Yarmirr v Northern Territory

[1998] FCA 771

MARY YARMIRR AND OTHERS v. THE NORTHERN TERRITORY OF AUSTRALIA AND OTHERS
No. DG 6001 of 1996
FED No. 771/98
Number of pages - 72
Aborigines - Constitutional Law (NT) - Evidence
(1998) 156 ALR 370

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

OLNEY J

Aborigines - Native title - Native Title Act 1993 - extension to waters over which Australia asserts sovereignty - common law recognition of off-shore native title rights and interests.

Aborigines - Native title - claim to ownership and exclusive possession, occupation, use and enjoyment of the sea and its resources .

Aborigines - Native title - effect of legislative and administrative acts on native title rights to fish, hunt and gather.

Aborigines - Native title - native title rights to sea and sea-bed - inconsistency with rights of leaseholder.

Constitutional Law (NT) - seaward boundaries of Territory - location of low water mark - identification of bays and gulfs.

Evidence - native title - proof of descent from indigenous inhabitants - proof of traditional laws and customs - use of historical and ethnographical material - evidentiary value of anthropological report.

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3;

Acts Interpretation Act 1901 (Cth) s 15B;

Atomic Energy Act 1953 (Cth);

Atomic Energy (Control of Minerals) Act 1946 (Cth);

Coastal Waters (Northern Territory Title) Act 1980 (Cth);

Continental Shelf (Living Natural Resources) Act 1968 (Cth);

Crown Lands Act (NT);

Evidence Act 1995 (Cth) ss 73, 74;

Fisheries Act 1878 (SA);

Fisheries Act 1904 (SA);

Fisheries Act 1952 (Cth);

Fisheries Act 1988 (NT);

Fisheries Amendment Act 1980 (Cth) s 11;

Fish and Fisheries Act 1979 (NT);

Fisheries Management Act 1991 (Cth);

Fisheries Ordinance 1911;

Fisheries Ordinance 1949;

Fisheries Ordinance 1965;

Fisheries Ordinance 1972;

Minerals (Acquisition) Ordinance 1953;

Native Title Act 1993 (Cth) ss 3, 6, 10, 13, 17, 23, 26-44, 62, 81, 82, 213, 223, 235, 238, 253;

Northern Territory Crown Lands Act 1890 (SA);

Northern Territory Land Act 1872;

Northern Territory (Self Government) Act 1978 (Cth);

Offshore Waters (Application of Territory Laws) Act 1985 (NT) s 3;

Pearl Fisheries Act 1952 (Cth);

Pearling Ordinance 1930;

Pearling and Pearl Culture Ordinance 1964;

Petroleum (Prospecting and Mining) Ordinance 1954;

Seas and Submerged Lands Act 1973 (Cth) ss 7, 10, 11, Schedule 1;

Validation of Titles and Actions Act 1994 (NT).

A. Raptis & Son v South Australia 138 CLR 346 Appl;

Attorney-General (UK) v Chambers (1854) 4 De GM & G 206 (43 ER 486) Appl;

Attorney-General (NT) v Maurice 161 CLR 475 Appl;

Bowen v Minister for Urban Affairs and Planning (1996) 90 LGERA 368 Appl;

Blundell v Catterall (1821) 5 B & Ald 218 (106 ER 1190) Appl;

Delap v Hayden (1923) 4 DLR 1102 Appl;

Eaton v Yanner; ex parte Eaton, Qld Court of Appeal, unreported, 27 February 1998, Refd;

Harper v Minister for Sea Fisheries 168 CLR 314 Appl;

Mabo v The State of Queensland 175 CLR 1 Appl;

Minister for Primary Industries and Energy v Davey (1993) 119 ALR 108 Appl;

New South Wales v The Commonwealth 135 CLR 337 Appl;

Reg v Keyn (1876) 2 Ex. D 63 Appl;

The Wik Peoples v The State of Queensland and others 187 CLR 1 Appl;

Western Australia v Ward 76 FCR 492 Refd.

CROKER ISLAND, 22-29 April and 4-7 June 1997 (hearing)

DARWIN, 19-21 August and 1-4 December 1997 and 20-23 April 1998 (hearing), 6 July 1998 (decision)

#DATE 6:7:1998

Counsel for the applicants: Mr J. Basten QC and Mr K.R. Howie

Solicitor for the applicants: Northern Land Council

Counsel for the first respondent: Mr T. Pauling QC and Ms R. Webb

Solicitor for the first respondent: Solicitor for the Northern Territory

Counsel for the second respondent: Dr G. Griffith QC, Dr M. Perry and Mr S. Lloyd

Solicitor for the second respondent: Australian Government Solicitor

Counsel for the third, fourth and Mr G. Hiley QC and Mr N. Henwood

and seventh respondents:

Solicitor for the third, fourth and Cridlands

and seventh respondents:

Counsel for the eighth respondent: Mr M. Storey

Solicitor for the eighth respondent: North Australian Aboriginal Legal Aid

Service Inc.

The fourth and fifth respondents were not represented.

MINUTE OF ORDER

1. For the purposes of s 56(2)(a) of the Native Title Act 1993 the Court requests that Mary Yarmirr as the representative of the common law holders identified in the Court's reasons for judgment published this day indicate whether the common law holders intend to have the native title referred to in the proposed determination set out below held in trust by nominating to the Court in writing a prescribed body corporate to be trustee of the native title and including with such nomination the written consent of the body corporate.

2. The Court specifies a period of 28 days from the date of this order as the period within which the said nomination is to be given to the Court.

AND THE COURT DIRECTS THAT:

3. The parties have leave to file and serve on or before 5 August 1998 written submissions relating to the form of the proposed determination of native title and any other matters relating to the proceeding.

4. Further consideration of the proposed determination and any other matters relating to the proceeding be stood over to Thursday 12 August 1998 at 10.15am in Darwin.

PROPOSED DETERMINATION OF NATIVE TITLE

The Court proposes to make a determination of native title in the following terms:

1. Communal native title exists in relation to the sea and sea-bed within the claimed area.

2. The native title is held by the Aboriginal peoples who are yuwurrumu members of the Mandilarri-Ildugij, the Mangalara, the Murran, the Gadura-Minaga and the Ngaynjaharr clans (the common law holders).

3. The native title rights and interests do not confer possession, occupation, use and enjoyment of the sea and sea-bed within the claimed area to the exclusion of all others.

4. The native title rights and interests which the Court considers to be of importance are the rights of the common law holders, in accordance with and subject to their traditional laws and customs to have free access to the sea and sea-bed within the claimed area for all or any of the following purposes:

(a) to travel through or within the claimed area;

(b) to fish and hunt for the purpose of satisfying their personal, domestic or non-commercial communal needs including the purpose of observing traditional, cultural, ritual and spiritual laws and customs;

(c) to visit and protect places which are of cultural and spiritual importance;

(d) to safeguard their cultural and spiritual knowledge.

5. The native title rights and interests of the common law holders in relation to the sea and sea-bed within the claimed area are affected by, and to the extent of any inconsistency must yield to, all rights and interests in relation to the sea and sea-bed within the claimed area which exist pursuant to valid laws of the Commonwealth of Australia and of the Northern Territory of Australia including the rights and interests of the lessee of Crown Term Lease No. 1034.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

OLNEY J

PARAGRAPHS

Introduction 1 - 5

The application 6 - 8

The parties 9

The issues 10 - 18

The trial 19 - 25

The claimed area 24 - 29

Offshore application of the Native Title Act 30 - 32

Application of the common law 33 - 34

Recognition of native title 35 - 39

The limits of the Northern Territory 40 - 51

A brief historical overview 52 - 56

An assessment of the applicants' evidence 57 - 67

The system of native title 68 - 76

The estates and estate groups 77 - 83

The claim to native title rights and interests 84 - 87

Descendants of the original inhabitants 88

The Croker Island community 89

Traditional laws and traditional customs 90

The extent of the sea country 91 - 98

The claimed right of ownership 99 - 100

The claim to exclusive possession occupation, use and enjoyment 101 - 115

The claimed rights to use and control resources 116 - 118

The claimed right to trade 119 - 122

The claimed right to protect places of importance 123 - 125

The claimed right to safeguard cultural knowledge 126 - 127

Extinguishment and related issues 128 - 136

Fishing legislation 137 - 157

Minerals 158

Crown Term Lease No 1034 159 - 160

Summary of Conclusions 161

Proposed Determination 162 - 166

INTRODUCTION

1. In Mabov The State of Queensland (Mabo No 2) [1] the High Court held that the common law of Australia recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws and customs, to their traditional lands[2]. The judgments in Mabo No 2 are replete with references to rights and interests in land. Indeed, Brennan J explained:

The term "native title" conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditionalcustoms observed by the indigenous inhabitants[3]

and the operative portion of the High Court's declaration (for present purposes) was:

that the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands[4]. (emphasis added)

There is no reference in Mabo No 2 to the recognition of native title in relation to the sea, and this notwithstanding that the Meriam people are described in the judgment as island people who "have a strong sense ofrelationship to their Islands and the land and the seas of the islands"[5].

2. The applicants, and those on whose behalf this application is brought, like the plaintiffs in Mabo No 2, are island people whose sustenance is in part derived from fishing and who on any view of the evidence have a strong sense of relationship to their islands and the land and the sea of the islands. Unlike the Mabo No 2 plaintiffs, the applicants make no claim to the lands of their islands. Their claim as formulated in their application made pursuant to s 13(1)(a) of the Native Title Act 1993 relates to the sea and sea-beds within the boundaries of a defined area surrounding their islands but excludes land which has been granted for the benefit of Aboriginal people pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (the Land Rights Act).

3. The application made pursuant to s 13(1)(a) of the Native Title Act is an application for a determination of native title. Section 225 provides:

225. A "determination of native title" is a determination of the following:

(a) whether native title exists in relation to a particular area of land or waters;

(b) if it exists:

(i) who holds it; and

(ii) whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and

(iii) those native title rights and interests that the maker of the determination considers to be of importance; and

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

4. Although the form of the determination sought in the application was somewhat

different, the applicants, in their final submissions, seek a determination:

(a) that native title exists in the waters and land claimed;

(b) that the native title to the waters and land claimed is held by the members of the Mandilarri-Ildugij clan, the Mangalara-Yangardi clan, the Gadura-Minaga clan, the Murran clan, and the Ngaynjaharr clan;

(c) that the native title rights and interests confer possession, occupation, use and enjoyment of the waters and land to the members of the five clans to the exclusion of all others, subject to the right of senior clan members to permit others to have the use and enjoyment of the waters and land;

(d) that the following rights and interests are of importance -

(i) the right of ownership of the waters and land of the clan's estate;

(ii) the right to make decisions about the use of the waters and land of the clan's estate;

(iii) the right of free access to the waters and land of the clan's estate;

(iv) the right to control the access of others to the waters and land of the clan's estate;

(v) the right to use the resources of the waters and land of the clan's estate;

(vi) the right to control the use of others of the resources of the waters and land of the clan's estate;

(vii) the right to trade in the resources of the waters and land of the clan's estate;

(viii) the right of clan members to receive a portion of a major catch taken from the waters or land of the clan's estate;

(ix) the right to protect places of importance in the waters and land of the clan's estate;

(x) the right to safeguard the cultural knowledge associated with the waters and land of the clan's estate;

(xi) the secondary rights of the matrifiliates of clan members to have access to the waters and land of the clan's estate, to be consulted in respect of decisions concerning the use made of the area of the clan's estate, to use the resources of the clan's estate, to receive and safeguard the cultural knowledge associated with the waters and land of the clan's estate.

