Indigenous Law Bulletin
By Nonie Sharp
It is 6 May 1998 and several Mer (Murray) Islanders have raced 30 miles out from their home island in their dinghies, they board the boat and remove the catch of non-indigenous fishermen. They take the fish home and sell them to the Murray Island Council freezer facility. Later, at a pre-trial hearing in the Cairns District Court they say in defence of their actions: ‘... it was our rights, it was our fish and it was in our territory’.
It is July 1998, a community meeting of Croker Islanders is discussing Justice Olney’s finding that their native title to the seas around their islands is non-exclusive and non-commercial. ‘Nought out of ten’, senior applicant Mary Yarmirr says dramatically and decisively.
Meriam sailors have always sailed out to ‘show the flag’ in their home reef waters and their more distant seas. Years before the Mabo case I saw them go out in their dinghies and ask outsiders who have come into their home reef waters what they are doing there. Following the High Court’s recognition of exclusive native title rights (to the high water mark) to Murray Island land in 1992, the Meriam began to realise an old dream: they established a commercial community fishing project within their surrounding waters and the Murray Island Council installed a freezer on the island in which to store the catch.
Like the Meriam people, the clans of Croker Island, which lies 200 kilometres north-east of Darwin, are defending what they believe to be theirs. As first peoples, they see themselves as holding a primary right and responsibility to the sea territories handed down to them by their ancestors. This means the right to decide who comes into their waters, the right to continue to feed their families on food from the sea, to look after the sea and, in contemporary contexts, to develop community-based commercial fishing projects in order to foster the economic and cultural independence that will allow them to sustain that tradition.
The Croker Island case is the first purely sea claim to be heard by an Australian court. Along the coasts and islands of the tropics and elsewhere where sea custom and tradition are strong, indigenous salt water communities have, as they say, one foot in the dinghy and are ready to push off their native title sea claims later this year, when the High Court makes its decision in the final appeal of the Croker Island case.  Taking primary responsibility for inherited sea territories is now part of a national salt water agenda: it received strong expression in the declaration of delegates to the first National Indigenous Sea Rights Conference held in Hobart last September.
Following cases like Mabo and Croker, there is at last some limited awareness that salt water peoples have a concept of sea property which is quite different from the European conception of territorial seas which is embedded in Anglo-Australian law. Counsel for the Commonwealth, one of the defendants in the Croker Island case, put his finger on a major point of cultural difference: according to non-indigenous law, the sea, unlike land, by its very nature cannot be owned. He made this point in relation to the long-standing and cherished belief in common law jurisdictions in the public right to fish.
However, differences between non-indigenous Australia and the salt water peoples of the coasts do not stop with the ownership or non-ownership of bodies of sea. As the plaintiffs explained to a perplexed judge of the Supreme Court of Queensland in Mabo (No. 2), the Meriam own bodies of sea, which means reefs, the seabed ‘the waters and what is taken from the waters’. To which the judge replied: ‘I’m not sure what a claim to the waters ... means’[italics added].
In the Croker Island case, witness Charlie Wardaga echoed what salt water peoples of northeast Arnhem Land coasts had said in hearings before the Aboriginal Land Commissioner twenty years ago:
That Dreaming, [it’s] inside there..., Aboriginal culture goes right to the bottom – and to the shore.
‘Inside the sea’ refers to the Rainbow Serpent lying on the seabed at a particular place who must not be disturbed. Because of this, senior applicant Mary Yarmirr says the site is dangerous:
... if you don’t know how to respect the sea, the sea claims you ... the sea holds our life. It has special spiritual healing.
Among non-indigenous people, the sea is for enjoyment and for the dollar. For Aboriginal people, the sea ‘is part of our blood and body’, a land-sea owner explained at Milingimbi in northeast Arnhem Land to hearings held in 1980-81. ‘It is just beyond your understanding’, another said sadly as he went on explaining.
