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Editors --- "Mary Yarmir & Ors v Northern Territory of Australia & Ors - Case Summary" [1999] AUIndigLawRpr 23; (1999) 4(2) Australian Indigenous Law Reporter 61

Mary Yarmir & Ors v Northern Territory of Australia & Ors

6 July 1998

[1998] 771 FCA

Native title application to sea and sea-bed , Recognition of native title offshore , Whether native title exclusive , Whether native title includes a right to trade or to minerals , Relationship to existing interests and to the public right to fish and navigate, and to the international right of innocent passage , Identification of 'bays and gulfs' within the Northern Territory.

Facts:

On 22 November 1994 the Mandilarri-Ildugij, Mangalarra, Muran, Gadurra, Minaga and Ngayndjagar clans applied under the Native Title Act 1993 (Cth) (NTA) for a determination of native title. The area claimed comprises areas of sea and sea-bed which adjoin Croker Island (and other islands). These islands are located 200kms to the north-east of Darwin, on the north-western edge of Arnhem Land in the Northern Territory. The islands, having been granted as Aboriginal freehold under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), were excluded from the claim area.

The applicants asserted exclusive rights of ownership, occupancy, possession, and use of the area claimed. The Northern Territory, Commonwealth of Australia, and Northern Territory Fishing Industry Council opposed the application.

Held:

The Court held that native title exists regarding all of the area of sea and sea-bed claimed. It was not necessary to resolve whether offshore native title rights may be recognised by the common law, because s 6 of the NTA indicates a specific intention by Parliament to recognise offshore native title rights.

The native title was found to be non-exclusive of other interests, and to be limited to personal, domestic or non-commercial activities such as fishing for subsistence or cultural purposes, access to areas of sea, protecting places of cultural and spiritual knowledge and safeguarding that knowledge. Thus the native title did not include a right to trade in resources of the sea.

The evidence established that each clan was entitled, under traditional laws and customs, to exclude members of other clans, and Aboriginal people generally, from entering its area of sea. The Court accepted that clan members would ensure that they had permission, which might be expressly or tacitly obtained or implicit from previous conduct, when entering the 'sea country' of another clan. However, the Court held that this traditional requirement that permission be obtained applied only to Aboriginal people, and that the evidence failed to establish that these traditional laws and customs applied to non-Aboriginal people.

Further, the Court held that any claim to exclusive possession and occupation of areas of sea cannot be recognised by the Courts because it is inconsistent with the internationally acknowledged right of innocent passage, and to the common law public rights to navigate and fish in areas of sea.

The native title did not include rights to minerals, the basis being that there was no evidence of any traditional law or custom regarding the use of (or trading in) minerals which may exist in the sea-bed. Further, the Court observed that any such native title rights could not have survived various legislative enactments since 1946 by which the Crown has appropriated interests in minerals which amount to beneficial ownership.

The Court held that the native title is, to the extent of inconsistency, subject to rights and interests which exist under valid laws of the Commonwealth or Northern Territory. Fisheries legislation (which has existed since last century) has been purely regulatory and has not extinguished native title. A pearling lease in the claim area has not extinguished native title, the basis being that it does not grant exclusive possession.

The Letters Patent of 6 July 1863 define the limits of the Northern Territory as including 'bays and gulfs', and islands adjacent to the mainland. The Court did not regard The Australia Directory of 1863 as determinative of which 'bays and gulfs' are within the Northern Territory, and held that only Mission Bay on Croker Island was sufficiently enclosed by a narrow entrance to be within the Territory.

Note:

The Commonwealth has appealed to the Full Bench of the Federal Court, the main ground being that neither the common law (for which the area of jurisdiction ends at the low water mark), or s 6 of the NTA is capable of recognising and enforcing offshore native title. (Olney J made no finding regarding recognition by the common law.)

The applicants have appealed to the Full Bench of the Federal Court. The grounds of appeal include that:

(1) the Court misconstrued the evidence and that the exclusive nature of the traditional rights apply to both Aboriginal and non-Aboriginal people;

(2) the native title, on the evidence (which included pre-colonisation Macassan trading), includes a right to trade in the resources of the sea;

(3) the native title includes rights to minerals; and/or

(4) the native title is not subject to the common law public right to fish and right to navigate, or the international right of free passage.

Olney J:

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 (Cth) 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 (Cth) (the Land Rights Act).

...

[T]he 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.

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.

...

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)).

5. 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) [1] 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.

...

7.The map in Sch 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 extent of the geographical limits of the Northern Territory is a matter of contention.

...

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 ... contention of the 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 seabed 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 offshore 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.

...

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 offshore 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 seabed, 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 for example, such as require the obtaining of a licence; or (ii) prevent other members of the public from fishing etc for commercial purposes.

The Trial

...

20. 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 [2] 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.

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.

...

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 seabed 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 and Submerged 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, seabed 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 NSW v Commonwealth (the Seas and Submerged Lands Act case) [3] 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 368):

The colonists inherited the common law: but it operated only in the realm which ended at low water mark. This was decided in R 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 367) the Chief Justice made reference to remarks of Lush J in R 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 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 Title Act 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 been extinguished' [4] 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 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 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. [5] Relevant to a discussion of the recognition of native title is Toohey J's observation (at 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 61):

Secondly, native title, being recognised 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 2] and 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 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. [6] 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

...

A brief historical overview

52. The following paragraphs touch upon some of the major events known to have occurred in the general vicinity of the claimed area. The information has been extracted from evidence tendered in the proceeding which, so far as it goes, is uncontroversial. [7] From about 1720 until 1906 fishermen from the port of Macassar (now known as Ujang Pandang) in southern Sulawesi travelled to the Arnhem Land coast annually for the purpose of collecting a range of products both from the land and from the sea. Their major task was to gather and preserve trepang (also known as beche-de-mer or 'sea cucumber'). The Macassan ships (known as praus) arrived each year in December or January and departed between April and June. The claimed area (and the adjacent Cobourg Peninsula) was an important area for Macassan activities, it being the first trepanging ground encountered on the trip from Sulawesi and also the area where praus mustered before the journey home. Trepanging grounds in the vicinity of the claimed area were located in Bowen Strait, Mountnorris Bay, Malay Bay and Raffles Bay. Campsites and trepang processing stations were established on Copeland Island, on the north side of Bowen Strait and at Raffles Bay. Grant Island is thought to have been used as a source of water and vegetable food by Macassan crewmen and there are oral traditions that the freshwater spring at Minjilang on Croker Island was also used by Macassans. Some Macassan fleets were extremely large. For example, in 1829 Fort Wellington (in Raffles Bay) was visited by 34 praus manned by 1056 men. Praus with as many as 60 crew members have been documented. The size of the industry declined throughout the 19th century and after the mid-1880s Macassan fleets generally contained between 100 and 300 men. The 1905-06 season was the last in which the Macassans operated in the claimed area. Early records (that is, records from 1818 through to 1829) indicate that violence and mistrust were rife between Macassans and the local Aborigines but that situation improved in the 1830s and 1840s, to the extent that Aborigines frequently assisted Macassans with trepang fishing and in addition a trading relationship sprang up whereby the Aborigines provided turtle shell, seed pearl, pearlshell and buffalo horns and in return for these goods and their labour received dugout canoes, tobacco, rice, cloth, iron and alcohol.

