Storey, Matthew --- "The Black Sea" [1996] AboriginalLawB 15; (1996) 3(80) Aboriginal Law Bulletin 4

The Black Sea

by Matthew Storey

Since the decision of the Australian High Court in Mabo v Queensland [No. 2] (`Mabo [No. 2]')[1] there has been developing interest, both Indigenous, commercial, academic and governmental, in the incidence and effect of native title in seas and submerged lands. Much of the academic analysis focuses on resource management issues in either a municipal or international legal context.[2] The aim of this paper is to re-examine native title in these areas from a property law perspective. It is recognised that such an approach runs the risk of not heeding the warning of the Privy Council in Amodu Tijani v Secretary, Southern Nigeria and `holding in check' the `tendency ... to render [native title to land] conceptually in terms which are appropriate only to systems which have grown up under English law'[3] - a warning reiterated in all of the majority judgments in Mabo [No. 2]. However, a property law approach has two main advantages: first, it allows identification of the exact nature of interests competing with native title in seas and submerged lands; and second, it redresses an apparent tendency to utilise the Privy Council's warning as a basis to read down the content of native title. For, just as the words of their Lordships are well heeded, so are those of the United States Supreme Court in United States v Sante Fe Pacific Railroad: `Indian right of occupancy is considered as sacred as the fee simple of whites'.[4]

Property in a sea fishery

As a starting point in this discussion, the nature of property in a sea fishery under intrusive Australian law[5] will be examined. Fortunately (given the brevity of this paper) the nature of such property is well defined in two authoritative decisions; that of the Privy Council in Attorney General for British Columbia v Attorney General for Canada,[6] and the more recent High Court case of Harper v Minister for Sea Fisheries,[7] which affirmed many of the views of the Privy Council. In the earlier case, Viscount Haldane LC on behalf of their Lordships defined a fishery thus:

`The general principle is that fisheries are in their nature profits of the soil over which the water flows, and that the title to a fishery arises from the right to the solum. A fishery may of course be severed from the solum, and then it becomes a profit à prendre in alien solo and an incorporeal hereditament. The severance may be effected by grant or by prescription, but it cannot be brought about by custom, for the origin of such a custom would be an unlawful act'.[8]

His Lordship went on to note (at 168-171) that this general principle had (in England) been modified by the creation of a public right to fish in tidal and sea waters, which itself stemmed from the immemorial practice of the people of engaging in such activities. That is, while the early English monarchs claimed title to the solum of the narrow seas, they allowed their subjects to fish therein. In time this liberty was enshrined as a right in the Magna Carta. Further, that:

`... since Magna Charta no new exclusive fishery could be created by Royal grant in tidal waters, and that no public right of fishing in such waters, then existing, can be taken away without competent legislation'.[9]

To this general principle their Lordships appended one significant exception. That is the situation

`... where separate and exclusive rights of fishing in tidal waters have been recognized [sic] as the property of the owner of the soil. In all such cases the proof of the existence and enjoyment of the right has of necessity gone further back than the date of Magna Charta. The origin of these rare exceptions to the public right is lost in the darkness of the past as completely as is the origin of the right [to public fishing] itself. But it is not necessary to do more than refer to the point ... because no such case could exist in any part of British Columbia, inasmuch as no rights there existing could possibly date from before Magna Charta'.[10]

Their Lordships here clearly left open the possibility that if such a right did exist from before the Magna Carta, in either British Columbia or Australia, then such would also constitute an exception to the general public right.

In 1989 the High Court considered these matters in Harper v Minister for Sea Fisheries.[11] The plaintiff argued (at 319) that Tasmanian abalone fishery regulations were invalid, inter alia because Tasmania was not the owner of the solum of the sea bed and therefore did not control the fishery, possessing only the power to regulate it. The full Court, while affirming the general principles as to ownership of sea fisheries as espoused by Viscount Haldane,[12] obviated the need to decide the matter of ownership by holding that:

` ... the competence of a State legislature to make laws regulating a right of fishing in such waters is not dependent upon the State's possession of a proprietary right in the bed of the seas or rivers over which such waters flow'.[13]

While disposing of the matter without needing to decide the ownership issue, Justice Brennan noted that ownership of a fishery may have a significant impact upon the legislative management of it when he commented:

`If the right to fish for abalone were created in diminution of proprietary rights of the owner of the sea bed and without the owner's consent, some question as to the validity of the law might have arisen, for the legislature of a State may not be competent to create proprietary rights out of property beyond the boundaries of a State and to which the State has no title'.[14]

It is submitted therefore that analysis of these two cases suggests that under intrusive law, where a party can demonstrate ownership of the solum of the sea bed existing prior to the introduction to Australia of intrusive law (and therefore the effects of the Magna Carta described by the Privy Council inasmuch as these are applicable to Australian conditions[15]), then that party enjoys ownership of the fishery as an attribute of title to the solum. Further, that where such title exists it cannot be abrogated by custom, and State fisheries legislation effectiveness may also be affected.

