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Levy, Ron --- "Croker Island Native Title Appeal: Commonwealth v Mary Yarmirr & Ors; Mary Yarmirr & Ors v Northern Territory & Ors" [2000] IndigLawB 33; (2000) 4(29) Indigenous Law Bulletin 21


Croker Island Native Title Appeal:
Commonwealth v Mary Yarmirr & Ors;
Mary Yarmirr & Ors v Northern Territory & Ors

Full Court of the Federal Court of Australia

[1999] FCA 1668; 168 ALR 426

Beaumont, von Doussa, and Merkel JJ

Appeal from decision of Olney J in the Federal Court

3 December 1999

by Ron Levy

Background

On 6 July 1998 Justice Olney, at first instance, determined that the Mandilarri-Ildugij, Mangalarra, Muran, Gadurra, Minaga and Ngayndjagar estate groups (or yuwurrumus) hold native title in relation to areas of sea and sea bed adjoining Croker Island (and other islands) in the Northern Territory. The basis for the recognition of their native title was s 6 of the Native Title Act 1993 (Cth) (‘the NTA’), which was held to express a specific intention by Parliament to recognise offshore native title rights. The native title was found to be non-exclusive of other interests, and to be limited to personal, domestic or non-commercial activities such as fishing for subsistence or cultural purposes, access to areas of sea for cultural or other purposes, protecting places of cultural and spiritual knowledge, and safeguarding that knowledge. In particular, His Honour held that the evidence did not establish that the exclusivity of traditional rights, which was observed between yuwurrumus, also applied to non-Aboriginal people. Further, His Honour held that a claim for exclusive traditional rights could not be recognised in offshore areas because it would ‘fracture a skeletal principle of our legal system’, namely the international right of innocent passage and the common law public rights to fish and navigate in the territorial sea and tidal waters.

The Commonwealth (with the support of the Northern Territory and fishing industry parties) appealed, the main ground being that neither the common law (which was said to end at the low water mark), nor s 6 of the NTA, is capable of recognising and enforcing offshore native title. The native title applicants also appealed, the main grounds being that the evidence established exclusive interests, including to an exclusive fishery, to the area claimed, and that these exclusive interests displaced the public right to fish.

Majority

Justices Beaumont and von Doussa, in majority, rejected both appeals, generally for the same reasons given by Justice Olney in the first instance, upholding his decision that the evidence established a non-exclusive and non-commercial native title. They further upheld the trial judge’s construction of the NTA as providing the legal mechanism enabling the recognition of native title in offshore areas. The majority also agreed with Justice Olney that a claim for exclusive possession of the sea could not be recognised because it would fracture a skeletal principle of our legal system.

However, the majority did differ from Justice Olney in holding that, on a proper construction of s 223(1), it was no longer necessary to identify the date of sovereignty or the situation prevailing in an Indigenous community at that time. Rather, it would usually be sufficient, as part of the concept of ‘tradition’, to prove that the acknowledged laws and observed customs relied on to prove native title predated European contact regardless of the precise date of sovereignty.

Minority

Justice Merkel, dissenting, held that the legal mechanism which enabled the recognition of native title in offshore areas was the common law, which applied as and when sovereignty vested in and became exercisable by the Crown. His Honour reasoned that the date of sovereignty remained a fundamental element in the recognition and protection of native title: the applicants must prove the content and nature of the native title rights and interests which existed, and burdened the Crown’s radical title, at that date. It is this title, which burdened the Crown at the date of sovereignty, which enures for the benefit of descendants who form an identifiable community, and who (so far as practicable) have continued to acknowledge traditional laws and observe customs whereby their traditional connection with the land has been substantially or generally maintained.

Justice Merkel agreed with the majority that a claim for exclusive possession of the sea could not be recognised because it would ‘fracture a skeletal principle of our legal system’, and observed that concepts of possession or occupation (which are readily applied to land) are not applicable to the sea, which is used or enjoyed rather than possessed or occupied. However, His Honour held that since the common law is capable of recognising exclusive or several fisheries in offshore areas which displace the public right to fish (which is only a prima facie right), it follows that there is no impediment to the recognition of exclusive native title fisheries which are established by evidence. Accordingly, Justice Merkel would have remitted this question, and also questions concerning the various dates of sovereignty, to the trial judge for further consideration.

Note

The Commonwealth has applied for special leave to appeal to the High Court, the main ground being that neither the common law (which ends at the low water mark), nor s 6 of the NTA, is capable of recognising and enforcing offshore native title.

The native title applicants have applied for special leave to appeal to the High Court. The grounds include that the common law is capable of recognising native title rights to exclude others from, and to exclusively fish, hunt and gather in, an area of sea, and that recognition of such rights is not precluded by the common law public rights to fish and navigate, and the international right of free passage. Further, the applicants assert that to establish such exclusive native title rights it is sufficient that the exclusivity is observed between yuwurrumus and that it is not necessary to also establish that traditional laws and customs apply to non-Aboriginal people.

Ron Levy is a solicitor with the Northern Land Council.


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