aspects of statutory law to areas at sea.  The most important perhaps being the Crimes at Sea Act 1979 which, I think on 1 March, is to be replaced by the Crimes at Sea Act 2000. The point about all that legislation is really two words, “it is necessary”, and it is necessary because otherwise the common law simply does not extend to that area. It is important to note that, as a matter of practice, this is not going to be significant in many areas of law. As Justice Hayne put yesterday, one starts with the position that one is in a court in Australia and that that court starts by applying the common law.

But when it applies the common law, one of the questions which it has to ask is what does the common law, itself, say about whether it applies to the problem.  For example, if the area is covered by statute which has replaced the common law, then, I suppose to the extent that the common law applies, it would say it does not apply, and one can think of other examples.  Ultimately, there is no difference in this area between the bizarre example I gave yesterday of a transaction, a contract, a tort, a crime or anything else taking place on the moon and the same thing taking place in the three to 12 mile zone.  All “internal sovereignty” means in this context is that the Commonwealth Parliament can, if it wishes, legislate for the area, and, as we have shown, it has. 

Now, I concluded yesterday by saying something I was immediately picked up on when I referred to the law of native title being a law relating to real property.  The more accurate phrase is the phrase appearing in the Native Title Act, itself, in section 223, the definition section, is that it is “rights . . . in relation to land or waters”. The point being, as far as the present aspect is concerned, that it is a right in relation to a particular part of the earth’s surface, and for that purpose it is significant that the common law does not apply.

My learned friend, Mr Basten, submitted that the acquisition of sovereignty has the same effect on sea as on land.  That is the proposition which is refuted by the Seas and Submerged Lands Act Case.  So, whether or not your Honours accept my answer to Justice Gaudron in relation to the volcanic island, which may be a fascinating question no one has ever had to answer, apart from the dictum in Cooper v Stuart, in relation to waters it is clear that it does not apply.

If I can just take your Honours very briefly – and this is the only case I will take your Honours to in reply – to the Seas and Submerged Lands Act Case 135 CLR 337. Perhaps the clearest, although I will go back through four of the Justices, is that in Justice Jacobs’ judgment at page 493. At point 7 just after the reference to the Canadian Attorneys‑General Case, his Honour says:

Nor was it agreed that a sovereign state owned the seas in the same way as it owned the land.  It has never been so agreed.  The right of innocent passage denies that proposition.  And it may now be asked – could the Crown in right of a colony deny innocent passage to foreign ships . . . The answer must be negative.  Yet the Imperial Crown could do so by virtue of its prerogative.

If your Honours go back to Justice Mason at page 466, his Honour at point 5, just after the reference to the North Sea Continental Shelf Cases, said:

Even so, it is necessary to distinguish between the land territory of a coastal state on the one hand and its territorial sea and solum on the other hand, for the coastal state in The exercise of its sovereignty rights is bound to give effect to the obligations relating to the right of innocent passage imposed upon it by the Convention . . . Accordingly, the territorial rights now conceded by international law to the coastal state in the solum of territorial waters stamp it with the character of territory that is different from the land territory of the coastal state.

Justice McTiernan at page 379 merely made the point that is made in all the later cases as well.  It is at point 2 just after the quotation:

The functions of the Crown include the prerogative of the Crown in relation to foreign affairs.  Even if the most limited criterion be applied, a country’s territorial waters, the soil beneath them, and the country’s shelf, in themselves, have an external aspect and are matters of the country’s foreign relations.

Finally, that point was also made by the Chief Justice at page 363 where again at point 2 just adjacent to his Honour’s name his Honour says:

But the international concession was not that the territory of the nation, in a proprietary or physical sense, was enlarged to include the area of water in the territorial sea or the area of subjacent soil.  Indeed, the very description “territorial waters” emphasizes, in my opinion, that they are waters which wash the shores of the territory of the nation state, otherwise regarded as ending at the margin of the land.

Your Honours, it is important to note that the declaration of sovereignty your Honours have been taken to in the Seas and Submerged Lands Act did not purport to extend to the common law.  That may be done in specific and narrow ways.  It is done in relation to the zero to three by the Territory Act your Honours have seen.  It is done in relation to crime by the Crimes at Sea Act in relation, your Honours will see, to a huge area which extends way beyond the 12‑mile limit and beyond what is, on any view of it, Australia, and, of course, Australia internally can do that.  It can say ‑ ‑ ‑

KIRBY J:   Just help me.  Is it done by – I do not remember – express reference to the common law or simply by asserting something which would otherwise be part of common law?  Is not the common law something for judges to determine?

MR BENNETT:   Your Honour, the way it is done – we have given your Honours copies of it – is to refer to the substantive criminal law of States and Territories and to say that that applies, and that, of course, would include the common law.  It is done that way.

KIRBY J:   I mean, under the current understanding, the law of the State or Territory is – rather, the common law is the law of the Commonwealth, that is to say it is national law, it is Australian law.

MR BENNETT:   It would include that, your Honour, yes, but the Act has a very complex scheme which would take me some time to take your Honour through and it is probably not necessary for this case.  Our only point in relation to the Act is the one sentence, “It was necessary”.  On my friend’s argument, of course, it may well not have been.

GUMMOW J:   You keep using the phrase – and you are not alone in doing it – “common law”.  You mean unwritten law?

MR BENNETT:   Yes, your Honour. 

GUMMOW J:   Do you exclude from that admiralty jurisdiction?

MR BENNETT:   Your Honour, there is  ‑ ‑ ‑

GUMMOW J:   I would think not. 

MR BENNETT:   Much of that is of course statutory, much  ‑ ‑ ‑

GUMMOW J:   I know.  Of course.  But if you are talking about “common law” and what “common law” courts did, we are only talking about part of the picture. 

MR BENNETT:   Yes.  Admiralty jurisdiction obviously contains elements of – perhaps, admiralty law is the phrase I should use rather than jurisdiction – common law.  The admiralty jurisdiction was a specific doctrine developed by English law over the years, which, as your Honour knows, fluctuated in its nature as to how far it extended; there was a doctrine of the narrow sea as at one stage, and so on.  For present purposes, we are not concerned with that.  The simple point is that the common law itself just did not apply. 

GAUDRON J:   What do you mean, “the common law itself”? 

MR BENNETT:   Your Honour, the unwritten common law.  That is the phrase used, interestingly enough, in the Crimes at Sea Act. 

GAUDRON J:   Yes.

MR BENNETT:   It talks about “law” - I am sorry, your Honour?

GUMMOW J:   That is what just alerted me. 

MR BENNETT:   Yes.  It says “law including unwritten law”. 

GAUDRON J:   Yes.  That may be – if you are using “common law” to mean unwritten law at every point, that is one thing.  And presumably that will include any unwritten aspects of admiralty law. 

MR BENNETT:   Yes, that would be so if it was not otherwise applied, yes, and one would have to see how it was ‑ ‑ ‑

KIRBY J:   It is a curious description of the common law to say it is unwritten given that it is written in the books subject to its extension.

MR BENNETT:   Well, your Honour, uncodified or unenacted is a more accurate description.  It is a phrase which is used.  The problem, of course, is that one can use common law as opposed to equity, common law as opposed to civil law and so on, but in this context it is common law as opposed to statute law or delegated legislation.

HAYNE J:   Then I do not know where you have come out of this immediate debate.  Are you saying or are you not saying that unwritten aspects of admiralty law applied in this area?  What are you saying?

MR BENNETT:   They did on ships, your Honour.  I think I am correct in saying, but I do say this subject to correction, that admiralty law itself said nothing about what happened other than on ships.  I do not think it dealt with swimmers in the ocean.

HAYNE J:   Assume that to be so, and I suspect it is so, you are, as I understand it, accepting, are you, that admiralty law had application to events that occurred on ships in this area?