In contrast to the exclusive fishing right in a profit à prendre, which arises from the ownership of the land over which the water flows, is the fishing right created by statute - a commercial fishing licence.

Brennan J described such a right in Harper v Minister for Sea Fisheries[16] as a `private statutory right', `analogous to a profit à prendre ... akin to property'.[17] It is significant that while a statutory right may be akin to a profit à prendre it is not one, as a statutory right is not an interest in the land and a profit à prendre is an interest in land.[18] The point is significant because as a statutory right is not an interest in land it is submitted such a right cannot be inconsistent with the continued existence of an interest in land.

Before moving to consider the possible contenders to title in the sea bed it is appropriate to examine the protection afforded by intrusive law to the owners of a fishery. As was stated by Viscount Haldane and quoted above,[19] title to a fishery is an attribute of the ownership of the soil over which the water flows. Such a fishery may be separated from the subjacent soil, in which case it becomes a profit à prendre and an incorporeal hereditament. Even in its truncated state as a profit certain protective remedies lie against those who would interfere with the exercise of the right flowing from such an interest. Two of these, the actions of trespass and nuisance, are demonstrated in the English cases of Mason v Clarke,[20] Fitzgerald v Firbank[21] and Nichols v Ely Beet Sugar Factor Ltd.[22] All of these cases deal with interference to profits à prendre. In the most recent case, that of Mason v Clarke, the House of Lords held, in the words of Viscount Simmonds:

`... possession ... of a profit à prendre is sufficient to support an action in trespass against a wrongdoer'.[23]

A number of their Lordships' judgments in Mason make reference to the earlier case of Fitzgerald v Firbank. That case involved a fishery profit, the owner of which brought an action against a gravel washer who had polluted the stream the subject of the fishery. The defendant's argument that interference to the fisher could only arise through another fishing therein was rejected by the Court of Appeal. Lindley LJdetermined:

`The defendant has no right to foul the river to the damage of anybody who has rights in that river. He is a mere wrongdoer, though, if the plaintiffs had no rights in the river of course they would have no right to complain ... once grant that the owner of such a right can sue in trespass for one kind of infringement of it I cannot see why he might not maintain an action on the case for nuisance at common law'.[24]

It is recognised that as nuisance is an action on the case it requires the demonstration of a `damage', however the nature of damage in nuisance is distinguished from that in, for example, negligence in the third of the cases mentioned, Nichols v Ely Beet Sugar Factory Ltd. Here Lord Wright MR opined that damage in nuisance occurs when rights in land are interfered with.[25]

From these cases it is submitted that the owner of a fishery can under the common law bring an action in trespass for a direct affront to the rights conferred by the profit, that is to fish, or in nuisance for any `substantial interference' with those rights, even if such an interference does not amount to actual quantifiable pecuniary loss.

The legal status of submerged lands

It becomes necessary, therefore, to examine the legal status of the solum of the sea bed. As with the earlier discussion as to the nature of a fishery, two cases have examined this matter at some length. The first is R v Keyn,[26] which was considered in the more recent High Court decision in New South Wales v The Commonwealth (`the Seas and Submerged Lands Case').[27]

The ancient claim of English monarchs to sovereign and (or) territorial rights in the sea bed of the `narrow' seas was finally put to rest by the majority decision of the Court for Crown Cases Reserved in R v Keyn.[28] The decision of the majority in that case was to the effect that the sovereignty of the Crown ends at the low water mark, but that jurisdiction (in certain respects) extends beyond this.

The distinction between sovereignty and jurisdiction was pursued and expanded upon in the Australian colonial context by the High Court in the Seas and Submerged Lands Case. In that case Mason J with the majority examined the decision in R v Keyn. His Honour noted that the majority in the earlier case found:

`that the territorial sea while outside the realm could be brought within the territory of England by an Act of the Imperial Parliament'.[29]

As a result of R v Keyn the Imperial Parliament passed the Territorial Waters Jurisdiction Act 1878 (Imp). This Act applied to the `open seas adjacent to the United Kingdom' and its dominions. However, as Mason J also noted (at 463), this Act:

`... was a declaration of jurisdiction, not a declaration that that adjacent seas formed part of British territory'.