53. Dutch explorers made fleeting visits to the Cobourg Peninsula in 1636 and 1644, and conducted a more substantial investigation of the area in 1705. The first British explorer to reach the area was Mathew Flinders, who landed on New Year Island in 1803 where he saw human footprints on the shore. Phillip Parker King subsequently charted the small islands east of Croker Island in 1818 and passed through Bowen Strait. Permanent European settlement began in 1827 when Fort Wellington was established at the mouth of Raffles Bay. It was abandoned in 1829. In 1839 the British established the Victoria Settlement at Port Essington to the west of the claimed area. After Victoria Settlement was abandoned in 1849 vessels briefly investigated the area in 1851, 1866 and 1867, but no attempt at settlement was made until 1874 when Darwin-based entrepreneurs John Lewis and Edmund Robinson investigated the possibilities for pastoralism and fishing in the area. In December 1874 Robinson commenced collecting trepang at Port Essington but abandoned the venture after six months. He attempted trepanging again in 1878 when, with his partner Thomas Wingfield, he established a new trepanging station on Croker Island. His camp was situated at a place known locally as Whitecliffs on the western side of the island. A group of Aborigines worked at the station which began to achieve some financial success. In December 1879 Wingfield was murdered by Aborigines and Robinson abandoned the venture. Despite its uncertain beginnings, a relatively stable locally based trepang fishery had developed in western Arnhem Land by the turn of the 20th century but by 1910 the government was forced to concede trepanging had been 'almost entirely abandoned'. In the following year only two boats and eight licence holders were engaged in the industry. The outbreak of war between China and Japan crippled the trepang market, and its price collapsed in the late 1930s. By 1941 Northern Territory trepang exports had declined to only a few tons a year and ceased with the outbreak of war with Japan.

54. The most significant industry in the claimed area after trepanging was the pearling industry. Pearling was carried out by a fleet of luggers based in Darwin. Little or no pearling appears to have been carried out in the claimed area before 1901, when the fleets were concentrated between Darwin and Melville Island. In 1908 Cecil Strangman (a medical officer and Protector of Aborigines) noted that the Aborigines on Croker Island were in contact with Japanese pearlers and in 1915 there were at least 11 luggers working in the claimed area around Malay Bay, Darch Island, Cape Croker and Oxley Island. In the late 1920s and early 1930s Japanese were observed diving for pearl shell off Grant Island and in the waters around Croker Island. The Second World War disrupted the pearling industry, and the pearling fleets did not return to the claimed area. More recently the Paspaley Pearling Company established leases for pearl culture immediately outside the claimed area at Port Essington in 1963 and at Port Bremer in 1978.

55. Crocodile shooting began in the claimed area prior to the Second World War. There were several crocodile shooters' camps in Palm Bay, on the western side of Croker Island, in the late 1930s. After the Second World War many migrants to Australia found work shooting crocodiles along the Northern Territory coastline including within the claimed area. Once crocodile shooting was banned in the 1960s their attention was turned to barramundi fishing. Prawn trawling, shark fishing and mackerel fishing (the latter off New Year Island) have occurred within the claimed area since the early 1970s. Currently, commercial fishing activities in the claimed area include mackerel fishing, reef fishing, shark fishing, prawning and barramundi fishing.

56. In 1940 the Methodist Overseas Mission established a home for children of mixed descent on Croker Island at Mission Bay. Some current residents of Croker Island were among the children brought to the mission. Others are descended from such children. The mission was relocated to Darwin in the 1970s.

An assessment of the applicants' evidence

57. For the most part, the evidence called in support of the applicants' case is unchallenged. Considerable reliance is placed upon the testimony of a small group of senior members of the claimant group, notably that of Yarmirr, who is recognised as the senior Mandilarri-Ildugij spokesperson, and Charlie Wardaga, an elderly gentleman with an extensive knowledge and understanding of the traditions and customs of the Aboriginal people in the area. Mary Yarmirr's knowledge and understanding of the culture and traditions of the applicant groups is clearly all-embracing. Although in giving evidence in English she spoke in what she said was her third language she spoke with considerable eloquence and her sincerity was both patent and compelling. As her evidence touched upon virtually every aspect of the case, frequent reference will be made to it, and relied upon, in much of what follows. Charlie Wardaga is not particularly well versed in English and on occasions some difficulty in communication was experienced, but nonetheless, he was able to convey, often in a most colourful fashion, an understanding of his traditions and culture. Frequent reference will also be made to his evidence. The evidence of the other Aboriginal witnesses is substantially consistent with that of the senior claimants. In these circumstances the Court can accept the evidence of the Aboriginal witnesses as credible. That is not to say that it necessarily establishes all of the claims made on behalf of the applicants, but rather their evidence, particularly that relating to the oral history and traditions of the claimant groups and of genealogical connections and family relationships, can be relied upon with some confidence.

...

59. In the present case the anthropologists' report was filed and served pursuant to a direction of the Court; it was tendered in evidence initially without formal proof and without objection. However, on 4 June 1997, prior to the commencement of the cross-examination of the Aboriginal witnesses, counsel for the principal respondents expressed concern as to how the Court would deal with facts asserted in the anthropologists' report which had not been independently proved by the witnesses ...

61. It is beyond question that the qualifications and experience of Drs Peterson and Devitt in the field of anthropology equip them with the necessary standing to give opinion evidence within their field of learning and this notwithstanding that in this proceeding they are cast in the role of advocates for the applicants' cause. To the extent that their report records conversations with, and information supplied by, other persons it may properly be regarded as evidence that such conversations took place and that such information was supplied but it is a matter of contention as to whether the conversations and information so recorded can be treated as evidence of the truth of the matters asserted in the conversations or of the accuracy of the information supplied. One of the main complaints about the report is that it records statements attributed to a person within the claimant group who was available to give evidence but was not called, thereby depriving the respondents of the opportunity to test the accuracy of the facts asserted by the anthropologists' informant as recorded in the report. Another complaint is that the report records information supplied to the authors by a senior applicant which was not referred to when that applicant gave evidence.

62. Litigation conducted under the Native Title Act has its own peculiarities, not the least of which is that the Court is not bound by the rules of evidence. But s 82(3) does not stand alone. It must be applied in the context of the other provisions of the Act including s 82(1) which imposes upon the Court the obligation to provide a mechanism that is, inter alia, fair and just. Notwithstanding the special statutory regime under which the Court is required to perform its functions under the Native Title Act, fundamental to any exercise of judicial power is the requirement that the Court can only have regard to evidence which is relevant, probative and cogent. Furthermore, in the context of the matter presently under discussion, I adopt the sentiment attributed to Mr Howie and referred to by Deane J in Attorney-General v Maurice (at 492):

What really matters is the evidence of the Aboriginal claimants ...

but with the caveat that such evidence must withstand the usual tests as to its credit and weight.

63. My approach to the anthropologists' report can be summarised in this way:

(i) To the extent that it sets out the basis upon which the applicants' claim to native title is formulated, it is in the nature of a pleading;

(ii) it contains, to some extent, expert opinion evidence of persons qualified in the relevant field of learning;

(iii) to the extent that it contains assertions of fact in the nature of hearsay, based upon information supplied by informants who later gave evidence, regard must be had to the evidence of the informants rather than to the contents of the report;

(iv) inconsistencies between facts asserted in the report and the evidence of the witnesses may reflect upon the credit of the witnesses, but this would not necessarily be so if the weight of evidence suggests that the report is inaccurate;

(v) the weight to be accorded to assertions of fact not in the nature of expert opinion which are not supported by the evidence of witnesses will depend upon the particular circumstances including whether or not the respondents have had a real opportunity to test the accuracy of the matters asserted in the report.