MR BENNETT:   As they would to ships in the middle of the Pacific Ocean.

HAYNE J:   What does that say, if anything, about this notion of the common law having a territorial element or reach?

MR BENNETT:   But there is an exception that ships, like embassies I suppose, are little bits of Australia that are somewhere else.

McHUGH J:   But is that the true basis of it?  I thought the true basis of it was that the King by virtue of his prerogative claimed jurisdiction over the seas and by virtue of his prerogative created the jurisdiction of the Lord of Admiralty and the common law recognised that prerogative, but it was not itself part of the prerogative, that it depended upon political considerations which the common law was prepared to recognise in that same way that the common law recognises an Act of State, but the admiralty jurisdiction was not itself part of the common law.  Now, I may be wrong about that, that is my recollection.

MR BENNETT:   Yes, I think that is so, your Honour, but, in any event, whatever the situation is with admiralty jurisdiction, it does not affect the propositions in this case.

GUMMOW J:   But they tried all sorts of issues that could also have been tried in common law courts.  They do to this day.

MR BENNETT:   Yes they do, your Honour, and that was part of the discussion in Keyn’s Case, the jurisdiction of the Admiral, which did not extend ‑ ‑ ‑

GUMMOW J:   But that was a crime case.

MR BENNETT:   It was a crime case, yes.

CALLINAN J:   Mr Solicitor, perhaps a more fundamental matter, and it may be more relevant to the next appeal, but can you have a system of title, whatever rights are embraced by that term “title”, recognised by the common law without a means, either belligerent or curial, with appropriate sanctions, of protecting and maintaining that title?  Now, if you cannot, what are those means in this case, in respect of the sea?

MR BENNETT:   In Austinian terms, I suppose, a law without a remedy is a meaningless law.  The answer is no, although, of course, the place that enforces the remedy need not be the same as the place which in some way is relevant to the problem, but the question we have to ‑ ‑ ‑

CALLINAN J:   But you must have some means of enforcing the law, they might be belligerent means, but without them how can you have a system of title that the common law can recognise?

MR BENNETT:   Yes.  Well, we put that a little differently and say because the common law does not extend, except as specifically extended to the relevant area, the court applying the common law will not apply common law principles to the term “matters relating to land and waters”.

CALLINAN J:   See, Justice Olney’s findings seem to be that there were no such means in this situation with respect to the seas.

MR BENNETT:   One does not need to go that far because it would be possible for the Parliament to pass a law saying the common law shall apply to this area.  It would be possible for the Parliament to pass a law saying that in the Native Title Act in section 223(1)(c), the requirement of recognition by the common law in the offshore area shall be replaced by a requirement that it would have been recognised by the common law had the area been onshore, but it has not.

CALLINAN J:   But in one sense, if one were to recognise native title rights over the sea here, the common law would be giving a remedy that did not previously exist.  The common law and/or the statute would be giving a remedy that previously did not exist and a means of enforcing that remedy that did not exist under this system of title previously.

MR BENNETT:   That is certainly so, your Honour.

CALLINAN J:   So it would be really creating in that respect a different system of native title from the system that existed before the common law applied.  I do not think Mabo deals with this matter.  I may be wrong, but I do not think it does.  It seems to assume that there are remedies.  That might be because the evidence was directed to the Murray Islands and nowhere else.

MR BENNETT:   Yes, the Murray Islands certainly were in a different position.

CALLINAN J:   I just think there may be some fundamental problems here that have never been grappled with before you even get to the questions that you are talking about, Mr Solicitor.  I would very much like to get some assistance on them.

MR BENNETT:   The question of remedy, of course, applies equally in relation to native title on land because the common law gives its own remedies to the rights which it has recognised.

CALLINAN J:   It is probably less fragile on land in a sense simply because there are not the perils of the sea.  The difficulties of protecting your patch on land are much less perhaps than they are of protecting it at sea, whatever it is.

MR BENNETT:   Yes. Your Honour, one example of the problem arises this way.  We know that in Western Australia sovereignty was established in 1829.  In eastern Australia, to use the phrase broadly, including the present area, it was at least by 1824.  It was earlier for the east coast, but for this area we say 1824.  If my learned friend is right, there might be real questions about recognition.  Would one say that the common law in eastern Australia in 1827, for example, recognised native title in Western Australia, although that was an area over which sovereignty had not been proclaimed and to which the common law did not apply?  If so, one would have different dates applying to the same place as the relevant dates.  That just illustrates that when one looks at the common law recognising something, one must look to where it existed and where it applied.

CALLINAN J:   And what it is supposed to be recognising.

MR BENNETT:   It is recognising rights which existed under a system of law which terminated, which ceased to apply to the land as a matter of our law, after sovereignty.  What it says is that the rights established under that system of law are recognised by the common law once the common law comes ‑ ‑ ‑

CALLINAN J:   But are rights without an effective remedy to protect them and maintain them rights that thee common law can protect, can recognise?

MR BENNETT:   Well, your Honour, Mabo decided that it did and the Native Title Act augmented that in various ways.

CALLINAN J:   It was deciding that on the evidence it was given in relation to the Murray Islands.

MR BENNETT:   That is so, your Honour.  That is an historical event which has been accepted by the Parliament and dealt with in the Native Title Act.

CALLINAN J:   Yes, but, nonetheless, each case has to be decided on a case‑by‑case basis, and, I do not know, perhaps there were some remedies in the Murray Islands available to the peoples there.

MR BENNETT:   But, your Honour, one takes the common law remedies.  One does not take the remedies which existed under the pre‑existing system of law.

CALLINAN J:   I understand that, but if there were no remedies, there may well have been no right, because what is a right worth unless you have a remedy for it?  How can the common law recognise a right that can not be enforced or protected?

MR BENNETT:   Your Honour, there may have remedies.  There may have been traditional remedies.

CALLINAN J:   Yes, but that would need, I would have thought, to have been established before you could recognise that you had a title, whatever “title” means in this context.

GLEESON CJ:   In the way in which evidence is given in these native title claim cases is an assertion of the traditional right or interest accompanied by an account of sanctions available?

MR BENNETT:   It is sometimes discussed, your Honour.  In this case there was evidence about other Aboriginal groups having to ask permission before they came into particular areas, and part of the matter which will be discussed in the next appeal is that that did not extend obviously to the Macassans and did not extend to white visitors.

In paragraph 113 in the judgment of Justice Olney at page 2046 of volume 8 there is a passage which may answer your Honour’s question more directly.  What is said is if someone does it now, we expect the person to apologise, and there is a discussion about it, and it is dealt with verbally, and in the old days it was dealt with by war.  That is discussed in that passage.

CALLINAN J:   Which judgement is this?

MR BENNETT:   This is Justice Olney, your Honour, paragraph 113 page 2046.  It is a passage covering about a page, going to 2047 a third of the way down.

CALLINAN J:   Yes, I was looking at page ‑ ‑ ‑

MR BENNETT:   In fact, the passage at the top of page 2047 rather suggests that it is the imposition of the Australian law which restricts the application of the old remedies.

GLEESON CJ:   I presume when you are talking about the common law in 1827 or the common law in 1824, you mean, whatever precisely the content of the expression is, the common law of England?

MR BENNETT:   Yes, your Honour.

GLEESON CJ:   Which I think is the expression that was used in section 80 of the Judiciary Act when it was first enacted.

MR BENNETT:   Yes.  As, of course, since developed and taken over and applied with hindsight today.

McHUGH J:   Mr Solicitor, what I can not get clear in my mind – perhaps you can assist me on this – the King’s title or the Crown’s title over land arose from the tenure system, but my recollection is that the King, who claimed dominion and ownership over the British seas, including the Atlantic Ocean washing the shores of Ireland, depended upon the prerogative and although it was recognised by the common law, it did not depend on radical title in any sense.  So I just can not get clear in my mind how native title can work some sort of a burden on the dominion and ownership of the King, assuming that that doctrine applies to the seas off the Australian coast.  Are there any cases on that at all?