Does the common law run into the sea?

There is, reportedly, doubt in some circles as to the legal possibility of native title existing beyond the 3 nautical mile limit or, in a more extreme statement of the same tendency, the low water mark.

Advocates of this view apparently rely on the authority of R v Keyn that the solum below the low water mark is outside the realm and therefore outside of the scope of the common law. This situation has not been altered by the passage of legislation such as the Territorial Waters Jurisdiction Act 1878 (Imp) or the Seas and Submerged Lands Act 1973 (Cth),[30] which was the subject of the litigation in its namesake case. The argument runs that such legislation merely gives municipal effect to the international law recognition of sovereign rights and that this is not sovereignty. To extend the reach of the common law an extension of sovereignty is required. As Barwick CJ commented, the international concession of power to littoral states:

`... was not that the territory of the nation in a propriety or physical sense was enlarged to include the area of water in the territorial sea or the area of subjacent soil. Indeed the very description "territorial waters" emphasises, in my opinion, that they are waters which wash the shores of the territory of the nation state otherwise regarded as ending at the margin of the land'.[31]

It is suggested that this view stems from the erroneous attempt to directly translate concepts from international and constitutional law to the common law. At international law, the `sovereignty', and `sovereign rights' enjoyed by a littoral state in its territorial sea and continental shelf, are of a particular (limited) kind.[32] Similarly, `territory' has a particular meaning in international law and a different, but equally particular, meaning in constitutional law. At common law also, these terms have their own, particular meanings. For, as noted by Brennan J in Mabo [No. 2] (at 42), `The common law does not necessarily conform to international law`.

Earlier in Mabo [No. 2] (at 32) Brennan J had stated:

`Although the question of whether a territory has been acquired by the Crown is not justiciable before municipal courts, those courts have jurisdiction to determine the consequences of an acquisition under municipal law. Accordingly, the municipal courts must determine the body of law which is in force in the new territory. By the common law, the law in force in a newly-acquired territory depends on the manner of its acquisition by the Crown'.

Immediately prior to this statement (at 31-32) Brennan J had referred to, and approved of, the judgment of Gibbs J in Seas and Submerged Lands and that of Diplock LJ in Post Office v Estuary Radio Ltd.[33] Brennan J quoted Diplock LJ as noting:

`It still lies within the prerogative power of the Crown to extend its sovereignty and jurisdiction to areas of land or sea over which it has not previously claimed or exercised sovereignty or jurisdiction'.[34]

In Seas and Submerged Lands Gibbs J noted that the principle of the non-justiciability in municipal courts of the acquisition of land territory applies also in respect of sea territory, and went on to note:

`An extension of sovereignty over an area of the sea not already part of the Commonwealth (and therefore not part of any State), or the acquisition of sovereign rights over the continental shelf, might be effected by executive act, but might validly be authorized [sic], ratified or given recognition by legislation'.[35]

Reference has already been made to the wording of ss6 and 11 of the Seas and Submerged Lands Act (at note 30). Based on the wording of this Act and the foregoing brief statement of the common law, it is suggested that the following conclusions can be drawn. At common law, the declaration of sovereignty in this Act was an acquisition of territory. The territory was not acquired by conquest or cession. The (now post-Mabo [No. 2]) common law runs in this territory.

In respect of those areas where only sovereign rights have been declared it is suggested that these conclusions are equally applicable to the extent that `territory has been acquired'. That is, if in an Exclusive Economic Zone sovereign rights only `for the purpose of exploring and exploiting, conserving and managing the natural resources whether living or non-living' have been declared then such is the extent of the `territory,' and the common law, only as applicable to these matters, runs.

These conclusions are in turn supported by s6 of the Native Title Act 1993 (Cth) (`the NTA') which provides:

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

While the absence of reference to the continental shelf is notable, it is suggested that by virtue of s6 of the NTA, and ss6 and 11 of the Seas and Submerged Lands Act, a claim of native title to the territorial sea and its sea bed, to the waters of the Exclusive Economic Zone, and to the continental shelf for the purposes of exploring and exploiting its natural resources are also legislatively supported. (It is noted though the nature of title in respect of the waters of the Exclusive Economic Zone may exceed the sovereignty conceded to Australia by international law). Finally, it is submitted that as native title is recognised by, but does not stem from, the Crown, an Australian Court could find the existence of such title in the sea bed despite the fact that Australia does not assert the sovereignty necessary to support such title. Thus, a Court could recognise and protect the attributes of such title in respect of areas where the necessary sovereignty is asserted (ie the sea).

