Native Title Report 2000: Chapter 3: Native title and sea rights

Chapter 3: Native title and sea rights

One of the major
events of the period covered by this report was the handing down of the
decision by the full Federal Court in the Croker Island case (1)
on appeal from the decision of Justice Olney. (2)
It is the major test case on the recognition of native title sea rights
and represents the most authoritative statement of the law in Australia
at the present time. It was a split decision and this chapter analyses
the human rights implications of the different legal positions adopted
by the majority and the minority decisions of the court. At the time of
writing, the High Court had already granted special leave to appeal the
Federal Court's decision and a date for hearing had been set for hearing
on 6 February 2001. Thus, the question of the full recognition of native
title rights offshore by the common law of Australia has yet to be finally
determined. This chapter is a timely survey of the issues that will be
before the High Court.

The recognition that
both the common law and the Native Title Act 1993 (Cth) (NTA) give to
Indigenous rights to sea is different from the recognition that they give
to Indigenous rights to land. This difference does not arise from Indigenous
traditions but is a product of Western imagining. The consequence of imposing
limitations onto the recognition of native title sea rights is that the
level of protection extended to them by the common law and the legislature
is insufficient to ensure that either the traditions or the rights themselves
can be fully enjoyed by Aboriginal people. In fact, the present legal
position is that all other interest groups competing for a commercial
or economic stake in the sea take priority over Indigenous rights. It
is this prioritising of non-Indigenous interests over Indigenous interests
that has attracted the criticism of international human rights committees
in the past 12 months. In this chapter I will analyse the trends in both
the common law and the legislation within a human rights framework in
an attempt to understand the basis of the recent international concern.

1. Overview of the variety
of indigenous traditions relating to sea country

Mary Yarmirr was
one of the main Indigenous witnesses in the hearing of the Croker Island
case. 'As far as my eyes can carry me' was her answer under cross-examination
to the question of the extent of her traditional sea country.(3)
It is just one of her answers that exemplifies the gulf between Indigenous
and non-Indigenous understandings of the coastal seas. When Indigenous
people like Mary Yarmirr assert their rights to 'sea country' it is a
challenge to the European imagination to conceive of traditional 'country'
in which there is no essential difference between the land and the sea
parts. The prime example of this unity of land and sea country is the
dreaming story. Typically, it is the sacred account of the creation of
the physical and social world by dreaming ancestors in their heroic and
ancient travels that are recounted in song cycles, ceremonies, designs
and ultimately the basis for claims to country according to traditional
laws and customs. The ancestral journeys often commence out at sea then
move closer to land, creating seascapes - islands, reefs, sandbars and
so on - and travel on to create landscapes. Thus the kinds of connections
that are widely documented in relation to land are also present in relation
to sea country. They include:(4)

• Multitudinous named places
  in the sea including archipelagos, rocks, reefs, sand banks, cays, patches
  of seagrass;
• named zones of the sea
  defined by water depth;(5)
• bodies of water associated
  with ancestral dreaming tracks;
• sacred sites that are the
  physical transformation of the dreaming ancestors themselves or a result
  of their activities;
• cloud formations associated
  with particular ancestors;
• sacred sites that can be
  dangerous because the power of the dreaming ancestors is still there,
  for example important places on reefs that can be used either to create
  storms or make them abate;(6)
• ceremonial body painting
  and other painted designs using symbols of the sea such as the tail
  of a whale, black rain clouds over white foaming waves, reefs, sandbanks,
  islands, foam on the sea, a reef shelf;(7)
• particular kin groupings
  having a special relationship with tracks of the sea by virtue of their
  inheritance of the sacred stories, songs, ceremonies and sacred objects
  associated with it and by exercising control over that area.

The depth of these
cultural links to the sea is not surprising considering the antiquity
of the Indigenous engagement with the sea, particularly for the provision
of food over thousands of years. (8)
Indeed, the archaeological record indicates that on some islands off
the north Queensland coast the sea was more important to Indigenous survival
than the land.(9)

Indigenous people
from many parts of northern Australia have asserted the holistic nature
of their claims to the sea. They have also insisted that their sea country
does not belong to everyone, it belongs to particular Indigenous people.
They have explained the intricacies of their systems to anthropologists
who have documented them for numerous Indigenous peoples including the
Umpila-speaking people and other 'Sandbeach People' of Eastern Cape York,
Torres Strait Islanders, the Lardil, Yangkaal, Ganggalida and Kaiadilt
people in the Wellesley Island region of the Gulf of Carpentaria, the
Yanyuwa around the Sir Edward Pellew group of islands in the Gulf of Carpentaria,
the Anindiliyakwa of Groote Eylandt; Burarra and Yan-nhangu and Yolngu
of Arnhem land, and the Bardi and Yawuru people near Broome.(10)

Diversity

Much of the detailed
testimony about the intricacies of traditional sea rights comes from remote
areas where Indigenous peoples have been able to maintain fairly continuous
contact with their traditional sea country throughout the period of colonisation.
Such relatively uninterrupted association is not the case in most of Australia.
There are a variety of historical circumstances and contemporary cultural
traditions. The archaeologist Bryce Barker, for example, describes the
situation of the descendants of the traditional owners of the Whitsunday
Islands off the north coast of Queensland. (11)
The first substantial non-Indigenous intrusion into the area was in
1860 when Port Denison (Bowen) was established. Initial good relations
gave way to a brutal period of suppression involving the Queensland Native
Mounted Police following the attack and burning of the ship Louisa Maria.
In 1881 the remaining Island people gathered at Dent Island Lighthouse
for protection and were eventually moved to the mainland where all of
their descendants were born. Now traditional knowledge consists of stories
relating to marine species and knowledge of specific locations including
reef and mangrove systems as well as relating to the outer barrier reef
itself. The traditional owners are in dispute with the Great Barrier Reef
Marine Park Authority over the hunting of the now endangered turtle and
dugong.

Another circumstance,
as described by Scott Cane, (12)
is the situation of the Aboriginal people of the south coast of New
South Wales out of which arose the New South Wales Court of Appeal decision
in Mason v Triton. (13) The Aboriginal families
involved in this case defended a prosecution for illegal fishing on the
basis of traditional rights. They have an historical connection with the
general area of the south coast of New South Wales going back to the time
of first settlement. As to be expected, after such a long period of intense
colonisation, ancient laws and customs were represented by what Cane calls
'an attenuated core of language and mythology'. A continuous involvement
in fishing both for subsistence and small-scale trading is backed up by
substantial archaeological evidence of the same pre-contact activity.
Cane's account of contemporary culture also includes some intriguing evidence
of the ancestors of the defendants trading fish with the early white settlers
in the region. Fishing is still very important to the identity of Aboriginal
people on the south coast and a seafood feast is an important part of
contemporary cultural celebrations such as NAIDOC week.

Similarly, in relation
to the Tasmanian fisheries prosecution case of Dillon v Davies,
(14) no general system
of traditional laws and customs was asserted by the Indigenous defendant.
The customary practice of taking abalone, being a practice that could
be archaeologically traced back to the defendant's ancestors at the time
of the first white settlement of the area and the activity subject of
prosecution, was relied on to support an honest claim of right.

2. Relevant international
human rights standards

The picture that
emerges from these accounts of Indigenous law and culture is that while
the Indigenous relationship to sea country is diverse it also constitutes
a unique interest which has no equivalent in the non-Indigenous legal
system. Within a human rights framework, the recognition of native title
must ensure that this unique relationship is protected and capable of
full enjoyment by Indigenous people. Where the common law does not provide
an adequate level of protection, it is incumbent on the legislature to
ensure that Indigenous culture is fully protected by non-Indigenous law.
In particular, the principles of equality and self-determination underlie
the obligation of states to meet their international obligations in this
regard.

Equality

The international
legal principles of equality and non-discrimination require that Indigenous
culture be protected. In particular, they require states 'to recognise
and protect the rights of Indigenous people to own, develop, control and
use their communal lands, territories and resources'.(15)
The relationship that Indigenous people have to sea country is part of
their distinctive culture and must be protected in accordance with these
principles.

This approach is
often referred to as a 'substantive equality' approach. It acknowledges
that racially specific aspects of discrimination such as cultural difference,
socio-economic disadvantage and entrenched racism must be taken into account
in order to redress inequality in fact. Measures must be taken to protect
cultural differences and to redress disadvantage. This approach can be
contrasted with a formal equality approach that merely requires that everyone
be treated in an identical manner regardless of such differences.

Increasingly, domestic
jurisprudence is accepting the international law standard that requires
more than formal equality and recognises the distinctive cultural rights
arising from the unique and enduring relationship Indigenous people have
with both land and sea. (16)

Protection of culture

Article 27 of the
International Covenant on Civil and Political Rights (ICCPR) protects
Indigenous rights. It provides:

Members of ethnic, religious or linguistic minorities shall
not be denied the right, in community with members of their group, to
enjoy their own culture, to profess and practise their own religion, or
to use their own language.

A series of decisions
by the Human Rights Committee (HRC) has emphasised the importance of protecting
Indigenous peoples' lands and resources in order to ensure their cultural
survival, (17) and governments' duties to
take positive steps towards that end. The relevance of the HRC decisions
lies in their recognition of the central role that economic and resource
activities play in the maintenance of the cultural rights protected by
Article 27.

At its 69th session,
the HRC expressed concern about whether Australia was meeting its obligations
with respect to the protection of Indigenous culture and economy under
Article 27 of ICCPR:

The Committee expresses its concern that securing continuation
and sustainability of traditional forms of economy of indigenous minorities
(hunting, fishing, and gathering), and protection of sites of religious
or cultural significance for such minorities, that must be protected under
Article 27, are not always a major factor in determining land use.(18)

The consideration
of the Indigenous claims to sea should be viewed in the context of international
obligation of the State to protect Indigenous culture.