MR BENNETT:   No. There is a discussion about that in footnote 111 of our principal submissions adjacent to paragraph 3.19 which discusses the judgment of Justice Jacobs in the Seas and Submerged Lands Act Case and there is a discussion of the prerogatives of the Crown and the authorities are referred to.  It also involved this whole idea of the narrow seas and the development of the whole doctrine of this area.

HAYNE J:   If you have answered Justice McHugh, can I take you back to this question of remedies?

MR BENNETT:   Yes.

HAYNE J:   Do you say that that issue is raised in the present appeal?

MR BENNETT:   No, your Honour.

HAYNE J:   If it were to be raised, it might invite attention, might it not, to questions of the kind dealt with in the conflicts area by cases like Phrantzes v Argenti [1960] 2 QB 19, the case about the dowry and what order an English court could make to enforce payment of a dowry owing under Greek law, as well, also, to the issues discussed by Dicey and Morris in the 13th edition at 7006 and following, the questions of remedy being entirely for the law of the forum subject to some limits, perhaps not yet identified with precision. But, as I understand you, you say the issue does not arise here.

MR BENNETT:   No, your Honour.  Well, it could arise as a consequential issue, in a sense.  What does the bailiff do?  Does he go outside the territory which he or she is sworn to administer law in and so on?  Leaving that type of narrow question out, it has not been raised in the form your Honour puts it, no.  Now, the second matter which I wanted to mention very ‑ ‑ ‑

HAYNE J:   Can I just interrupt.  I notice from that footnote you referred to both Justice Jacobs and Justice Stephen, and Justice Stephen says that:

the British Crown owned, as royal waste, the waters and bed of league seas surrounding the Australian continent –

But, again, it seems to be derived as springing from a prerogative right.  This is what is troubling me at the moment.  Can you have a burden on a Crown title, in that sense, as you can with the radical title which derived from the doctrine of tenure or as part of the doctrine of tenure?

MR BENNETT:   I suppose only if one creates a new doctrine, your Honour.  There is no precedent for that.  I do not want to go through our submissions in reply in detail, I will simply refer your Honours to them, but I adopt them all.  We stress that it has been held in a string of cases following the Seas and Submerged Lands Act Case, with which your Honours are familiar, Robinson v Western Australian Museum, Pearce v Florenca and others, that it is the external affairs power which gives the Commonwealth power to legislate in relation to the area beyond three miles.

We also simply point that that area is not a new territory.  That was not the effect of the Seas and Submerged Lands Act Case. If it was there would be all sorts of problems in relation to the application of law in section 122 which would be quite different. It is not a Commonwealth place which would give rise to the same sort of problem. We have discussed the effect of the declaration in paragraphs 3.36 and 3.39.

KIRBY J:   Mr Jackson suggested that it might be a Commonwealth place in which it falls within section 52.  Why do you say it is not?

MR BENNETT:   Because, your Honour, it is not owned by the Commonwealth.  It is simply somewhere to which Commonwealth sovereignty extends.

KIRBY J:   Why is ownership inherent in Commonwealth place?

MR BENNETT:   Commonwealth place requires either ownership or, at the very least, some sort of occupation or activity.  A mere area over which it has sovereignty and nothing else has never been held to be a Commonwealth place and there would be problems of exclusive powers and so on if it were, of course.

Now, it is important to note that in dealing with the pre‑existing system of laws which is referred to in Mabo and which is fundamental to the concept of native title, one does not use analogies from private international law.  The reason one does not use analogies from private international law is that there is a temporal gap.  One is not dealing with two systems which exist side by side.  One is dealing with a system of laws that has ceased to exist as the system of laws for the area and the replacement of that system with another system of laws which contains the doctrine that it recognises rights created under the former system.

So the discussion that took place two days ago about moving from canoes to outboard motors and developments of that sort simply have no application.  One of the requirements of native title is a continuing exercise of what existed before but it is not done as part of an existing system of law.

That brings me to the word “recognised” in section 223 of the Native Title Act.  There has been some discussion about the tense of that word.  The phrase, of course, is “are recognised”.  It means always recognised because clearly one has to say “are recognised” because if they have been extinguished then they are no longer recognised or if they have ceased to be exercised they are no longer recognised.

My learned friend, Mr Jackson, talked about the definition of “interest”.  We would submit that has nothing to do with the phrase “rights and interests” in the Act which is really a hendiadys.  It is a composite phrase given a composite meaning and it does not incorporate within it the subdefinition of the word “interests”.  The purpose of defining “interests” is primarily to deal with people who have interests who are given notice of claims and matters of that sort.  There are also areas where it applies to certain of the rights.  But the phrase “rights and interests” is a composite phrase, as is “native title rights and interests”.

My learned friend, Mr Basten, referred to Category D, past acts.  He referred to the Act in its current form, rather than its form relevant to this case, but nothing very much turns on that.  The point about Category D, past acts, is that all those provisions only apply if the Act is invalid and no one suggests here that the Coastal Waters (Northern Territory Title) Act is invalid, so it is simply not a past act for any relevant purpose.

I should also say this in relation to the Coastal Waters (Northern Territory Title) Act.  Your Honour Justice Gummow asked some questions about it being a government-to-government transfer.  Your Honour referred to the Newcrest Case.  The only point I want to make in reply in relation to that is to stress the language of the exclusion, the limited language of the exclusion, and particularly, of course, the reference to the seabed.  The Act appears in our volume of legislation at page 230, the passage is at page 231.  Your Honours see what is vested is:

the property in the sea-bed beneath the coastal waters  . . . and the same rights in respect of the space (including space occupied by water) above that sea-bed, as would belong to the Territory if that sea-bed were the sea-bed –

et cetera.  Then the exclusion also refers to the same series of matters.

There has been no discussion in this case about minerals.  Can I just give your Honours the references so your Honours appreciate that this has a different effect in relation to minerals.  Justice Olney, volume 8, pages 2075 to 2076, paragraph 158, held that the territory had complete ownership, not merely radical title to the minerals because of ‑ ‑ ‑

GLEESON CJ:   Would it be within the competence of the Federal Parliament to enact a law divesting the Territory of that property?

MR BENNETT:   I would assume that section 51(xxxi) would not apply to such a law because I think I am correct in saying it does not apply in that situation.  On that assumption, it would be open to do that.

GLEESON CJ:   If such a law were enacted, what would be the situation thereafter?  Would there be property in any entity or body politic?

MR BENNETT:   Yes, if there was an acquisition by the Commonwealth, under ‑ ‑ ‑

GLEESON CJ:   A law divesting; a law simply saying, “The property that was vested by section 4 of this Act is now divested”.

MR BENNETT:   Yes.  There would be no property, your Honour.  There would not even be a radical title because of the absence of extension of the common law to the area. 

GLEESON CJ:   It simply may be a law-making capacity. 

MR BENNETT:   Yes.  Yes, your Honour.  There is a discussion in a case, in which decision was given a few weeks ago, in Western Australia, called Bodney v Westralia Airports Corporation, in which there is a discussion of the effect of transfers to governments in the context of  ‑ ‑ ‑

GLEESON CJ:   So your submission involves, amongst other things, that this legislation created property?

MR BENNETT:   Yes, your Honour. 

GLEESON CJ:   Mr Solicitor, your argument, in one of its aspects, fastens on the concept of radical title, and treats Mabo as using radical title as though it were a foundation of the common law’s recognition of native title. 