Property in submerged lands

As has become clear since Mabo [No. 2], a declaration of territorial acquisition or sovereignty does not of itself connote ownership.[36] However, before the acquisition of territory by the Crown, the acquisition of ownership of that territory under intrusive law is impossible. It is submitted, therefore, that up until after the passing of the Seas and Submerged Lands Act 1973 (Cth) there was not and could have been no acquisition of the ownership of the solum of the sea bed under intrusive law, as there was no sovereignty to support such acquisition. Further, even after the passing of this Act, sovereignty was only asserted with respect to the (then 3 nautical miles) territorial sea.

As a result of the Seas and Submerged Lands Case outcome a package of legislation collectively known as the Offshore Constitutional Settlement was passed. Two elements of this package are relevant; the Coastal Waters (State Title) Act 1980 (Cth), and the Coastal Waters (Northern Territory Title) Act 1980 (Cth), which is in almost identical terms to the State Title Act. Section 4 of the first Act provides:

`(1) ... there are vested in each State ... the same right and title to the property in the sea-bed beneath the coastal waters of the State ... and the same rights in respect of the space (including space occupied by water) above that sea-bed, as would belong to the State if that sea-bed were the sea-bed beneath waters of the sea within the limits of the State. `(2) The rights and title vested in a State under sub-section (1) are vested subject to- `(a) any right or title to the property in the sea-bed beneath the coastal waters of the State of any other person (including the Commonwealth) subsisting immediately before the commencement of this Act, other than any such right or title of the Commonwealth that may have subsisted by reason only of the sovereignty referred to in the Seas and Submerged Lands Act 1973'.

It is suggested that since the decision of the High Court in Mabo [No. 2], the right and title vested in a State pursuant to subsection (1) would not extinguish any subsisting native title in the solum of the sea bed or superjacent space. Further, the saving clause in subsection (2)(a) prevents a State from making any grant inconsistent with a subsisting native title to the solum of the sea bed or any superjacent space.

To summarise the conclusions of this section; it is submitted that it is only the Commonwealth which is capable of making a grant inconsistent with any subsisting native title in the sea bed or the sea below low water mark, and any such grant could only have been made since 1973.

Native title in seas and submerged lands

Given the above conclusion it is appropriate to examine the general issue of native title in seas and submerged lands under both the common law and statute.

Common law

Writers who have examined the matter suggest that the native title principles espoused in Mabo [No. 2] apply equally to seas and submerged lands.[37] The decision of Kirby P in Mason v Tritton would also strongly supports this conclusion.[38] Bergin suggests:

`If it can be established that there is a traditional association with the sea bed then native title principles would appear to apply to it ... as a matter of fact it may be more difficult to demonstrate traditional connection with the sea bed than with the land and it may be that the right recognised is simply to gather. A group of people, say, that caught a turtle every year would have a good prospect of establishing their association. Of course it may be necessary to draw a distinction here between the sea and sea bed - a right to gather may not be a title to the sea bed depending on the degree of association with the actual sea bed. [Native title] may extend from an interest similar to fee simple to that simply of a right to traverse the land/sea'.[39]

Clearly Bergin here is raising issues relating to both the existence and nature of native title. While little difficulty is to be found in accepting Bergin's conclusions as to the existence of native title, some disagreement must be expressed as regards those going to the nature of native title, on two related bases. The first of these is best summarised by Toohey J in Mabo [No. 2]:

`Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as the occupation by a traditional society is established now and at the time of annexation, traditional rights exist'.[40]

His Honour had earlier illustrated what he had meant by `occupation' when be extracted a portion of the judgment of Mahoney J in Hamlet of Baker Lake v Minister for Northern Development:

`The nature, extent or degree of the aborigines' physical presence on the land they occupied, required by law as an essential element of their aboriginal title, is to be determined in each case by a subjective test. To the extent human beings were capable of surviving on the barren lands, the Inuit were there; to the extent the barrens lent themselves to human occupation, the Inuit occupied them'.[41]

In this context it is suggested that Bergin's comments above ignore the crucial issue that traditional connection with both the sea and sea bed must be assessed from the stand point of what connection is possible with the technology available to a given society. If that connection is as intimate as could be, then the title stemming from such an association must recognise this, and incorporate the fullest protection to such interests available under intrusive law.

