Indigenous Law Bulletin
 HCA 56
Full Court of the High Court of Australia
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
Appeal from the decision of the Full Federal Court
11 October 2001
by Jackie Morris
When I use the word ‘country’, I am talking about dry land, fresh water and the sea. And when I talk about sea country, I am not talking only about the waters of the sea. I am talking about the seabed and the reefs, and the fish and animals in the sea, and our fishing and hunting grounds, and the air and clouds above the sea, and about our sacred sites and ancestral beings who created all the country.
Mary Magulagi Yarmirr, claimant
In Mabo v State of Queensland (No 2) ('Mabo') the High Court held that the common law of Australia recognised a form of native title. However Mabo did not consider whether native title could be recognised in relation to the sea and seabeds. Commonwealth of Australia v Yarmirr ('the Croker Island case') was pursued as a test case on this issue.
The Croker Island applicants are the Mandilarri-Ildugij, Mangalara, Murran, Gadura-Minaga and Ngaynjaharr peoples ('the claimants'). Their native title claim related solely to the sea and seabeds of an area surrounding their islands. All the islands in the claimed area had previously been granted under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The claimants sought recognition of their rights to exclusive possession, ownership, occupation, use and enjoyment of the sea and seabed and its resources.
Justice Olney's decision in the Federal Court at first instance was the first determination of native title over the sea and seabed. Justice Olney found that:
In other words, the claimants have the right to their traditional use of the seas, but they cannot prevent others from fishing or carrying out commercial activities in the area. The decision thus allows for the coexistence of rights in the sea in a similar manner to the coexistence of rights to land recognised by the High Court in Wik Peoples v State of Queensland. This decision was appealed to the Full Federal Court by both the claimants and the respondents, the Commonwealth Government (‘the Commonwealth’).
A majority of the Full Federal Court dismissed all of the appeals, effectively endorsing the decision of Justice Olney. They considered that s 6 of the Native Title Act 1993 (Cth) ('the Act') clearly indicates Parliament’s intent that the Act will apply to offshore areas.
The majority accepted the view of Justice Olney that recognition of a claim for exclusive possession of the sea should be denied because it would 'fracture a skeletal principle of our legal system'. They also rejected the Commonwealth's argument that the claimants' native title rights should be regarded as having been subsumed into the public rights to fish and navigate.
The decision of the Full Federal Court was appealed to the High Court by the claimants and the Commonwealth.
The claimants appealed against the finding of the trial judge that they held only non-exclusive rights to the claim area. Before the High Court, the claimants recognised that their exclusive rights to the sea and seabed in the determination area were qualified by the public right to navigate, the international right of innocent passage and the rights of holders of fishing licences.
The Commonwealth appealed against the finding that native title rights could exist in the sea and seabed. According to the definition of ‘native title’ in s 223 of the Act, traditional rights and interests will only be recognised as native title rights and interests if they are recognised by the common law. The Commonwealth argued that the common law does not operate beyond the territorial limits of the Northern Territory (ie the low water mark). Thus the Commonwealth claimed there was no law capable of recognising native title rights beyond the low water mark.
The majority judgement rejected the Commonwealth's argument that the common law does not extend below the low water mark. They considered that the major case cited in support of the Commonwealth's argument dealt with the rules governing conflict of laws. These are the rules that determine which law applies where competing legal systems are involved in a dispute. The majority held that it was inappropriate to apply these rules in the present case as:
The Act presupposes that, so far as concerns native title rights and interests, the two systems – the traditional law acknowledged and traditional customs observed by the relevant peoples, and the common law – can and will operate together. Indeed not only does it presuppose that this will happen, it requires that result.
The major case relied on by the Commonwealth did not show that the common law had no application beyond the low water mark. It was merely an example of where the common law recognised that a matter should be dealt with under the rules of a foreign legal system in order to resolve the difficulty which arises from the application of two competing systems of law.
The majority also rejected the Commonwealth's argument that native title could not exist beyond the low water mark because neither the Commonwealth nor the Northern Territory held radical title to this area:
... native title rights and interests are not created by and do not derive from the common law. The reference to radical title is, therefore, not a necessary pre-requisite to the conclusion that native title rights and interests exist.
They found that the question of whether the common law will recognise native title over the seas is essentially whether and how the common law and the relevant customary rights could coexist. If those customary rights are inconsistent with the common law then the common law prevails.
Subject to one qualification, the majority held that there was no necessary inconsistency between the Crown's assertion of sovereignty over the territorial sea and the continued recognition of native title. The one qualification relates to the interaction between the public rights of navigation and fishing and any rights under Aboriginal law or custom to exclusive possession or use of the sea.