64. In the present case the anthropologists' report serves the very useful purpose of providing the contextual background against which the oral testimony of the applicants' witnesses can be better understood. Whether or not a particular statement in the report is to be classified as mere pleading, as expert opinion or as hearsay is not always readily apparent but to a very large extent the report can be accepted as both reliable and informative. It contains some speculation but not much, and to the extent that it does, I have not found it necessary to refer to it.

...

66. The applicants also tendered and rely upon a considerable volume of historical material. The vast majority of this material is interesting rather than relevant to the main issues of the case but nevertheless, being uncontroversial, some aspects of it assists in providing a better understanding of the historical context into which the present litigation fits.

67. Having regard to these several matters, it is possible for the Court to make many findings of fact without canvassing in detail the evidence upon which they are based.

The system of native title

68. The following summary of the system of native title relied upon by the applicants and the findings made hereafter relating to the composition of the various estate groups rely heavily on Peterson and Devitt. The facts asserted are not controversial.

69. The applicants' system of native title has four components:

• The estate - the primary spatial unit in which estate groups have native title rights and interests.
• The estate group - all those people with native title rights and interests in an estate.
• The incidents of title - the native title rights and interests that are held in an estate.
• The mechanism of succession - the process by which estate groups threatened by extinction gain new right-holders.

70. An estate is usually made up of a single continuous tract of land and sea but it may have separate smaller tracts as well. No distinction is made between the sea and land components of an estate but as a matter of convenience the sea component of an estate is referred to as the 'sea country' of the relevant estate group. The boundaries of the sea country of an estate are relatively well marked along the shoreline but at sea there is less concern with their exact location. The seaward extent of an estate has no measurable dimension to it but is said to extend as far as the eye can see. Each estate is normally associated with a single group of people, who trace or claim descent through the male line, known as a yuwurrumu. An estate is commonly referred to by the name of the right-holding yuwurrumu. The estate group includes all people who have rights and interests in an estate. These rights and interests are derived from several sources and vary in their significance and strength. Rights from yuwurrumu membership are acquired automatically by birth and are inalienable. [8] They are the most important rights in an estate.

71. The report identifies the native title rights and interests in an estate claimed by yuwurrumu members to be:

1. The right of members of the yuwurrumu to be recognised as the traditional owners of the estate (which includes the seabed, the water and all life within it), to transmit all the inherited rights, interests and duties to subsequent generations and to exclude or restrict others from entering any area of the estate.
2. The right of senior yuwurrumu members to speak for and make decisions about all aspects of the estate.
3. The right of all members of the yuwurrumu to free access to the estate and its everyday resources in normal circumstances.
4. The right of the senior members of the yuwurrumu to control the use of and access to the subsistence and other resources, including the ritual resources, of the estate by all people including younger members of the yuwurrumu and to engage in the trade and exchange of estate resources.
5. The right of senior members of the yuwurrumu to receive a portion of major catches (turtle, dugong, crocodile or big hauls of fish) if they are co-resident with the person making the catch.
6. The right of the senior yuwurrumu member(s) to close off areas of the estate on the death of either yuwurrumu members or of individuals in important relationships with yuwurrumu members, and to decide when they shall be re-opened to use.
7. The right of senior yuwurrumu members to allocate names associated with their estate to their relatives and/or to exchange them with others in order to express, create and consolidate 'company' and other relationships.
8. The right of the senior members of the yuwurrumu to speak for and make decisions about the significant places in the estate and to ensure unintended harm is not caused by them, or to them.
9. The right to receive, possess and safeguard the cultural and religious knowledge associated with the estate and the right and duty to pass it on to the younger generation.
10. The right to speak for and make decisions about the estate's resources, and the use of those resources, and the right and duty to safeguard them. [9]

72. The rights of matrifiliates (that is, children of female yuwurrumu members) are quite limited in a formal sense, particularly when the yuwurrumu is robust, and cannot be passed on. They mainly concern the firm expectation that they can have easy access to the estate of their mother's country for use and residence. Matrifilial interests can increase in significance in a situation of succession.

73. Because of the relatively small size of Aboriginal core estate group members, they are often threatened with extinction as a result of variations in fertility and mortality, accidents and conflict. Throughout northern Australia there are established ways of dealing with succession problems caused by the extinction of such groups. As a result of the impact of Macassans and Europeans in the western Arnhem Land region, succession problems have intensified and accelerated as infertility and death from introduced diseases have led to the decline of a number of yuwurrumus in the area. The processes by which succession is achieved are often slow and may involve disputes. In the claimed area, any such disputes are between members of the various yuwurrumus within that local area on the basis of the non-patrilineal rights each may hold in the estate to which they seek to succeed. They are disputes within the community of applicants and do not involve people from outside the area without any rights in the estate. When succession is completed, the rights acquired are those of a yuwurrumu in an estate.

74. Rights may arise by way of gift or exchange. Such rights are primarily rights to reside on and use the land during the lifetime of the people to whom the gift is made but once there is such a gift a desire for transmission between generations of the beneficiaries may arise even if it is clearly acknowledged at the time that the underlying native title lies with the gifting yuwurrumu. Long term residence of the beneficiaries of the gift and the growth of their families, many of whom may well be conceived on the area, create contingent interests. The descendants of the original beneficiary of the gift may in time make claims for more enduring and influential rights than those originally given.

75. Contingent rights may arise out of residence, place of conception or other factors. They are emergent in the sense that people have to make a claim against them and can only do this when they have reached mature status and can command the attention of others. An elderly person with a long term history of permanent residence in an area may be able to successfully assert a claim particularly if the estate group's yuwurrumu is depleted or made up of people who are younger than him or herself.

76. There are long-standing 'company' or 'one-countryman' groupings within the claimed area which cut across the community of interest of the constituent groups. While members of such groupings do little together, they have stronger mutual claims on each other than on other yuwurrumus and are expected to support each other in rituals and disputes.

The estates and estate groups

77. The claimed area, together with the Aboriginal land within its outer boundary, encompasses either the whole or part of the estates of the Mangalara, Mandilarri-Ildugij, Murran, Gadura, Minaga, Yangardi and Ngaynjaharr yuwurrumus. The Mayarram yuwurrumu which is mentioned in the original application is not advanced as having an estate in the claimed area. The following paragraphs describe in general terms the location of each estate and identify the senior members of the relevant yuwurrumu. Where there are matrifiliates who are senior members of a different yuwurrumu they also are identified and their yuwurrumu affiliation indicated.

...

The claim to native title rights and interests

84. The applicants' claim of native title will be dealt with on the basis that the determination sought, as finally enunciated in the applicants' written submissions, expresses the ambit of their claim notwithstanding that in the original application, and in Peterson and Devitt, the claims are expressed in somewhat different terms. Before doing so however, it will be appropriate to comment upon some aspects of the definition of 'native title' or 'native title rights and interests' in s 223 which have not previously been the subject of detailed discussion in these reasons.

85. First, there is the word 'traditional'. The question of what is a traditional law or traditional custom has excited some interest in cases in overseas jurisdictions but the law in Australia is readily capable of understanding without reference to external authority. The general thrust of the majority judgments in Mabo [No 2] indicates that the traditional laws and traditional customs of Aboriginal peoples and Torres Strait Islanders are the laws and customs which have their origins in the culture and social organisation of the relevant group as it existed prior to the advent of non-Aboriginal interference with that culture and social organisation. In Mabo [No 2] Brennan J said (at 61):

Of course in time the laws and customs of any people will change and the rights and interests of the members of the people among themselves will change too. But so long as the people remain as an identifiable community, the members of whom are identified by one another as members of that community living under its laws and customs, the communal native title survives to be enjoyed by the members according to the rights and interests to which they are respectively entitled under the traditionally based laws and customs, as currently acknowledged and observed [emphasis added].