Such expressions of belief are emotionally charged and rarely voiced. In times of crisis or challenge – when sea peoples are separated from sea country or when they must support a legal claim - they find the words. ‘I am part of the sea and the sea is part of me when I am on it’, a Meriam elder has told me. I believe he is saying that his sensibilities (his blood and body) are shaped by the bodies of salt water to which he belongs so that he and his kin are, themselves, the salt waters speaking.
The salt water peoples of Australia’s coasts and islands are made up of diverse cultures. Tropical Australia alone is rich in salt water traditions. In times not long past the ‘sandbeach peoples’ of northern Cape York Peninsula travelled long distances in their locally made dugout canoes equipped with double outriggers and made by their skilled craftsmen. Like the Torres Strait Islanders with whom they fought and traded, the sea Aborigines of the Cape York seaboards were great warriors, splendid seafarers and great hunters, as anthropologist Donald Thomson described them in the 1930’s, the Meriam people of the eastern Torres Strait traveled to the New Guinea coast and to the Australian mainland. They carried sacred armlets and pendants made of cone-shell, for exchange with ‘shell partners’.
The various salt water groupings of the islands of the Gulf of Carpentaria and coastal Arnhem Land, also great dugong and turtle hunters, took part in this dangerous, even perilous activity in sewn bark canoes. More recently, they made their own dugout canoes with skills learned from Macassan visitors from what is now Indonesia who, with the owners’ permission, gathered on their sandbeaches during each northwest monsoon season to cook trepang caught in their waters. There are other major differences between salt water peoples around Australia. For instance, what constitutes salt water country varies. For mainland peoples it may extend inland for miles to country where the rivers cease being tidal and salty. By contrast, as on the island of Mer, itself totaling only one and half square miles, it may refer to metres or yards of salt water vegetation inland from the high water mark.
The rich and diverse sea traditions and beliefs of the salt-water peoples of
tropical Australia share four common themes. First, systems
of property in the
sea, often referred to by non-indigenous people as customary marine tenures are
inherited from ancestors. Customary
marine tenures are characteristically
clan-owned salt water territories extending across the foreshore to home reefs
and coastal areas. For Croker Island clans, they extend
‘as far as my eyes can see’, as Mary Yarmirr explained in the
Federal Court. Sea rights among the Yolngu extend ‘over to where the
clouds stand’. Meriam peoples’ reefs and
home waters, ‘the sea
that belongs to the land’, belong to each clan holding sea territory in
joint ownership or common
property; more distant cays like Kerged or East Cay,
some fifty miles out to sea, belong to particular clans whose nameholder bears
the responsibility to share it with other members of his clan. For Bardi and
Jawi peoples, very distant waters may belong to an association
of clans –
sea territories that they graphically call ‘together owning
These customary marine tenures are the bare bones or basic structures out of which salt water peoples’ social lives and cultural traditions are fashioned. Yolngu refer to them as sacred designs bequeathed to their people by Ancestral Creator Beings, which they are duty-bound to uphold, live out and, in turn, hand on. Yoln_u people say that these bodies of water ‘talk to each other just like people’. Importantly, marriage ties and other reciprocities between clans create relationships between previously unrelated groupings. A clan which provides wives for another may act as caretaker for a body of beach country or a body of sea. Yolngu Law man and artist Dulangurruwuthun has likened this reciprocity by the caretaking clan to the lighting of a fire for the owning clan, which sparks and spreads to create new fires, in this way ensuring their future life.