MR BENNETT:   Your Honour, I was accused of that by my learned friend, Mr Basten, and, I think, my learned friend, Mr Jackson.  I, in my submissions, put it in a rather different way.  I accept the force of Mr Jackson’s submission that, to an extent, saying you have to have a radical title to be burdened rather inverts the argument.  What we say is necessary is common law recognition.  Now, because once the common law applies, there will be a radical title in the Crown - because that is a common law postulate - the way Mabo operates is to say the recognition of native title operates as a burden on the radical title. 

GLEESON CJ:   What I wanted to offer for your comment was the suggestion that radical title was used in Mabo as a means of avoiding an embarrassment to the common law’s recognition of native title; the embarrassment taking the form of the asserted ownership of all land by the Crown, which would extinguish native title. 

MR BENNETT:   Yes. 

GLEESON CJ:   In those parts of the world where the Empire spread, but in respect of which it was not asserted that the Crown acquired beneficial ownership of the land, but rather the Crown had sovereignty and the capacity to make laws with respect to the land, there was no difficulty, was there, about the common law recognising native title?

MR BENNETT:   Your Honour, the same difficulty would  ‑ ‑ ‑

GLEESON CJ:   The common law of England, I mean. 

MR BENNETT:   The same problem would arise, your Honour, because once the common law is brought to the colony, the common law says the Crown has radical title.  The common law then also says, based on the African cases and Mabo, we recognise pre‑existing titles and in order to reconcile the two, it says the pre‑existing title is recognised as a burden on the radical title, otherwise one has to deal in some way with two inconsistent things, and that is the way it is dealt with.  But the question “Can you have native title in the absence of radical title?” is never going to arise because, if the common law does not apply, there is no radical title and no recognition of native title.  If the common law does apply, there is radical title and it is burdened by native title.  So one either has both or one has neither.

GLEESON CJ:   But that seems to involve the assumption that you have demonstrated that the common law does not apply by saying there is no radical title.

MR BENNETT:   I am sorry, your Honour, I did not quite follow that.

GLEESON CJ:   You seem to argue that in an area to which it cannot be said there is radical title in the Crown, it follows that the common law has no application.

MR BENNETT:   It is the converse, your Honour.  If there is no common law, then there is nothing to create the radical title in the Crown.

GLEESON CJ:   There is the common law of England in the 19th century and it is your insistence on regarding the common law as being there, that is territorially located, that produces this problem, is it not?

MR BENNETT:   Yes, your Honour.

GAUDRON J:   Did Britain acquire the radical title to all the land in Ireland?

MR BENNETT:   It was conquered, I think, your Honour, and if it is conquered ‑ ‑ ‑

GAUDRON J:   Yes, so what does the common law do then?

MR BENNETT:   Where there is conquest the common law is not brought unless and until it is imposed.  The rule in a conquered place is that the pre‑existing laws continue until displaced by the conqueror.  It is the same with cession.

I was just giving your Honours the references to the passages about minerals.  In Justice Merkel’s judgment, it is volume 11, pages 2253 to 2254, paragraphs [683] to [686], and in the majority judgment, in the same volume, page 2168, paragraph [288].  Your Honours need not go to those passages.  It was held that there had not been established any mining of the seabed by the claimants, so the claim failed on the facts, but in any event there was a finding of actual title in the Northern Territory of the minerals.  I only mention that because my learned friend in his amendments uses the phrase “waters” which has a statutory meaning.  He has not defined it in relation to the statutory meaning expressly but, if he did so, of course, minerals would have to be excluded.

GLEESON CJ:   I had not picked up the way Justice Merkel dealt with that finding about minerals.  I know Justice Olney made a finding rejecting the claim and the majority in the Federal Court agreed with him.  I see Justice Merkel referring on pages 2253 and the following page to Justice Olney’s conclusion.  Where did he make his decision about that?

MR BENNETT:   Your Honour, it is at pages 2253 to 2254, I think.

GLEESON CJ:   He is just reciting what Justice Olney did.

MR BENNETT:   At paragraph [686] he says:

I am not satisfied that it has been demonstrated that his Honour erred in his findings –

and there is a qualification.

GLEESON CJ:   I am sorry, I have read it.  What did Justice Merkel decide in relation to the mineral claims?  He is suggesting they should be remitted, as I understand it.  For what purpose?

MR BENNETT:   No, your Honour.  There was to be a remitter of some other aspects and he said:

If, on a remitter, specific rights are claimed on a more limited basis those claims will have to be considered –

if there is other evidence.  That is all his Honour ‑ ‑ ‑

GLEESON CJ:   I read that.  What actually did he decide?  What was his decision about the mineral claims?  Did he reject them or are they still open to be pursued on the remitter?

MR BENNETT:   We would say they were rejected and are not open, your Honour.

GLEESON CJ:   So, if we were to agree with Justice Merkel in every respect, the consequence of that would be that the mineral claims would have failed?

MR BENNETT:   Yes, your Honour.  I think the reference to “remitter” is rather suggesting if there is a remitter on some issue and then there is an amendment, then certain matters might arise on the amendment.

GLEESON CJ:   Might they include the mineral claims?  I am just trying to work out whether, if we said, “We decide the case in all respects as it was decided by Justice Merkel, that the mineral claims are dead or alive”.

MR BENNETT:   Your Honour, we would say they are dead, but it may be necessary to qualify what his Honour says at line 50, because it is difficult to see the basis for that.  His Honour seems to be making an assumption that there would be a remitter for other reasons and then an amendment and someone would seek to re-raise something in some way, but it is hard to see how minerals could be in that category.

Your Honours, we have dealt in the reply with section 80 of the Judiciary Act and section 15B of the Acts Interpretation Act at 3.29 to 3.34; I will not repeat those matters.  We have dealt with Mr Jackson’s submissions about the Racial Discrimination Act in paragraphs 2.10 to 2.18.  That Act, of course, does not invalidate Commonwealth legislation and the answer is really as short as that, in a sense.

Finally, may I just say a few words about ground 4 and the north-east boundary.  What occurred, your Honours, was that the Commonwealth was represented at the time in Darwin by a female barrister and a female solicitor.

GAUDRON J:   So what?

MR BENNETT:   Your Honour, I am about to explain “so what”?  There is reference to Aboriginal custom that women were not allowed on New Year Island.  That would not, as a matter of law, have prevented one or both of them going, but at the request of the claimants the view was taken that it would be inappropriate and, out of consideration for the claimants, they did not go.  But it does not matter, because it is not a case where any cross‑examination was called for.  My submissions rely, in relation to that issue, on exactly what was said by the claimant, Charlie Wardaga.  We accept completely what he said.  No competent cross-examiner would have asked the question and, indeed, my learned friend, Mr Pauling, who fits into that category, did not ask about it for the obvious reason. 

GLEESON CJ:   It is a long time since I have had to look at the original Privy Council cases, which, as I recollect it, developed this rule concerning concurrent findings of fact, but that rule was originally promulgated, as I recollect it, in the Privy Council in relation to Indian appeals, to deal with exactly the sort of problem that has arisen here.

MR BENNETT:   It was, your Honour.  The Raj’s Case was the famous case, your Honour, I think about 1946.

There is nothing we disagree in, in what his Honour found on the facts.  His Honour accepted the witness.  In a sense, my learned friend, Mr Basten, is almost seeking to play down the evidence of his own witness.  But what was said was completely clear.  Whether it was in Aboriginal English, whether it involved gestures or not, and the transcript makes it clear.  He points to the north-west and says, that is for the government.  He points to the other areas, where the other islands are, the south-east – one can see it very clearly on the map – and says little waters for Aborigine.