Self-determination

The right of Indigenous
peoples to self-determination, as set out in the ICCPR and the International
Covenant on Economic, Social and Cultural Rights (ICESCR), is a right
of Indigenous peoples to control their lands, territories and resources.
Without such control, self-determination is empty of content. Indeed,
Article 1(2) of both the ICCPR and ICESCR provide, inter alia,
that:

1. All peoples have a right
   of self-determination. By virtue of that right they freely determine
   their political status and freely pursue their economic, social and
   cultural development.
2. All people may, for their
   own ends, freely dispose of their natural wealth and resources. In no
   case may a people be deprived of its own means of subsistence.

The Human Rights
Committee has explicitly linked ICCPR Article 1(2) with Indigenous control
over traditional land and resources, and explicitly applied it to Australia.
In its Concluding Observations in respect of Australia at its 69 th session
in July 2000, the HRC proposed that:

The State party [Australia] should take the necessary steps
in order to secure for the indigenous inhabitants a stronger role in decision-making
over their traditional lands and natural resources 9 Article 1, para 2.
(19)

The jurisprudence
of the Human Rights Committee, including recent examination of Australia's
performance, shows that the international human rights community expects
that Australia will implement its obligations to its Indigenous peoples
under the instruments in good faith.

Other international norms

International Labour Organisation
Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent
Countries 1989 (20)

While the International
Labour Organisation Convention 169 (the ILO Convention) has not been ratified
by Australia, its significance lies in the fact that it is the only international
human rights treaty dealing specifically with Indigenous rights. The ILO
Convention provides evidence of developing international customary law
in respect of Indigenous rights, a law which clearly recognises Indigenous
rights to use and exercise control over the natural resources available
in their traditional territories. It is clear from the wording of the
Convention that the term 'territories' includes land and sea.

Article 13 (1) provides
that governments shall respect the special importance of Indigenous peoples'
relationship with their lands or territories, which they occupy or use,
and in particular the collective aspects of this relationship. Importantly,
the concept of Indigenous territories is deemed, in Article 13 (2), to
include 'the total environment of the areas which the peoples concerned
occupy or otherwise use'.

In respect of the
use of the term 'territories' in the ILO Convention, noted international
law commentator Howard Berman has made the following observation:

Increasingly, indigenous rights have been conceptualised legally
in terms of territorial rather than simply proprietary possession. Territoriality
best describes the complex interrelationship between indigenous peoples
and the land, waters, sea areas and sea ice, plants, animals and other
natural resources that in totality from the social, cultural, material
and deeply spiritual nexus of indigenous life.(21)

It is clear that
sea rights fall within the ILO Convention's concept of 'territories'.
Articles 14 and 15 provide a high level of protection of Indigenous rights
in respect of possession, use and management of such territories and the
resources they contain. Article 14(1) affirms that the rights of ownership
and possession over the lands and territories which they traditionally
occupy shall be recognised. Article 15 requires states to safeguard Indigenous
peoples' rights to the natural resources throughout their territories,
including their right 'to participate in the use, management and conservation'
of those resources. When these articles are read in conjunction with Article
6(2) of the ILO Convention,(22) they
provide a strong level of protection in international law of Indigenous
peoples' rights to possess, use and manage natural resources in their
traditional territories, including the requirement of Indigenous agreement
or consent to decisions about the development of resources in Indigenous
land and sea territories.

Principle 22 of the Rio
Declaration of the UN Conference on Environment and Development 1992

This principle recognises
the vital role of Indigenous communities in ensuring sustainable environmental
management and the need to protect Indigenous lands and resources.

The Convention on Biological
Diversity 1993

This convention was
ratified by Australia in 1993. Articles 8(j) and 10 provide a high level
of protection to Indigenous traditional practices in respect of the conservation
and sustainable use of biological diversity. Indigenous people in Australia
have consistently complained about the degradation of their marine resources
through, among other things, the unsustainable fishing practices of non-Indigenous
people. Indigenous peoples have a right, recognised in international legal
principles, to not only use their marine resources on a sustainable basis
but also to protect them for future generations by participating in management
regimes, exercising a right to negotiate over proposed developments and
developing agreements with other stakeholders.

International Whaling Convention
1946

This convention,
to which Australia is a party, recognises the right of Indigenous people
to use their marine resources. An exemption from prohibitions on taking
whales is provided under the Convention for Indigenous peoples, who can
take whales for traditional subsistence purposes. Indigenous subsistence
whaling rights are consistent with Article 1(2) of the ICCPR and ICESCR,
which provide that 'in no case may a people be derived of its own means
of subsistence'. The right in respect of whaling has mainly been asserted
by Inuit peoples. The Australian government has also supported the right.(23)
Through the work of a Technical Committee of the International Whaling
Convention, the exemption has been developed to recognise the importance
of Indigenous co-operation and participation in decision-making affecting
Indigenous subsistence economies, the resources on which they depend and
the importance of traditional social, cultural and spiritual values.(24)

Torres Strait Treaty with
Papua New Guinea 1978

The Torres Strait
Treaty, between Australia and Papua New Guinea, which was finalised in
1978 and came into force in 1985, recognises Indigenous sea rights. In
developing the treaty, Australia was concerned to recognise and preserve
the livelihood of the Indigenous peoples of the Torres Strait Islands.
The Treaty establishes a Torres Strait Protected Zone to 'protect the
traditional way of life and livelihood of the traditional inhabitants
including their traditional fishing and free movement'.

The treaty uses the
term 'traditional' in place of the term 'Indigenous' but the meaning of
'traditional' is interpreted in a liberal fashion, so that, for example,
the treaty permits the use of modern fishing methods provided these methods
are consistent with contemporary custom. However, it seems likely that
some of the international law understandings of the right of Indigenous
peoples informed the making of the Treaty text.(25)
Certainly, the treaty provides a degree of recognition and protection
of customary or traditional rights for Torres Strait Islander People.
The policy implication would appear to be that similar legal protection
should, as a matter of equity, be afforded to other coastal Indigenous
peoples with traditional affiliations with marine areas in Australia.

The rights of Indigenous
peoples to use, manage and control the resources of the marine environment
within their traditional territories are supported by international laws
and principles. These rights can extend to exclusive possession of sea
domains, based on prior occupation and use, consistent with the traditions
and laws of the Indigenous peoples concerned. Indigenous people are entitled
to protect their resources, including customary marine tenures, from one
generation to the next.

3. Common law recognition
of native title rights to the sea

International human
rights standards provide the relevant framework for the evaluation of
the common law approach to Indigenous rights in the Croker Island case.
There are few cases from overseas jurisdictions that have dealt with the
issues of native title sea rights so exhaustively as the Croker Island
case. The High Court's decision is therefore set to become an influential
precedent throughout the common law world.

To understand the
territorial scope of the appeal to the High Court, the various maritime
jurisdictional limits imposed under Australian law on sea country need
to be briefly mentioned. They are set out in the sectional diagram in
Figure 1 [see next page].(26)

The Croker Island
claim does not include the foreshores/seabed in the intertidal zone, even
though this appears to have been the intention of the claimants. The entire
claim is within Australia's territorial sea and most of the claim falls
within the territorial sea in the jurisdiction of the Northern Territory.
The territorial sea is the maritime zone in which full jurisdiction is
asserted by Australia subject only to a customary international law requirement
of innocent passage.(27) The fact that the
claim is totally within the territorial seas means that the case does
not necessarily decide issues of native title in relation to the contiguous
zone, the exclusive economic zone and the continental shelf. In relation
to these more distant zones, however, there is United States authority
to suggest that, even in these areas, Indigenous subsistence rights can
be recognised.(28)

Evidence in the Croker
Island case: a unique and complex system of laws

The claimants' evidence
in the hearings of the Croker Island case presented the sea as part of
an elaborate system of laws and customs that had been substantially maintained
to the present day. The details of that system were set out in the claimants'
evidence, the anthropologist's report (29)
and are summarised in Justice Olney's judgment.(30)

The claim was presented
in terms of the traditional rights of six 'estate groups' to five fairly
well-defined areas of land and sea. The estate group, like a 'clan', is
a single group of people who can trace their descent through the male
line and is known as a yuwurrumu. The yuwurrumu have names and those involved
in this claim were the Mangalara, Mandilarri-Ildugij, Murran, Gudura,
Minaga and Nganyjaharr. The traditional rights of the members of the yuwurrumu
included such things as:

• to be recognised as the
  traditional owners of the estate, to transmit all inherited rights,
  interests and duties to subsequent generations and to exclude or restrict
  others from the entering the area;
• to speak for and make decisions
  about all aspects of the estate;
• free access to the estate
  and its every day resources in normal circumstances;
• the right of senior members
  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;
• the right of senior members
  to close off areas of the estate on the death of yuwurrumu members and
  decide when they shall be re-opened to use;
• to allocate names associated
  with their estate to their relatives;
• 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;
• to receive, possess and
  to safeguard the cultural and religious knowledge associated with the
  estate and the right and duty to pass it on to the younger generation;
  and
• the right to speak for and
  make decisions about the estate resources and the use of those resources
  and the right and duty to safeguard them.(31)

The evidence presented
by the claimants, particularly the main witnesses, Mary Yarmirr and Charlie
Wardaga, included:

• accounts of the land and
  sea creating travels of the dreaming ancestors - the Seahawk Burarrgbiny
  Garrngy, Warramurrungunji, and to the named sacred sites associated
  with the stories;
• women's and men's ceremonies
  associated with different dreaming sites;
• the severe consequences
  of revealing secret/sacred parts of stories and ceremonies;
• accounts of inheritance
  of rights through the claimants' fathers and being taught about the
  country by fathers and grandfathers;
• repeated assertions of
  ownership and the right to be asked about developments such as petroleum
  exploration, commercial fishing and tourism;
• an example of permission
  being given to establish a pearl farm;
• examples of the closure
  of certain areas following a death;
• examples of seeking permission
  to use another yuwurrumu area;
• extensive accounts of fishing
  and hunting for turtle and dugong at particular locations on the estates;
• trade between the members
  of different yuwurrumu, trade with the mission and trade with the Macassans

The Croker Island decision

Justice Olney accepted
that all of the claim area comprised the sea country of one or another
of the several claimant yuwurrumu, in other words, that native title existed
and that the claimants are the native title holders of the whole area.
The main difference between the claims and Justice Olney's findings was
the nature and extent of the rights recognised.