It is the traditional basis of the currently acknowledged and observed laws and customs which attracts recognition of native title. The task of the Court is to identify those laws and customs which regulated the lives of the forebears of the present members of the applicants prior to European settlement which are currently acknowledged and observed. I do not find any assistance to be derived from Canadian authorities which speak of rights which are 'integral to the distinctive culture' of the claimant group. In Australia, Parliament has provided a definition which says all that needs to be said and is readily capable of being understood and applied.

86. The second matter for comment is the requirement that the rights and interests defined by s 223 are rights and interests in relation to land or waters whereby the peoples concerned have a connection with the land or waters. Not every traditional law and custom will necessarily relate to a people's land or waters nor will it necessarily provide a connection with the land or waters. A law or custom of an indigenous community, group or person, however much it is based on traditional observances of the community, group or person, will not be within the scope of the statutory definition unless it both relates to land or waters and gives rise to a connection with the land or waters.

87. It should also be noted that s 223(2) confirms that native title rights and interests may include hunting, gathering or fishing rights and interests. In Mabo [No 2] Brennan J (at 61), in referring to the capacity of the common law to protect native title, did not differentiate between proprietary, personal and usufructuary rights and interests and it may be that s 223(2) does no more than recognise that usufructuary rights are capable of recognition. The subsection does however confirm that native title rights and interests in relation to land and waters which are purely usufructuary are accorded the protection of the Native Title Act even though those rights and interests are not an adjunct to or dependent upon the existence of native title in some other land or waters. The distinction may be of importance in a case in which, for example, a native title right to possess or occupy land has been extinguished but a right to hunt on or fish in the same or adjacent land or waters has nevertheless been preserved. The usufructuary right does not need to be associated with a right to possess or occupy land or waters.

Traditional laws and traditional customs

90. In Mabo [No 2] when explaining what he meant by native title Brennan J referred separately to rights and interests which are possessed under traditional laws and rights and interests which are possessed under traditional customs, although he did observe (at 18) that the Meriam society was regulated more by custom than by law. The same distinction is made in s 223(1) of the Native Title Act. As in each case the laws acknowledged and the customs observed must be such as would entitle the relevant people to possess rights and interests in relation to land and waters, the distinction between law and custom, if there be one, is not readily discernible, and in the present case nothing turns upon it. The senior yuwurrumu members who gave evidence, when asked the basis of their traditional rights and interests, without exception identified Aboriginal law as their source and none was challenged on that issue.

...

The extent of the sea country

97. There is abundant evidence that members of the Croker Island community use waters within the claimed area to catch fish, hunt for and catch turtle and dugong and collect oysters and crustacea, both for personal consumption and for use in relation to ceremonial activities. Some senior applicants have personal experience of travelling to the more remote islands in the claimed area. There is credible oral history of the ancestors of the present members of the community having done likewise. There is however no direct evidence of the extent seaward to which the applicants and their ancestors have travelled to pursue these activities, and more particularly there is no direct evidence as to what relationship the boundary of the claimed area bears to the areas used

98. In these circumstances, in the absence of any contradictory evidence or challenge to the credit of the witnesses, I draw the inference that the waters within the outer boundary of the claimed area comprise either the whole or part of the sea country of one or other of the several yuwurrumus of the Croker Island community.

The claimed right of ownership

99. The first native title right of the applicants identified in Peterson and Devitt (and referred to in different terms in
para (d)(i) of the proposed determination) is the right to be recognised as the traditional owners of the relevant estate. The term 'traditional Aboriginal owners' has a defined meaning under the Land Rights Act [10] but it is not one which has any special meaning in the context of the Native Title Act nor is it one which the applicants' final submission uses. What the submission says is:

According to the traditional laws and customs of the applicants it is the yuwurrumu which has the title in the country, which includes both land and sea. This comprises both rights and interests. By such laws and customs the applicants have the connection of ownership with the claimed waters and land. [11]

...

There is nothing in the evidence to explain what the applicants understand 'the connection of ownership' to encompass unless it be the aggregation of separate rights which are asserted in respect of the claimed area. This is perhaps not surprising as the term 'ownership' is one which was used in the first instance by counsel rather than the witnesses. For example, the first time the question of rights in country was raised with Mary Yarmirr was when, after a lengthy discussion of some of the laws and customs which the applicants observe to regulate their personal and social relationships, she was asked:

Now are there any laws about the ownership of country? [12]

In the case of Ronald Lamilami, it was the witness who first raised the concept of ownership when, having discussed the need for obtaining permission to go on to another person's country, he was asked:

Why would you not trespass in that area?

to which he replied:

Well, it's like , I mean, that's his country you know. His country, that's his sea. I mean, the sea may not be his, but what's underneath it, mainly the seabed, what's in there, the reef you know, each reef got a name. [13]

100. Native title can only be understood as a combination of rights and interests. Unless 'ownership' is described by reference to the incidents which attach to it, the term adds nothing to understanding the nature of the claim except to indicate that the rights and interests in question attach to a particular group of people. For example, when witnesses spoke of certain land and sea being 'my country' or 'Mandilarri-Ildugij country' they identified the right holders and in ordinary parlance may be understood as saying 'I own that country' or 'The Mandilarri-Ildugij yuwurrumu owns that country'. Statements of that kind, in the absence of anything else, do not seem to be an assertion of the type of dominion over the country that might normally be associated with ownership in its most absolute form. In Mabo
[No 2] Brennan J (at 75) thought that it may be confusing to describe the title of the Meriam people as conferring 'ownership', a term which he said connotes an estate in fee simple or at least an estate of freehold. It would be equally confusing to ascribe the right of ownership to an area of sea and seabed. To understand 'ownership' in the present context it will be necessary to consider in detail what Toohey J described in Mabo [No 2] as 'the abstract bundle of rights' [14] that are said to be enjoyed by reason of the connection of ownership. The constituent parts of the bundle are considered in the following paragraphs.

The claim to exclusive possession, occupation, use and enjoyment

101. The 10 rights which Peterson and Devitt consider to be the rights held by the yuwurrumu members of an estate do not expressly include a claim to exclusive possession, occupation, use and enjoyment of the applicants' sea country although the sum total of the claimed rights associated with the right to be recognised as traditional owners of the estate, the right to make decisions about all aspects of the estate, the right of free access to the estate, the right to control the use of and access to the subsistence and other resources of the estate and the right to close off areas of the estate and to decide when they shall be re-opened may well justify a claim for a determination:

that the native title rights and interests confer possession occupation, use and enjoyment of the waters and land to (sic) 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. [15]

102. In support of the claimed right of yuwurrumu members to make decisions about all aspects of the estate evidence was led relating to a number of specific topics notably oil exploration, tourism and commercial fishing. After Mary Yarmirr had asserted that the yuwurrumu members have all the rights to make decisions about the sea country counsel raised the question of oil exploration. The following exchanges followed:

Q: So that if, for instance, say, a petroleum exploration company came into this area and they wished to drill for oil under the sea, if they were , and I am talking about an area of sea country, for instance, that was part of the Mandilarri-Ildigij sea country , if that petroleum company was required to follow your traditional law, what should they do?

A: In respect to my law and my culture, as I have respect for another culture, I'd ask them to come towards us and ask permission.