It is absolutely clear what he is saying.  There is no doubt about it.  One cannot read any confusion into it or any difficulty into it and his Honour accepted that was what he said and his Honour accepted that was what his meaning was.  The only place where we start to draw issue with his Honour is the one sentence I read to your Honours where his Honour said – this is in the passage at page 2032 in volume 8 at paragraph 98 and point 8 of the page where his Honour says – he refers to the human footprints on New Year Island and says:

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

That is the only finding which we say there is just nothing supporting.  Zero.  We have shown your Honours the relevant evidence and it is discussed in the submissions.  We say, in a sense, it is contrary to what the claimant Charlie Wardaga himself says.  A senior member of the group, a spokesman of the group, one of the claimants who is sitting on the Island says, “Well, that’s what we regard as our country”, and that is totally contradicted in relation to many, many square kilometres as I have demonstrated by that sentence, which we submit, is incorrect.

Whether it is a finding of fact or a conclusion of mixed fact and law or how one puts it is a question of characterisation but it is squarely within Voulis v Kozary, which I reminded your Honours about the other day.  That, your Honours recall, was a lottery case and the trial judge found against the plaintiffs who claimed to be partners and part of the evidence was that the defendant had gone on television and said the other two were his partners in the win.  The High Court said in the face of that evidence how could that finding stand?  It is not a “no evidence”point.  It is a question of just looking at a piece of evidence which is just so clear and so precise that one cannot have that generalised finding there.

It is important in relation, not only to many square kilometres of sea in this case, but also in relation to future cases where findings are made in a totally new area of law, in totally new circumstances and one needs, with respect, a little bit of discipline in relation to such findings and we would submit that one cannot stand.  May it please the Court.

GLEESON CJ:   Thank you, Mr Solicitor.

MR BENNETT:   I am sorry.  May I just say one other thing.  Your Honour Justice Callinan asked yesterday about the cases on rights to air in relation to property.  There are three cases.  There is Pickering v Rudd (1815) 4 Camp 219, also 71 ER at page 70. That is the reference to a balloon flying over land. There is Kelsen v Imperial Tobacco Company [1957] 2 QB 334 and there is a recent discussion in an interesting case in New South Wales called LJP Investments v Howard Chia Investments (1989) 24 NSWLR 490 which involve trespass as to airspace in the course of building a tall block next to a vacant lot. There is a case in England which that talks about dealing with what are called “oversailing cranes”, the same sort of problem.

CALLINAN J:   There is a Queensland case of K.D. Morris about a crane.

MR BENNETT:   Yes.  If your Honour pleases.

GLEESON CJ:   Mr Basten.

MR BASTEN:   Your Honours, our appeal requires attention to three stages of the trial process in this matter.  The first stage of the process was as undertaken by the trial judge to identify the content of the traditional law and custom whereby the claimants asserted a connection with the area of their sea country.  A second stage, perhaps, was to translate those findings into rights and interest which might attract protection in a court.  The third stage was to ask whether there were limits on the recognition, to use the term of the Act, which the common law would accord to those rights and interests.

His Honour, in effect, concluded that the traditional laws and customs were observed and acknowledged and, really, the connection of Ms Yarmirr, Mr Wardaga and the members of their yuwurrumu, to their sea country was not substantially in issue.  However, his Honour held that the traditional laws and customs did not confer obligations on non‑aboriginal people, nor did they bind them in that sense.

Your Honours, we say, in this respect his Honour’s reasoning revealed two errors.  The first was to require the traditional laws and customs to retain those elements of internal enforceability which were lost with the acquisition of sovereignty by the British Crown.  The second was to insist that the claimants identify their rights in terms which could translate into our concept of rights and interests.  Given the novelty and practical difficulties of undertaking that task, one can empathise with his Honour’s problems, but the legal consequences of those two errors as we identify them are of some importance.

Your Honours, may I interpose that there was evidence of internal enforceability which was given, and perhaps I can give your Honours some reference to the evidence.  I think that it receives only minor reference in his Honour’s findings ‑ ‑ ‑

CALLINAN J:   It does not seem to be in issue though, Mr Basten.

MR BASTEN:   Because it was not in issue, that is so, and the reason why we have not addressed it in our submissions was that it was never raised as an issue on the appeals.

CALLINAN J:   Yes.

MR BASTEN:   Perhaps I might interpose at this stage also in answer to your Honour the Chief Justice’s question about minerals.  In this matter, there was no specific ground of appeal dealt with in the Full Court which related to minerals.  The rights and interests which were identified under the traditional laws and customs were those involving control of access to the area of the sea country and the right to make decisions about the use of its resources and to use its resources.  There was no evidence about use of minerals and what his Honour said about that was not under appeal in this case – it is raised in another matter – but, as I would understand it, that is why Justice Merkel perhaps made no express finding in that regard.  It simply was not a ground of appeal before his Honour.

GLEESON CJ:   So the decision of Justice Olney concerning the matter of minerals is one with which we are not concerned?

MR BASTEN:   That is so.

CALLINAN J:   In any event, Mr Basten, it is correct, is it not, that what the Solicitor told us is correct, that there was no evidence at all of use or exploitation by your clients of the subsoil below the seabed?

MR BASTEN:   I think he said of minerals in the subsoil.  That is so, yes.  That is certainly the case.  That was not in issue.

CALLINAN J:   There is no evidence of it, of course?

MR BASTEN:   There was no evidence of it, your Honour.

CALLINAN J:   Would that not defeat any mineral claim inevitably then?

MR BASTEN:   Your Honour, that raises a question as to whether use is an essential element of native title in relation to an area and use of particular aspects of the resources.  We would say no, but we do not understand that it is raised squarely in this appeal.  I make these qualifications deliberately, because as your Honours are aware, there is a further appeal in March in which these issues are identified specifically by way of grounds of appeal.

KIRBY J:   Your interest is in the fishing.  Is it also in the pearling or is pearling something that came post‑settlement?

MR BASTEN:   Your Honour, says our interest.  In a practical sense our interest is in control of access to the area for any purpose.  We do not claim ‑ ‑ ‑

GLEESON CJ:   You do not have an interest in being able to charge people a fee for a licence?

MR BASTEN:   Well, it goes further than that, your Honour.  It goes to the extent that these activities can interfere with the nature of the area and its importance to Aboriginal people.  Might I simply illustrate the point by taking your Honour to one passage in the evidence at page 400 in volume 2 of the appeal books, where a witness, Mr Yambigbig, in the middle of the page was asked that precise question:

If somebody, say, balanda –

who are white people, European settlers –

wanted to come into your Murran sea country, they want to, say, drill in the water down in the bottom of the sea there, sea bed –

He says:

Well, I say no.

You would say no?---Mm.

Why would you say no?---Because he destroy that sea.  Might be let him go oil or something like that.  He kill all the fish and turtle –

and so on.  Then he is asked:

Why have you got the right to say no?

He says:

I got the right to say because this belong to me, that country, that sea and that reef where that hunting area.

That in a sense encapsulates both the concern and the interest in response to things like fishing or drilling or other usage of the area by people other than by members of the yuwurrumu.

GLEESON CJ:   So you do not really need to assert or demonstrate an interest in or a right to minerals if you can demonstrate a right to exclude people who might want to explore for minerals.

MR BASTEN:   We would say that is so, your Honour.

GLEESON CJ:   Or exploit minerals, if they ever found any, including hydrocarbons?

MR BASTEN:   That is so, and it becomes a matter of, perhaps, limited practical moment because that is an area where there is legislation which empowers the Crown to ground rights, and we accept that our native title would be subject to such valid Commonwealth or territory legislation.