The NTA requires
the Federal Court, when making a native title determination, to state,
among other things, 'whether the native title rights and interests confer
possession, occupation, use and enjoyment of the land or waters on its
holders to the exclusion of all others'.(32)
The claimants sought a determination that they did have such rights. Justice
Olney's proposed determination stated that they did not have such rights.
This was a crucial and much disputed finding and is discussed in more
detail below.

The NTA also requires
that the nature of native title rights determined to exist is set out
in the determination.(33) The claimants sought
an extensive list of rights based on the claimants' traditional rights
(set out above). Justice Olney accepted some of these but rejected or
curtailed others. The claim to a right of ownership was rejected, principally
on the basis that the terminology of 'ownership' was considered inappropriate
in the native title context because it did not necessarily equate with
any particular Indigenous concept. The claimed rights to control resources
was rejected. because of a lack of evidence of the use of the resources
of the soil under the seabed. The claim to a right to control access to
sea country was also rejected. The claimed right to trade was rejected
on the basis of insufficient evidence and insufficient connection with
native title sea rights. The generality of the claimed right to safeguard
cultural knowledge was reduced to cover only situations that required
presence on sea country.

The native title
determination of the court was as follows:

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 claim area for all or any of the following purposes:

(a) to travel through all
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.

This determination
effectively reduces the rights that the claimants are able to exercise
in respect of their traditional sea country from being rights against
the whole world to rights that must either coexist with or be subjugated
by all other common law rights.

Justices Beaumont
and von Doussa in the majority of the full Federal Court decision in the
Croker Island case endorsed Justice Olney's finding that only non-exclusive
cultural and subsistence rights could be recognised by the court. There
are three bases to this decision:

• the court would not recognise
  exclusive native title rights if they had not been exercised against
  non-Indigenous trespassers;
• the court's conceptualisation
  of native title was limited;
• the court found, as a matter
  of law, exclusive native rights offshore would be inconsistent with
  other common law rights of the public to navigate tidal waters and to
  fish, and with the international law obligations to allow innocent passage
  of shipping in territorial seas.

1. Non-recognition of exclusive
native title rights

The finding against
exclusive native title rights outlined above appears to be based on the
fact that the claimants did not enforce these rights against non-Indigenous
people. The connection between these two propositions is never fully explained
in the judgment. The relevant section commences with an extract from the
evidence of Charlie Wardaga:

Q. If we wanted
to travel on your water, by your law what should we do?

A. I can't do nothing,
because you been talking about another balanda [whitefella] he coming
into you law boat, like that.

Q. I am talking
your law?

A. Yes.

Q. Aboriginal way?

A. Yes, my Aboriginal
law. That balanda he break that the Law, like that. Not like you mob,
you been come and see me - I'm clan, or Mary clan, like that. And other
people, oh, no, he got no brains that one.

Doing the best I
can, 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.(34)

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 on occasions permission is sought before fishing, hunting
or gathering on another sea clan's country. By inference, although the
evidence is not strong, other Aboriginal people from outside the claimed
area probably do likewise.(35)

His Honour's reasoning
suggests that in order to establish a native title right to control access,
Aboriginal people would be required to demonstrate before a court not
only the existence of a traditional right to control access to their land
and the exercise of this right by the applicants, but also that the native
title applicants and their forebears, in the face of inordinate risks,
asserted this right consistently against non-Indigenous people through
the post-sovereignty period. While Indigenous people may continue to observe
their laws, under this test, previous non-Indigenous disrespect for their
rights provides a basis for the ongoing non-recognition and denial of
Indigenous rights.

The use of the applicants'
evidence of forbearance in the face of ignorance and disregard for their
laws as the basis of the denial of their right to control, is a new, more
onerous test for recognition of native title rights than was contemplated
in Mabo.(36) As Justice Merkel remarked in
the minority judgement of the full Federal Court:

It is important to emphasise that it is the traditional connection
with the land arising from the acknowledgement and observance of the laws
and customs by the community, and not recognition or acceptance by others
of the connection, or of the laws or the customs, that is the source of
native title.(37)

This approach is
also in stark contrast to the approach taken to proving exclusive possession
in the landmark Canadian case of Delgamuukw. (38)
Aboriginal title encompasses a right to exclusive possession, which
in turn is established if the following criteria are satisfied:

• the land must have been
  occupied prior to sovereignty;
• if present occupation
  is relied on as proof of occupation pre-sovereignty, there must be a
  continuity between present and pre-sovereignty occupation; and
• at sovereignty,
  that occupation must have been exclusive.(39)

Another context
in which to view Justice Olney's interpretation of the evidence is the
fact that there have been two Aboriginal Land Commissioner's reports on
sea closure applications under the Northern Territory Aboriginal Land
Act 1978,.Chapter 3 99 which were also in Arnhem Land.(40)
The significance of these reports is that rather than reporting on traditional
ownership per se, the Land Commissioner, among other things, must report
on whether, in accordance with Aboriginal tradition, strangers were restricted
in their right to enter the seas. In both cases, Justice Toohey and Justice
Kearney, respectively, found that strangers were so restricted and they
based their conclusions on evidence that is remarkably similar to the
evidence considered by Justice Olney. The Aboriginal Land Commissioners'
findings tend to support the impression that Justice Olney was taking
a very strict approach to the interpretation of the evidence in the Croker
Island case.

There are two approaches
to the task of ascertaining and recognising exclusive native title rights.
One is to focus on the exercise of excluding others, as Justice Olney
has done. The other is to make a global assessment of the completeness
of the traditional system of law and custom, taking into account all the
evidence of the traditional laws and customs and of continuing traditional
connection.

The former approach
anticipates a confrontation between the exercise of Indigenous and non-Indigenous
rights. An example of such a confrontation occurred recently when three
Torres Strait Islanders from Mer (Murray Island) found commercial fishermen
fishing in their traditional sea country.(41)
They confiscated the fish in the commercial fishermen's dinghies and
with the aid of a crayfish spear told the commercial fishermen in strong
terms to get out of the area. On their return to Mer Island, the Islanders
sold the confiscated fish and divided the proceeds amongst themselves.
Two of the men were charged with theft of fish with violence, an indictable
offence. So far, the charges have been successfully defended on the basis
of an honest claim of right based on the recognition of traditional fishing
rights under the Torres Strait Treaty. Although the defence is not based
on the exercise of native title fishing rights, these Torres Strait Islanders
are certainly laying the groundwork for a good claim under the test proposed
by Justice Olney.

The history of struggle
between Indigenous people for their land and sea country is littered with
confrontations of the type described above. Unlike the example given above,
many of these confrontations ended in the separation of Indigenous people
from their culture and their country. Consequently, many Indigenous people
are unable to sustain a claim for native title. Justice Olney's approach
to establishing exclusive native title rights ensures that even where
Indigenous peoples maintain connection to country, such as with the Croker
Island people, the common law will nevertheless limit the recognition
of the native title.

The latter approach
to ascertaining native title recognises that where Indigenous culture
has survived confrontation with non-Indigenous culture, then it should
be recognised in a way that ensures its enjoyment. Native title should
reflect the law and tradition of the claimant group as exercised and observed
by them. In this way, the common law will not only provide protection
for Indigenous culture so that it can be enjoyed within the broader community
but also allow the protective mechanisms existing within Indigenous culture,
such control of access to traditional country, to operate effectively.

2. The conceptualisation
of native title as a bundle of rights

Under the bundle
of rights approach native title is constructed as a highly specific and
finite series of practices derived from a particular historical moment.
There is little opportunity for Indigenous culture to continue to inform
the content of that bundle or for decisions to be taken about matters
outside of the defined bundle.

Where native title
is cast as a system of generalised rights, the exercise of those rights
can take a contemporary from even though their origin is the traditions
and customs of the original Indigenous inhabitants. Where, however, native
title is constructed as a collection of specific traditional practices,
there is a failure to separate the idea of rights from activities carried
out pursuant to those rights.

Justice Olney, and
the majority in the full Federal Court, construct native title as a bundle
of rights in which each separate native title right must be directly supported
by separate evidence of traditional laws and customs relating to the particular
right. This requirement and treatment of the evidence is consistent with
a bundle of rights approach to native title. In Chapter 2 of this report,
the bundle of rights approach to the legal characterisation of native
is criticised for predisposing native title to extinguishment. (42)
In the Croker Island case, it can be seen that the bundle of rights approach
also limits the extent to which Indigenous laws and culture will be recognised
at all by the common law, particularly where there is a claim for exclusive
rights. The bundle of rights approach limits common law recognition and
protection of Indigenous law and culture in three ways.

