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High Court of Australia Transcripts |
Darwin No D7 of 2000
B e t w e e n -
THE COMMONWEALTH OF AUSTRALIA
Appellant
and
MARY YARMIRR, CHARLIE WARDAGA, KHAKI MARALA, ILIJILI LAMILAMI, JOY WILLIAMS, CHARLIE MUNGULDA, RACHEL NIMILGA, ANDREW YARMIRR, CHRISTINE YARMIRR
First Respondents
NORTHERN TERRITORY OF AUSTRALIA
Second Respondent
PASPALEY PEARLING COMPANY PTY LTD
Third Respondent
NT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION
Fourth Respondents
OCEAN TRAWLER PTY LTD
Fifth Respondent
SHINE FISHERIES PTY LTD
Sixth Respondent
M.G. KAILIS GULF FISHERIES PTY LTD
Seventh Respondent
PAVALINA HENWOOD
Eighth Respondent
ARNHEM LAND ABORIGINAL LAND TRUST
Ninth Respondent
Office of the Registry
Darwin No D9 of 2000
B e t w e e n -
MARY YARMIRR, CHARLIE WARDAGA, KHAKI MARALA, ILIJILI LAMILAMI, JOY WILLIAMS, CHARLIE MUNGULDA, RACHEL NIMILGA, ANDREW YARMIRR, CHRISTINE YARMIRR
Appellants
and
NORTHERN TERRITORY OF AUSTRALIA
First Respondent
THE COMMONWEALTH OF AUSTRALIA
Second Respondent
PASPALEY PEARLING COMPANY PTY LTD
Third Respondent
NT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION
Fourth Respondents
OCEAN TRAWLER PTY LTD
Fifth Respondent
SHINE FISHERIES PTY LTD
Sixth Respondent
M.G. KAILIS GULF FISHERIES PTY LTD
Seventh Respondent
PAVALINA HENWOOD
Eighth Respondent
ARNHEM LAND ABORIGINAL LAND TRUST
Ninth Respondent
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 8 FEBRUARY 2001, AT 10.23 AM
(Continued from 7/2/01)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: If the Court pleases. Yesterday I was discussing with your Honour the Chief Justice the question of the law of contract in relation to a contract made more than three miles from the coast but less than 12 miles. It is perhaps not the best example to raise in relation to the present problem, because the law of the contract is, of course, the proper law. That is normally the law chosen by the parties, otherwise the place with which it has the most substantial connection. The concept of the lex loci contractus is a fairly outdated concept in relation to contract law so in practice there is unlikely to be a problem.
In Appendix 3 to our submissions we have set out a whole range of legislation which applies aspects of the common law or aspects of statutory law to areas at sea. The most important perhaps being the Crimes at Sea Act 1979 which, I think on 1 March, is to be replaced by the Crimes at Sea Act 2000 . The point about all that legislation is really two words, "it is necessary", and it is necessary because otherwise the common law simply does not extend to that area. It is important to note that, as a matter of practice, this is not going to be significant in many areas of law. As Justice Hayne put yesterday, one starts with the position that one is in a court in Australia and that that court starts by applying the common law.
But when it applies the common law, one of the questions which it has to ask is what does the common law, itself, say about whether it applies to the problem. For example, if the area is covered by statute which has replaced the common law, then, I suppose to the extent that the common law applies, it would say it does not apply, and one can think of other examples. Ultimately, there is no difference in this area between the bizarre example I gave yesterday of a transaction, a contract, a tort, a crime or anything else taking place on the moon and the same thing taking place in the three to 12 mile zone. All "internal sovereignty" means in this context is that the Commonwealth Parliament can, if it wishes, legislate for the area, and, as we have shown, it has.
Now, I concluded yesterday by saying something I was immediately picked up on when I referred to the law of native title being a law relating to real property. The more accurate phrase is the phrase appearing in the Native Title Act, itself, in section 223, the definition section, is that it is "rights . . . in relation to land or waters". The point being, as far as the present aspect is concerned, that it is a right in relation to a particular part of the earth's surface, and for that purpose it is significant that the common law does not apply.