May I, in order to indicate the nature of the evidence, take your Honours to page 2005 in volume 8, which contains Justice Olney’s judgment.  In paragraph 57, two‑thirds of the way down that page, his Honour commences with the basis upon which he is assessing the evidence.  He says of Mary Yarmirr that her:

knowledge and understanding of the culture and traditions of the applicant groups is clearly all embracing.  Although in giving evidence in English, she spoke in what she said was her third language, she spoke with considerable eloquence and her sincerity was both patent and compelling.  As her evidence touched upon virtually every aspect of the case, frequent reference will be made to it and relied upon, in much of what follows.  Charlie Wardaga is not particularly well versed in English and on occasions some difficulty in communication was experienced, but nonetheless, he was able to convey, often in a most colourful fashion, an understanding of his traditions and culture.  Frequent reference will also be made to his evidence.

There was also an anthropologists’ report, which is referred to on the next page, at page 59, which was tendered without objection.  I think your Honour – I am sorry.  I will come back to that.  At page 61 it was noted that the qualifications and experience of Drs Peterson and Devitt was beyond question.

KIRBY J:   Paragraph 61.

MR BASTEN:  I am so sorry, paragraph 61 on 2009.  I do not take your Honours in detail through this.  I think your Honour Justice Callinan was referring earlier to the passage on page 2010 where he indicates the basis on which he deals with the material.  We accept your Honour’s comment about that.  At the top of 2011 his Honour noted that:

Whether or not a particular statement in the report is to be classified as mere pleading, as expert opinion or as hearsay is not always readily apparent but to a very large extent the report can be accepted as both reliable and informative.  It contains some speculation but not much and to the extent that it does, I have not found it necessary to refer to it.

The applicants’ anthropological evidence is virtually unchallenged.  Drs Peterson and Devitt clearly have extensive experience in the anthropology of Aboriginal land tenure in the region.

MR BASTEN:   The applicant’s anthropological evidence is virtually unchallenged.  Drs Peterson and Devitt clearly have extensive experience in the anthropology of Aboriginal land tenure in the region. 

HAYNE J:   It is by the way, no doubt, Mr Basten, but to speak of the evidence of the anthropologists when they are avowedly advocates in part, reveals the difficulty of any trial judge confronted with such material.  What is evidence, what is opinion, what is advocacy?  As I say, no doubt it is by the way. 

MR BASTEN:   In a sense, it is, your Honour, but that is what his Honour acknowledged on page 2010, and he indicated how he dealt with the material on that basis.  We do not understand any error to be attributed to the manner in which his Honour dealt with it. 

CALLINAN J:   Mr Basten, there is some provision - facultative provision, is there not, in the Act, with respect to evidence anyway, is that right? 

MR BASTEN:   It is right, your Honour.  It is section 82 where there are a number of facultative provisions, but it in section 82(3), in the form it was in at the time of the trial, “the court is not bound by technicalities, legal forms or rules of evidence”. 

CALLINAN J:   But there is, on the other hand, an obligation to conduct the proceedings, I think, among other things, fairly – and that may involve perhaps not applying a different standard to the hearsay of one side from the standard to be applied to the evidence of the other.  I am not suggesting that happened but that  ‑ ‑ ‑

MR BASTEN:   No, no. 

CALLINAN J:   It may not be always very easy to reconcile an obligation to conduct proceedings fairly, on the one hand, but to be receptive of evidence that would not ordinarily be received, on the other.  That is all I am suggesting. 

MR BASTEN:   Yes.  In relation to this aspect of the matter, the evidence was really all on one side. 

CALLINAN J:   It was not challenged  ‑ ‑ ‑ 

MR BASTEN:   And it was not challenged, no. 

CALLINAN J:    ‑ ‑ ‑ so I do not think you have a problem about it in this case, Mr Basten. 

MR BASTEN:   Yes.  And section 82(2) is also relevant in that respect, as your Honour will have read.  One must take account of cultural and customary concerns in dealing with the evidence but I accept what your Honour says; obviously, rules of procedural fairness are directly applicable and would be applied. 

Your Honours, at the top of page 2012, his Honour summarised the system of native title, and he said at the third line:  “The facts asserted are not controversial”.  That appears to apply to what follows.  At paragraph 69, he refers to certain terminology that he adopts.  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. 

He goes on to talk about the boundaries.  He says:

Each estate is normally associated with a single group of people, who trace or claim descent through the male line, know as a yuwurrumu. 

That is what he later calls the “core group” and your Honours will see on page 2015, in paragraph 74, he notes that there are many people on Croker Island with “long term residence” – indeed, over generations – some of whom have “contingent interests”.  Those are the rights which arise, at paragraph 75, from such matters as place of “residence, place of conception” and so on.  Your Honours, it is clear that there is a traditional law and custom which defines who these people are, what rights they have.  This is set out briefly; one does not necessarily get the flavour of it from this material because it really was not in dispute.  Perhaps an example with a little bit of colour comes in footnote 24 at the bottom of page 213. 

Your Honours, there are elements of this, obviously common to communal native title, which have, I suppose, a flavour of proprietary interest, in our understanding of the word.  At paragraph 73 his Honour notes that there are problems which can arise through a particular group dying out.  He says:

there are established ways of dealing with succession problems caused by the extinction of such groups.

He discusses that at the top of page 2015 and notes that there may be disputes.  He also notes that there may be adoption which can arise in order to bring a person within the membership of a group.  I need not trouble your Honours with that detail.

May I go then to page 2022.  The intervening pages are largely dealing with questions of the boundaries of the separate estates.  In the pages of the anthropologist’s report around 1622 to 1641, your Honours will find indications of those boundaries which are referred to there, but they are not presently relevant.  Could I stop at the top of page 2020 to interpose one comment.  After a reference to Mabo [No 2] his Honour states his task as:

It is the traditional basis of the currently acknowledged and observed laws and customs which attracts recognition of native title.  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.

We say that that is not entirely consistent with what your Honour Justice Gaudron put.  The historical element caused difficulty at some stages understandably, because it is so difficult in an aural tradition to know what was done at a time prior to European settlement.  We say that his Honour set himself a difficult task which he need not have addressed but that nothing followed from doing that for the purposes of the findings his Honour made in this case, as we understand them, and I will come back to that.

GLEESON CJ:   Mr Basten, disregard this subject if it is unrelated to what you are talking about at the moment, but what is the practical significance for the resolution of the present case of the difference between Justice Merkel, on the one hand, and the majority in the Full Court on this question of the time to which it is necessary to relate concepts of traditional rights?

MR BASTEN:   We are inclined to say “nothing”, your Honour.  We agree with what is said in the majority about the evidential and practical difficulties imposed by the task that Justice Merkel appears to require but, if it is correct to say that what one is seeking to identify are the traditional laws and customs now observed and acknowledged, then the time of sovereignty is of theoretical difficulty only.

The argument which is put against us is that if there was no recognition until a recent date, then there can have been no extinguishment.  But that is sought to be overcome by the comment that a law which had operation in relation to what might have been traditional laws and customs and rights and interests will cap the ability of the common law to recognise them.  That is a way in which the Commonwealth puts it in their written submissions.  Whether anything turns on that analysis, I do not know, your Honour.  I am inclined to think not.

GLEESON CJ:   Is it a live issue that we have to resolve in this case?

MR BASTEN:   We would say no, your Honour, because we adopt the test that Justice Gaudron identified as being the correct test under section 223 of the Act, whatever may have been said in Mabo.

GAUDRON J:   But it does not have to be decided in this case.

MR BASTEN:   I do not think it does, your Honour.

GAUDRON J:   It may emerge in other cases and it may have importance in some cases.

MR BASTEN:   It was said to arise in this case by others.  We do not say it does.

GAUDRON J:   In D7 or D9?

MR BASTEN:   In D9 by the Commonwealth, I think, your Honour.

GAUDRON J:   Yes, and I think by the Northern Territory.