(e) that there are no private non-native title interests in the land or waters, other than Crown Lease Term No. 1034 to Tiwi Pearls Pty Ltd, which could affect the native title;

(f) that certain fishing licences granted under the Fisheries Act could affect native title rights and interests, but that such licences will not authorise entering into the waters concerned after this determination of native title takes effect, and

(g) that the exercise of a public right to enter the waters could affect native title rights and interests, but such a right will not survive (after) this determination of native title takes effect.

5. The principal issues in this case to a large extent turn upon the proper construction of s 6 and s 223 of the Native Title Act which provide as follows:

6. This Act extends to each external Territory, to the coastal sea of Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973.

223(1) The expression "native title" or "native title rights and interests" means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

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

(2) Without limiting subsection (1), "rights and interests" in that subsection includes hunting, gathering, or fishing rights and interests.

(3) ...

(4) ...

Section 253 of the Native Title Act provides that unless the contrary intention appears "land" includes the airspace over, or subsoil under, land, but does not include waters; and "waters" includes:

(a) sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters; or

(b) the bed or subsoil under, or airspace over, any waters (including waters mentioned in paragraph (a)).

Central to the applicants' claim in this proceeding is the question of whether the common law of Australia recognises native title rights and interests in relation to waters which are not within the territory of Australia, an issue which did not arise in Mabo No 2 and which has not previously been addressed in native title litigation.

THE APPLICATION

6. The proceeding has its origin in an application for a determination of native title lodged with the Registrar of the National Native Title Tribunal on 22 November 1994 and accepted pursuant to s 63(1) of the Native Title Act on 26 May 1995. On 21 May 1996 the Native Title Registrar lodged the application with the Court for decision. The application was made on behalf of the Mandilarri-Ildugij, Mangalara, Murran, Gadura, Minaga, Ngaynjaharr and Mayarram peoples. (In the proceeding in the Federal Court the Mayarram people were not advanced as having any relevant native title rights and interests). The area the subject of the application (the claimed area) is described in general terms as the seas in the Croker Island region of the Northern Territory which adjoin Croker Island, Manburrwa (Oxley Island), Gurrmurl (New Year Island), Gurrbalud (Lawson Island), Injurranggan (McCluer Island), Wurrulja (Grant Island)[6], and other related islands, and a portion of the mainland which extends between De Courcy Head and the commencement of the Cobourg Marine Park near Guialung Point and includes the sea-bed and any land or reefs within that area which have not been granted for the benefit of Aboriginal people pursuant to the Land Rights Act. The extent of the land excluded from the claim by reason of a grant of title made pursuant to the Land Rights Act is discussed later.

[6] The spelling of some of the Aboriginal names varies from that used in the application. In these reasons the spelling used in the applicants' anthropological report is adopted.

7. The map in schedule 2 to these reasons (the Commonwealth map) is a reproduction of an addendum to the statement of facts issues and contentions filed by the Commonwealth. For present purposes it can be regarded as accurately identifying the boundaries of the claimed area. The other boundaries shown on the Commonwealth map, apart from that described as showing "Geographical limits of NT" are not in dispute. The extent of the geographical limits of the Northern Territory is a matter of contention.

The application asserts that, by their traditional laws and customs, the members of the claimant groups:

a) are the owners of the claimed waters and land;

b) have the right to exclusive possession of the waters and land;

c) have the right of access to the waters and land;

d) have the right to control the access of other people to the waters and land;

e) have the right to hunt, fish and gather food and material in the waters and land;

f) have the right to prevent or control other people from hunting, fishing or gathering material from the waters and land;

g) are the exclusive owners of the living marine organisms found permanently, or from time to time, within the waters and land;

h) have the right to speak for and make decisions about the use of the waters and land;

i) have the right to receive and to pass on the cultural and religious knowledge associated with the waters and land;

j) have the right and responsibility to care for and protect the sites of significance in the waters and land;

k) have the right and responsibility to care for and protect the resources of the waters and land.

The determination ultimately sought by the applicants, although similar in substance, is expressed in somewhat different terms.

THE PARTIES

9. Section 84(1) of the Native Title Act provides that the persons who were parties to the application under s 68 (which deals with parties to the procedures required to be undertaken in the National Native Title Tribunal following the acceptance of an application) are parties to the Federal Court proceeding. Due to the death of one of the original applicants their number has been reduced to 12[7]. Although named in the application as an applicant no claim was made on behalf of Phillip Galbanyara, the second named applicant in part 1 of schedule 1. In these reasons references to "the applicants" are not intended to include Phillip Galbanyara. There has also been some variation in the identity and description of the other parties. The third, fourth and seventh respondents are collectively referred to as the fishing industry parties. The eighth respondent was joined by leave pursuant to s 84(2)[8]. The fifth and sixth respondents took no part in the proceeding.

[7] The deceased applicant is referred to by name on several occasions in the anthropologists' report but having regard to Aboriginal custom concerning the avoidance of naming recently deceased persons he is referred to in these reasons as Mary Yarmirr's father.

[8] Section 84(2) of the Native Title Act provides that a person may seek leave to be joined as a party to proceedings if the person's interests are affected by the matter or may be affected by a determination in the proceedings. Ms Henwood is an Aboriginal person whose family origins are in another part of the Northern Territory but who was taken to the mission at Croker Island as one of the "stolen generation". She holds a number of licences issued under the Fisheries Act 1988 (NT) which entitle her to undertake commercial fishing activities within, inter alia, the claimed area.

THE ISSUES

10. The matters which the applicants identify as requiring to be established are:

(a) the nature of rights and interests in land or waters possessed under traditional laws and customs;

(b) the continuity of the traditional association with the land and waters under claim;

(c) the identity of those who hold rights and interests in the land and waters, according to traditional laws and customs; and

(d) recognition by the common law of Australia.

Each of these matters relates to one or other element of the definition of "native title" or "native title rights and interests" in s 223(1) of the Native Title Act.

11.The primary (but not sole) contention of the respondents other than the eighth respondent (the principal respondents) is that no native title rights are capable of existing or of being recognised by the common law in respect of areas of the sea, sea-bed, subsoil and airspace above the seas and reefs beyond the limits of the Northern Territory and accordingly, insofar as the claimed area extends beyond the limits of the Northern Territory, no native title rights and interests can exist or be recognised by the common law. It is said that upon the acquisition of sovereignty by the Crown the common law of England was imported into Australia but only applied to the low water mark and did not extend to the territorial sea so that any rights and interests existing under indigenous laws and customs at that time in respect of the territorial sea are incapable of recognition at common law. It is said further that, where the application of the common law has been extended beyond the limits of the Northern Territory by legislative enactment, the common law does not recognise native title rights and interests beyond the limits of the Territory.

12. The principal respondents have raised a number of other issues which are pleaded in the alternative. They say that native title rights and interests cannot exist and/or be recognised by the common law beyond three nautical miles from the baselines from which the territorial sea is drawn; that to the extent that native title rights and interests can exist and be recognised by the common law between the limits of the Northern Territory and the area to three nautical miles from the baseline or otherwise beyond the limits of the Northern Territory:

(i) such rights and interests do not confer rights of possession, occupation, use and enjoyment of the waters, the sea-bed, the subsoil of the sea-bed and the airspace above the claimed area on the holders of native title to the exclusion of all others;

(ii) the holders of native title do not have ownership of the marine resources found within the claimed area, including fish, mammals and crustacea;

(iii) the holders of native title do not have ownership of mineral resources present on the sea-bed within, or in the subsoil below, the claimed area, including minerals, oils and gases;

(iv) such rights and interests are subject to the public right of navigation, the right of innocent passage by foreign vessels, the public right to fish, and rights granted under and powers exerciseable pursuant to legislation of the Commonwealth and the Northern Territory, including, without limiting such rights and powers, statutory fishing rights conferred under the Fisheries Management Act 1991 (Cth);

that legislation and administrative acts which apply or have applied to the whole or part of the claimed area have extinguished native title rights and interests in the claimed area in total or partially; and that the conferral of powers of management and control over the claimed waters and land upon, and the exercise of same by, the Northern Territory, is inconsistent with the continued existence of all or any native title rights and interests in the waters and land claimed.

13. The fishing industry parties, in addition to adopting the submissions of the Northern Territory and the Commonwealth, say that if the applicants or any of them ever held any native title rights and interests in or over any part of the claimed area then such rights and interests as did exist have been extinguished or permanently impaired to the extent of inconsistency by the use and occupation of the subject waters by the fishing industry parties and others who have used and occupied those waters for commercial fishing and similar purposes.

14. The Northern Territory says Crown Lease Term No 1034 has extinguished all or any native title rights and interests which may have existed within the leased area (which is off-shore from Croker Island) and in relation to that lease, the exercise of rights under it is inconsistent with the continued exercise of all or any native title rights and interests in the relevant waters and land.

15. The eighth respondent accepts that native title may exist in the sea, sea-bed and subsoil of waters over which Australia asserts sovereign rights but says that the content of such native title will vary with the law, customs and connection upon which it is founded. She says that her interests may be affected by a determination of native title but this would depend upon the content of the determination and that a determination that the applicants' native title rights confer possession, use and enjoyment of the claimed area on the claimant groups to the exclusion of all others would have an adverse effect on the value of her licences and on the feasibility of her operations.

16. The foregoing summary of the issues reflects the matters raised by the parties in their statements of facts, issues and contentions. In the course of the proceeding the Commonwealth expressed its attitude to the claim in a less formal fashion. The opening paragraphs of the Commonwealth's written submissions filed on 26 November 1997 state:

1.1 It should be made clear at the outset that the Commonwealth does not in any way dispute the right of the applicants to continue to have free access to, and use of, the waters and seabed, to the resources of the claimed area and to continue to maintain their traditional customs in relation to the claimed area subject only to the common law rights of other Australians and to what is permitted by the laws of Australia.

1.2 Accordingly, the applicants' capacity to continue their traditional uses of the sea as they have done to date will be unaffected by the decision in this case.

1.3 Nor does the Commonwealth dispute that the applicants have traditional uses of, and customs associated with, the sea.

1.4 Nor, of course, does the Commonwealth dispute that in appropriate circumstances, native title rights to fish, or to exclusive possession as was established in Mabo No 2 or to other of the rights claimed by the applicants might be established on land. However, the question whether the common law of Australia may recognise such rights offshore has yet to be authoritatively determined.

1.5 The Commonwealth does dispute:

that such customary practices can be recognised as native title rights by the common law in the claimed area beyond the limits of the Northern Territory as opposed to rights shared in common with the people of this country; and

that, even if native title rights can exist in respect of any part of the claimed area, that such rights could now confer, or could at any time have conferred, exclusive possession, ownership of the marine resources of the sea or the seabed or of minerals within it or any other right to control access to or exploitation of, those areas by the public and by foreign ships.

1.6 Indeed, even where the common law applies to offshore areas within the limits of the Northern Territory so as to form a basis upon which native title rights might be recognised, the common law principles which apply in that area necessarily have the result that the customary practices which might be recognised as native title rights are more limited than those which could be recognised on dry land.

1.7 Accordingly, the heart of this dispute, in the Commonwealth's contention, lies in distinction between the legal regime which applies on land and that which applies offshore.

1.8 This distinction is rooted in the physical nature of sea territory which distinguishes it from land territory and materially affects people's relationship with the sea. Whereas the land is capable of being fenced off, of being cultivated and improved, and of being occupied and lived upon by people, our relationship with the sea is primarily limited to the taking of fish and other sea life from and the traversing of the sea. Our capacity to physically close off and to cultivate the seas has been confined to areas close to shore and only recently has modern technology enabled us to build large structures for the drilling of oil and other such purposes in deeper waters of the sea.