The second basis for disagreement with Bergin's analysis is founded on the foregoing discussion as to title in the sea bed. Put simply it is that when assessing the nature of native title in seas and submerged lands it must be accepted that (with perhaps a few exceptions[42]) there is no other or at least no better owner. The nature of intrusive law's treatment of the area has precluded the possibility of another party with better title.

Native Title Act 1993 (Cth)

Section 7(1) of the NTA preserves the operation of the Racial Discrimination Act 1975 (Cth) (`the RDA'). Section 235(8)(a) provides that a future act in relation to an offshore place is a permissible future act. Section 23(4) provides that a permissible future act in relation to an offshore place attracts the non-extinguishment principle and entitles native title holders concerned to compensation in accordance with Division 5 of the NTA. Section 238 deals with the non-extinguishment principle and provides that under the principle `native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act' (per subs3) if the act is wholly inconsistent with continuing native title, or have `no effect in relation to the act to the extent of the inconsistency' (per subs4) if the act is partly inconsistent with continuing native title.

It is submitted that under the combined operation of ss23, 235 and 238 of the NTA, the native title owners of a sea fishery would be entitled to compensation in respect of the grant and operation of fishing licences under intrusive law that affected the native title fishery. This situation can be contrasted with a fishery profit à prendre under intrusive law. Here, the owner of the profit could be entitled not only to damages for such an act, but also to injunctive relief in an action for trespass in respect of the taking of fish. Alternatively, there may be an action in nuisance in respect of other `substantial interference' if there were a real threat of the tortious actions continuing or recurring.

Section 10(1) of the RDA provides (in summary) that if, by reason of a Commonwealth, State or Territory law, persons of one race do not enjoy a right, or enjoy a lesser right than those of another race, then the persons of the first race, by virtue of the section, shall enjoy the right to the same extent as the second race. It is suggested that the operation of ss23, 235 and 238 of the NTA infringe this provision of the RDA, which is specifically preserved by s7(1) of the NTA. Pursuant to the general rules of statutory interpretation over the specific saving of the RDA viz à viz this section, s7(1) should be read as prevailing over the general operation of ss23, 235 and 238. Further, it is submitted that the grant or operation of such a fishing licence would constitute an `unlawful act' under s9(1) of the RDA.[43]

In analysing the operation of s9(1) of the RDAin Western Australia v The Commonwealth, the High Court found:

`The Racial Discrimination Act does not alter the characteristics of native title but it confers ... rights or immunities which ... allow protected persons security in the enjoyment of their property to the same extent as the holders of titles granted by the Crown are secure in the enjoyment of their titles. "Property" in the context of the human rights with which we are concerned includes land and chattels as well as interests therein'.[44]

Conclusion

It has been asserted that in respect of seas and submerged lands the historical nature of sovereignty asserted by Australia leads to the conclusion that there can be no other owner of the sea bed than native title holders (in the vast majority of cases), due to the impossibility of title without sovereignty under intrusive law. Further, that given the above, sea bed title under intrusive law would give native title holders title to sea fisheries. Finally, it is suggested that having achieved such title under the common law, native title holders are entitled to the protective mechanisms afforded to interests in land under the common law, and that such mechanisms could operate to prevent interference in native title sea fisheries through direct or indirect incursions. This entitlement is protected by the continued operation of the Racial Discrimination Act 1975 (Cth) despite the apparently contradictory provisions of the Native Title Act 1993 (Cth). In short, native title is not a defensive equity; it is not a shield but a sword.

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[1] [1992] HCA 23; (1992) 175 CLR 1.

[2] See, for example, `Rising Sea Claims on the Queensland East Coast', J Sutherland, Vol 2, 56 Aboriginal Law Bulletin 17; `International Law and Indigenous Marine Rights: The Evolving Framework', A Bergin, 1993 Environmental Planning Law Journal 438.

[3] [1921] UKPC 80; [1921] 2 AC 399 at 403.

[4] [1942] USSC 12; 314 US 339 (1941) at 345.

[5] The terms `intrusive Australian law' or `intrusive law' are used throughout this paper to distinguish such from Indigenous Australian law, and in preference to less appropriate terms such as `English law' or `European law'.

[6] [1913] UKLawRpAC 51; [1914] AC 153.

[7] [1989] HCA 47; (1989) 168 CLR 314.

[8] [1913] UKLawRpAC 51; 1914] AC 153 at 167-168.

[9] At 170.

[10] At 170-171.