A bundle of rights approach
reduces the control that Indigenous people can exercise over country

The construction
of native title as a series of rights to perform specific enumerated practices
runs counter to its construction as an exclusive right to possession,
occupation, use and enjoyment of the territory. Only if the specific rights
proven add up to a difficult-to-specify comprehensive set of rights will
the exclusive right to possession, occupation, use and enjoyment of the
territory as against the whole world be determined to exist.

If this kind of determination
is made, the specification of what this entitles the native title holders
to do on the land is not that important. For example, in the Croker Island
case, if such a determination had been made, the specification of other
rights such as the right to use and control resources, the right to trade
and the right to protect places of importance would not have been crucial
because, in effect, they are all subsumed under the global right of exclusive
possession.(43)

Once it is decided
that an exclusive possession determination will not be made, the description
of the non-exclusive native title rights becomes extremely important,
for this description will define the totality of the rights. That is why
Justice Olney's failure to find a specific right to trade in the resources
of the estate was significant to the claimants. In the absence of a determination
of exclusive rights of possession, occupation, use and enjoyment, the
inclusion in the determination of a right to trade in resources was essential
to extend their acknowledged fishing rights beyond their own subsistence
needs.

Yet this discrete
right, like many others, was difficult to prove because of the nature
and extent of the evidence required. Even where evidence of contemporary
control over the claimed areas was provided, Justice Olney was reluctant
to interpret this as confirming exclusive rights. For instance, the applicants'
evidence that they insisted on being asked about important developments
in their country relating to oil exploration, tourism and commercial fishing,
was treated as supporting a right to be consulted and not as a right to
control access,(44) even though in traditional
Indigenous society asserting a right to be asked is a mode of asserting
exclusive rights to country.(45) In relation
to a right to trade, His Honour required detailed evidence of historical
and contemporary trading. Even this may not have been enough, as he indicates
that the exchange of goods may not be sufficiently related to land or
sea for it to be considered a native title right, notwithstanding that
the exchanged goods come from the land and sea.(46)

In the full Federal
Court, the majority agreed with Justice Olney's interpretation of the
evidence. Justice Merkel, although he was troubled by some of Justice
Olney's assessments of the evidence, did not have to decide the issue,
as he ultimately would have referred the matter back to Justice Olney
for reconsideration.

. The
bundle of rights approach fails to give Indigenous relationships to country
the protection afforded other non-Indigenous proprietary interests.

In Mabo, Justice
Brennan, with whom Chief Justice Mason and Justice McHugh agreed, famously
stated:

Native title has its origin in and is given its content by the
traditional laws acknowledged by and the traditional customs observed
by the indigenous inhabitants of a territory. The nature and incidents
of native title must be ascertained as a matter of fact by reference to
those laws and customs.(47)

In Chapter 2 of
this report, this separation of factual and legal elements of native title
is described as a critical ambiguity in native title doctrine.(48)
Indigenous law and custom are understood as the 'origin' of the right
that is not legally enforceable until it is 'recognised' by the common
law. Legal protection is thus dependant on a process of translation, and
only that which is 'translated' or recognised from Indigenous law will
be protected by the common law.

The courts' task
of cultural translation does not require that native title be constructed
as a title bearing no resemblance to a common law system of tenure. Nor
does it require that the court find exact equivalence between the common
law and Indigenous law and culture. The task for the court is to render
the unique relationship of Indigenous people to their country comprehensible
(recognisable) within the common law. What is significant from a human
rights perspective is that the form in which native title is recognised
by the common law gives Indigenous law and culture adequate protection
so that it can be fully enjoyed to the same extent as non-Indigenous interests.

If by likening native
title to a proprietary interest the common law provides the same level
of protection and security to the unique relationship that Indigenous
people have with their land and sea country as that which is provided
to all non-Indigenous proprietary interests, then such a translation is
consistent with the principle of substantive equality. Richard Bartlett
makes this point in his argument that, on the basis of equality, the common
law presumption against the extinguishment of a proprietary interest should
be extended to native title.(49)

The following statement
by Chief Justice Brennan in Mabo illustrates how the analogy to common
law proprietary interests is used to ensure that the protection of native
title is equal to the protection of non-Indigenous common law proprietary
interests:

If it be necessary to categorise an interest in land as proprietary
in order that it survive a change in sovereignty, the interest possessed
by a community that is in exclusive possession of land falls into that
category.(50)

In this statement
Chief Justice Brennan did not assert that native title is equivalent to
a 'proprietary' interest under the common law. Rather, that while the
Indigenous relationship with their country is entirely different from
common law 'proprietary' interests in the land, it requires an equivalent
degree of protection. It indicates that native title is to be regarded
as at least as strong a form of connection to land as common law proprietary
tenures and is equally protected by the common law.

Contrary to a human
rights approach, Justice Olney has interpreted Brennan's approach as authorising
a search for particular traditional laws and customs that demonstrate
the proprietary or non-proprietary nature of the rights claimed. The bundle
of rights approach justifies the fragmentation of native title into proprietary
or non-proprietary interests, each of which may be compared to common
law forms of property. This approach is not consistent with either the
authority in Mabo or a human rights approach.

A bundle of rights approach
fails to recognise the dynamic nature of Indigenous law and culture.

The bundle of rights
formulation denies the evolution of traditions to include contemporary
practices. For example, activities pursuant to native title rights are
restricted to pre-contract methods of exercising those rights (subsistence
fishing, not commercial fishing). On this basis Justice Olney summarily
dismisses the claimed right to the use of the resources (including minerals)
of the subsoil under the seabed. He states:

...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.(51)

While Justice Olney
is prepared to describe the determination area in the proposed draft determination
as including the seabed, the exclusion of the subsoil is based on a finding
that there is no close correspondence between ancient traditional activities
and contemporary potential mining uses.(52)
This is notwithstanding the evidence of the relationship of dreaming ancestors
to the seabed.(53)

Many of these problems
can be avoided if native title is conceived of as the ownership of territory
arising out of the exclusive occupation of the territory by Indigenous
people prior to the assertion of British sovereignty. There is authority
for this approach, most notably in the judgment of Justice Toohey in Mabo
(54) and in Delgamuukw.(55)
Proof of native title would still have its difficulties, as there would
be scope for wide variation in the level of evidence required to establish
exclusive possession at the time of sovereignty. However, it would avoid
the minute characterisation of particular traditional rights in order
to define the scope of current rights. Current native title rights would
equate with full ownership and questions about whether current activities
on the land were authorised by tradition would be irrelevant. This approach
maintains a definition of native title at a high level of generality,
distinguishing between the general right and its exercise at any particular
historical moment. Thus it provides a space for the survival of Indigenous
control over traditional land within the common law framework.

Under a substantive
equality approach native title should be a vehicle for the enjoyment and
protection of Indigenous culture, not a means to its confinement. Specifying
the practices which constitute native title while at the same time denying
the relationship that exists between these practices, confines the enjoyment
and protection of Indigenous culture within the common law.

3. Common law recognition
of exclusive native title rights offshore

The court's findings

Threshold issue of offshore
jurisdiction

There is a threshold
legal issue of whether the common law extends beyond the low water mark.
If there is no common law offshore, the argument goes, native title cannot
be recognised. Justice Olney and the majority in the full Federal Court
seem to have accepted this proposition form the old English authority
of R v Keyn, (56) but their reasoning made
this question irrelevant.(57)
They held that native title could be recognised offshore since the
beginning of 1994 when the NTA commenced because the NTA itself, by virtue
of including a statutory definition of native title and by virtue of the
NTA's application offshore, revealed an intention to provide for recognition
of native title offshore. This is a neat solution because it also obviates
the need to distinguish between the various jurisdictional offshore zones
and the various times at which sovereignty in them was acquired. On the
other hand, it does put strain on the interpretation of the definition
of native title in the NTA by interpreting it as creating a kind of statutory
land rights.(58) It also causes some conceptual
difficulties, for under this theory native title could be extinguished
prior to 1994. This means that native title could be extinguished even
before it could have been recognised, post-1994.

The minority judge
in the Federal Court, Justice Merkel, opted for a different solution -
maintaining the significance of the date of assertion of sovereignty and
the relevance of recognition by common law by closely analysing the seemingly
problematic case of R v Keyn. He found that the High Court's apparent
endorsement of that case in the Sea and Submerged Lands Act case (59)
was really only an acknowledgement of the state of the law at the time
of Federation in 1901. Since then, there has been, in domestic Australian
law, a progressive extension of sovereignty further offshore. With that
extension of sovereignty comes jurisdiction and the operation of the common
law.(60) On this view, the question of the
relevant date for the proof of prior traditional laws and customs is resolved,
even if it is in a complicated way giving rise to four relevant dates
- 1824, 1863, 1930 and 1990 - corresponding with each extension of sovereignty
beyond land.(61) This would mean that the
relevant date for proving the prior occupation of the native title holders
would vary according to what part of the sea was being claimed.