Q: All right. And if they asked permission, what rights would you have by your law in the way that you responded to their request?

A: As a yuwurrumu holder, I would then sit down and negotiate and come to a settlement.

Q: Would you be able to say by your law 'no' to them?

A: Yes, I have done that on numerous occasions.

Q: In respect of what?

A:. In respect to oil exploration at Somerville Bay.

Q: So there have been requests for oil exploration at Somerville Bay?

A: That's correct.

Q: And what has happened on those occasions?

A: On those occasions, because they identified where they'd like to explore and it was on some of our sacred areas, we said to them due to respecting our old traditional law and our culture we'd ask you to reconsider, maybe looking at another area to avoid those sacred areas, which they did.

Q: All right. If the area was a suitable area as far as your yuwurrumu was concerned, would you have the right to say not 'not'(sic) but 'yes'?

A: Yes.

Q: And you have spoken negotiation. Would you have the right to say yes but subject to conditions?

A: That's correct. [16]

It is unfortunate that no other evidence was called concerning the requests referred to. It would have been helpful to know at what stage of their planning the oil companies had approached the applicants and whether or not the applicants' concerns had influenced the decision not to proceed. In the absence of further details the evidence is sufficient only to demonstrate that in the instances referred to the applicants had asserted the right to be consulted and to request that their traditional law and culture be respected.

103. The evidence concerning tourism and commercial fishing is less specific but nonetheless indicative of the applicants' claimed rights as the following exchange between counsel and Mary Yarmirr demonstrates:

Q: What about if it was somebody who wished to have a tourist business on your sea country, in other words, bring fishing parties in? What rights do you have under your traditional law about that?

A: Under my traditional law I have the rights. I'd ask people who are interested to come and negotiate with the yuwurrumu members. By doing that I am not breaking my traditional law but making sure that the other parties respect my law, because it is my sea country that they are interested in.

Q: By your law would they be able to do that, that is, fish in your waters, without your permission?

A: By my law, that is offending me and my people. We are peaceful people. We don't like to make trouble, but if people are interested in our area we ask them to come and to negotiate with us.

Q: And does that apply also to commercial fishermen?

A: That's correct, because we see a lot of these people. They don't seem to come and sit down and talk with us for some unknown reason. We're all humans.

Q: When fish or dugong or turtle are caught on your sea country, do yuwurrumu members have any rights in what is caught?

A: Yes, we do, because it comes from our estate, the sea grazing area. There is a law that makes us - allows us to have a say and to take whatever is given for us.

Q: And does that continue to be observed?

A: That continues to this very day, it does. [17]

104. Another occasion on which the applicants asserted a right to be consulted in relation to the use of their sea country occurred in 1983 when the Northern Territory government proposed the creation of a marine park in the area. The evidence discloses that in April 1983 the Director of the Conversation Commission of the Northern Territory (CCNT) wrote to the Northern Land Council (NLC) advising of a proposal to declare a marine national park under the provisions of s 12 of the Territory Parks and Wildlife Conservation Act (NT). The proposal encompassed, inter alia, the waters of Bowen Strait between Cobourg Peninsula and Croker Island and the waters to the south and east of Croker Island including most of Mountnorris Bay and extending to New Year Island. By letter dated 27 May 1983 representatives of the Mandilarri, Minaga, Mangalara and Ngaynjaharr clans, together with other community members and members of the council of Minjilang Community Incorporated wrote to the Chief Minister of the Northern Territory protesting at the proposal. Subsequently, on 2 June 1983, the NLC made representations to the CCNT on behalf of various affected Aboriginal land owners. Relevant for present purposes is the following portion of the representation which deals with the position of the Croker Island community:

The Aboriginals of Croker Island and the smaller islands of Arnhem Land to the east of Croker Island affected by the proposal are concerned about the effect which the establishment of a marine park would have on the use of their land and their interests in the sea.

Their concern is based upon a number of factors:

1.The way in which non-Aboriginals intrude incrementally upon Aboriginal land. They feel that, no matter what assurances are given to the contrary, the Gazettal of the proposed park will sooner or later result in pressure to allow non-Aboriginals greater access to their land, for example, for shore-based management facilities.

2. Whilst only too willing to aid people in difficulties, any move to increase the presence of non-Aboriginals, (for example, tourists) in the waters around the islands, is seen as a source of increased interference with their offshore sacred sites, their ability to harvest the resources of the sea, their lifestyle generally, and their privacy.

3. The setting aside of the sea for any given specific purpose would inevitably restrict their use of the sea and their land, especially if they wish to engage in activities which are beyond the scope of their traditional use.

Whilst concerned about the present intrusion of non-Aboriginal people onto the seas around the islands, particularly in the case of commercial fishermen, the people fear that the proposed park would realise the concerns noted above. They regard the provisions of the Aboriginal Land Act relating to the closure of seas as the most appropriate basis for the specific controls needed at the present time. Such an option is not open to the Aboriginals of the Cobourg Peninsula.

The firm view of the Aboriginals of Croker Island and its neighbouring islands is that the park should not encompass their land. Their suggestion is that the proposed boundary of the park should be amended to pass midway through Bowen Strait excluding the waters to the east of such a line. The inclusion of the waters around, and to the east of Croker Island, could be reconsidered at some future date once the effect of the marine park around the Cobourg Peninsula can be evaluated.

Although there is no evidence before the Court as to what action may have taken place in the intervening period, it is a matter of public record that on 1 July 1983 the Cobourg Marine Park was declared under s 12 of the Territory Parks and Wildlife Act and further that the eastern boundary of the park passes more or less midway through Bowen Strait and does not include waters to the east thereof.

...

107. All of the uses or proposed uses of the sea country under claim to which reference has been made arise out of events which have occurred since European contact and relate to the use of the country for purposes other than those which took place prior to 1824. The only evidence concerning non-Aboriginal use of the claimed area prior to European contact relates to the activities of the Macassans to which some reference has been made in the historical overview and which will be the subject of closer scrutiny when the question of trade is discussed. The evidence establishes that the applicant community has consistently asserted, as a matter of Aboriginal law, the right to be consulted about and to make decisions concerning the use of its sea country. In pre-contact times this may well have been an exclusive right in the sense that other Aboriginal groups could be expected to respect the laws and customs of the applicants. But whether there was ever an occasion in pre-contact times for the applicants' ancestors to assert this particular right, as distinct from the right to control who may come upon their country (which is discussed below), is not a matter upon which there is any evidence before the Court. The very nature of the sea renders it inappropriate to attempt to strictly apply concepts such as possession and occupation which are readily capable of being understood in relation to land. There is a clear distinction between possession and occupation on the one hand and use and enjoyment on the other. The claimed right of senior clan members to grant permission is limited to allowing non-members to use and enjoy the country, not to possess or occupy it.

108. That members of a yuwurrumu claim the right of free access to the estate of the yuwurrumu is beyond question although there is some evidence that even that right is exercised with some circumspection ...

...

110.

The evidence supports the conclusion that according to the traditional laws and customs of the Croker Island community Aboriginal people, including Aboriginal people who are not part of the Croker Island community, before going on to the estate of a yuwurrumu to which they do not belong, should first seek and obtain the permission of the yuwurrumu whose estate they wish to enter.