MR BASTEN:   The Northern Territory express a view as to the proper analysis but I am not sure that they necessarily say that much turns upon the approach adopted.  May I then go to page 2022 and in the middle of that page his Honour deals with the identity of what he calls the Croker Island community where many of the yuwurrumu members live.  The passage I referred to before in the middle of the page notes that the relevant estate groups are not defined simply by being residents on Croker Island but depend upon the application of traditional law and custom.  Many people with a physical connection with Croker Island are not such members.

His Honour then notes in the middle of page 2023 the fact that Aboriginal law was the source of the rights identified.  I mentioned before that custom did not, in terms, arise, and his Honour says nothing about it.  In the next section he deals with the concept of, “THE EXTENT OF THE SEA COUNTRY” and notes that:

GUMMOW J:   We are back to where we were before.  The sea is different, it has been put to you.  I understand what you say about it.  I am not going to get any further by having it said again.

MR McINTYRE:   No.  One other proposition, again related, which we wish to put is that it is not a necessity to prove exclusivity in order for that to be an element of title.  We suggest it is a necessary and an essential element of title that one has the ability to control, the ability to exclude, which may be subject to a whole range of limitations.  That follows, we suggest, from what the High Court did in Mabo [No 2] in the factual circumstances there.  What the Court had before them was some evidence as to the customs and traditions of the Miriam people, and that can be conveniently in part found in the Commonwealth’s volume of material filed in accordance with paragraph 7(i) of the practice direction.

They there set out some extracts from Justice Moynihan’s determination in the Supreme Court of Queensland on remitter from this Court.  At page 67 of that volume he there sets out what the plaintiffs claimed in that case.  It was:

A right to use land at the discretion of the owner and to the exclusion of others . . . 

A right to or to share in the produce of land or sea or as to its disposition.

A right to the land within boundaries defined by natural features or artificially placed marks . . . 

A right to dispose of the land or interests . . . by transfer as a dowry or gift or by way of lease or loan . . . 

A general right to dispose of the land.

Then it followed on to tell us about what Dr Beckett had to say to the court about:

“(i) ‘Owners’ have the ‘right’ to dispose of their land during their lifetime or at death –

and various inheritance customs and traditions.

Now, those were the customs and traditions which the Court had before it.  The evidence as to the exercise of those rights was as between families, individuals and families within the broader Miriam community and there was evidence as to exclusion by one family from another family’s block.  From village to village there were rules about trespass.  There was Malo’s law which was said to be the Ten Commandments.  Teter moki moki, that a man should not walk on another man’s land.  Teter moki moki, a man should not touch another man’s goods.  All of that was there and there were enforcement processes.

What the High Court in that case said was that the Miriam people as a community had the right to possess, occupy, use and enjoy as against the world.  The Court concluded that there was an exclusive proprietary interest in that community with no evidence as to any exclusion by that community of anybody else.  The only evidence about exclusion and the only evidence about customs was within the community.

What we say you conclude from that is that if the evidence demonstrates an occupation and demonstrates an occupation in accordance with a set of customs and traditions, the conclusion that results from that is that there is an occupational title which carries with it the right to exclude as a necessary element of title, otherwise you do not, we suggest, have any real title.  You are in the situation  ‑ ‑ ‑

GUMMOW J:   I understand what you say in your written submissions about that.  We are starting to fall behind.

MR McINTYRE:   Well, I think I might be finished, your Honour.  Yes, I do not think I can take the matter any further.

GLEESON CJ:   Thank you, Mr McIntyre.  Now, just before we hear Dr Perry, so far, with the relevantly minor exception of the Commonwealth reply in the first appeal, the parties have consistently taken less time than was allotted to them for argument and the interveners have consistently taken more time.  Is there any reason why, from here on in, we should not hold the parties and the interveners to the times agreed on this document?  I am not suggesting you should take the whole of your 165 minutes, Dr Perry.

One more thing I will add.  On that basis, on the assumption that we hold all the parties to these times, if we were to adjourn at 4.15 tonight and resume at 9.30 in the morning, that would give us an opportunity which we would regard as a valuable opportunity to meet to discuss the submissions in this case tomorrow afternoon before we have to turn our attention to the business of next week, and for that reason we will resume at 9.30 tomorrow morning, but we will go ahead now.  Yes, Dr Perry.

MS PERRY:   Your Honour, we have arranged things so that Mr Lloyd will be addressing the Court first in relation to the submissions dealing with factual issues on the appeal.

GLEESON CJ:   Yes, Mr Lloyd.

MR LLOYD:   May it please the Court.  As Dr Perry has just indicated, I will address the Court on the construction of Justice Olney’s reasons and what his factual findings are and also on questions about the proposed draft determination by the appellants in this matter.  My learned colleague, Dr Perry, will deal with the balance of the matters in our written submissions.  I should perhaps note at the outset that the entirety of the Commonwealth case in this appeal is, of course, in the alternative to the arguments raised in D7.

I propose to develop eight arguments, the first being the most substantial and in the end being the most critical to the appellants’ case.  It is the Commonwealth’s contention that the findings of fact made by the trial judge provide no basis whatsoever for the appellants’ appeal.  That is to say, the appellants’ case is premised upon an assumption that the trial judge found that the appellants as between themselves and other Aboriginal people had rights to control access to the claimed area and the use of resources therein.  He then says that his Honour erred because it was inappropriate to consider the question to whom the right is enforceable against, namely, only Aboriginal people, and if that error were, in effect, overturned, your Honours would make a finding that the control of access would be enforceable against everyone.

If I just outline quickly the five points I would make under this heading before expanding on each.  The first is that the content of native title is to be determined by the facts in each case.  I think that is common ground between the parties.  That involves, in my submission, that the trial judge when considering evidence about the content of Aboriginal laws and traditions should include consideration of the persons against whom any obligations are imposed under those laws.  The trial judge in this case, in my submission, found on the evidence, which he considered to be conflicting evidence, that the permission system was, on its terms, on the terms of Aboriginal customary law, a custom that applied only to Aboriginal people.

My fourth proposition is that recognition by the common law of rights arising from such a system would involve making them enforceable in Australian courts, but would not involve expanding the rights to people who they were otherwise directed to under Aboriginal customary law.

Finally, but perhaps most importantly of all, in my submission, a fair reading of his Honour’s reasons shows that the trial judge considered that the permission system was too ad hoc to support any exclusive rights, even as between Aboriginals whatsoever.  I do not need to expand the first proposition I just made because it is common ground, but I note that authority for the proposition may be found in the references set out at footnote 59 of the Commonwealth submissions and also his Honour Justice Brennan’s reasons in Mabo at page 58.  That is the proposition, of course, that the content of native title is to be determined on the evidence according to the facts of each case.

The second proposition is that if a right under Aboriginal law is enforceable only against a particular class or group of persons, the recognition of that right by the common law would not expand the right.  This is simply because the process of recognition involves only the enforcement of rights under Aboriginal law and nothing further.  If I might ask your Honours to turn to volume 8, his Honour Justice Olney’s decision at paragraph 116, which is page 2049, I can provide an example of how, in my submission, this proposition can be made good.  On page 2049 there are a number of rights which were included in the appellant’s anthropologists’ report.  The third of those rights provides an example.  It is a:

Right of senior members of the yuwurrumu to receive a portion of major catches –

against, as it were, co-residents, people who lived with them, if they made such a catch.  Now, in fact, I simply note that at paragraph 118 over the page his Honour found that that right was not, in any event, related “to lands or waters”.  But to make my point, I assume, for the sake of argument, that that right were capable of recognition.  In my submission, that right, on its terms, would only be a right enforceable – query how it might be enforced, but I do not need to address that – enforceable against co‑residents of senior yuwurrumu members.

The process of recognition would not say that that right meant that anyone who caught fish in the area would have to provide a share of the catch and that, in my submission, is a simple proposition that the process of recognition does not involve an expansion of Aboriginal customary law.