Right to control access

Justice Olney and
all the members of the Federal Court found that the common law could not
recognise an exclusive native title right to control access because this
would conflict with the public right of navigation and Australia's international
obligation to permit innocent passage of ships through Australia's territorial
seas. Thus Justice Olney states:

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; Hawsbury Laws of England (4 th ed,
1977), vol 18, par 604. 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 right to exclusive possession
of, and to control the access of others to the claim area, would contradict
the public right of navigation and thereby fracture a skeletal principal
of a legal system. Such a right as claimed could not be recognised by
the common law.(62)

Justice Merkel also
agreed with this general proposition. He stated:

...the right claimed to exclusive possession of, and to control
access to, the claimed area fractures the skeletal principle of the freedom
of the seas and the tidal waters, which has given shape and consistency
from ancient times to the rights of innocent passage and to navigation.(63)

• The exclusive right
  to a fishery

The majority supported
Justice Olney's contention that the public right to fish and other rights
of navigation meant that the exclusive nature of native title fishing
rights could not be recognised. Justice Merkel, on the other hand, found
that an exclusive right to a fishery could exist and that they would not
necessarily be inconsistent with rights of navigation or a public right
to fish. He also hints that native title rights to regulate access to
sacred sites in a particular area may amount to exclusivity if they are
unlikely to significantly impede navigation.(64)

The significance
of Justice Merkel's findings go beyond the need for protection of Indigenous
marine resources. Since one of the main reasons for the intrusion of strangers
into sea country is to fish, an exclusive native title right to a fishery
may well give native title holders more influence over access generally.

Alternatives to non-recognition

Where a conflict
arises between Indigenous laws and customs and non-Indigenous laws a human
rights approach requires that they be given equal protection. In practice
this requires the court to seek to accommodate both sets of rights. There
are various ways in which such an accommodation could occur. Exclusive
native title rights in the territorial sea could be recognised and at
the same time be qualified by the international right of innocent passage.

This would give native
title holders some important rights of control, such as the right to exclude
domestic tourists and fishermen. There are many examples where the common
law recognises exclusive property rights that are nevertheless qualified
by the right of others to enter the land. The exclusive rights pertaining
to freehold title are not destroyed by the grant of a mining tenement,
but the title is nevertheless subject to the limitations imposed by the
grant of the tenement. The freeholder's rights remain good against the
whole world except one category of persons, namely those entitled to enter
under the mining tenement.(65) Similarly,
the native title holder's rights would be good against the whole world
except those who fall within the scope of 'innocent passage'.

Another means of
avoiding non-recognition of Indigenous law and culture is to consider
conflicting non-Indigenous rights as regulating Indigenous law. Just as
a right of international law to innocent passage does not undermine the
sovereignty of the coastal state over the territorial sea (66)
(nor its right to regulate the exercise of innocent passage in respect
of a number of matters),(67) nor should the
right of innocent passage prejudice Indigenous claims in the respect of
the use, management and control of their sea territories and resources.

International human
rights standards should be taken into account in the formulation of the
common law of native title offshore. It is one of the ironies of the development
of the law in this area that the often quoted passage from Justice Brennan's
judgment in Mabo) about the influence of international human rights law
on the development of the common law (quoted above), was also quoted by
Justice Olney in support of the proposition that the international obligation
to provide innocent passage justified the limitation of the recognition
of offshore native title to non-exclusive rights.(68)
The two international rules - the protection of Indigenous culture
and the right of innocent passage - can be accommodated together, in the
same way that the sovereignty of the coastal state and innocent passage
co-exist. Accordingly, it is not a necessary conclusion that the right
of innocent passage negates claims of exclusive native title rights to
customary marine tenures in Australian law.

If the common law
public right of navigation and fishing is inconsistent with exclusive
native title rights, as maintained by the majority, then the rule which
applies in relation to inconsistency between non-Indigenous interests
should also apply here; pre-existing proprietary rights should take precedence
over public rights that by their nature are not proprietary. This argument
is not new (69) and the legal authorities
supporting it are outlined in Justice Merkel's judgment in relation to
the exclusive fishery argument.(70).

Conclusion about the common
law

On the view of the
majority, the common law alone would not recognise any Indigenous rights
offshore. In their reasoning, it is only the NTA itself that extends the
possibility of the recognition of native title offshore. The limited rights
that can be recognised offshore only really address the issue of not depriving
a people of its own means of subsistence. Because the non-exclusive native
title sea rights must be shared with all others with public rights of
navigation and fishing, the common law position, as stated by the majority,
does not address the requirement of Indigenous control over Indigenous
resources, the requirement of informed consent before major decisions
are made, nor the acknowledgement of the role of Indigenous people in
ensuring sustainable environmental management.

4. Recognition of native title
rights to the sea under the Native Title Act 1993

Given the vulnerability
of the native title sea rights at common law, it is fitting and consistent
with the internationally recognised rights to enjoy one's culture that
native title should be provided particular protection by the legislature.
The legislative response falls short of its international obligations.
It adopts the same assumption that underlies the development of the common
law; it assumes there is a fundamental difference between Indigenous rights
on land and sea. As indicated, this assumption is not consistent with
an Indigenous perspective as incorporated in the ILO Convention that covers
'the total environment' of Indigenous people and the inclusion of sea
rights in the notion of Indigenous 'territories'. Nor is it consistent
with a human rights perspective, which seeks to protect Indigenous cultures,
their means of sustenance and their development.

There are four aspects
of the NTA that impact upon the human rights of Indigenous people and
their relationship to sea country.

Prioritising non-Indigenous
interests

Failure to extend the right
to negotiate to Indigenous interests in sea country

In both the original
and the amended NTA, the right to negotiate is limited to an 'onshore
place'.(71) The right to negotiate was seen
by Indigenous negotiators as extremely important to the overall acceptance
of the original NTA despite the validation of past acts. It is important
because, while not a veto, it sets a reasonable standard of protection
for Indigenous interests where exploration and mining is proposed on native
title land. The right supported genuine negotiation with Indigenous interests.
The practical significance of this relates mainly to offshore petroleum
exploration and extraction as there is little mineral exploration or mining
offshore. The decision not to extend the right to negotiate offshore has
denied Indigenous people the possibility of any meaningful negotiation
about future offshore petroleum developments. It has also denied them
a right to participate in the development and management of their country.

Validating offshore legislative
regimes

In the original NTA,
this objective was principally achieved by allowing the states to confirm
their existing ownership of natural resources, to confirm that existing
fishing rights would prevail over any other public or private fishing
rights and to confirm any existing public access to costal waters.(72)
All jurisdictions passed such legislation.(73)

The NTA provided
that such confirmation legislation does not have the effect of extinguishing
any native title rights.(74) Whether this
means that the native title rights are completely suppressed for the duration
of the confirmation or can coexist with the confirmed rights is difficult
to decide. Whatever view is correct, the existence of this legislation
presents a major hurdle to the recognition of full native title rights
offshore.

The 1998 amendments
took a different approach to the validity of offshore acts such as commercial
fishing and oil exploration. Rather than ensuring their validity by leaving
them out, the amendments explicitly validated them in the future act regime,
specifically in subdivision H (management of water and airspace) and subdivision
N (acts affecting offshore places) of the NTA.

Procedural rights

In the original
NTA, the procedural rights protecting offshore native title rights were
expressed in general terms. Native title holders received the same procedural
rights as anyone else with 'any corresponding rights and interests in
relation to the offshore place that are not native title rights and interests'.(75)
This contrasted with the statutory protection extended to onshore native
title rights, which were the same as those attached to freehold. In the
1998 amendments to the NTA, similar procedural rights were split between
subdivisions H, which covers waste management regimes and the granting
of such things as commercial fishing licences and subdivision N, which
covers everything else, typically, petroleum exploration of the seabed
and subsoil. Subdivision H specifies a right to be notified and an opportunity
to comment. The procedural rights in Subdivision N are in similar general
terms to the original NTA - the same rights as holders of ordinary (freehold)
title.

These procedural
rights are inadequate to protect the unique nature of Indigenous relationships
to sea and fall below international law standards of substantive equality.
In particular, they apply a formal equality standard to protect what are
unique Indigenous interests. Under this approach native title is given
the same procedural rights as non-Indigenous rights. However the measures
that are sufficient to protect a range of non-Indigenous interests will
not necessarily be adequate to protect native title interests.

The substantive equality
approach would recognise that Indigenous people in Australia have a special
relationship to sea country that requires special protection. The procedural
rights that are associated with native title rights to sea should not
be less than the procedural rights necessary to protect native title rights
to land.

There are other problems
with the protection offered to native title sea rights by statutory procedural
rights.(76) Two recent court cases demonstrate
some of the more technical shortcomings of these provisions.(77)
The Lardil case (78) demonstrates
that the wording of the procedural rights, which would indicate that they
are mandatory, is misleading. For example, the notification provisions
in subdivision H commence by stating 'Before an act covered by subsection
(2) is done, the person proposing to do the act must (a) notify.(etc)'.
But, if a state government does not offer the specified procedural rights,
a native title holder cannot readily insist upon them. Even if the native
title holders were already registered they would still have to present
evidence of their native title rights in order to obtain an injunction
to stop the act going ahead. In the meantime, if the act has been done,
it is valid notwithstanding the failure of the State government to provide
procedural rights. This loophole is a direct result of the fact that in
the amended and the original NTA the performance of procedural rights
is not a precondition for validity.

The second case,
Harris,(79) demonstrates that the procedural
rights specified in subdivision H are indeed as meagre as they appear
to be at face value and cannot be read as including any extra common law
procedural rights.(80) It also shows that
notice of acts, in this case issuing of licences to tourism operators,
can be given in such general terms that it is difficult to identify the
particular areas that will be affected by the activity. This seems to
be a direct and intended result of allowing the notification to relate
to acts 'or acts of that class'.(81)

The non-extinguishment principle:
s 44C

The non-extinguishment
principle is one of the major efforts in the NTA to protect native title
as it allows for the suppression of the exercise of native title rights
rather than their complete extinguishment by an inconsistent grant. The
non-extinguishment principle applies to acts that are valid under subdivision
H and subdivision N.