111. The requirement to obtain permission to enter the country of a yuwurrumu to which a person does not belong does not necessarily involve seeking permission on every occasion. For example, on Croker Island there is a substantial community of people living at Minjilang which is part of Mandilarri country. The community is comprised of some people with yuwurrumu affiliations to one or other of the claimant groups and some whose country is elsewhere on the mainland, many of the latter having a long history of residence at Minjilang. Mary Yarmirr said in respect of areas such as Mission Bay (Minjilang) and Palm Bay, which are in daily use:

There's a general permission when people who have stayed with us or intermarried into us and have shared these resources with us. They, you know, go ahead and fish in those areas because there has been discussion on a previous occasion where these people know that they have been informed to go into those areas to fish. [18]

112. One of the rights claimed and exercised by members of the Croker Island community is to close off an area of an estate and, when appropriate, to re-open it. Mary Yarmirr explained how this right works in practice. She said:

You usually find things occur when one of their leaders on the yuwurrumu or who have intermarried into that yuwurrumu dies, so the yuwurrumu leaders then discuss that between each other, and then inform the whole community as well as the other yuwurrumus that they have closed that particular area to a certain time, maybe two years, so by doing that, we automatically recognise a law and we avoid going into that area. [19]

...

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

...

... I understand the witness to be saying that a non-Aboriginal person who did not know of the traditional Aboriginal law, and thus would be unaware of the need to seek permission from the clan owner, should be allowed to pass through. I do not regard the assertion 'Balanda he got no brain' as being advanced as a general proposition in the literal sense but rather that for the most part balanda (apart from 'this bloke here and this bloke here') would have no knowledge (expressed as 'no brain' or 'no mind') of the Aboriginal traditional law relating to passing through country belonging to a particular clan or yuwurrumu.

115. The claim that by their traditional laws and customs the applicants enjoy exclusive possession, occupation, use and enjoyment of the waters of the claimed area is not one that is supported by the evidence. At its highest the evidence suggests that as between themselves, the members of each yuwurrumu recognise, and defer to, the claims of the other yuwurrumus, to the extent that on occasions permission is sought before fishing, hunting or gathering on another clan's sea country and by inference, although the evidence is not strong, other Aboriginal people from country outside the claimed area probably do likewise.

The claimed rights to use and control resources

116. In the applicants' statement of facts, issues and contentions it is asserted that by their traditional laws and customs they have the right to hunt, fish and gather food and material within the claimed area and to prevent others from doing so and they claimed exclusive ownership of the living marine organisms found permanently, or from time to time, within the claimed area. [20] In Peterson and Devitt the relevant traditional rights and interests are expressed somewhat differently. They are:

• Right of all members of the yuwurrumu to free access to the estate and its everyday resources in normal circumstances.
• Right of the senior members of the yuwurrumu to control the use of and access to the subsistence and other resources, including the ritual resources, of the estate by all people including younger members of the yuwurrumu and to engage in the trade and exchange of estate resources.
• Right of senior members of the yuwurrumu to receive a portion of major catches (for example turtle, dugong, crocodile or big hauls of fish) if they are co-resident with the person making the catch.
• Right to speak for and make decisions about the estate's resources, and the use of those resources, and the right and duty to safeguard them. [21]

117. The evidence establishes that members of the various applicant groups continue to fish in the waters of the claimed area and also to hunt for and catch turtle and dugong; they also collect oysters and various crustacea. These activities can properly be described as fishing, hunting and gathering activities and are carried out in and on both the sea and the sea-bed. To varying degrees the fish and other products of these activities are used either for food or for cultural purposes. The activities of fishing, hunting and gathering are conducted in accordance with the traditional laws and traditional customs of the community. With only minor exceptions, the main purpose for which community members venture upon the sea within the claimed area, is to fish, hunt and gather. The minor exceptions relate to the occasions when the outlying islands and other sites within the waters are visited otherwise than as part of a fishing and hunting expedition. The claimed rights in relation to the use and control of the resources of the sea are in effect an extension of the claimed right to control access to the claimed area. In a practical sense, control over use of resources is exercised by controlling who goes into the claimed area. It must necessarily follow that the right of control over the resources of the claimed area is co-extensive with the right to control access. There is no evidence to support any traditional claim to the use and control of any of the resources of the subsoil of the claimed area.

118. The 'right of senior members of the yuwurrumu to receive a portion of major catches ... if they are co-resident with the person making the catch' (Peterson and Devitt) and 'the right of clan members to receive a portion of a major catch taken from the waters or land of the clan's estate' (para (d)(viii) of the proposed determination) are not rights and interests in relation to lands or waters and do not come within the ambit of the statutory definition of 'native title rights and interests'.

The claimed right to trade

119. Peterson and Devitt link the right 'to engage in the trade and exchange of estate resources' as part of the claimed right of senior yuwurrumu members to control the use and access to the subsistence and other resources of the estate. In their proposed determination the applicants identify 'the right to trade in the resources of the waters and land of the clan's estate' as a separate right of importance.

120. There is some evidence that in the past the ancestors of some of the applicants engaged in a form of trade both amongst themselves and with the Macassan trepangers. ...

121. This evidence suggests no more than that the Macassans sought and received permission to take trepang from the waters around the islands. It falls short of establishing that the applicants' forbears had traded with the Macassans. Further, the evidence relates only to the gathering of trepang and not any of the sustenance resources of the sea. In view of the turbulent relationship which is said to have existed between the Macassans and the indigenous people in the early part of the 19th century and the large numbers of praus and crew that visited the area each year the likelihood that the Macassans' presence in the area was as the result of having first obtained the consent of the indigenous people would seem to be remote.

122. There is also evidence that Charlie Wardaga or Andrew Yarmirr had sold turtle meat, dugong and fish to the missions at Croker Island, Elcho Island and Milingimbi. [22] Here again the trade related to the sale of goods but in this case it was the sale of food resources taken from the sea (presumably from the sea within the claimed area). The question remains as to whether in so doing Charlie Wardaga and Andrew Yarmirr were exercising a native title right in relation to the claimed area. There is no other evidence that since European contact the members of the Croker Island community have engaged in trade, either by way of sale or exchange in the 'sustenance or other' resources of the waters of the claimed area. Apart from the evidence relating to the exchanges between the Mandilarri and Ildugij and to the applicants' ancestors' dealings with the Macassans, there is no evidence to suggest that trade in the resources of the claimed area formed part of the traditional customs of the applicants' ancestors, and in any event such trade as there may have been conducted is no longer engaged in. The evidence does not support the claim that the applicants enjoy a native title right or interest to trade in the resources of the claimed area.

The claimed right to protect places of importance

123. Peterson and Devitt refer to the right of senior yuwurrumu members to speak for and make decisions about the significant places in the estate and to ensure unintended harm is not caused by them or to them. In the applicants' proposed determination the corresponding claim is expressed as the right to protect places of importance in the waters and land of the clan's estate. It is not uncommon for an Aboriginal person to assert, and to be recognised by others as having a right to 'speak for' an estate or sometimes for a particular site on an estate. Normally such an assertion and recognition is an indication that the person in question is properly to be regarded as being a 'traditional owner' or 'boss' or holding some other pre-eminent position in relation to the estate or site. The right to speak for country or a site will normally entail a corresponding duty to 'look after' or protect that country or site. There is therefore little difference between the claim described by Peterson and Devitt and that sought in the proposed determination.