1.9 The different relationship between people and the sea is recognised in the principles of the common law and of international law which govern rights in the sea. The legal regimes of both systems of law are premised first and foremost upon the concept of the freedom of the seas. In the common law, this finds reflection in the ancient public rights to fish and to navigate and in the principles of Magna Carta which enjoined the Crown from granting exclusive rights to fish. In international law in the area of the territorial sea, this finds reflection in the right of the ships of all nations to innocent passage. For the reasons which are explained (in another part of the submission) the evidence reveals that applicants' customs and practices have also had to take account of the physical nature of the seas and has reached an essentially similar position through the custom that deeper waters are shared with other inhabitants of the region.

17. In opening the case for the Northern Territory the Solicitor-General for the Northern Territory (Mr T. Pauling QC), whilst not resiling from the arguments advanced on behalf of the Commonwealth concerning the off-shore recognition of native title said (at transcript p 891):

So you can see that there may be things that, as this jurisprudence develops, one can recognise them and say, "Well, I can see a right of some sort there". What we say - and leaving aside the matters that are put to you by Dr Griffith because these submissions only become necessary if your Honour were to find that the common law goes offshore but for other reasons rights are not extinguished; but if your Honour were to consider what rights - what the incidents of native title might remain in this case, we would say that it could be put no higher - no higher than a non-exclusive, non-commercial, inshore fishery, and in the course of cross-examination and submissions we will point to the evidence that establishes the fact of merely an inshore fishery.

The theme of a non-exclusive, non-commercial, in-shore fishery was repeated in the Northern Territory's final submissions, both written and oral.

18. In their final written submissions the fishing industry parties say:

1.4 It is the contention of the Fishing Industry Parties that whilst the evidence supports the existence of some rights of usage of the seas and rights in relation to some of the resources of the sea (as opposed to the sea bed, subsoil and airspace), it does not support rights of exclusive possession. Further, it is submitted that the rights established are not "native title rights and interests" as defined by the Act, or more particularly as recognised by the common law.

1.5 The Fishing Industry Parties main contentions are:

1.5.1 Native title does not exist offshore:

(a) because it does not apply to the "high seas" - for the reasons submitted by the Commonwealth; and

(b) because the evidence has not established that proposition.

1.5.2 To the extent that native title does exist it does not include rights or incidents which are, as between the native title holders and the rest of the world, exclusive.

1.5.3 Further, with the possible exception of turtle and/or dugong, there are no native title rights in other species of fish or marine life, alternatively no exclusive or other rights which would preclude other members of the public from fishing for them and having access for that purpose.

1.5.4 Further, there are no native title rights or interests which are commercial in nature or such as would (i) enable the native title holders to fish etc for commercial purposes without complying with relevant statutory requirements e.g. such as require the obtaining of a licence; or (ii) prevent other members of the public from fishing etc for commercial purposes.

THE TRIAL

19. The application was initially listed for directions at Darwin on 4 July 1996. Further directions hearings were held at Darwin on 7 March 1997 and by video link between Melbourne and Darwin on 21 March 1997 and 14 April 1997. There are no formal pleadings but each party has filed a statement of the facts, issues and contentions which are relied upon and in addition a number of expert reports have been filed. This material identifies the issues. The trial commenced at Croker Island on 22 April 1997. Evidence was heard at various sites on Croker Island and on several adjacent islands from 22 April 1997 to 29 April 1997, and from 4 June 1997 to 7 June 1997. Further evidence was heard at Darwin from 19 August 1997 to 21 August 1997. The parties exchanged written submissions prior to the Court sitting at Darwin from 1 December 1997 to 4 December 1997 when counsel made oral submissions. In the course of those submissions it was suggested that the Court should initially make findings of fact concerning what can conveniently be called the issue of native title and rule on the related question of recognition by the common law, leaving aside for the time being any questions relating to the territorial limits of the Northern Territory and to extinguishment of native title rights and interests and related matters. There being a consensus amongst counsel that this would be a desirable approach I acceded to the suggestion. On maturer consideration I formed the view that it would be undesirable to fragment the proceeding in this manner. Pursuant to directions given on 23 February 1998 further written submissions on the outstanding issues were exchanged and further oral submissions were made in Darwin from 20 April 1998 to 23 April 1998.

Section 82 of the Native Title Act requires the Federal Court to pursue the objective of providing a mechanism of determination that is fair, just, economical, informal and prompt; it must take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders and it is not bound by technicalities, legal forms or rules of evidence. Consistent with these obligations, at the applicants' request, the Court conducted hearings in a temporary shelter at Minjilang on Croker Island [9] and at a number of other sites on Croker Island and on other islands within the claimed area. As many of the Aboriginal witnesses gave evidence on more than one occasion, and at more than one place, cross-examination was delayed until after the evidence-in-chief of all such witnesses had been completed. The only exception was that during visits away from the main hearing place witnesses were on occasions cross-examined in relation to site specific matters.

[9] Minjilang is not shown on the Commonwealth map. It is the main settlement on Croker Island, located near Mission Bay.

21. Any proceeding in which the Court is required to make findings as to traditional laws and customs practiced more than 150 years ago must necessarily rely upon evidence other than that of the personal observations of witnesses. Similarly, the proof of genealogical connections to ancestors living at or prior to European settlement cannot be proved by reference to official records. To a large extent some of the most important issues before the Court can only be resolved upon evidence which in other circumstances may be regarded as hearsay. However, apart from s 82 of the Native Title Act the provisions of ss 73(1)(d) and 74(1) of the Evidence Act 1995 (Cth) relating to evidence of reputation concerning history and family relationships and of reputation concerning the existence, nature or extent of a public or general right enable the Court to have regard both to the evidence of witnesses who have recounted details concerning relationships and traditional practices which have been passed down to them by way of oral history and to matters recorded by ethnographers and other observers.

22. The trial also involved the difficult question of gender-restricted evidence. The matter was dealt with at the directions hearing on 14 April 1997. On 15 April 1997 I made an order excluding female members of the public from attending a particular sitting but declined to restrict the attendance of female parties or female legal representatives of parties. The views expressed in my reasons published at the time were not supported by the Full Court in Western Australia v. Ward[10] the judgment in which was handed down on 8 July 1997 after the conclusion of the evidence at Croker Island. In the events which happened, thanks to the sensitive approach adopted by the Northern Territory and the Commonwealth (whose respective legal teams included at least one female) only male counsel were present at the relevant time and the evidence was given in circumstances which did not cause offence to the witness or other members of the claimant group As it happens, the evidence in question has no direct bearing upon the outcome of the proceeding and no further reference need be made to it.

23. Nineteen Aboriginal witnesses gave evidence during the sittings at Croker Island. With one exception, each witness was a member of one or other of the groups on whose behalf the application was made. The applicants also called a linguist (Dr Nicholas Evans) and two anthropologists (Drs Nicolas Peterson and Jeannie Devitt). The applicants put in evidence and rely upon a variety of documents including published articles and commentaries which record observations made by explorers and others in the late 19th and early 20th century. The Northern Territory called one witness, Dr Rex Rondon Pyne, then Acting Deputy Director, Fisheries Division, in the Northern Territory Department of Primary Industries and Fisheries, and tendered a number of exhibits. The Commonwealth did not call any witnesses but relied upon several witness statements which were tendered without objection and on a considerable volume of documentary material. The fishing industry parties called three witnesses and tendered a number of witness statements without objection as well as other exhibits. The eighth respondent did not adduce any evidence.

THE CLAIMED AREA

24. Section 13(1) of the Native Title Act contemplates that an application for a determination of native title may be made "in relation to an area for which there is no approved determination of native title". Section 62(1)(c) requires that a native title determination application must "contain a description of the area over which the native title is claimed". The application lodged with the Court is the application made initially to the Native Title Registrar under s 13(1)(a) and the Court's role under s 81 is to "hear and determine applications lodged with it under s 74". The Court is therefore concerned with the claim to native title rights and interests in relation to the area identified in that application. The applicants have expressly excluded from the area over which native title is claimed all lands and reefs within the boundaries of the claimed area which have been granted for the benefit of Aboriginal people pursuant to the Land Rights Act. However, it must be noted that the application is made in respect of the seas and sea-bed within the claimed area.

25. By deed of grant dated 30 May 1980 the Governor General granted to the Arnhem Land Aboriginal Land Trust, pursuant to the provisions of the Land Rights Act, an estate in fee simple in the islands (other than Groote Eylandt) within boundaries which correspond with those described in schedule 1 of the Land Rights Act under the heading of Arnhem Land (Islands). As the boundary lines defined in relation to the Arnhem Land (Islands) in schedule 1 (and in the deed of grant) encompass an area considerably in excess of the outer boundaries of the claimed area, all islands within the boundaries of the claimed area have been granted in fee simple to the Arnhem Land Aboriginal Land Trust for the benefit of Aboriginal people and are excluded from the area over which native title is claimed. The question remains as to whether the title of the Arnhem Land Aboriginal Land Trust in relation to the islands, terminates at the high water mark, or extends to the low water mark. The deed of grant does not expressly deal with the seaward limit of the land granted but it does describe the land as being "more particularly shown on Compiled Plan 4182 which has been deposited with the Registrar-General, Darwin". A search of Compiled Plan 4182 indicates that it refers to "Arnhem Land (Islands) in NT portion 1647 being all those islands above low water mark ...". In the course of the trial counsel for the applicants indicated that a determination of native title was sought in respect of the waters of the intertidal zone of the islands (ie the water which from time to time covers the area between the low water and high water marks).

26. The Native Title Act requires applicants to identify "the area" over which native title is claimed; and in Part 3 it sets out a series of procedures which must be followed by the National Native Title Tribunal before an application can be lodged with the Court for decision. Section 213(1) provides:

213. (1) If, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in this Act.

In my opinion this provision effectively prevents the amendment of an application by the expansion of the area over which native title is claimed once the application has been lodged with the Court for decision. The procedures of Part 3 of the Act would have to be observed before the Court could exercise its jurisdiction in relation to the additional area.

27. In the present case the outer boundaries of the claimed area are specified in the application which seeks a determination of native title in respect of the seas and sea-beds and any land and reefs contained within that boundary excluding land or reefs granted under the Land Rights Act. The exclusion must necessarily exclude the land of the intertidal zone. The question arises as to whether by excluding the land of the intertidal zone, the application has also extended the waters which from time to time cover it. The definition of "waters" in s 253 of the Native Title Act is not without its difficulties. The term is expressed to "include", inter alia, "sea" or "the bed or subsoil under ... any waters". On a literal application of the definition a claim in relation to "waters" would relate to either the sea etc or to the sea-bed etc but not both. It may be because of this perceived problem that the application expressly refers to the "seas and sea-beds" in the defined area. If it is legitimate to treat the sea-bed separately from the sea which covers it, (and the definition suggests that it is) then it would appear to be open to claim a determination in respect of the sea of the intertidal zone of the islands without making a similar claim in respect of the sea-bed of that zone (ie the land of the intertidal zone when it is covered by the sea). The application as originally framed, in seeking a determination in relation to all of the sea within the claimed area, extends to the waters of the intertidal zone.

28. Another issue concerning the definition of the area in respect of which a determination is sought has to do with the proper manner of identifying the low water mark. The applicants advocate the adoption of the lowest astronomical tide being -

The lowest tidal level which can be predicted to occur under average meteorological conditions and under any combination of astronomical conditions.