Generally speaking,
fisheries legislation has been seen as mere regulation of native title
rather than affecting any total or partial extinguishment. But the non-extinguishment
principle could be extremely important in preserving native title if the
theory of partial extinguishment, which was accepted by a majority in
the Federal Court in the Miriuwing Gajerrong case,(82)
becomes more widely applied. This theory is discussed in detail in Chapter
2.

The non-extinguishment
principle provides minimal protection to Indigenous rights. It is 'minimal'
because it accepts the complete inferiority of native title rights in
relation to the inconsistent non-Indigenous rights. Native title, while
not extinguished, is subjugated by the interests of non-Indigenous users.

Subsistence fishing rights
and traditional access rights: s 211

Section 211 provides
that Commonwealth, state or territory laws that are aimed at restricting
hunting and fishing etc without a licence, do not apply to certain activities
of native title holders undertaken in the exercise of their native title
rights. The activities include hunting, fishing, gathering and a cultural
or spiritual activity. There is a major limit on this exemption - the
purpose of the activity must be for satisfying personal, domestic or non-commercial
communal needs.(83)

The scope of the
laws to which the exemption applies was somewhat reduced in the 1998 amendments
to the NTA. The exemption does not now apply to a law that provides that
a licence is only to be granted for research, environmental protecting,
public health or public safety pruposes.(84)
What laws answer this description is not absolutely clear.

Given the prevalence
of statutory regulation of all sorts of fisheries, s 211 remains an extremely
important provision. It ensures that Australia complies with the international
human rights standard under both the ICCPR and the ICESCR, that in no
case may a people be deprived of its traditional means of subsistence.
Section 211 was, for example, the basis on which Murrandoo Yanner successfully
defended prosecution for the talking of crocodiles in the leading case
of Yanner v Eaton.(85) In that case, the
fact that Yanner was exercising his native title rights was not contested.
But in other cases, such as Dillon v Davies,(86)
the court has not accepted that the fishing question was an exercise of
particular rights according to traditional laws and customs.

5. The consequences of the
non-recognition of exclusive native title rights

In trying to assess
the practical consequences of the inadequate protection extended to Indigenous
sea rights by both the common law and the legislature, it is helpful to
identify the concerns that prompted the applicants in the Croker Island
case to lodge their claim. Some of them are mentioned in Justice Olney's
judgment: the increasing presence of non-Indigenous people, particularly
tourists and commercial fishermen, in the waters around the islands increasing
the risk of interference with offshore sacred sites, their ability to
harvest the resources of the sea, and their privacy,(87)
concern that these intrusions would limit Indigenous people's own capacity
for commercial development of the area; concern about the decline in the
most highly prized food resources of sea country - dugong and turtle.
A similar list of concerns motivated one of the sea closure applications
under the Northern Territory legislation.(88)
In the case of turtle, driftnet fishing by commercial fishermen is
suspected of being a major contributor. The decline of dugong is more
dramatic and difficult to understand. Overdevelopment of the foreshore
is one of the suspects. Indigenous aspirations in relation to their sea
country were extensively canvassed in the Resource Assessment Commission's
Coastal Zone Inquiry in the early 1990's (89)
and in other more recent reports. (90) As
will be seen, the various formulations of offshore native title rights
will have a direct bearing on the role which native title can play in
achieving these aspirations.

Non-exclusive rights

Even if native title
holders could convince a court of their exclusive native title rights,
the majority approach in the Croker Island case means that only non-exclusive
rights could be recognised offshore. The effect of this is that native
title rights are restricted to a right to travel throughout the area and
to hunt and fish. But native title holders would have to share the area
with the public by virtue of the public right of navigation and fishing.
They would not be able to exclude tourists or recreational fishermen.
The native title holders would not obtain any particular rights in relation
to the introduction of any new law for the management of the fisheries
in the area but they would have a right to be notified and to comment
on the grant of a commercial fishing licence. They would have to weigh
up whether exercising those procedural rights was worthwhile considering
the narrow scope for influencing the result. The rights of commercial
fishermen under their licence would prevail over all native title rights.
Subsistence native title fishing rights, however, would be exempted from
regulation by virtue of s 211 of the NTA.

There are difficult
questions of how the coexistence of statutory rights of commercial fishermen
and common law native title rights, protected under s 211, would operate
in practice. For example, if it were established that driftnet commercial
fishing was killing turtles as bycatch, could the native title holders
use their native title rights to force a change of fishing practices?
Consideration of how coexistence might work in relation to pastoral leases
may be found in the majority judgement of the full Federal Court decision
in Miriuwung Gajerrong. There, it was suggested that the law requires
that each set of coexisting rights must be exercised reasonably, having
regard to the interests of the other.(91)
But the extent to which such principles would apply offshore to restrain
commercial fishing is uncertain.

Without exclusive
native title rights, there is very little leverage for native title holders
to become involved in commercial fishing or other economic developments.
Their s 211 rights are specifically limited to non-commercial purposes.
Their common law rights mirror these limitations and begin to look much
the same as the common law rights of recreational fishermen.

Sacred site protection
would depend largely upon the effectiveness of state and territory Indigenous
heritage protection legislation and the extent of its application offshore.(92)

Overall, this position
responds to only one aspect of the relevant international human rights
standards - not depriving a people of their means of subsistence. Even
there the response may be inadequate, for a right to fish and to hunt
dugong and turtle will not be worth much if fish stocks are dwindling
and there are fewer and fewer dugong and turtle to be found. Obviously,
the future of subsistence fishing and the management of the environment
and the fisheries are interrelated. But the limitation of the recognition
of native title sea rights to non-exclusive rights relegates the native
title holders to being simply another interest group when major decisions
are being made about fisheries management, the granting of commercial
fishing licences, oil exploration, the management of marine parks and
so on. Yet it is these very decision-making activities and resource management
rights that are an integral part of relevant international human rights
standards.

Similarly, the right
to traditional access to the sea is a very minimal approach to the right
of minorities to enjoy their own culture and practice their own religion.(93)
It is the right to visit sacred sites but not to ensure their protection
by excluding others. It is the right to close seas to Indigenous people
after a death, but have that closure ignored by non-Indigenous tourists
and recreational fishermen.

Non-exclusive access rights,
possible exclusive native title fishery

The second situation
is the position of Justice Merkel, the minority judge in the Croker Island
case: non-exclusive rights of access combined with the possibility of
exclusive rights to a fishery and exclusive rights to sacred sites where
it does not unreasonably interfere with other navigation rights. As above,
the native title holders would not be able to control the access of non-Indigenous
tourists except perhaps in relation to certain sacred sites. In relation
to site protection, there would be difficult questions to consider of
whether identifying the location of sites would increase or decrease the
likelihood of desecration.

Because of the findings
of fact in the Croker Island case there would be no possibility of recognising
an exclusive native title right to a fishery in that case. If, in another
case, the evidence supported a finding of exclusive native title rights,
exclusive rights to a fishery could be made in a determination. The difference
would be that in theory the proprietary native title rights to the fishery
would take precedence over the common law public right to fish open up
the possibility of legal remedies for trespass and nuisance.

Ultimately, common
law proprietary rights may be subject to overriding fisheries legislation
under which commercial fishing licences are granted. But some difficult
legal questions would arise about the validity and compensation notwithstanding
the provisions of the NTA that are designed to give validity to such legislation.
In particular there are questions about whether the acquisition of property
on just terms include some procedural fairness requirement.(94)
Also, questions of how to calculate compensation for loss of native title
rights are largely unresolved. But it is probably fair to say that the
loss of exclusive rights should entitle the native title holders to far
more compensation than the loss of non-exclusive rights. If nothing else,
the question of compensation would hopefully lead to a more serious engagement
by governments with Indigenous interests in the management of fisheries
and sea country generally. It could provide the crucial platform for negotiating
more Indigenous involvement in commercial fishing.

Again, under this
second position, s 211 of the NTA would preserve subsistence fishing and
traditional access rights.

In terms of human
rights standards, this position does not guarantee a role in decision-making
and resource management. But it would provide a basis for pursuing such
involvement because exclusive native title rights to a fishery could not
be easily sidelined.

Exclusive native title rights
subject only to innocent passage

The third situation,
mooted above, is the possibility of the recognition of exclusive native
title rights subject only to international customary law rights of innocent
passage. In addition to the benefits outlined above, it would allow some
control over access. The native title holders may not be able to stop
a tourist operator from travelling through their sea country but they
would be able to stop the tourist operator from fishing, and, in an extreme
example, from setting up a floating hotel.(95)
For there are considerable limits as to what constitutes 'innocent
passage'. It means continuous and expeditious navigation for the purpose
of traversing the sea. The only stopping and anchoring allowed is if it
is incidental to ordinary navigation or an emergency.(96)
It must not be prejudicial to the peace, good order and security of the
coastal state.(97) It may be heavily circumscribed
by legislation. The coastal state may make laws and regulations relating
to innocent passage in respect of navigation safety, conservation of living
resources, preservation of the environment and so on.(98)
Innocent passage merely provides passage rights. It does not necessarily
interfere with property rights. It is a regulated exception to the ability
to exclude normally associated with property.

In terms of international
human rights standards, this position comes closest to achieving the kind
of control that is necessary for the participation of Indigenous people
in the management of their traditional country. However, it is worth noting
that, again, a high degree of involvement in the decision-making over
the use of resources of sea country is not guaranteed. There is also the
issue that, in all three positions, an important and ready-made set of
procedural rights - the right to negotiate - does not apply offshore.