Second, spiritual inheritances from the sea itself link living salt water peoples with Creator Spirit Beings, sea deities and culture heroes whose sea journeys mark out sea territories and who remain ongoing presences. When the Yanyuwa people of the Sir Edward Pellew group of islands on the western side of the Gulf of Carpentaria say, ‘We are people who originate in the sea’, they mean they are ‘people whose spiritual and cultural inheritance comes from the sea’. The sea itself is a Spirit Ancestor, which the Yanyuwa share. This sacred inheritance is given in Stories, in the sacred design of bodies of water, in song cycles, in ceremonies which re-enact the epic journeys of Ancestor Creator Beings who travel on the sea as well as the land. When a clan member dies, song cycles are sung for the person’s soul and the songs change as the spirit is handed over from one clan territory to another. The ‘Law is first for us’, a senior Jawi man explained in his evidence for a native title claim in 1999. Respecting the sea, following the paths and marks set down by Ancestral figures, passing on the sacred clan designs to descendants, protecting the sacred places in the sea and on the shore, keeping a balance between land clans and sea clans – these are the inherited responsibilities of senior people.
Third, as sea hunters and collectors of seafood, the owners of these tenures and cultural traditions are persons of comprehensive knowledge, acumen, resourcefulness and courage. Around the Bardi and Jawi peoples’ islands of the Buccaneer Archipelago in the Southern Kimberley, tidal currents move with intense power, rising to ten or even twelve knots. Detailed knowledge of these currents makes it possible for them to distinguish what they call ‘roads in the sea’. These depend on the movement of tidal currents, which the people know and name, some twenty of which lie between the Dampier Peninsula and Sunday Strait. By setting out on the right tide or ‘sea road’ in their rafts of mangrove wood, they could ride a series of tidal currents, moving from site to site for fishing and collecting.
Fourth, salt water peoples’ cultures are living and adaptive, with long-standing relationships between groupings which have changed and continue to change both because, and in spite of, invasion and colonisation. In Bardi and Jawi salt water country, and in the country of the Meriam of the eastern Torres Strait, ancestors built stone fish traps soon after reef flats formed some 3,000 years ago. Since the 1970s, the owners of the fish traps and their relatives have repaired them; many fell into disuse when people’s lives were taken up in the pearling industry (or in the case of the Bardi and Jawi, moved to institutions and camps away from their own sea country). Today, people fish in the fish traps owned by their clan using fish spears similar to those of their forebears but with metal prongs (some people use their hands). In the Torres Strait, fishing of all kinds is practised, seafood is abundant, and people consume about half a kilogram of fish per person each day. It goes without saying that fishing and sustaining their families with sea tucker from inherited sea country is something the salt water people would like to take for granted.
In everyday life, these qualities are intertwined in webs of association like the mesh of fishing nets, which act as cues for one another. An example of the interweaving of the spiritual, the practical and the accommodation of change, is the sharing of the first turtle caught for the season, a collective rite involving blessings for the sea and the returning of the turtle bones to it. The Meriam say that their sea god, Malo, brought this custom, uniting their eight clans. After the missionaries arrived in 1872, the Meriam moved the ceremonial site for this ‘everyone together’ turtle feast from the old site to the foot of the Cross beside the church.
Today, those senior people with responsibilities for sea country look to their law and custom in order to find a future. Salt water peoples live not only in face to face communities, but also in a world defined and dictated to by globally-shaped market economics and electronic media. For their children’s sake and for many older people, what they see as ‘following in the paths of tradition’ - an expression used by Bardi and Jawi people – means increasingly to seek new forms of economic independence. The Murray Islanders’ fishing project, still in its early stages, and with its own torrid history, is a vital example. The traditions of the Torres Strait Islanders and the seafaring Aborigines of northern Cape York Peninsula developed complex exchange and trading patterns which took them on great sea voyages. Along the tropical coasts, Macassans and salt water Aboriginal groupings traded and learnt new ways. Today, salt water peoples travel in metal dinghies with forty or so horse-power motors; they travel on land in four-wheel drives and kill their animal bush tucker with rifle fire. These may be new ways of exercising old rights, but they are still the same rights.