Some support for this approach is sought to be gained from the fact that the 1983 proclamation under s 7 of the Seas and Submerged Lands Act 1973 relating to the baseline from which the width of the territorial sea is measured calculates the low water line according to the lowest astronomical tide. The contrary view adopted by the principal respondents, is that the mean low water mark is the appropriate description.

29. Courts have consistently held that "low water mark" is constituted by the mean low water mark as determined by the tides[11]. Medium ordinary tides are arrived at by excluding the highest tides of the month (springs) and the lowest (neaps). Mean high water mark is, for example, the line of the medium high tide between the springs and the neaps. The landward and seaward limits of the foreshore are therefore the mean high and low water marks respectively. The Commonwealth correctly points out that the applicants' alternative proposition, that low water mark is constituted by the lowest astronomical tide, is unsupported by authority.

OFFSHORE APPLICATION OF THE NATIVE TITLE ACT

30. The Native Title Act is Parliament's response to Mabo No 2. It is an Act "about native title in relation to land or waters" (long title). One of its main objects is to provide for the recognition and protection of native title (s 3(a)). It recognises and protects native title in accordance with the Act (s 10). The Act "extends to each external Territory, to the coastal sea of Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973". (s 6). In the absence of a contrary intention "coastal sea" has the meaning given by ss 15B(4) of the Acts Interpretation Act 1901 (s 253) which provides:

15B(4) In this section, "coastal sea":

(a) in relation to Australia, means:

(i) the territorial sea of Australia; and

(ii) the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory;

and includes the airspace over, and the sea-bed and subsoil beneath, any such sea;

Apart from s 6 of the Native Title Act, in the absence of a contrary intention, the provisions of every Act have effect in and in relation to the coastal sea of Australia as if the coastal sea were part of Australia (Acts Interpretation Act 1901, s 15B(1)(a)).

31. By Proclamation dated 13 November 1990 made pursuant to s 7(1) of the Seas andSubmerged Lands Act, Australia extended the limits of the territorial sea over which it asserts sovereign rights out to 12 nautical miles from baselines established by proclamation on 9 February 1983. The whole of the outer boundary of the claimed area is within the 12 nautical mile limit of the territorial sea and by reason of the adoption of straight line baselines, a substantial part of the claimed area is on the landward side of the baselines and thus of the territorial sea. By virtue of ss 6 and 10 of the Seas and Submerged Lands Act sovereignty in respect of the territorial sea and in respect of the internal waters of Australia (that is, any waters of the sea on the landward side of the baseline of the territorial sea) including the related airspace, sea-bed and sub-soil is vested in and exercisable by the Crown in the right of the Commonwealth. It is therefore the case that the whole of the waters within the outer boundary of the claimed area are waters (as defined in s 253 of the Native Title Act) over which Australia asserts sovereignty under the Seas and Submerged Lands Act.

32. The Native Title Act differentiates between an "onshore place" and an "offshore place". An onshore place is land or waters within the limits of a State or Territory to which the Act extends whereas an offshore place is any land or waters to which the Act extends, other than land or waters in an onshore place (s 253). There are several provisions of the Native Title Act in which the distinction between onshore and offshore places is made. Sections 17 and 23 are examples. The "right to negotiate" provisions of the Act (ss 26-44) apply only in respect of a proposed permissible future act in relation to an onshore place. A future act in relation to an offshore place is a permissible future act (s 235(8)). In my opinion the Native Title Act discloses an intention to recognise and protect native title in accordance with the Act, both onshore and offshore.

THE APPLICATION OF THE COMMON LAW

33. In New South Wales v The Commonwealth (the Seas and Submerged Lands Act case) [12]the High Court upheld the Seas and Submerged Lands Act as a valid exercise of legislative power under s 51 (xxix) of the Constitution. A majority of the Court (Barwick CJ, McTiernan, Mason and Jacobs JJ) also held that the boundaries of the former Australian colonies ended at the low water mark and that they had no sovereign or proprietary rights in respect of the territorial sea or the sub-adjacent soil or super-adjacent airspace. In this context Barwick CJ said (at p 368):

The colonists inherited the common law: but it operated only in the realm which ended at low water mark. This was decided in Reg v Keyn (1876) 2 Ex. D. 63, a decision with which I respectfully agree. ... Thus, property in and power over the territorial seas could not have come from the common law.

Earlier in his reasons (at p 367) the Chief Justice made reference to remarks of Lush J in Reg v Keyn to the effect that although the common law of the realm ended at low water mark, the Parliament could alter that situation if it so desired to which his Honour added the caveat that whilst for its own domestic purposes it could pass without restriction laws operating beyond the dominion, only such of those laws as operated within the area conceded to the nation by the comity of nations could have validity at international law. In concluding his judgment Barwick CJ, in discussing the sovereignty and sovereign rights referred to in the Act, said (at p 375):

That sovereignty and those sovereign rights are exercisable in and in respect of the territorial sea and the continental shelf. The Act, in my opinion, validly vests that sovereignty and these sovereign rights in the Crown in the right of the Commonwealth but any Act or law operating within Australia to implement either of those Conventions or the powers they give must be itself a valid law of the Commonwealth. But if there is such a law, it may operate on matters and things which otherwise could not be the subject of a law of the Parliament.

34. The Commonwealth Parliament has the capacity to enact a law extending to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act. The Native TitleAct is such a law. The validity of s 6 of the Native Title Act is not in issue. Nor can it be challenged that to the extent that Australian law operates in those waters, it is the statute law and not the common law of Australia which applies and this notwithstanding that pursuant to the Offshore Waters (Application of Territory Laws) Act 1985 (NT) the "written and unwritten" laws in force in the Territory have effect in and in relation to the coastal waters of the Territory out to three nautical miles (s 3(1)(a)).

RECOGNITION OF NATIVE TITLE

35. It is an element of the Native Title Act definition of native title or native title rights and interests that rights and interests referred to in the definition are recognised by the common law of Australia (s 223(1)(c)). As the recognition accorded by the common law of Australia to a form of native title which reflects the entitlement of the indigenous inhabitants, in accordance with their laws and customs, to their traditional land is confined to "cases where (native title) has not beenextinguished"[13] it may be said from the outset that the common law of Australia does not recognise native title rights and interests which have been extinguished. But it is clear that the judgments in Mabo No 2 contemplate other circumstances which would preclude recognition. For example, Brennan J observed (at p 43) that recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system, and later (at p 60) that a native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. Further, the common law will only recognise rights and interests which constitute a native title when those rights and interests are possessed by the indigenous inhabitants and their descendants[14]. Relevant to a discussion of the recognition of native title is Toohey J's observation (at p 188):

Presence (of indigenous inhabitants on acquired land) would be insufficient to establish title if it was coincidental only or truly random, having no connexion with or meaning in relation to a society's economic, cultural or religious life. It is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title.

In the second of his general propositions about native title which can be stated without reference to evidence, Brennan J said (at p 61):

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. The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants, provided those laws and customs are not so repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld.

These examples serve to identify some of the factors that may call for consideration in determining whether or not any rights and interests of the type described in s 223(1) are recognised by the common law.

36. In Mabo No 2 the Court did not address the question of whether the common law of Australia recognises native title rights in relation to offshore waters. It is idle to speculate what may have been the answer if the question had been addressed. However, the Native Title Act was passed in the wake of Mabo No 2and those who drafted the legislation, and hopefully those who saw its passage through Parliament, would have been familiar with the Mabo judgments, including the reference to the strong sense of relationship of the Murray Islanders to their islands and the land and the sea of the islands (Toohey J at p 191). The Commonwealth's written submissions (filed 26 November 1997) assert:

The Native Title Act 1993 has been drafted in a manner to allow claims to be made to offshore areas because the issue of whether any native title rights can exist offshore has not yet been determined. However, the fact that the Act permits such claims to be made and resolved does not support the proposition that the common law has, can or does recognise any native title rights offshore. Rather, in view of the uncertainty over the question whether native title can be recognised offshore, the Native Title Act 1993 and other legislation such as the Offshore Minerals Act 1994 were drafted with an eye to prudence and to ensuring that they operate validly even if native title is recognised in areas to which those Acts apply. Thus, notwithstanding submissions by the applicant to the contrary, references to native title in offshore areas in the Native Title Act and other legislation do not "acknowledge" the existence of native title beyond the limits of the Northern Territory. They simply provide for that possibility.

The proposition that by extending the application of the Native Title Act to offshore waters, Parliament has not acknowledged the existence of native title beyond the limits of the Northern Territory is valid because the existence of native title must be proved in each case. However, by enacting s 6 it is clear that Parliament intended the Act to apply to the greatest possible area. Section 6 goes beyond the provisions of s 15B(1) of the Acts Interpretation Act in that, by extending its effect to waters over which Australia asserts sovereign rights, it has included the area of the continental shelf beyond the territorial sea (Seas and Submerged Lands Act 1973,

s 11).

37. In confirming the application of the Native Title Act in relation to the coastal sea and extending its effect to all waters over which Australia asserts sovereign rights Parliament has indicated a specific intention to recognise that native title rights, if proved, are capable of recognition in relation to those seas and waters. Section 6, coupled with the recognition of native title accorded by s 10, namely recognition "in accordance with this Act", supports the proposition that the legislative intention was to provide a statutory basis for recognition offshore. Indeed, consistent with the established learning on the subject, the only way in which Australian law can apply to an offshore area is by legislative enactment.

38. Although the concept of native title adopted by the Native Title Act (as expressed in

s 223(1)) appears to be consistent (at least so far as rights and interests in land are concerned) with that identified in Mabo No 2, the Act has not adopted every aspect of it. For example,

s 11(1) provides that native title may not be extinguished contrary to the Act. Furthermore, "the non-extinguishment principle" (as defined and explained in s 238) is a departure from the common law as explained in Mabo No 2. It is no longer the law that a future alienation of land by the granting of an interest that is wholly or partially inconsistent with the continuing right to enjoy native title effects extinguishment of the native title to the extent of the inconsistency nor is it the case that a valid and effective appropriation of land by the Crown to itself which is wholly or partially inconsistent with a continuing right to enjoy native title will effect extinguishment to the extent of the inconsistency. Under the statute law in the case of a "permissible future act", the non-extinguishment principle applies in circumstances in which, under the common law, extinguishment may have occurred[15]. The Native Title Act has extended and enhanced the common law concept of native title.

39. It would be entirely inconsistent with the thrust of the legislation if the requirement expressed in s 223(1)(c) of the Native Title Act that the rights and interests which constitute native title or native title rights and interests must be rights and interests that are recognised by the common law of Australia were to be construed as imposing a territorial limit in relation to the recognition of native title. In conjunction with the other provisions of s 223, s 223(1)(c) merely identifies the nature of the rights and interests which are capable of being recognised as native title rights and interests. The rights and interests to which s 223(1)(c) refers are clearly, the rights and interests identified by the earlier provisions of the section. Those provisions describe the types of rights and interests which are encompassed within the concept of native title. For example, consistent with common law principles, such rights must not be rights which fracture a skeletal principle of our legal system; they must be rights which are possessed only by the indigenous inhabitants and their descendants; they must be rights which continue to be observed in conformity with the traditional laws and customs of the people to whom the claimants belong. These examples provide an indication of the meaning of "recognised by the common law" in the context of s 223(1). It would be contrary to the clear and plain intention of the Act to recognise and protect native title rights and interests which are shown to exist in relation to the coastal sea of Australia and to waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act if s 223(1)(c) were to be construed as meaning "the rights and interests exist in relation to an area of land and waters where the common law of Australia applies". These conclusions render unnecessary the task of making a finding as to the geographical limits of the Northern Territory, but in case it is later held, contrary to the opinion I have expressed, that native title rights and interests can only be recognised by the common law in relation to land and waters within the territory of Australia I propose to express a view as to the limits of the Northern Territory.