Before European colonisation
the Indigenous people of Australia had full territorial rights over the
seas. Those rights were taken away without their consent and the Indigenous
people are now a disadvantaged small minority within the settler state.
The full recognition of Indigenous sea rights would provide some significant
restitution. At the time of the assertion of sovereignty over the territorial
seas those same seas were the subject of the traditional laws and customs
of the Indigenous people of Australia. The common law should recognise
those laws and customs where the traditional connection with the seas
continues and those rights have not been extinguished.

The shortcomings
of legal recognition of Indigenous sea rights are apparent. In some parts
of Australia, traditional sea country is constituted by an elaborate system
of laws and customs that on land could be recognised as full beneficial
ownership. But, as the law currently stands, this is not possible offshore.
Traditional laws and customs, which define sea country as belonging to
particular groups of Indigenous people, have to contend with deeply ingrained
notions that the sea is a commons and cannot be owned. The native title
holders have to share their sea country with everyone. What this means
is that in relation to the exploitation of the resources of their sea
country, particularly commercial fishing and petroleum exploration, native
title holders are relegated to bystanders in the major natural resource
developments in their sea country.

The present state
of Australian law, whether the common law or statute, falls well short
of this internationally mandated standard in respect of the sea rights
of Indigenous Australians. Australia will quite likely continue to be
brought to task by UN treaty committees where there is a failure to adequately
recognise and protect the human rights of Australia's Indigenous peoples,
including the right to own and inherit property and the right not to be
deprived of their own means of subsistence.

This means that
no matter what the outcome of the High Court's consideration of the Croker
Island case, the issue of Indigenous sea rights will have to be revisited
by Australian governments. This should be a bipartisan commitment.

It is not simply
a case of the original NTA being curtailed by the 1998 amendments. The
original NTA itself was inadequate. This is most clearly demonstrated
in the adoption of a formal equality approach to procedural rights, notwithstanding
the unique relationship of Indigenous people to their sea country.

The Commonwealth's
Oceans Policy that arose out of the Resource Assessment Commission's Coastal
Zone Inquiry acknowledges the importance of the seas and marine resources
to many coastal Indigenous Australians. The policy states:

The social, cultural and economic relationships of many Aboriginal
and Torres Strait Islander peoples with the ocean environment mean that
they have strong interests in the use, conservation and management of
Australia's oceans.(99)

The policy goes on
to affirm that:

Access to, and use of, marine resources are essential to the
social, cultural and economic well being of coastal Aboriginal and Torres
Strait Islander communities.(100)

It is hard to imagine
a more forthright acknowledgement of the continuing importance of the
seas to Australian Indigenous peoples. In light of the current state of
international law in respect of the rights of Indigenous peoples, and
Australia's international legal obligations arising from both customary
international law and ratified multilateral treaties, it is incumbent
upon Australia to provide positive legal recognition and protection of
sea rights for Indigenous Australians. To allow Indigenous sea rights
to be relegated to the same legal status as recreational fishermen would
be to hold to an outdated and defective doctrine of mare nullius,
wholly inconsistent with contemporary international rules and principles.

---

Footnotes

1.
Commonwealth of Australia v Yarmirr (1999) 168 ALR 426.

2.
Yarmirr and Ors v Northern Territory (1998) 82 FCR 533.

3.
Yarmirr and Ors v Northern Territory (1998) Federal Court, Transcript
(DATE), p72.

4.
See generally Cordell, J., (ed), A Sea of Small Boats, Cultural Survival
Report No 26, Cultural Survival Inc, Cambridge (Massachusetts), 1989;
Myers,G., O'Dell, M., Wright, G., and Muller, S., A Sea Change in Land
Rights Law: the Extension of Native Title to Australia's Offshore Areas,
NTRU Legal Research Monograph, AIATSIS, Canberra, 1996; Peterson, N.,
and Rigsby, B., (eds) Customary Marine Tenure in Australia, Oceania Monograph
No 48, University of Sydney, 1998.

5.
Chase, A., and Sutton, P., 'Hunter-Gatherers in a Rich Environment: Aboriginal
Coastal Exploitation in Cape York Peninsula' in Keats, A., (ed) Ecological
Biogeography in Australia, W. Junk, London 1981, cited in Myers, et al,
op cit, p11.

6.
Peterson and Rigsby, 'Introduction' in Peterson and Rigsby (eds), op cit,
p13.

7.
Davis, S., 'Aboriginal Tenure of the Sea in Arnhem Land' in Cordell (ed),
op cit, p45 and 52.

8.
Myers, et al, op cit, p3-5.

9.
Barker, B., 'Use and Continuity in the Customary Marine Tenure of the
Whitsunday Islands' in Peterson and Rigsby (eds), op cit, p91.

10.
See generally, Peterson and Rigsby (eds), op cit, and Myers et al, op
cit, p10-16.

11.
Barker in Peterson and Rigsby (eds), op cit, p89-95.

12.
Cane, S., 'Aboriginal Fishing Rights on the New South Wales South Coast:
a Court Case' in Peterson and Rigsby (eds), op cit, p66-88. Cf Cane, S.,
Aboriginal Fishing on the South Coast of New South Wales - Report and
Supplementary Report to Blake Dawson and Waldron and the New South Wales
Aboriginal Land Council, (unpublished reports) 1992.

13.
(1994) 34 NSWLR 572.

14.
(1998) 156 ALR 142.

15.
Committee on the Elimination of Racial Discrimination, General Recommendation
XXIII (51) Concerning Indigenous Peoples, UN Doc CERD/C/51/Misc.13/Rev.4
(1997), para 5.

16.
Attorney-General's Department, 'Submissions' in Commonwealth of Australia,
Sixteenth Report of the Parliamentary Joint Committee on Native Title
and the Aboriginal and Torres Strait Islander Land Fund: CERD and the
Native Title Amendment Act 1998, Canberra, 2000, p65.

17.
Lovelace v Canada, Communication No 24/1977, Selected Decisions of the
Human Rights Committee Under the Optional Protocol, UN Doc CCPR/C/OP/1(1998),
p86-90; Kitok v Sweden, Communication No 197/1985, UN Doc CCPR/C/33/D/197/1985
(1988); Chief Ominayak v Canada, Communication No 167/1984, Report of
the Human Rights Committee UN Doc A/45/ 40 (1990), L nsman v Finland,
Communication No 511/1992, UN Doc CCPR/C/52/D/511/ 1992 (1994), all cited
in Pritchard, S, 'Native Title from the Perspective of International Standards',
18 Australian Year Book of International Law (1997), p127 at n90.

18.
Human Rights Committee, Consideration of Reports Submitted Under Article
40 - Concluding Observation of the Human Rights Committee, 28 July 2000,
CCPR/CO/69/AUS, para 11.

19.
ibid, para 9.

20.
International Labour Organisation Convention No. 169 Concerning Indigenous
and Tribal Peoples in Independent Counties. Adopted by the General Conference
of the International Labour Organisation, Geneva, 1989. Entered into force
1991.

21.
Berman, H.R., 'The International Labour Organisation and Indigenous Peoples:
Revision of ILO Convention No 107 at the 75 th Session of the International
Labour Conference 1988' in International Commission of Jurists, (1998)
41 The Review 48.

22.
International Labour Organisation Convention No. 169, Article 6(2) states:
The consultations carried out in application of this Convention shall
be undertaken, in good faith and in a form appropriate to the circumstances,
with the objective of achieving agreement or consent to the proposed measures.

23.
White, D., 'Department of Foreign Affairs and Trade's Involvement with
Indigenous People's Rights over the Sea' in Northern Territory University,
Turning the Tide, Faculty of Law, Darwin, 1993, p65.

24.
See Doubleday, N., 'Aboriginal subsistence Whaling: The Right of Inuit
to Hunt Whales and Implications for International Environmental Law',
(1989) 2(17) Denver Journal of International Law and Policy 373, p389.

25.
See generally Mfdowo, K., and Tsamenyi, M., 'The Regulation of Traditional
Fishing under the Torres Strait Treaty' in Northern Territory University,
op cit, p229.

26.
See generally Opeskin, B.R., 'The Law of the Sea' in Blay, S., Piotrowicz,
R., and Tsamenyi, M., Public International Law: an Australian Perspective,
Oxford University Press, Melbourne, 1997; Sparkes, S., 'Below Low Water:
Marine Boundaries and Native Title - a Brief Overview' in Myers, G.D.,
(ed) In the Wake of the Wik, National Native Title Tribunal, Perth, 1999.

27.
Seas and Submerged Lands Act 1973 (Cth), s 6. This Act implements the
United Nations Convention on the Law of the Sea (16 November 1994, UNTS
1833 p138; 1835 p 261) in Australian domestic law (ATS 1994 No 31). It
is noteworthy that, while the provisions relating to innocent passage
are annexed to the Act, they are not specifically enacted by the legislation.
This means that the legal right of innocent passage in Australian territorial
waters does not arise under Australian law but customary international
law.

28.
See Gambell v Hodel 869 F2d 1273 (1989) and discussion in Dorsett, S.,
and Godden, L., A Guide to Overseas Precedents of Relevance to Native
Title, Native Title Research Unit, Australian Institute of Aboriginal
and Torres Strait Islander Studies, Canberra, 1998, pp144-152.

29.
See generally Peterson, N., and Devitt, J.A., A Report in Support of an
Application for Recognition of Native Title to Areas of Sea by the Mangalara,
Mandilarri-Ildugij, Murran, Gudura, Mayarram, Minaga and Nganyjaharr of
the Croker Island Region, Northern Land Council, Darwin, 1997.