[11] [1989] HCA 47; (1989) 168 CLR 314.

[12] Per Brennan J at 329. The other 6 justices concurred with Brennan J's judgment: Mason CJ, Deane and Gaudron JJ at 325, Dawson, Toohey and McHugh JJ at 336.

[13] Per Brennan J at 330. See also His Honour's comments at 334.

[14] At 335.

[15] This matter is discussed further in the following section.

[16] [1989] HCA 47; (1989) 168 CLR 314 at 334-335.

[17] Recently this proposition has been taken further by O'Loughlin J in Fitti v Minister for Primary Industries (1993) 40 FCR 286, where His Honour held that a fishing licence is a `property' within the meaning of s51(xxxi) of the Constitution, and thus a reduction in the allowable quota under a licence constitutes an acquisition of property (at 294). While this decision may be viewed as a bold departure from Harper v Minister for Sea Fisheries, it must also be noted that the meaning of `property' can vary in different legal contexts. In that of appropriation of property, concern for the protection of individuals against governments has overridden concern for a strict interpretation of `property'. See `The Fisheries Management Act 1991: Are ITQ's Property?', C McCamish, (1994) 22 FLR 375, page 396.

[18] Mason v Clarke, [1955] AC 778 per Lord Morton at 798.

[19] See note 8 supra.

[20] [1955] AC 778.

[21] [1897] UKLawRpCh 80; [1897] 2 Ch 96.

[22] [1936] 1 Ch 343.

[23] At 794.

[24] At 102.

[25] At 351-353. In this case Lord Wright MR drew a distinction between damage in, for example, nuisance, and that arising through negligence, deceit, or conspiracy.

[26] [1876] UKLawRpExch 73; [1876] 2 ExD 63.

[27] [1975] HCA 58; (1975) 135 CLR 337.

[28] [1876] UKLawRpExch 73; [1876] 2 ExD 63. See in particular per Cockburn CJ at 194-196.

[29] [1975] HCA 58; (1975) 135 CLR 337 per Mason J at 463.

[30] Section 6 of the Act declares Australia's sovereignty in respect of its territorial sea, airspace, sea bed, and subsoil. Section 11 declares sovereign rights in respect of the continental shelf for the purpose of exploring and exploiting its natural resources. The sovereign rights model has been continued in UNCLOSIII which forms the basis for Australia's declaration of an Exclusive Economic Zone (UNCLOSIII, Art 56, and the Maritime Legislation Amendment Bill 1993, s5). However, Art 2 of UNCLOSIII affirms that `The sovereignty of a coastal state extends ... to the territorial sea'.

[31] [1975] HCA 58; (1975) 135 CLR 337 per Barwick CJ at 363.

[32] As to which see Seas and Submerged Lands Case per Mason J at 475.

[33] [1968] 2 QB 740.

[34] [1968] 2 QB 740 at 753.

[35] [1975] HCA 58; (1975) 135 CLR 337 per Gibbs J at 388.

[36] [1992] HCA 23; (1992) 175 CLR 1 per Brennan J at 43-45.

[37] For example, `Aboriginal Sea Rights at Common Law: Mabo and the Sea', R Bartlett, paper given at Turning the Tide: Indigenous Peoples and Sea Rights Conference, Darwin, July 1993; `Human Rights, Aboriginal Maritime Culture and the Evolving Regulatory Framework for the East Coast of Queensland', J Sutherland, paper given at ALTA 47th Annual Conference, Brisbane, July 1992.

[38] (1994) 34 NSWLR 572 at 580.

[39] `Aboriginal and Torres Strait Islander Interests in the Great Barrier Reef Marine Park', A Bergin, Great Barrier Reef Marine Park Authority, Townsville, 1993. Page 33.

[40] [1992] HCA 23; (1992) 175 CLR 1 at 192.

[41] (1979) 107 DLR 3rd at 545.

[42] Exceptions contemplated relate to, for example, oyster leases below the low water mark, grants in respect of jetties and navigational equipment, and mineral concessions. The actual area occupied by any such grant is minimal when compared to the total area comprised in the sea bed and seas making up Australia's territorial sea, Exclusive Economic Zone, and continental shelf.

[43] This matter was considered in Mabo v Queensland [No. 1] (1988) 166 CLR 186, where the `right' referred to in the RDA was held to include the right to hold property, although the passing of legislation by the Queensland Parliament was not an `act' under s9(1).

[44] [1995] HCA 47; (1995) 183 CLR 373 at 438.