THE LIMITS OF THE NORTHERN TERRITORY

40. The letters patent issued to Captain Arthur Phillip and read by him at Sydney Cove on 7 February 1788 defined the western limit of the territory annexed as the 135th degree of east longitude. The commission to Governor Darling proclaimed on his assumption of the administration of New South Wales on 20 December 1825 substituted the meridian of 129 east longitude for the meridian of 135 east longitude as the western boundary of New South Wales. The alteration of the western boundary was preceded by a voyage along part of the northern coast by Captain J.J.G. Bremer, of HMS "Tamar" who landed at Port Essington on 20 September 1824 and at Melville and Bathurst Islands on 26 September 1824. On each occasion he took possession of "the north coast of New Holland or Australia contained between the meridian of 129 and 135 East of Greenwich, with all Bays, Rivers, Harbours, Creeks, etc., in and all the Islands laying off" in the name and in the right of King George IV. The area of sea presently under claim lies between 129 E and 135 E. The British Crown accordingly acquired sovereignty over the land territory within the boundaries of the claimed area as a result of Captain Bremer's actions in 1824. The present limits of the Northern Territory were defined in letters patent dated 6 July 1863 by which the territory which now constitutes the Northern Territory was annexed to South Australia, a situation which still existed at the time of Federation on 1 January 1901. The Northern Territory was surrendered to the Commonwealth in 1911 and remained under Commonwealth control until the granting of self government in 1978.

41. The Letters Patent of 6 July 1863 defined the limits of the territory annexed to South Australia as:

So much of our said colony of New South Wales as lies to the northward of the twenty-sixth parallel of south latitude, and between the one hundred and twenty-ninth and one hundred and thirty-eighth degrees of east longitude, together with the bays and gulfs therein, and all and every the islands adjacent to any part of the mainland within such limits as aforesaid, with their rights, members, and appurtenances ...

The Commonwealth and the applicants assert that the territorial limit is as shown on the Commonwealth map. In support of this proposition they rely upon dicta in A. Raptis & Son v South Australia[16] in which Gibbs J said (at pp 359-360):

There cannot in my opinion be the slightest doubt that the waters of the bays and gulfs of the southern coast of South Australia were included within the Province - that is, they became part of its territory. The words of the statute and of the letters patent are in this respect plain and unambiguous ... the effect of the letters patent of 1836 was that the bays and gulfs on the south coast of South Australia became part of the territory of South Australia whether or not they would have been regarded by the rules of the common law or the rules of international law as forming part of that territory. It lies within the prerogative power of the Crown to extend its territory on land or at sea, and the acquisition of territory by the Crown is an act of state which cannot be challenged in the courts.

The Letters Patent which constituted the Province of South Australia in 1836, and which were the subject of consideration in Raptis used a similar form of words to those adopted in the 1863 Letters Patent, in particular the words -

"including therein all and every the Bays and Gulfs thereof"

The High Court decided in Raptisthat the waters of both Spencer Gulf and the Gulf of St Vincent were included in the territory of South Australia. The Court also defined the lines which marked the respective entrances to the gulfs.

42. The depiction of the limit of the Northern Territory on the Commonwealth map is based upon the description of Mountnorris Bay in The Australia Directory of 1863 as extending "from cape Cockburn NW 25 miles to cape Croker, and is about 23 miles in depth". It is said in support of this proposition that it is clear from the decision in Raptis that it is relevant to consider the understanding of the geography of the area by contemporary geographers and cartographers and that in the absence of some contrary indication, that perception will normally be determinative. But I do not think the two citations from Raptis referred to in the Commonwealth submission, but not quoted, support such a firm view. The Commonwealth submission refers first to Gibbs J at p 361 but it may be preferable to quote the whole of the paragraph (which commences on p 360) in which the relevant comments appear:

The question that then falls for consideration in the present case is what waters form part of Spencer Gulf and the Gulf of St Vincent or, in other words, what are the lines marking the respective entrances to those gulfs? It is unnecessary for present purposes to attempt to distinguish between bays and gulfs. Both are indentations of the sea into the land. "The distinction between gulf and bay is not always clearly marked, but in general a bay is wider in proportion to its amount of recession than a gulf; the latter term is applied to long land-locked portions of sea opening through a strait, which are never called bays": see Oxford English Dictionary, "gulf", and Stamp, Glossary of Geographical Terms, 2nd ed. (1966), "gulf". This suggested distinction is by no means consistently drawn in naming bays and gulfs, but since both bays and gulfs are included in the territory of South Australia it is immaterial whether any particular indentation is a bay or a gulf. In deciding whether any particular stretch of water forms part of a bay or gulf both geographical and historical considerations have to be regarded (cf. People v. Stralla (1939) 14 Cal 2d 614). It is first necessary to consider the configuration of the coast with a view to deciding what features would naturally mark the entrance to the indentation. This is a matter on which the opinions of geographers and cartographers are entitled to due weight. Further, it will be relevant and important if at the date of the statute and letters patent the bay or gulf was commonly understood to extend over a particular area, for it may be assumed, in the absence of any indication to the contrary, that the portion of the sea intended to be embraced by the description of bays and gulfs was that which in common understanding was included within them.

His Honour then proceeded to say -

A study of the configuration of the coastline makes it clear that, if points on the mainland only are taken, the entrance points of Spencer Gulf will be in the vicinity of Cape Catastrophe on the west and Cape Spencer on the east, and those of the Gulf of St Vincent will be in the vicinity of Troubridge Point on the west and Cape Jervis on the east.

43. The second citation referred to in the Commonwealth submission is from Jacobs J in Raptis at p 393. After quoting from both the 1830 edition of The Australia Directory and the 1853 edition his Honour said -

The two great gulfs have never since been described otherwise. I regard the opinions of cartographers contemporary with the 1834 statute and the letters patent of 19th February 1836 as of primary significance in the elucidation of the question now posed. Where there is a gulf or bay within the meaning to be given in the context to these general words, then, unless the contemporary description of a particular configuration can be shown to be the result of a cartographic or topographical misconception or a popular misnomer it should be accepted as an accurate description and identification of the configuration falling within the general words "gulfs and bays".

44. Barwick CJ adopted a somewhat different approach. At p 352 he said -

The question is to be answered, in my opinion, exclusively by the construction of the statutory instruments by or by virtue of which the Province of South Australia was constituted in 1836. The various historical circumstances which may be thought to bear on that construction are mentioned in the reasons for judgment of my brother Stephen. These have had my consideration but, in the long run, I have become convinced upon the proper construction of these statutory instruments that the waters of the two gulfs within closing lines conventionally drawn were included in the area which was placed by the British Executive under government of the Province of South Australia. The inclusion of the word "Gulfs" in the constating formula was unique in Australian colonial history, and the geographical prominence of the two gulfs in relation to the land lying between the designated degrees of longitude seem to me to admit of no other conclusion than that it was intended by the constating description to include the waters of those two gulfs in the new colony.

At p 353, without reference to The Australia Directory or any other similar contemporary publication, he was able to identify the geographical features between which the respective closing lines should be drawn. The features so identified in fact correspond with those described in the 1830 edition of The Australia Directory.

45. The other majority Judge in Raptis was Stephen J who was apparently prepared to have regard to material published subsequent to the Letters Patent of 1836. At pp 372-3 he said -

The reference to "gulfs" must I think be taken to include the whole of the waters of Spencer Gulf and of Gulf St Vincent from their northernmost reaches southerly to the extremities of the land which bounds them on either side. In the case of Spencer Gulf a line from Cape Catastrophe on the south eastern extremity of Eyre's Peninsula to Cape Spencer on the south western extremity of Yorke Peninsula appropriately defines that gulf. Not only are those two points more or less at the extremities of the bounding land but they are prominent landmarks long recognized in charts and sailing directions as important features of the coast and described in the Australia Directory (1853), Vol 1, p 81 and in subsequent like publications, including the Australia Pilot, 6th ed. (1973), as forming the entrance to the gulf.

The case of Gulf St Vincent is somewhat different since it might be said that Kangaroo Island should be regarded as an extension to one side of the land within which the gulf lies. Leaving aside for the moment this possibility the extent of the gulf is not otherwise in doubt. The Australia Directory of 1853, at p 82, describes the entrance to Gulf St Vincent as lying between Cape Jervis and Troubridge Hill. That cape is near the south western extremity of Fleurieu Peninsula and is a prominent local feature. Troubridge Hill is in fact a high cliff face on the south eastern point of Yorke Peninsula and in the 1973 edition of Australia Pilot is described as two miles west of the entrance to the gulf, which is said to be Troubridge Point. This latter feature is more clearly at the south eastern extremity of Yorke Peninsula and is closer to Cape Jervis than is the hill and for these reasons seems to provide a more appropriate western terminating point for the southern margin of the gulf. I would accordingly regard a line from Cape Jervis to Troubridge Point as marking the southern limits of Gulf St Vincent.

46. One feature of The Australia Directory of 1863 to which no reference was made by the Commonwealth, but nevertheless is contained in the material relied upon, is the prefatory statement headed "Advertisement". After describing some of the sources of the material published in the Directory, and referring to "some of the numerous out-lying dangers off the north and north west coasts of Australia" the author states -

But as most of these dangers are little known, and many parts of the coasts yet remain imperfectly surveyed, this work must necessarily be considered incomplete, and will yet afford frequent occasion for revision and amendment.

In all the circumstances it would in my opinion be wrong to treat the 1863 edition of The Australia Directory as determinative of the matter presently under consideration. Apart from the very tentative manner in which the information concerning the north coast is put forward the weight of the judgments in Raptis contradicts such an approach. Barwick CJ favoured closing lines "conventionally drawn" and had no need to refer to The Australia Directory but nevertheless identified the same geographical features as the other majority Judges. He thought that "both geographical and historical considerations have to be regarded" and that "it will be relevant and important if at the (relevant dates) the bay or gulf was commonly understood to extend over a particular area". Gibbs J considered that it "is first necessary to consider the configuration of the coast with a view to deciding what features would naturally mark the entrance to the indentation". Having said that his Honour then identified the relevant features after "a study of the configuration of the coast line". Jacobs J qualified his view as to the primary significance to be attached to the opinions of contemporary cartographers in two ways. First, there must be "a bay or gulf within the meaning to be given in the context to these general words" and second, "the contemporary description (must not) be shown to be the result of a cartographic or topographical misconception or a popular misconception". Stephen J first identified the relevant land marks and then drew some comfort from the opinions expressed in the edition of The Australia Directory some 17 years after the date of the Letters Patent. The Court ought not regard itself as in any way bound by the description of Mountnorris Bay, nor those of Somerville and Palm Bays in The Australia Directory of 1863. Rather it is the Court's task to first decide whether the areas in question are indeed properly to be regarded as bays (there is no suggestion that they are gulfs) and if they are found to be so, to identify "conventionally drawn" closing lines.