My learned friend, Mr Basten, submitted that the acquisition of sovereignty has the same effect on sea as on land. That is the proposition which is refuted by the Seas and Submerged Lands Act Case. So, whether or not your Honours accept my answer to Justice Gaudron in relation to the volcanic island, which may be a fascinating question no one has ever had to answer, apart from the dictum in Cooper v Stuart, in relation to waters it is clear that it does not apply.
If I can just take your Honours very briefly - and this is the only case I will take your Honours to in reply - to the Seas and Submerged Lands Act Case [1975] HCA 58; 135 CLR 337. Perhaps the clearest, although I will go back through four of the Justices, is that in Justice Jacobs' judgment at page 493. At point 7 just after the reference to the Canadian Attorneys-General Case, his Honour says:
Nor was it agreed that a sovereign state owned the seas in the same way as it owned the land. It has never been so agreed. The right of innocent passage denies that proposition. And it may now be asked - could the Crown in right of a colony deny innocent passage to foreign ships . . . The answer must be negative. Yet the Imperial Crown could do so by virtue of its prerogative.
If your Honours go back to Justice Mason at page 466, his Honour at point 5, just after the reference to the North Sea Continental Shelf Cases, said:
Even so, it is necessary to distinguish between the land territory of a coastal state on the one hand and its territorial sea and solum on the other hand, for the coastal state in The exercise of its sovereignty rights is bound to give effect to the obligations relating to the right of innocent passage imposed upon it by the Convention . . . Accordingly, the territorial rights now conceded by international law to the coastal state in the solum of territorial waters stamp it with the character of territory that is different from the land territory of the coastal state.
Justice McTiernan at page 379 merely made the point that is made in all the later cases as well. It is at point 2 just after the quotation:
The functions of the Crown include the prerogative of the Crown in relation to foreign affairs. Even if the most limited criterion be applied, a country's territorial waters, the soil beneath them, and the country's shelf, in themselves, have an external aspect and are matters of the country's foreign relations.
Finally, that point was also made by the Chief Justice at page 363 where again at point 2 just adjacent to his Honour's name his Honour says:
But the international concession was not that the territory of the nation, in a proprietary 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" emphasizes, 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.
Your Honours, it is important to note that the declaration of sovereignty your Honours have been taken to in the Seas and Submerged Lands Act did not purport to extend to the common law. That may be done in specific and narrow ways. It is done in relation to the zero to three by the Territory Act your Honours have seen. It is done in relation to crime by the Crimes at Sea Act in relation, your Honours will see, to a huge area which extends way beyond the 12-mile limit and beyond what is, on any view of it, Australia, and, of course, Australia internally can do that. It can say - - -
KIRBY J: Just help me. Is it done by - I do not remember - express reference to the common law or simply by asserting something which would otherwise be part of common law? Is not the common law something for judges to determine?
MR BENNETT: Your Honour, the way it is done - we have given your Honours copies of it - is to refer to the substantive criminal law of States and Territories and to say that that applies, and that, of course, would include the common law. It is done that way.
KIRBY J: I mean, under the current understanding, the law of the State or Territory is - rather, the common law is the law of the Commonwealth, that is to say it is national law, it is Australian law.
MR BENNETT: It would include that, your Honour, yes, but the Act has a very complex scheme which would take me some time to take your Honour through and it is probably not necessary for this case. Our only point in relation to the Act is the one sentence, "It was necessary". On my friend's argument, of course, it may well not have been.
GUMMOW J: You keep using the phrase - and you are not alone in doing it - "common law". You mean unwritten law?
MR BENNETT: Yes, your Honour.
GUMMOW J: Do you exclude from that admiralty jurisdiction?
MR BENNETT: Your Honour, there is - - -
GUMMOW J: I would think not.