In 1997 young Meriam on Mer Island produced a broadsheet called Maber to advance both the struggle for the recognition of their sea rights and the commercial fishing project. Named after the sacred trumpet shell, its masthead featured a half dari, the well-known feathered headdress and ‘national’ symbol of the Torres Strait Islanders. The absent half points to unrecognised sea rights. The central and upstanding feather of the dari comes from the frigate bird, a soaring bird of prey which comes to the Murray Islands in the season of the southwest winds. On the headdress the feather is topped with a tassel of small white feathers. The straight feather signifies strength, the white tassel, the foam on wind-torn waves.
Salt water people have found an accommodation with the sea for thousands of years. Those who actively seek a future which follows in the footsteps or the seamarks of their forebears are taking hold of tradition in ways that give them the confidence and the strength to find a passage between today’s cross-currents.
Nonie Sharp is the author of No Ordinary Judgment (1996). Her new book, Seascape and Memory: Tropical Australia and the Salt Water Peoples, will be published next year. Email: firstname.lastname@example.org
All rights to the stories and ceremonies described in this article remain with their traditional owners. Permission was obtained from the Kimberly Land Council to quote statements made by native title claimants in the Anthropological Report. If you wish to quote this material, permission should be sought from the traditional owners.
. See David Haigh, ‘”Fishing War” in the Torres Strait: The Queen v Benjamin Ali Nona & George Agnew Gesa’ in 22(4) ILB (1999) 20; ‘Fishing War in the Torres Strait – Round Two’, 24(4) ILB 18.
. Yarmirr v Northern Territory (1).
 Mabo v Queensland [No. 2]  HCA 23; (1992) 175 CLR 1.
 Yarmirr v Northern Territory (1998)156 ALR 370; Commonwealth v Mary Yarmirr; Mary Yarmirr v Northern Territory  FCA 1668; (1999) 168 ALR 426.
. Appeals from the recent decision of the Full Court of the Federal Court of Australia in the Croker Island case have been lodged. (See above n 4 and Levy, below n 7). The date has not yet been set by the High Court.
. Declaration by the National Indigenous Sea Rights Conference, Hobart, Tasmania, 28-30 September 1999.
. But see the dissenting judgement of Justice Merkel in Commonwealth v Mary Yarmirr; Mary Yarmirr v Northern Territory  FCA 1668; (1999) 168 ALR 426. See also Ron Levy, ‘Croker Island native title appeal’ at page or this issue; Nonie Sharp, ‘Reimagining Sea Space: From Grotius to Mabo’ in N Peterson and B Rigsby (eds), Customary Marine Tenure in Australia, (1st ed, 1998) 47-88 and Seascape and Memory, forthcoming 2001.)
 Justice Moynihan, Mabo v Queensland [No. 2], court transcript, Supreme Court of Queensland, 1989, 2006-7.
. Yarmirr v Northern Territory, FCA, Transcript, 23 April 1997, 62-3.
. Statement by a claimant, Mr Weluk, before the Aboriginal Land Commissioner Justice Toohey at the hearing of evidence for the Sea Closure, Bathurst Island, Melville Island and Milingimbi Land Claim (Transcript of Proceedings, on file with author, 1980) 143.
 Donald Thomson, ‘The Dugong Hunters of Cape York’, 64 Journal of the Royal Anthropological Institute 238.
. Statements of Bardi and Jawi people cited here are drawn from Geoffrey Bagshaw, Anthropologist’s Report, Native Title Claim WAG 49/98, prepared for the Kimberley Land Council on behalf of the native title claimants, February 1999. I thank the author for his permission to read and cite it.
. Dulangurruwuthun, Declaration, ‘Saltwater: Yirrkala Bark Paintings of Sea Country, Recognising Indigenous Sea Rights’ (1st ed, 1999) 11.
..John Bradley, ‘“We Always Look North”: Yanyuwa Identity and the Maritime Environment’, in N Peterson and B Rigsby (eds), Customary Marine Tenure in Australia, (1st Ed, 1998) 131.
 Above, n 12.