47. Without resiling from its primary submission concerning the limits of the Northern Territory and the weight to be accorded the description in The Australia Directory of 1863, the Commonwealth written submission continued:

However, were it not for the description in the 1863 Australia Directory, the Commonwealth contends that the presence of Bowen Strait as a navigable waterway would make it clear that, even if Mountnorris Bay were regarded as a bay, the appropriate closing lines would normally be drawn from points on the mainland, namely Coombe Point to Guilung Point. Indeed, the presence of Bowen Strait and the history of its use as a navigable waterway may be factors that lead to the conclusion that the description of the bay in the Australia Directory ought not be regarded as determinative.

Similarly, Somerville Bay and Palm Bay on Croker Island were depicted on the Commonwealth map as bays within the limits of the Territory on the basis of the contemporaneous description of Palm Bay and Somerville Bay as bays in the 1863 Australia Directory, even though, as is explained below, there is some doubt as to whether they would otherwise satisfy the criteria with which a bay is identified.

48. In Raptis, Stephen J gave careful and detailed consideration to the question of what constitutes a bay for the purposes of the Letters Patent then under consideration and it is clear that his observations must have equal relevance in relation to the Letters Patent of 1863. I propose therefore to quote at length from Stephen J at pp 376-378:

The common law has always recognized that coastal waters in the form of bays enclosed within the jaws of the land form part of the inland waters of the littoral State. However, difficulty has always been experienced in defining with any precision what must be the attributes of such waters before they may be regarded as sufficiently landlocked to qualify as inland waters. It is said that they must be waters inter fauces terrae but little comfort is to be derived from a recourse to the Latin. To explain the concept by reference to fauces terrae only invites the question how one determines what are the sufficient jaws of the land; as Hill J put it in The Fagernes ([1926] P. 185 at p. 189), "What is the metaphor, the open mouth of a man or of a crocodile?" For long the common law had resort to criteria of human vision in determining the permissible width of jaws and an illusion of certainty prevailed: but Lord Hale's test - "where a man may reasonably discern between shore and shore" - must necessarily lead to very different results from that of East (2 East P.C., c. 17, s. 10), approved of by Lord Coke, "where a man, standing on the side of the land, may see what is done on the other".

...

... what was said in the Award of the Permanent Court of Arbitration at The Hague in the North Atlantic Coast Fisheries Arbitration(1910) Reports of International Arbitral Awards, vol. XI, 167, at p 199, although expressed in the context of international law, describes accurately enough the modern common law approach to the question of what bays are internal waters:

"The interpretation must take into account all the individual circumstances which for any one of the different bays are to be appreciated, the relation of its width to the length of penetration inland, the possibility and the necessity of its being defended by the State in whose territory it is indented; the special value which it has for the industry of the inhabitants of its shores; the distance which it is secluded from the highways of nations on the open sea and other circumstances not possible to enumerate in general".

It was of this passage that Atkin L.J. said in The Fagernes, when that case was before the Court of Appeal [1927] P. 311, at p 325 that "I do not know a better statement of the considerations that must be taken into account ..." The passage reveals a multifactoral approach in which geography is a major consideration but, as their Lordships pointed out in the Conception Bay Case[1877]2 App. Cas. at p 419, usage and history also play a part; precise dimensions are not conclusive, neither the three or six mile single or double cannon-shot rule nor any strict ten mile limit from headland to headland is to be regarded as providing an absolute test. Instead, as expressed by Hosking J in Adams v Bay of Islands County[1916] NZLR 65, at p 71, the question,

"what part of the sea is part of the territory of New Zealand for all purposes is to be determined by the circumstances of the particular case. It is not because a place is called a 'bay' that its waters are to be deemed territorially part of the mainland. The size and configuration of the bay may decide the question almost on sight, so to speak. If those circumstances leave the decision doubtful, then acts of administration and other historical facts showing proprietorship may be decisive. All this, of course, leaves the ocean boundary in an indefinite state until some judgment or other formal act renders it definite".

For Windeyer J in Ferguson v Union Steamship Co of New Zealand Ltd(119 CLR 191, at p. 201) the size and configuration of Emu Bay on the Northern Tasmanian coast did provide an answer "almost on sight": "I can only say it hardly seems to me possible to say that Emu Bay as a whole is within the fauces terrae. That expression I take to refer to defined promontories or headlands enclosing a narrow entrance to an arm or inlet of the sea". But "Each such case must depend upon its own special circumstances": The Fagernes, per Lawrence L.J [1927] P., at p. 328.

If such then be the common law approach to the question of what indentations of the coast create bays which answer the description of inland waters, it will also be very much the approach which a court will necessarily have to adopt in determining which of such indentations are within the description of "bays" for the purposes of the Act of 1834 and the letters patent. Neither the ordinary dictionary meaning of "bay" nor the somewhat more refined meanings to be found in dictionaries of geographical terms provides anything like precision of meaning and I am aware of no historical circumstances which might be used to give to the word, as used in the Act and letters patent, any particular application. ...

FISHING LEGISLATION

137. The right to fish, being a public right, is enjoyed equally by the applicants as by all other members of the public. However, as stated in Harper v Minister for Sea Fisheries[85], the right is freely amenable to abrogation or regulation by a competent legislature, and there is a long history of such regulation in respect of the claimed area. It is unnecessary to catalogue every detail of over a century of legislative regulation of fishing in the claimed area. The details referred to in the following paragraphs provide a summary of the general thrust of the controls that have from time to time been applied. The Commonwealth (supported by the other principal respondents) submits that an analysis of the history of fisheries legislation and administration indicates that a native title right to exclusive possession, occupation, use or enjoyment of the claimed area or to exclusive fisheries either could not be recognised by the common law or has been extinguished.

138. The facts asserted in the following paragraphs are uncontroversial. They are based upon a consideration of contemporary legislation, regulations and official reports as well as historical writings and the uncontested evidence of the Commonwealth's witnesses. References to the source material are particularised in the written submissions of the Commonwealth dated 25 March 1998 and are not repeated in these reasons.

139. The earliest relevant legislation concerning fisheries is found in the Northern Territory Land Act 1872 (SA) which provided for the grant of licences to fish for pearls. pearl-shell and trepang, a provision which was in substance repeated in the Northern Territory Crown Lands Consolidation Act 1882 (SA) and the Northern Territory Crown Lands Act 1890 (SA). Regulations under the 1890 Act provided for the issue of annual licences to ships to fish for pearls, trepang and other shells or shell-fish. No geographical restrictions were imposed. A customs house was established in Bowen Strait in about 1885 in order to enforce the licensing requirements for the collection of trepang, as well as imposing duties upon rice and other goods landed and duties upon trepang and other goods to be exported. The location of the customs house was selected because the claim area was one of the primary areas which the Macassans annually frequented for trepanging.

140. The first South Australian Act dealing generally with fisheries appears to be the Fisheries Act 1878 (SA) which sought to implement basic conservation measures such as prohibiting the use of explosives and providing that small fish were not to be taken. The Act did not apply "to any Aboriginal native taking fish for his own use ...". An amendment in 1893 empowered the Governor to proclaim waters to be closed against the use of fishing nets or other devices and proclaim that "any portion of any river, inlet, creek, lake, lagoon, estuary, or arm of the sea shall be a reserve within which only Aboriginal natives of South Australia shall be allowed to fish.

141. The Fisheries Act 1904 (SA) introduced a comprehensive scheme of fisheries regulation. It made provision for the issue of annual licences "to take fish for sale or barter ..." upon payment of a fee and prohibited taking fish without a licence. The Governor was empowered, inter alia, to close off areas from the taking of fish, to prohibit the use of certain devices to take fish, to provide for closed seasons to fishing and to prohibit the taking of fish below a prescribed weight. Licences under the Actdid not restrict the areas within which the holder might fish, but were subject to the closure of areas. Amendments made in 1909 prohibited the taking of fish "for sale or barter" in any unregistered ship or boat. The Governor was also empowered to declare "... any water to be a reserve within which only Aboriginal natives shall be allowed to fish", water being defined to include "the sea, and all bays, gulfs, inlets, and other waters which ebb and flow on lands in the possession or under the control of the Crown ...". The Act also exempted from the provisions of the Act "any Aboriginal native taking fish for his own use". The scheme established by the South Australian legislation was in substance repeated in Northern Territory legislation adopted after the surrender of the Northern Territory to the Commonwealth in 1911, although no special provision regarding traditional Aboriginal fishing was made until the Fish and Fisheries Act 1979 (NT).

142. The Fisheries Ordinance 1911 provided for the issue of fishing licences to take fish for the purpose of trade and to use a vessel for fishing for the purposes of trade. The Ordinance also prohibited the taking of pearls, pearl-shell and trepang from the sea without a licence, irrespective of the purpose for which they were taken. These provisions were reflected in the Pearling Ordinance 1930 which made separate provision for the issue of pearling licences and repealed the Fisheries Ordinance 1911 to the extent to which it applied to pearls, pearl-shell and pearl fishing.

143. The Fisheries Ordinance 1911 remained in place until repealed by the Fisheries Ordinance 1949, which provided for the issue of annual licences for the taking of fish (excluding pearl, oysters and trepang) and trepang for the purpose of trade. The taking of fish for sale from any waters without a licence or the using of a boat for that purpose without a licence was prohibited. These provisions applied to "... any part of the sea within a distance of three miles from any part of the coast of the Territory and any bay, estuary or other inlet of the sea ..." as well as to waters within the limits of the Northern Territory (including rivers and lakes). A similar scheme was implemented by the Fisheries Ordinance 1965 which repealed the Fisheries Ordinance 1949. Provision was made for the Administrator in Council to declare any waters to be closed against any fishing, or against fishing by particular means or of particular species. The 1965 Ordinance provided for the issue of annual licences "to take fish for commercial purposes in the Territory or a part of the Territory" and prohibited an unlicensed person from taking fish for sale or for use in manufacture. Licences did not restrict the location in which fishing could take place in waters off the coast of the Northern Territory, except that fishing within rivers was not allowed.

144. Under the Fisheries Ordinance 1972 the number of categories of licences was increased and provision was made inter alia for the Administrator to declare a species of fish to be a "controlled species", to determine the number of licences in a particular class which might be issued and to determine the number of licences in a particular class which might be issued in respect of a particular area of the Territory or in waters of the Territory generally. "Waters" was defined as meaning "waters of the Northern Territory being the sea and inland waters and includes the bed of any such waters". That definition was amended in 1978 following the conferral of self-government on the Territory to mean:

(a) the internal waters of the Territory;

(b) any part of the sea in respect of which the Legislative Assembly has power to make laws under and in accordance with s 6 of the Northern Territory (Self-Government) Act 1978 of the Commonwealth, and with respect to fisheries; and

(c) the sea-bed and subsoil beneath any such waters.

145. The Fish and Fisheries Act 1979 (NT) repealed the Fisheries Ordinance 1965 and the Pearling and Pearl Culture Ordinance 1964 (which had replaced the Pearling Ordinance 1930) and established a comprehensive scheme for the regulation of fishing off the coast of the Northern Territory. It provided inter alia for the issue of licences in a number of different classes, including "the taking of fish for sale or commercial purposes and the processing of those fish" and the taking of prescribed fish in prescribed waters by amateur fishermen and fishing with prescribed items of fishing gear. The taking of fish "for commercial purposes" or the selling of fish without an appropriate licence was prohibited. Licences were annual and could be made subject to limitations and conditions including as to the area in which the licensee could take effect, although as a matter of fact licences issued from the inception of the scheme to the early 1990s were unrestricted as to the areas in which licensees were authorised to fish except that they did not authorise fishing in rivers. Between 1979-1984, licence endorsements focused primarily upon the method of fishing, for example the net and line licence, the pot licence, and the trawling licence were all licences that allowed the licensee to fish using those methods. They did not limit the rights of the licensee to fish by limiting the areas in which they might fish.