30.
Yarmirr v Northern Territory (1998) 82 FCR 533, pp563-570.

31.
Peterson and Devitt, op cit, p18-19.

32.
Native Title Act 1993 (Cth), s 225. A preliminary question is why the
question of exclusivity is relevant at all. The terminology of exclusive
native title rights as opposed to other native title rights seems to coincide
with a 'proprietary' versus a 'non proprietary' distinction. If this is
correct, it has huge implications for the enforcement and protection of
native title rights against others. On one view, all native title rights
are proprietary in nature at the level of communal native title as opposed
to the individual exercise of rights under communal native title, which
could be classed as usufructuary rights. See Bartlett, R., 'The Proprietary
Nature of Native Title' (1998) 6 Australian Property Law Journal 77-99;
Gray, K., and Gray, S., 'The Idea of Property in Land' in Bright, S.,
and Dewar, J., Land Law: Themes and Perspectives, Oxford University Press,
1998, p26-27. In this view, a finding of native title necessarily involves
a finding of exclusive proprietary rights, making the NTA s 225 requirement
for a native title determination to state whether the rights are exclusive
or not, unnecessary. The requirement may be an anachronistic reference
to the question in lands rights cases: 'is the clans' relationship to
the land a recognisable proprietary interest?' (Milirrpum v Nabalco Pty
Ltd (1971) 17 FLR 141, p 262-274). This question has been resolved in
the affirmative by Mabo v Queensland (No. 2) (1992) 175 CLR 1 and subsequent
cases.

33.
NTA s 225(b).

34.
Yarmirr v Northern Territory (1998) 82 FCR 533, p585.

35.
ibid, p422.

36.
Mabo v Queensland (No 2) (1992) 175 CLR 1.

37.
Commonwealth of Australia v Yarmirr (1999) 168 ALR 426, p319 (emphasis
in original).

38.
Delgamuukw v British Colombia (1997) 153 (4 th ) DLR 193.

39.
ibid, per Lamer, C.J., paras 43-59.

40.
Aboriginal Land Commissioner, Closure of Seas: Milingimbi, Crocodile Islands
and Glyde River Area, Northern Territory Government Printer, Darwin, 1981;
Aboriginal Land Commissioner, Closure of Seas; Castlereach Bay/Howard
Island Region of Arnhem Land, Northern Territory Government Printer, Darwin,
1988.

41.
Haigh, D.J., 'Fishing War' in the Torres Strait: Case Note on the Queen
v Benjamin Ali Nona and George Agnes(sic: Agnew) Gesa', (1999) 4(22) Indigenous
Law Bulletin 20:21; Haigh, D. J., 'Fishing War' in the Torres Strait -
Round Two: Update on the Queen v Benjamin Ali Nona and George Agnew Gesa'
(1999) 4 (44) Indigenous Law Bulletin 18.

42.
See above, pp61-65.

43.
See Mantziaris, C., and Martin, D., Native Title Corporations: a Legal
and Anthropological Analysis, Federation Press, Sydney, 2000.

44.
Yarmirr v Northern Territory (1998) 82 FCR 533, p578.

45.
See Myers, F., 'Always Ask: Resource Use and Land Ownership among Pintupi
Aborigines' in Williams, M., and Hunn, E., (eds) Resource Managers: North
American and Australian Hunter-Gatherers, Westview Press, Boulder, 1982,
pp173-96.

46.
Yarmirr v Northern Territory (1998) 82 FCR 533, p586-588.

47.
Mabo, op cit, p58.

48.
See above, pp67-70.

49.
Bartlett, op cit, Ch 12. He also points out that proprietary interests
are afforded the greatest degree of protection of any legal property rights.

50.
Mabo, op cit, p51.

51.
Yarmirr v Northern Territory (1998) 82 FCR 533, p600.

52.
ibid.

53.
Peterson, N., and Devitt, J., op cit, p5-7.

54.
See Justice Toohey's discussion of 'common law aboriginal title' in Mabo
op cit, p206-214.

55.
Delgamuukw v British Columbia (1997) 153 DLR (4 th ) 193 (1997), paras
140-159.

56.
(1876) 2 Ex D 63.

57.
It may be more accurate to say that Justice Olney and the majority of
the full Federal Court do not pursue the arguments involving R v Keyn
for there are Commonwealth and state statutes that purport to extend the
application of the law offshore.

58.
The problem is that there are good arguments for the proposition that
the definition of native title in the NTA was never intended to be a complete
codification of the common law, but rather refer back to common law principles:
see the arguments outlined in the judgment of Justice Merkel Commonwealth
of Australia v Yarmirr (1999) 168 ALR 426, p507-515.

59.
New South Wales v The Commonwealth (1975) 135 CLR 337.

60.
Commonwealth of Australia v Yarmirr (1999) 168 ALR 426, pp518-529.

61.
ibid, p527.

62.
Yarmirr v Northern Territory (1998) 82 FCR 533, p593.

63.
Commonwealth of Australia v Yarmirr (1999) 168 ALR 426, p546.

64.
ibid, 547.

65.
Basten, J., and Howie, R., Applicants' Submissions in the Appeal from
Justice Olney's Decision in Applicants Submissions in the Appeal from
Justice Olney's Decision in Yarmirr v Northern Territory 16 April 1999
(unpublished).

66.
United Nations Convention on the Law of the Sea, op cit, Article 2.

67.
ibid, Article 21. The right of innocent passage itself is by no means
unqualified. Coastal states may make laws and regulations relating to
innocent passage in respect of navigation safety, conservation of living
resources, preservation of the environment and so on. Innocent passage
merely provides passage rights. It does not interfere with property rights.
It may be regarded as a regulated exception to the ability to exclude
normally associated with property.

68.
Yarmirr v Northern Territory (1998) 82 FCR 533, pp591-2.

69.
See: eg, Storey, M., 'The Black Sea' (1996) 3 (79) Aboriginal Law Bulletin
4.

70.
Commonwealth of Australia v Yarmirr (1999) 168 ALR 426, pp547-50.

71.
There was also some doubt about whether the right to negotiate in the
original NTA applied to the intertidal zone. This doubt was resolved against
Indigenous interests in the 1998 amendments, which clearly excluded the
right to negotiate from the intertidal zone (amended NTA s 26(3)).

72.
The original NTA s 212.

73.
Validation (Native Title) Act 1994 (NT), ss 12-13; Native Title (New South
Wales) Act 1994 (NSW), ss 16-18; Land Titles of Validation Act 1994 (Vic)
ss 14-16; Native Title (Queensland) Act 1993 (Qld) ss 16-18A; Titles (Validation)
and Native Title (Effect of Past Acts) Act 1995 (WA), ss 13-14; Native
Title (South Australia) Act 1994 (SA), s 39; Native Title (Tasmania) Act
1994 (Tas), ss 13-14; Native Title Act 1994 (ACT), ss 10-13.

74.
The original NTA s 212(3).

75.
ibid, s 213(6).

76.
For a more detailed analysis of statutory procedural rights see Chapter
5 of this report, p150.

77.
See generally McIntyre, G., and Carter, G., 'Future Acts Affecting Native
Title Offshore and Injunctive Relief', unpublished paper presented at
the Native Title in the New Millennium Representative Bodies Legal Conference,
Melbourne, 16-20 April 2000.

78.
Lardil, Kaiadilt, Yangkaal & Gangalidda Peoples v Queensland (1999) 95
FCA 14, (1999) FCA 1633.

79.
Harris v Great Barrier Reef Marine Park Authority (2000) 165 ALR 234.

80.
ibid, p239.

81.
ibid, p241; NTA s 24HA (7).

82.
Western Australia v Ward (2000) 170 ALR 159.

83.
NTA s 211.

84.
NTA s 211(1)(ba).

85.
(1999) 166 ALR 258. Cf Wilkes v Johnsen (1999) 151 FLR 89.

86.
(1998) 156 ALR 142.

87.
This list is derived from a submission by the Croker Island community
opposing the establishment of a nearby Marine Park, quoted in Yarmirr
v Northern Territory (1998)82 FCR 533, p579.

88.
The list included: failure of commercial fishermen to ask permission to
use the sea and shore; desecration of sacred sites; wastage of fish and
other resources, and the effect of the spoiling of marine creatures on
those for whom they have religious significance. See Keen, I., 'Aboriginal
Tenure and Use of the Foreshore and Seas: an Anthropological Evaluation
of the A Northern Territory Legislation Providing for the Closure of Seas
Adjacent to Aboriginal Land' (1984) 85(3) Anthropological Forum 421-439,
p427.

89.
See Smyth, D., A Voice in All Places: Aboriginal and Torres Strait Islander
Interests in Australia's Coastal Zone, Resource Assessment Commission
Coastal Zone Inquiry, Commonwealth of Australia, 1993.

90.
Sutherland, Fisheries, Aquaculture and Aboriginal and Torres Strait Islander
Peoples: Studies, Policies and Legislation, Report Commissioned by Environment
Australia, Commonwealth of Australia, 1996. For a recent overview see
Smyth, D., 'Fishing for Recognition: the Search for an Indigenous Fisheries
Policy in Australia' (2000) 4 (29) Indigenous Law Bulletin pp8-10.

91.
Western Australia v Ward (2000) 170 ALR 159 p238-239.

92.
See: Chapter 4 of this Report.

93.
ICCPR, Article 27

94.
Commonwealth v Tasmania (1983) 158 CLR 1.

95.
Basten and Howie, op cit, para 4.13.

96.
See: eg, United Nations Convention on the Law of the Sea 1982, op cit,
Article 18.

97.
ibid, Article 19.

98.
ibid, Article 18.

99.
Commonwealth of Australia, Australia's Oceans Policy, Specific Sectoral
Measures, Australian Government Printing Service, Canberra, 1998, p24.

100.
ibid.