124. The evidence discloses that there are, within the claimed area, a number of places which are of particular significance to the relevant yuwurrumu members. A number of these sites are said to be 'dangerous' in the sense that according to Aboriginal tradition they may in some circumstances produce sickness, cyclones, intense rain or waterspouts. In their report Peterson and Devitt write:

There are strict and complex rules of access and behaviour at many of these dangerous sites which, if observed properly, will protect visitors and others from supernatural danger. It is the duty of the senior yuwurrumu male to ensure people are aware of these rules and behaviours and, to protect both them and others from the dire consequences that can flow from inappropriate behaviour. Actions that may create problems include: approaching sites inappropriately dressed or from the wrong direction; physically disturbing or damaging them; unauthorised entry; disposing of meat, fatty substances, blood or other polluting material in water near sites; even pointing with an extended finger at certain site may bring a supernatural harm upon a person. Some of these dangers can be avoided if people are correctly introduced to the particular sites or areas so that they are 'known' by the ancestral spirits and thus protected from harm. [23]

125. The claimed right to protect places of importance is clearly a claim in relation to the relevant area of sea and seabed. The evidence contains many references to sites of the type described. The right as claimed (and the corresponding duty) is capable of enforcement only to the extent that those who enjoy the right are capable of having and controlling access to the relevant estate. The evidence establishes beyond doubt that according to the traditional laws and customs of the several yuwurrumus which comprise the Croker Island community, yuwurrumu members have rights and obligations in relation to sites within the claimed area which they are required to protect from unauthorised and inappropriate use. By reason of those rights, they have a connection with the sea and seabed in question.

The claimed right to safeguard cultural knowledge

126. Peterson and Devitt express this claim as the right to receive, possess and safeguard the cultural and religious knowledge associated with the estate and the right and duty to pass it on to the younger generation. They also identify separately a claimed right of senior yuwurrumu members to allocate names associated with their estate to their relatives and/or to exchange them with others in order to express, create and consolidate company and other relationships. The applicants' proposed determination refers simply to the right to safeguard the cultural knowledge associated with the estate.

127. The cultural knowledge associated with a particular estate includes knowledge of the routes of, and activities in connection with, supernatural beings that according to the cultural traditions and beliefs of the applicants are present within or travel through the estate. The term 'Dreaming' is frequently applied to the stories associated with such beings. In the present context, the term Jang is frequently used. The cultural knowledge also includes knowledge of the names of places in the estate, the presence of Jang in particular places or areas and the appropriate behaviour to manage the danger associated with the presence of Jang. Cultural knowledge of the type here described is clearly a manifestation of traditional law and custom and of its very nature is knowledge in relation to places within the relevant area by which the claimant group have a connection with places concerned. But the right and duty according to traditional law and custom to safeguard that knowledge can only be classed as a 'right or interest in relation to land or waters' to the extent that the exercise of the right and duty involves the physical presence of relevant persons on or at the estate or site in question. If however, the need to safeguard the cultural knowledge associated with a site in the claimed area requires, for example, a senior yuwurrumu member to visit the site with those who it is his obligation to teach the culture, then the safeguarding of the cultural knowledge could fairly be said to be a right in relation to the site, and thus in relation to land or waters.

Extinguishment and related issues

128. At the time of writing this judgment the full meaning of the concept of extinguishment in the law of native title remains to be determined but on the authorities as they presently stand, several propositions relevant to this proceeding appear to be beyond debate. First, the common law will not recognise a native title which has been extinguished. [24] Second, the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the legislature or the executive. [25] Third, a clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with the continued enjoyment of native title. [26] Fourth, if inconsistency is held to exist between the rights and interests conferred by native title and rights and interests conferred under statutory grants, the native title rights and interests must yield, to the extent of the inconsistency, to the rights of the grantee. [27] Fifth, extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established, [28] and sixth, a native title right which confers a mere usufruct may leave room for other persons to use the land either contemporaneously or from time to time. [29]

129. The judgments in Mabo [No 2] make it plain that there are certain traditional laws and customs which the common law will not recognise. For example, recognition would be precluded if the recognition were to fracture a skeletal principle of our legal system. [30] So too, if the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs; [31] and laws and customs which are repugnant to natural justice, equity and good conscience will not attract judicial sanctions and presumably will not be recognised by the common law. [32]

130. The Commonwealth seeks to draw a distinction between the non-recognition of native title and the extinguishment of native title. It is said that extinguishment necessarily involves the extinguishment of a right which was recognised prior to its extinguishment whereas a 'right' which is not recognised by the common law or a statute, has no legal status within the Australian legal system and is not capable of enforcement by the common law. The arguments in support of these propositions are not without some complexity and are based for the most part on the underlying assumption that native title has existed in a temporal sense only since it had been capable of recognition by the law of Australia. In the case of the Murray Islands, that would mean that native title has existed only since sovereignty was first exercised on 1 August 1879; and in the present case, (on the view I have taken) it has only existed since the Native Title Act 1993 came into force on 1 January 1994. In my opinion these assumptions indicate a fundamental misconception. It is true that it has only been possible for the native title rights of the Meriam people to be enforced under Australian law since sovereignty was exercised, and (on the view I have expressed) it has only been possible for the Croker Island community to seek to enforce native title rights to the claim area since 1 January 1994, but in neither case can it be said that native title did not exist before those critical dates. The whole basis of native title is founded on the exercise of traditional laws and customs from a time before the advent of non-Aboriginal interference.

131. This issue does however highlight the differences between cases in which native title is sought to be enforced in respect of land over which sovereignty has been exercised and in respect of which the Crown acquired a radical title burdened by the native title of the indigenous inhabitants on the one hand, and cases where the capacity to enforce native title (for example, over waters of the sea) is based upon a statutory right. In Mabo [No 2] the acquisition of sovereignty exposed the native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title. [33] In that case there was no scope for the exercise of sovereign power prior to the acquisition of sovereignty over the land but that is not so in relation to the waters of the sea. The former colonies and later the States and Commonwealth exercised sovereign rights over the sea adjacent to Australia long before the Native Title Act provided the opportunity for the recognition of native title below the low water mark and if in the exercise of such rights there have been legislative or executive acts which are inconsistent with the continued right to enjoy native title rights, there would seem to be no reason to say other than that to the extent of any inconsistency the native title rights have been extinguished. And it would be consistent with principle that any questions relating to inconsistency and extinguishment should be judged by the same tests as are explained in the judgments in Mabo [No 2] and Wik.

132. An aspect of this case which was absent in both Mabo [No 2] and Wik is the fact that the present proceeding relates to waters in respect of which Australia's sovereign rights are qualified by its international obligations. In Mabo
[No 2] Brennan J rejected the earlier basis for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies as unjust and discriminatory. In this context he said (at 42):

The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports.

The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.

Although these comments have no direct bearing upon any questions in issue in this proceeding they do suggest that the common law will in appropriate circumstances be sensitive to, and be influenced by international law. In this context the following observation of Mason J in the Seas and Submerged Lands Act case (at 466) is relevant:

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

133. Australia was a party to the Convention on the Territorial Sea and Contiguous Zone done at Geneva on 29 April 1958 (the Geneva Convention). A copy of the Convention is set out in Sch 1 in the Seas and Submerged Lands Act 1973 as originally enacted. The schedule was repealed by s 13 of the Maritime Legislation Amendment Act and replaced by Pts II, V and VI of the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982 (the UN Convention). Article 1 of the Geneva Convention provides that sovereignty of a State extends, beyond its territorial and internal waters, to a belt of sea adjacent to its coast, described as the territorial sea and that sovereignty is exercised subject to the provisions of the Convention and to other rules of international law. Article 14 preserves the right of ships of all States to enjoy (subject to the Convention) the right of innocent passage through the territorial sea. Article 17 of the UN Convention contains a similar provision in relation to the right of innocent passage. Although the Seas and Submerged Lands Act (either in its original form or as amended) does not expressly enact the Geneva Convention or the UN Convention as part of the municipal law of Australia, the statutory recognition given to them in this way is an acknowledgment of Australia's commitment to its international obligations. It can reasonably be said that Australia acknowledges that the right of the ships of all States to innocent passage through the territorial sea is a burden on the sovereignty which it enjoys over the territorial sea; and if that be a correct analysis it can fairly be said that the Conventions bring to bear a legitimate and important influence on the development of the common law. It would be contrary both to international standards and the values of the common law for the common law to recognise a native title right which conflicts with Australia's international obligation to permit innocent passage of the ships of all States through its territorial seas. It is clear from the terms of the Convention that the right of innocent passage is exercisable without the requirement of consent first being obtained. For this reason, if for no other, the applicants' claimed exclusive right of possession and occupation of the claimed area and the claimed right to control access of others to the waters of the claimed area fail the test of
s 223(1)(c) of the Native Title Act and cannot be recognised as native title rights and interests.