Between 1984 and 1993 (which includes licences issued under the Fisheries Act 1988 (NT)) endorsements focused more on species, for example, barramundi licences, crab licences and pelagic licences (which included permission to fish for Spanish mackerel and other game fish). During this period there were also two general categories of endorsement that were region specific; inshore licences which allowed fishing within 2 nautical miles of the high water mark; and the offshore licences which allowed fishing from 2 nautical miles from the high water mark up to the outer limit of the Australian Fishing Zone. Licences issued with these general endorsements permitted fishing within the specified regions but not for species in respect of which a specific endorsement was required. The 1979 Act made provision for the use of waters by Aboriginal people "in accordance with Aboriginal tradition" but that provision specifically did not authorise Aboriginal people to "engage in a commercial activity".

146. The Fisheries Act 1988 (NT) repealed the 1979 Act and is the Act presently in force in the Northern Territory. Section 10 provides for the granting of licences which may be subject to conditions relating, inter alia, to areas, species, quantities, methods and use or non-use of fishing gear. The taking of any fish or aquatic life without a licence is prohibited but there is an exemption in respect of the taking of fish or aquatic life by a person for subsistence or personal use only (and not for the purposes of sale), within such limits (if any) relating to numbers, quantity, size, weight, methods, types and amount of fishing gear, and periods of time (including closed and open seasons), as may be prescribed for any such fish or aquatic life.

147. Part III of the 1988 Act provides that the Minister may declare an area, place or any waters to be a fishery management area or a fishery to be a managed fishery. Various managed fisheries out to 3nm from low water mark or the baselines were declared in the Fisheries Regulations. Various categories of licences were established including Aboriginal Coastal Licences which may be issued to a member of a community granted land under the Lands Rights Act who is permanently resident on the land. Restrictions are imposed on the sale of fish under such licences and only amateur fishing gear may be used. The regulations also prohibited persons without lawful authority from interfering with a vessel or fishing gear being used for fishing, and from hindering or obstructing a person fishing.

148. The Fisheries Act 1952 (Cth) was the first general fisheries legislation enacted by the Commonwealth. It remained in force until repealed by the Fisheries Management Act 1991 (Cth). At the same time as the Fisheries Act 1952 (Cth) was enacted, the Parliament also enacted the Pearl Fisheries Act 1952 (Cth). Both Acts provided for the granting of licences to take fish or use a boat to take fish in proclaimed waters or an area of proclaimed waters, such licence being subject to the conditions specified in them. The Minister was empowered to prohibit the taking of fish (or under the Pearl Fisheries Act 1952 (Cth) pearl-shell, trochus, beche-de-mer or green snail) from proclaimed waters or an area of them or otherwise to restrict quantity or equipment. In 1973 the Fisheries Act 1952 (Cth) was amended so as to create a defence to a prosecution for being in possession of fish when the taking of fish is prohibited by notice if the fish was not taken for trading or manufacturing purposes. In 1954, the Governor-General issued a proclamation declaring "proclaimed waters" pursuant to the Fisheries Act 1952 (Cth) which completely surrounded the Australian coast but did not include waters within the territorial limits of a State but included the claimed area. In 1956 the definition was amended to also exclude waters within the territorial limits of a Territory. The "proclaimed waters" thus encompassed some of the waters within the claimed area.

149. In 1967, Australia declared a nine-mile fishing zone beyond the 3nm territorial sea - the "declared fishing zone". The Fisheries Act 1952 (Cth) was amended to provide that "In relation to proclaimed waters comprised in the declared fishing zone, this Act applies to all persons, including foreigners, and to all boats, including foreign boats". Subsequently, the Commonwealth established a fishing zone with an outer limit of 200nm with effect from 1 November 1979. The Fisheries Act 1952 (Cth) was amended to define the "Australian fishing zone" ("AFZ") as the waters adjacent to Australia between the baselines and 200nm seaward from the baselines, but excluding waters that were not "proclaimed waters" or that were "excepted waters". None of the waters in the claimed area were "excepted waters". In 1985, provision was made for the determination of plans of management for fisheries in proclaimed waters by which inter alia fishing capacity for the fishery could be determined and provision made for the granting and conditions of licences. These provisions did not apply where a fishery became a Joint Authority Fishery.

150. The Pearl Fisheries Act 1952 (Cth) was repealed by the Continental Shelf (Living Natural Resources) Act 1968 (Cth). The latter Act empowered the Governor-General to declare a marine organism to be a sedentary organism to which the Act applied when satisfied that it fell within the sedentary species covered by the 1958 Convention on the Continental Shelf. The Act prohibited the taking, and the use of a ship for searching for or taking, of sedentary organisms in a controlled area without a licence although it was a defence if the search or taking was not for "a commercial purpose". In addition, the taking of specified species or use of certain equipment and other activities, could be prohibited by notice in a controlled area. Various proclamations concerning marine and sedentary organisms, and defining the "controlled area" have been issued. The claimed area was embraced by the proclamation of the "Northern Territory Division" on 9 April 1970.

151. The Fisheries Amendment Act 1980 (Cth) amended the Fisheries Act 1952 (Cth) by inserting Part IVA in order to implement the Offshore Constitutional Settlement. As a result, a number of joint authorities were established, relevantly the Northern Australian Fisheries Joint Authority (comprised of the Commonwealth Minister with the appropriate Ministers of Queensland and the Northern Territory) and the Northern Territory Fisheries Joint Authority (comprised of the Commonwealth Minister and the appropriate Minister of the Northern Territory). Provision was also made for the establishment of other Joint Authorities in the future. The Fish and Fisheries Act 1979 (NT) was amended in 1981 in order to complement the provisions of the Commonwealth Act relating to Joint Authority managed fisheries. The Northern Territory Act provided that, where there was an arrangement in force providing that a fishery is to be managed in accordance with the law of the Territory, the provisions of that Act applied in relation to the fishery (except for foreign boats on Commonwealth proclaimed waters) and that the functions of the Joint Authority were the same as those set out in the Commonwealth Act.

152. The Fisheries Management Act 1991 (Cth) replaced both the Fisheries Act 1952 (Cth) and the Continental Shelf (Living Natural Resources) Act 1968 (Cth). It applies, in relation to the AFZ and to fishing for sedentary organisms outside the AFZ, to all persons and boats. The AFZ is relevantly defined as meaning the water adjacent to Australia between the inner limits of the baselines and 200nm from the baselines, excluding the coastal waters, and waters within the limits of a State or internal Territory and excepted waters. The Act does not apply, however, to recreational fishing carried on in the AFZ or coastal waters other than that prohibited or regulated by a plan of management. The Act prohibits the taking of black cod, the engaging in driftnet fishing, and the engaging in commercial fishing at a place in the AFZ without a fishing concession or scientific permit authorising that activity. The Act provides for the Australian Fisheries Management Authority to develop management plans which may determine such matters as fishing capacity for a fishery, management of the fishery by statutory grants and the prohibition and regulation of recreational fishing in the fishery.

153. The relevance of the history of legislative and administrative regulation of fishing in the claimed area must be judged in the context first of the common law recognition of the public right to fish and in relation to the nature and extent of the native title rights and interests of the claimants as established by the evidence. Ultimately, the question that must be asked is whether the legislative and administrative acts display a clear and plain intention to extinguish such rights as the common law recognises which the applicants have shown to be of the rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the Croker Island community in relation to the waters of the claimed area by which laws and customs they have a connection with those waters. The first response must be that as the common law does not recognise the existence of exclusive fishing rights in relation to the sea, the question of extinguishment is one that must be answered in the context of a claim to a non-exclusive right. Another aspect of the question is to determine to what extent, if any, the native title of the applicants must yield to the rights and interests of third parties created by, or established under, the legislative and administrative regime which has applied in the claimed area for over a century.

154. As the early South Australian legislation did not apply to "any Aboriginal native taking fish for his own use" no question of an intention to extinguish a non-exclusive native title right to fish for sustenance or cultural purposes can arise. Nor did the legislation create any third party rights which would prevail over such native title rights. Although the early Northern Territory legislation did not specifically preserve the rights of Aboriginals, the scheme of both the fishing and pearling ordinances was purely one of regulation. The same can be said of the Commonwealth and the later Northern Territory legislation. Nothing about the history of the legislative and administrative control of fishing in relation to the claimed area is indicative of an intention to extinguish a non-exclusive, non-commercial native title nor to create inconsistent third party rights. The native title rights which have been established by the evidence are capable of co-existence with the regulatory systems that have applied, and continue to apply, in the claimed area.

155. In the context of the matters just discussed it is relevant to refer to s 211 of the Native Title Act which provides:

211.(1) Subsection (2) applies if:

(a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and

(b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and

(c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.

(2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so:

(a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and

(b) in exercise or enjoyment of their native title rights and interests.

(3) Each of the following is a separate "class of activity":

(a) hunting;

(b) fishing;

(c) gathering;

(d) a cultural or spiritual activity;

(e) any other kind of activity prescribed for the purpose of this paragraph.

The expression "for the purpose of satisfying their personal, domestic or non-commercial needs" used in paragraph (2)(a) when applied to such things as "fishing", "hunting", "gathering" and "cultural or spiritual activity" aptly describes the nature of the native title rights which the applicants have established in this case.

156. The net result of all of the foregoing is that native title rights have been, and are now, regulated, but not extinguished, by prior legislative enactments or administrative action. However, to the extent that the scheme of regulation would otherwise require the applicants to obtain a licence, permit or other instrument under a law of the Northern Territory or of the Commonwealth to lawfully exercise their native title rights of hunting, fishing, gathering or to engage in any cultural or spiritual activity for the purpose of satisfying their personal, domestic or communal non-commercial needs, they are not required to have any such licence, permit or other instrument.

157. The applicants' proposed determination seeks, inter alia, orders:

(f) that certain fishing licences granted under the Fisheries Act could affect native title rights and interests, but that such licences will not authorise entering into the waters concerned after this determination of native title takes effect, and

(g) that the exercise of a public right to enter the waters could affect native title rights and interests, but such a right will not survive after this determination if native title takes effect.

The reference in paragraph (f) to "licences granted under the Fisheries Act"presumably is intended to refer to licences issued pursuant to the Fisheries Act 1988 (NT). As such licences do not grant exclusive rights to the licensees they can in no way affect the non-exclusive native title rights of the applicants nor do such native title rights entitle the applicants to exclude fishing licensees from entering the waters of the claimed area. Furthermore, s 12(3) of the Validation of Titles and Actions Act 1994 (NT) provides that all existing fishing rights under Northern Territory law prevail over other public or private fishing rights. The applicants are not entitled to the determination sought in paragraph (f). Nor are they entitled to the determination sought in paragraph (g). The public right to enter the coastal waters of the Northern Territory (which includes virtually the whole of the claimed area) is confirmed by s 13(1)(c) of the Validation of Titles and Actions Act 1994 (NT). Furthermore, the determination sought would contradict a well-established common law right. The applicants do not enjoy the right to control access to the claimed area, and are not entitled to exclude the public from it.

