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.

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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.