MR BENNETT: Much of that is of course statutory, much - - -
GUMMOW J: I know. Of course. But if you are talking about "common law" and what "common law" courts did, we are only talking about part of the picture.
MR BENNETT: Yes. Admiralty jurisdiction obviously contains elements of - perhaps, admiralty law is the phrase I should use rather than jurisdiction - common law. The admiralty jurisdiction was a specific doctrine developed by English law over the years, which, as your Honour knows, fluctuated in its nature as to how far it extended; there was a doctrine of the narrow sea as at one stage, and so on. For present purposes, we are not concerned with that. The simple point is that the common law itself just did not apply.
GAUDRON J: What do you mean, "the common law itself"?
MR BENNETT: Your Honour, the unwritten common law. That is the phrase used, interestingly enough, in the Crimes at Sea Act.
GAUDRON J: Yes.
MR BENNETT: It talks about "law" - I am sorry, your Honour?
GUMMOW J: That is what just alerted me.
MR BENNETT: Yes. It says "law including unwritten law".
GAUDRON J: Yes. That may be - if you are using "common law" to mean unwritten law at every point, that is one thing. And presumably that will include any unwritten aspects of admiralty law.
MR BENNETT: Yes, that would be so if it was not otherwise applied, yes, and one would have to see how it was - - -
KIRBY J: It is a curious description of the common law to say it is unwritten given that it is written in the books subject to its extension.
MR BENNETT: Well, your Honour, uncodified or unenacted is a more accurate description. It is a phrase which is used. The problem, of course, is that one can use common law as opposed to equity, common law as opposed to civil law and so on, but in this context it is common law as opposed to statute law or delegated legislation.
HAYNE J: Then I do not know where you have come out of this immediate debate. Are you saying or are you not saying that unwritten aspects of admiralty law applied in this area? What are you saying?
MR BENNETT: They did on ships, your Honour. I think I am correct in saying, but I do say this subject to correction, that admiralty law itself said nothing about what happened other than on ships. I do not think it dealt with swimmers in the ocean.
HAYNE J: Assume that to be so, and I suspect it is so, you are, as I understand it, accepting, are you, that admiralty law had application to events that occurred on ships in this area?
MR BENNETT: As they would to ships in the middle of the Pacific Ocean.
HAYNE J: What does that say, if anything, about this notion of the common law having a territorial element or reach?
MR BENNETT: But there is an exception that ships, like embassies I suppose, are little bits of Australia that are somewhere else.
McHUGH J: But is that the true basis of it? I thought the true basis of it was that the King by virtue of his prerogative claimed jurisdiction over the seas and by virtue of his prerogative created the jurisdiction of the Lord of Admiralty and the common law recognised that prerogative, but it was not itself part of the prerogative, that it depended upon political considerations which the common law was prepared to recognise in that same way that the common law recognises an Act of State, but the admiralty jurisdiction was not itself part of the common law. Now, I may be wrong about that, that is my recollection.
MR BENNETT: Yes, I think that is so, your Honour, but, in any event, whatever the situation is with admiralty jurisdiction, it does not affect the propositions in this case.
GUMMOW J: But they tried all sorts of issues that could also have been tried in common law courts. They do to this day.
MR BENNETT: Yes they do, your Honour, and that was part of the discussion in Keyn's Case, the jurisdiction of the Admiral, which did not extend - - -
GUMMOW J: But that was a crime case.
MR BENNETT: It was a crime case, yes.
CALLINAN J: Mr Solicitor, perhaps a more fundamental matter, and it may be more relevant to the next appeal, but can you have a system of title, whatever rights are embraced by that term "title", recognised by the common law without a means, either belligerent or curial, with appropriate sanctions, of protecting and maintaining that title? Now, if you cannot, what are those means in this case, in respect of the sea?
MR BENNETT: In Austinian terms, I suppose, a law without a remedy is a meaningless law. The answer is no, although, of course, the place that enforces the remedy need not be the same as the place which in some way is relevant to the problem, but the question we have to - - -
CALLINAN J: But you must have some means of enforcing the law, they might be belligerent means, but without them how can you have a system of title that the common law can recognise?