The claimants’ argument that they hold rights in the determination area to the exclusion of all others was rejected for two reasons. Firstly the majority held that the trial judge had found evidence that indicated that the requirement to seek permission to enter another's country only applied between Aboriginal people. The majority considered that the findings of fact made by the trial judge on this issue should not be disturbed.
Secondly the majority held that:
...there is a fundamental inconsistency between the asserted native title rights and interests and the common law public rights of navigation and fishing, as well as the right of innocent passage. The two sets of rights cannot stand together and it is not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests is to be subject to the other public and international rights.
In separate judgements, Justices McHugh and Callinan agreed with the majority that the claimants' appeal should be dismissed but would have upheld the Commonwealth's appeal.
Justice McHugh held that the rights in relation to land and waters which Indigenous people hold under their traditional laws are only protected by the Act as native title rights where those rights and interests are recognised by the common law. Justice McHugh accepted the Commonwealth's argument that the common law had no operation below the low water mark, and thus that there could be no recognition of native title beyond the low water mark:
Without the intervention of federal Parliament, no one can acquire a legal right in relation to the territorial sea, sea-bed and sub-soil that the common law courts can enforce.
Justice Callinan applied similar reasoning.
Justice Kirby agreed with the majority that the Commonwealth's appeal should be dismissed though his reasoning was closer to that of the majority in the Full Federal Court. His honour held that on its proper construction the Act extended to Australia's territorial waters. In particular Justice Kirby pointed to the references throughout the Act to both land and waters, including in the definition of native title, and to s 6 which provides that the Act extends to the coastal sea of Australia. His honour held that:
The recognition of native title 'by the common law' is shaped, and if necessary, extended, by the Act's application to sea waters.
Justice Kirby would have upheld the appeal by the claimants. His honour noted that 'exclusive' titles to land may be subject to public access rights or licences for particular purposes. He therefore considered that it was possible to recognise native title rights to the sea which had elements of exclusivity even though they were qualified by the public right to navigate and statutory fishing licences.
He noted that the common law right to fish ceases to operate in areas where there are proprietary rights and he therefore considered that:
... the common law right of the public to fish may operate subject to, and be defeated by, the underlying native title rights and interests in the claimants' sea country.
Justice Kirby considered that the claimants may have the power to exclude from their sea country people conducting tourist activities, fishing without a licence or extracting natural resources without their consent.
He characterised the test applied by Justice Olney at first instance as overly narrow, unreasonable and discriminatory. In particular, he was critical of Justice Olney's reliance on the fact that the claimants had not enforced their rights against non-Aboriginal parties as a basis for finding that those rights were not exclusive in nature:
... it would not be reasonable for a court to place undue weight on methods of enforcement of Aboriginal rights against non-Aboriginal persons. How, it might be asked, were the forebears of the claimants expected to assert and uphold their rights to their sea country when the balanda enjoyed indisputable superiority of weapons, and until Mabo [No 2], incontestable superiority of legal rights?
(Balanda is a term referring to ‘white man’.)
The decision of the High Court clearly confirms that native title can be recognised and protected in relation to Australia’s coastal seas. However, at this stage, the courts will not recognise exclusive native title rights to the sea on the basis that those rights are inconsistent with the public rights to navigate and fish, and the international right to innocent passage. The decision establishes a framework for the negotiation of the 120 native title applications which include sea areas. Nevertheless, the parties to those negotiations will still need to address the exclusive customary rights of claimant groups to the sea, even though those rights would not receive legal recognition as native title rights.
Jackie Morris is the Principal Research Officer for the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund. The views in this article are personal views and do not represent those of the Committee.
 Thanks to Peter Grundy and Jonathon Curtis.
 Northern Land Council, First victory in the battle of the seas, Press Release (11 October 2001).
  HCA 23; (1992) 175 CLR 1.
 Mary Yarmirr & Ors v The Northern Territory of Australia & Ors  FCA 771.
 (1996) 187 CLR 1.
 Commonwealth of Australia v Yarmirr  FCA 1668.
 Ibid .
 Ibid .
 Commonwealth of Australia v Yarmirr  HCA 56.
 Ibid [95-96] & [267-269].
 Ibid .
 R v Keyn (1876) 2 Ex D 63.
 Commonwealth of Australia v Yarmirr  HCA 56, .
 Ibid .
 Ibid .
 Ibid .
 Ibid .
 Ibid .
 Ibid .
 Ibid  & [130-131].
 Ibid  & .
 Ibid .
 Ibid .
 Ibid .
 Ibid [250-252].
 Ibid .
 Ibid  & .
 Ibid .
 Ibid .
 Ibid  & [316-317].
 Ibid .
 National Native Title Tribunal, High Court’s sea rights decision gives go-ahead to 120 claims, Press Release, No 01–73 (11 October 2001).