Now if one turns back a couple of pages in this volume to page 2044, the passage at the bottom of that page, of paragraph 110, is the paragraph chiefly relied upon by the appellants:

The evidence supports the conclusion that –

and these words, in my submission, are critical –

according to the traditional laws and customs of the Croker Island community Aboriginal people . . . should first seek and obtain permission –

The point made at the beginning of the paragraph was to identify, not what the content of the right is, but who it is against.  That is what his Honour was talking about at this point.

KIRBY J:   And, of course, it was natural in an Aboriginal setting to develop the rules in a way that would address only Aboriginal people, because they were the only people save for some people from the Indonesian islands, as we now describe them, who came into their milieu, so the question is, what the law that addressed that phenomenon says when you have balanda coming into the milieu.

MR LLOYD:   Certainly, your Honour.  I entirely accept that it may be, and in many cases would be, the case that an Aboriginal group would have laws that were designed to bind everyone.  If that was the law, then the question of recognition of such a law would involve recognition of a law which, on its face, bound everyone.  His Honour, however, perceived on the evidence that these laws were not intended to bind everyone.  Your Honour, Justice Hayne referred earlier to the quotation in 110 as perhaps carrying the suggestion that it was only directed to Aboriginal persons.  That is the point, in my submission, that is being made here.  And this point is made crystal clear at the beginning of paragraph 114.  At that point, after referring to further evidence, his Honour considers again: 

The general thrust of the foregoing confirms the view expressed earlier that the traditional laws and customs, which relate to the use of country apply to Aboriginal people rather than to non-Aboriginals, although Charlie Wardaga seems to have a different view. 

In my submission, that reinforces the view that his Honour, in construing their law, understood that they did not intend it to apply - to be directed against, to be binding upon, non-Aboriginal people.  But he accepted that others had a view.  And the quotation from Mr Wardaga indicates that Mr Wardaga had a view that it did apply to balanda.  However, my friend, Mr Basten, has said, in effect, that I am now misunderstanding what his Honour was saying, and that “apply” must mean “enforce”. 

But the quotation from Mr Wardaga does not suggest the contrary to that position; it suggests that – he accepts readily that he can not enforce the law against them, but he is saying that he considered they should be bound by it.

Now, my friend, Mr Basten, also referred to other evidence from Mr Yambigbig, which also might carry that proposition.  His Honour appreciated that there were conflicting views, and at the beginning of 114 noted that there was this conflict, but over the page 115 – paragraph 115, sorry, his Honour comes to the conclusion that there are no exclusive rights or there is no exclusive right of possession, occupation, use and enjoyment.  That “at its highest the evidence suggests” something much less.

KIRBY J:   Is his Honour there speaking of the exclusive, vis-à-vis, other Aboriginals, or is he speaking exclusive vis-à-vis Aboriginals and  ‑ ‑ ‑

MR LLOYD:   Well, in my submission, your Honour, and I will develop this later, he is not talking exclusive at all; however, he is saying that the permission system, whatever it does support, is directed only as between themselves and other Aboriginal people.

KIRBY J:   But that is because that is the only milieu in which it operated.  The question is whether its essence was a permission system to strangers who at that time were only Aboriginals but who later became balanda.

GLEESON CJ:   But he is saying a good deal more than you just attributed to him.  He is also saying the permission is sought before hunting or fishing or gathering.  He does not say, for example, permission is sought to cross the sea.

MR LLOYD:   Absolutely, that is another point I was proposing to make later.  He first of all does not really talk about obligations, he talks about ‑ ‑ ‑

GLEESON CJ:   That last point is rather material in relation to a claim for exclusive control of access, is it not?

MR LLOYD:   Absolutely, your Honour, there is no ‑ ‑ ‑

KIRBY J:   But, presumably permission to fish, hunt or gather can be given or can be withheld.

MR LLOYD:   The evidence was that generally speaking there were these general permissions so that permission was not asked but on occasion people would ask permission.

GLEESON CJ:   But was there evidence given that permission was needed to cross the sea for purposes unrelated to fishing, hunting or gathering?

MR LLOYD:   If I turn back to page 111, his Honour deals with that at paragraph 109 on page 2043 to 2043.  There his Honour deals at more length with when permission might be required.  Mary Yarmirr indicated there that she would not seek permission just to cross somebody’s territory to go to an airport but if she was taking something “off the country” she would seek permission.  And, the next paragraph:

I only seek permission when I am hunting –

His Honour in the next paragraph says, “Well, that should not be read too narrowly because it is not just hunting but they also fish a lot and it would certainly extend to fishing”.

GUMMOW J:   Mr Lloyd, can I raise one related matter with you.  It follows upon what Justice Callinan was saying earlier in the afternoon and you might consider it overnight.  Appendix 2 to the Commonwealth’s submissions is the fishing legislation.

MR LLOYD:   Yes, your Honour.

GUMMOW J:   I gather from that that the Northern Prawn Fishery does embrace this area we are talking about here.

MR LLOYD:   Yes, there is a great deal of evidence that this area is highly used and the Northern Prawn Fishery.  I can take your Honour to it, but ‑ ‑ ‑

GUMMOW J:   No.  So, that is a Commonwealth statutory regime presently in force?

MR LLOYD:   Yes, it is, your Honour.

GUMMOW J:   There would be power under that legislation to expand it to other sorts of marine life, would there not?

MR LLOYD:   Yes and no, your Honour.  There are agreements between the Commonwealth and all the States and the Territories, dividing marine life into different categories, but under the current agreements, the Commonwealth has tuna and prawns, and the States and Territories have everything else.

GUMMOW J:   But they do not have tuna at the moment at Croker Island, do they?

MR LLOYD:   No, your Honour.

GUMMOW J:   That is what I take from page 35, as Justice Hayne pointed out to me.  What I want to know is, what would happen, as you see it, if after a favourable determination of title in favour of your opponents, the Commonwealth expanded to bring in tuna within its fishing plan to save their resources?

MR LLOYD:   My colleague, Dr Perry, will be dealing with the fishing legislation, so I might ‑ ‑ ‑

GUMMOW J:   Yes, I just thought I should put it on notice.

MR LLOYD:   I might let her deal with that.

GUMMOW J:   It goes to this question of resources and competing claims to finite resources.

MR LLOYD:   Certainly, your Honour.

GUMMOW J:   The compensation provisions of the Act, section 211, so on and so forth.

MR LLOYD:   In the end, in my submission, what paragraph 115 supports is not any exclusive rights – but perhaps I should finish the point I was making, is that it was a finding of fact by his Honour, in my submission, that the Aboriginal law and custom was directed only to Aboriginal people.  Now, it may be that in other cases that finding would not be made, but in this finding it was made on the basis of conflicting evidence and on the

basis that there have been concurrent findings, because the Full Court adopted the findings, reviewed the evidence in detail and adopted the findings of the trial judge that that aspect should not be disturbed.  That being the case ‑ ‑ ‑

KIRBY J:   That is not the view the Commonwealth takes of that little island, New Year Island.

MR LLOYD:   No, certainly it is the view the Commonwealth takes, your Honour.  That is not a case in which there are concurrent findings of fact upon which the Commonwealth disagrees.

KIRBY J:   That is right.  Well, what is sauce for the goose is sauce for the gander, as they say.

MR LLOYD:   Certainly, your Honour.  My point simply is that in relation to the north-east corner, the Commonwealth position is, and was, that the problem was not ‑ ‑ ‑

KIRBY J:   I know - I do not want to go over it, I was just making a comment.

GLEESON CJ:   Is that a convenient time, Mr Lloyd?

MR LLOYD:   Yes, it is, your Honour.

GLEESON CJ:   We will adjourn until 9.30 tomorrow morning.

AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 9 FEBRUARY 2001