MINERALS

158. The applicants' proposed determination, insofar as it seeks recognition of the right of ownership of the waters and land of the claimed area and rights to use and to control the use by others of the resources of the claimed area appears to encompass a claim to all resources existing within the seabed and subsoil including minerals located on or below the seabed. However, as there is no evidence to suggest that any traditional law or traditional custom of the Croker Island community relates to the acquisition or use of, or to trading in, any minerals that may exist or be found on or in the seabed or subsoil of the waters of the claimed area there can be no basis for a determination that would recognise native title in such minerals. Notwithstanding this, the Commonwealth has made a substantial and well researched submission in support of the proposition that title to minerals in the seabed and subsoil within the limits of the Northern Territory and beneath the coastal waters of the Northern Territory has been vested in the Crown either in the right of the Commonwealth or in the right of the Northern Territory. This result is said to be achieved by the combined effect of the Atomic Energy (Control of Materials) Act 1946 (Cth), the Atomic Energy Act 1953 (Cth), the Minerals (Acquisition) Ordinance 1953, the Petroleum (Prospecting and Mining) Ordinance 1954, the Northern Territory (Self Government) Act 1978 (Cth) and the Coastal Waters (Northern Territory Title) Act 1980 (Cth). For the purposes of these reasons I am content to observe that my own consideration of the rather complex legislative history referred to leads to the conclusion that the Crown has by the exercise of its undoubted legislative powers appropriated to itself an interest in the minerals in question which amounts to the full beneficial ownership thereof. It necessarily follows that no native title rights in the minerals could have survived the acquisition. This conclusion is entirely consistent with the reasons of Brennan J in Mabo No 2 (at p. 68) and of the Queensland Court of Appeal in Eaton v Yanner; ex parte Eaton [86]where similar conclusions have been expressed in circumstances where there has been a legislative vesting of property in the Crown.

CROWN TERM LEASE No 1034

159. Tiwi Pearls Pty Ltd holds the land known as Northern Territory Portion 3906 under Crown Term Lease No 1034 from the Northern Territory for a term of 10 years commencing on 14 November 1991. The leased land comprises an area of 543 hectares or thereabouts seaward of the low water mark of Croker Island north of Point David and abutting the north-eastern boundary of the Cobourg Marine Park. Although the whole of the leased area is within the waters of Bowen Strait, it is referred to in the lease as land. The lease is granted under and subject to the Crown Lands Act (NT) and Regulations in force thereunder.

160. The lessee is required to use the land only for the purpose of commercial pearl culture. Condition 5 of the lease provides:

5. The lessee does not have the right to exclude a person from passing over the surface of any water of the leased area but the lessee will mark out the leased areas or part of the leased area that indicates that passage through that area is restricted or prohibited.

The full meaning and import of this condition is not entirely clear either from the words used or from its context but it can fairly be said that the lease does not give the lessee exclusive possession and occupation of the waters of the leased area and in those circumstances the lease cannot be regarded as having entirely extinguished native title rights to enter upon or fish or hunt within that water. Consistent with the principles enunciated in Wik any such native title rights as may exist must yield to the rights of the lessee.

SUMMARY OF CONCLUSIONS

161. The findings which are expressed in these reasons lead to the following conclusions:

(i) The applicants are entitled to bring this proceeding as representing the Aboriginal peoples identified as the yuwurrumu members of the Mandilarri-Ildugij, the Mangalara, the Murran, the Gadura-Minaga, and the Ngaynjaharr clans. The peoples on whose behalf the proceeding is brought are a recognisable community of Aboriginal peoples (the Croker Island community) who are the descendants of the indigenous inhabitants of the islands and mainland within and adjacent to the area in respect of which a native title determination is sought.

(ii) Under the traditional laws acknowledged and the traditional customs observed by the Croker Island community, the community has rights and interests which are recognised by the common law of Australia in relation to the seas and sea-bed of the claimed area by which rights and interests the community has a connection with the sea and sea-bed. (The word sea is used to refer to the water which washes the shores of the relevant land masses as distinct from waters, a term defined in the Native Title Act to include the sea-bed and subsoil). The applicants have not established native title in relation to the subsoil or its resources.

(iii) In accordance with and subject to their traditional laws and traditional customs and subject to all valid laws of the Commonwealth and the Northern Territory and to the rights of the lessee under Crown Term Lease No 1034 the members of the Croker Island community have a non-exclusive native title right to have free access to the sea and sea-bed of the claimed area for all or any of the following purposes:

(a) to travel through or within the claimed area;

(b) to fish, hunt and gather for the purpose of satisfying their personal, domestic or non-commercial communal needs, including the purpose of observing traditional, cultural, ritual and spiritual laws and customs;

(c) to visit and protect places which are of cultural and spiritual importance;

(d) to safeguard their cultural and spiritual knowledge.

PROPOSED DETERMINATION

162. Consistent with these reasons and the provisions of s 225 of the Native Title Act, the Court proposes to make a determination of native title in the following terms:

1. Communal native title exists in relation to the sea and sea-bed within the claimed area.

2. The native title is held by the Aboriginal peoples who are yuwurrumu members of the Mandilarri-Ildugij, the Mangalara, the Murran, the Gadura-Minaga and the Ngaynjaharr clans (the common law holders).

3. The native title rights and interests do not confer possession, occupation, use and enjoyment of the sea and sea-bed within the claimed area to the exclusion of all others.

4. The native title rights and interests which the Court considers to be of importance are the rights of the common law holders, in accordance with and subject to their traditional laws and customs to have free access to the sea and sea-bed within the claimed area for all or any of the following purposes:

(a) to travel through or within the claimed area;

(b) to fish and hunt for the purpose of satisfying their personal, domestic or non-commercial communal needs including the purpose of observing traditional, cultural, ritual and spiritual laws and customs;

(c) to visit and protect places which are of cultural and spiritual importance;

(d) to safeguard their cultural and spiritual knowledge.

5. The native title rights and interests of the common law holders in relation to the sea and sea-bed within the claimed area are affected by, and to the extent of any inconsistency must yield to, all rights and interests in relation to the sea and sea-bed within the claimed area which exist pursuant to valid laws of the Commonwealth of Australia and of the Northern Territory of Australia including the rights and interests of the lessee of Crown Term Lease No. 1034.

163. Section 55 of the Native Title Act provides that if the Court proposes to make a determination that native title exists, it must at the same time as it makes the determination make further determinations as provided in s 56 and s 57. One of the determinations the Court must make is whether the native title is to be held in trust, and, if so, by whom (s 56(1)). Section 56(2) sets out the steps the Court is required to take in making the determination.

164. For the purpose of complying with s 56(2)(a) the Court proposes to request that Mary Yarmirr as the representative of the common law holders indicate whether the common law holders intend to have the native title held in trust by -

i) nominating, in writing given to the Court within 28 days from the publication of these reasons (that is, on or before 5 August 1998), a prescribed body corporate to be trustee of the native title; and

ii) including with the nomination the written consent of the body corporate.

165. In the event that the common law holders do not give the nomination within the period mentioned in paragraph 164, the Court will determine that the rights and interests are to be held by the common law holders (s 56(2)(c)).

166. The Court will reconvene on 12 August 1998 for the purpose of finalising the determination and any other matters arising from the Court's judgment.

SCHEDULE 1

PARTIES

PART I

Applicants:

Reggie Cooper; Phillip Galbanyara; Ilijili Lamilami; Khaki Marrala; Charlie Mangulda; Frank Nabalameiri; Rachael Nimulgan; Charlie Wardaga; Joy Williams; Andrew Yarmirr; Christine Yarmirr; Mary Yarmirr.

PART 2

First Respondent

The Northern Territory of Australia

Second Respondent

The Commonwealth of Australia

Third Respondent

Paspaley Pearling Company Pty Ltd

Fourth Respondents

NT Fishing Industry Council Inc and NT Trawler Owners Association

Fifth Respondent

Ocean Trawler Pty Ltd

Sixth Respondent

Shine Fisheries Pty Ltd

Seventh Respondent

M.G. Kailis Gulf Fisheries Pty Ltd

Eighth Respondent

Ms Pavalina Henwood

SCHEDULE 2

THE COMMONWEALTH MAP

(Map Omitted)

FOOTNOTES

[1] 175 CLR 1.

[2] ibid., at p 15.

[3] ibid., at p 57.

[4] ibid., at p 217.

[5] See finding of Moynihan J quoted by Toohey J, 175 CLR 1 at p 191.

[10] 76 FCR 492.

[11] Attorney-General (UK) v Chambers (1854) 4 De GM & G 206 (43 ER 486); Blundell v Catterall (1821) 5 B & Ald 218(106 ER 1190); Delap v Hayden (1923) 4 DLR 1102; Bowen v Minister for Urban Affairs and Planning (1996) 90 LGERA 368.

[12] 135 CLR 337.

[13] 175 CLR 1 per Mason CJ and McHugh J at p 15.

[14] 175 CLR 1 at p 59.

[15] For examples of circumstances in which the non-extinguishment principle applies see Native Title Act ss 23(3), (4); s 25(1); s 46; s 47(3).

[16] 138 CLR 346.

[18] 161 CLR 475.

[19] 161 CLR 475 at p 483. See also similar comments per Mason and Brennan JJ at pp 488-9; per Deane J at p 492; per Dawson J at pp 495-6.

"She has no rights. Her yuwurrumu is totally different from mine. She is not a Mandilarri woman" (Transcript p 528 (22-3)).

The following exchange then took place:

His Honour: Just to clarify that, I think really what Ms Henwood was saying was not only that she lived here but she was forced to live here. From what I understand you to say, that would not make any difference, whether she lived here voluntarily?

Mary Yarmirr: No, that wouldn't make any difference, your Honour, because, as I've said ...

His Honour: Her country is somewhere else?

Mary Yarmirr: Her country is somewhere else (Transcript 528 (24-29)).

[27] ibid., at p 16.

[28] Transcript p 72 (8-9).

[29] ibid., at p 72 (29-30).

[30] ibid., at p 80 (8-10).

[33] ibid., at p 99 (13-28).

[34] ibid., at p 632 (15-17).

[35] ibid., at p 633 (1).

[36] ibid., at p 570 (6-10).

[37] ibid., at p 571 (27) - 572 (4).

[38] ibid., at p 659 (2) - 660 (2).

[39] ibid., at p 715 (17-21).

[42] ibid., at p 612 (23).

[43] ibid., at p 618 (8).

[44] Section 3 of the Aboriginal Land Rights (Northern Territory) Act 1976 provides that unless the contrary intention appears:

"traditional Aboriginal owners", in relation to land, means a local descent group of Aboriginals who:

(a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and (b) are entitled by Aboriginal tradition to forage as of right over that land.

[46] Transcript p 49 (28-29).

[48] ibid., at p 49 (1).

[49] ibid., at p 194 (28-31).

[50] 175 CLR 1 at p 207.

[55] ibid., at p 49 (20-23).

[56] ibid., at p 554 (9-11).

[58] ibid., at p 50 (20-23).

[60] ibid., at p 54 (3-7.

[61] ibid., at p 51 (8-14).

[63] ibid., at p 52 (32) - 53 (28).

[70] ibid., at p 138 (19) - 139 (24); 255 (28) - 256 (16).

[72] 175 CLR 1; per Mason CJ and McHugh J at p 15.

[73] ibid., per Brennan J at p 64 and per Toohey J at p 195.

[74] ibid., at p 64.

[75] The Wik Peoples v The State of Queensland and others (Wik) 187 CLR 1 per Toohey J at p 133.

[76] ibid., at p 133.

[77] 175 CLR 1 at p 67.

[78] ibid., at p 43.

[80] ibid., at p 61.

[81] ibid., at p 69.

[82] 18 Halsbury's Laws of England (4th Ed) para 604.

[83] (1993) 119 ALR 108.

[84] ibid., at pp 124-125.

[85] 168 CLR 314 at p 330.

[86] Unreported; delivered 27 February 1998.