134. The common law also recognises a public right of navigation which has been described as a right to pass and repass over the water and includes a right of anchorage, mooring and grounding where necessary in the ordinary course of navigation. [34] This right evolved before Magna Carta and is therefore a right distinct in its origin from the right of innocent passage in international law. A native title right, such as the claimed rights to exclusive possession of, and to control the access of others to the claimed area, would contradict the public right of navigation and thereby fracture a skeletal principle of our legal system. Such a right as claimed could not be recognised by the common law.

135. The common law has also recognised a public right to fish for many centuries. In Minister for Primary Industries and Energy v Davey [35] Burchett J summarised the position in this way:

From times immemorial, the common law has recognised a right of the public both to navigate and to fish in the seas and tidal waters: Attorney-General for the Province of British Columbia v Attorney-General for the Dominion of Canada [1914] AC 153 at 169.

In the case cited, the Privy Council in an advice delivered by Viscount Haldane LC quoted (at 168) from Lord Hale's De Jure Maris the proposition that 'the common people of England have regularly a liberty of fishing in the seas or creeks or arms thereof'. Viscount Haldane also pointed out (at 171):

... the public have the right to fish, and by reason of the provisions of the Magna Charta no restriction can be put upon that right of the public by an exercise of the prerogative in the form of a grant or otherwise.

These statements of the law apply also in Australia. In NSW v Commonwealth (the Seas and Submerged Lands case) [1975] HCA 58; (1975) 135 CLR 337 at 421; [1975] HCA 58; 8 ALR 1 at 53, Stephen J referred to the 'public right of navigation and of fishing', and (at CLR 489; ALR 106) Jacobs J said 'that by the Magna Carta of John public rights of fishing in tidal waters were preserved'. In Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314 at 330; [1989] HCA 47; 88 ALR 38 at 44, Brennan J (with whom Dawson, Toohey and McHugh JJ expressed agreement, while Mason CJ, Deane and Gaudron JJ expressed 'general agreement') drew the conclusion:

... the right of fishing in the sea and in tidal navigable rivers, being a public not a proprietary right, is freely amenable to abrogation or regulation by a competent legislature. [36]

The comments made above concerning the inability of the common law to recognise a claimed native title right that would contradict the common law public right to navigate have equal application to the public right to fish.

136. Quite apart from the conclusions just expressed, the evidence does not establish the existence of a native title right in the applicant community either to the exclusive possession, occupation and use of the waters of the claimed area or to control access to those waters. What has been established is the existence of traditional laws acknowledged, and traditional customs observed, whereby the applicant community has continuously, since prior to any non-Aboriginal intervention, used the waters of the claimed area for the purpose of hunting, fishing and gathering to provide for the sustenance of the members of the community and for other purposes associated with the community's ritual and spiritual obligations and practices. Members of the community have also used, and continue to use, the waters for the purpose of passage from place to place and for the preservation of their cultural and spiritual beliefs and practices. As between the several component subgroups which comprise the overall community, the traditional laws and customs of the community require that on occasions permission of the senior members of one subgroup will be required before members of another subgroup or Aboriginals from other areas enter upon to hunt, fish or gather within the waters over which the firstmentioned subgroup enjoys rights. It is in this factual context that the Court must consider what effect, if any, legislative acts and executive action have had upon the communal native title rights and interests of the applicants.

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, [37] 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.

...

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 subs (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 para (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 para (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 para (f). Nor are they entitled to the determination sought in para (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 68) and of the Queensland Court of Appeal in Eaton v Yanner; Ex parte Eaton [38] where similar conclusions have been expressed in circumstances where there has been a legislative vesting of property in the Crown.

...

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 seabed of the claimed area by which rights and interests the community has a connection with the sea and seabed. (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 seabed 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 seabed 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.

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 seabed 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 seabed 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 seabed 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 seabed 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 seabed 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.

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

[3] [1975] HCA 58; 135 CLR 337.

[4] [1992] HCA 23; 175 CLR 1 per Mason CJ and McHugh J at 15.

[5] [1992] HCA 23; 175 CLR 1 at 59.

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

[7] The sources of the information include a report entitled 'Croker Island Seas Native Title Claim Area: Review of Historical and Archaeological Information Regarding Non-Aboriginal Use of the Sea and Seabed' (exhibit NT3) and various official records tendered by the Commonwealth.

[8] Yuwurrumu membership can be acquired by the process of adoption. Jim Wauchope, who is referred to in the discussion of the Mandilarri-Ildugij estate group, was born in central Australia but was taken away from his mother at an early age and at about the age of nine was taken to the Methodist Mission on Croker Island where, after World War II he developed a close relationship with an Ildugij man, Bob Mangarnawu, who taught him about the local cultural landscape and customs. He has since been recognised as a member of the Mandilarri-Ildigij yuwurrumu as are his children. He knows nothing of the country of his parents. Compare Jim Wauchope's position with that of the eighth respondent who also grew up at the Mission on Croker Island about whom Mary Yarmirr said:

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, p 528(24-29)).

[9] Peterson and Devitt, pp 18-19.

[10] 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.

[11] Applicants' written submission (12 November 1997), para 10.1.2.

[12] Transcript, p 49(1).

[13] Transcript, p 194(28-31).

[14] [1992] HCA 23; 175 CLR 1 at 207.

[15] Applicants' proposed determination, para (c).

[16] Transcript, p 54(17)-55(2).

[17] Transcript, p 55(3-22).

[18] Transcript, p 54(3-7).

[19] Transcript, p 51(8-14).

[20] Applicants' statement of facts issues and contentions dated 24 October 1996; paras 6(e), (f) and (g).

[21] Peterson and Devitt, pp 18-19.

[22] Transcript, pp 138(19)-139(24), 255(28)-256(16).

[23] Peter and Devitt, pp 22-3.

[24] [1992] HCA 23; 175 CLR 1 per Mason CJ and McHugh J at 15.

[25] Ibid, per Brennan J at 64 and per Toohey J at 195.

[26] Ibid, at 64.

[27] The Wik Peoples v Queensland (Wik) 187 CLR 1 per Toohey J at 133.

[28] Ibid, at 133.

[29] [1992] HCA 23; 175 CLR 1 at 67.

[30] Ibid, at 43.

[31] Ibid, at 60.

[32] Ibid, at 61.

[33] Ibid, at 69.

[34] 18 Halsbury's Laws of England (4th ed), para 604.

[35] (1993) 119 ALR 108.

[36] Ibid, at 124-5.

[37] [1989] HCA 47; 168 CLR 314 at 330.

[38] Unreported, delivered 27 February 1998.