MR BENNETT: Yes. Well, we put that a little differently and say because the common law does not extend, except as specifically extended to the relevant area, the court applying the common law will not apply common law principles to the term "matters relating to land and waters".
CALLINAN J: See, Justice Olney's findings seem to be that there were no such means in this situation with respect to the seas.
MR BENNETT: One does not need to go that far because it would be possible for the Parliament to pass a law saying the common law shall apply to this area. It would be possible for the Parliament to pass a law saying that in the Native Title Act in section 223(1)(c), the requirement of recognition by the common law in the offshore area shall be replaced by a requirement that it would have been recognised by the common law had the area been onshore, but it has not.
CALLINAN J: But in one sense, if one were to recognise native title rights over the sea here, the common law would be giving a remedy that did not previously exist. The common law and/or the statute would be giving a remedy that previously did not exist and a means of enforcing that remedy that did not exist under this system of title previously.
MR BENNETT: That is certainly so, your Honour.
CALLINAN J: So it would be really creating in that respect a different system of native title from the system that existed before the common law applied. I do not think Mabo deals with this matter. I may be wrong, but I do not think it does. It seems to assume that there are remedies. That might be because the evidence was directed to the Murray Islands and nowhere else.
MR BENNETT: Yes, the Murray Islands certainly were in a different position.
CALLINAN J: I just think there may be some fundamental problems here that have never been grappled with before you even get to the questions that you are talking about, Mr Solicitor. I would very much like to get some assistance on them.
MR BENNETT: The question of remedy, of course, applies equally in relation to native title on land because the common law gives its own remedies to the rights which it has recognised.
CALLINAN J: It is probably less fragile on land in a sense simply because there are not the perils of the sea. The difficulties of protecting your patch on land are much less perhaps than they are of protecting it at sea, whatever it is.
MR BENNETT: Yes. Your Honour, one example of the problem arises this way. We know that in Western Australia sovereignty was established in 1829. In eastern Australia, to use the phrase broadly, including the present area, it was at least by 1824. It was earlier for the east coast, but for this area we say 1824. If my learned friend is right, there might be real questions about recognition. Would one say that the common law in eastern Australia in 1827, for example, recognised native title in Western Australia, although that was an area over which sovereignty had not been proclaimed and to which the common law did not apply? If so, one would have different dates applying to the same place as the relevant dates. That just illustrates that when one looks at the common law recognising something, one must look to where it existed and where it applied.
CALLINAN J: And what it is supposed to be recognising.
MR BENNETT: It is recognising rights which existed under a system of law which terminated, which ceased to apply to the land as a matter of our law, after sovereignty. What it says is that the rights established under that system of law are recognised by the common law once the common law comes - - -
CALLINAN J: But are rights without an effective remedy to protect them and maintain them rights that thee common law can protect, can recognise?
MR BENNETT: Well, your Honour, Mabo decided that it did and the Native Title Act augmented that in various ways.
CALLINAN J: It was deciding that on the evidence it was given in relation to the Murray Islands.
MR BENNETT: That is so, your Honour. That is an historical event which has been accepted by the Parliament and dealt with in the Native Title Act.
CALLINAN J: Yes, but, nonetheless, each case has to be decided on a case-by-case basis, and, I do not know, perhaps there were some remedies in the Murray Islands available to the peoples there.
MR BENNETT: But, your Honour, one takes the common law remedies. One does not take the remedies which existed under the pre-existing system of law.
CALLINAN J: I understand that, but if there were no remedies, there may well have been no right, because what is a right worth unless you have a remedy for it? How can the common law recognise a right that can not be enforced or protected?
MR BENNETT: Your Honour, there may have remedies. There may have been traditional remedies.
CALLINAN J: Yes, but that would need, I would have thought, to have been established before you could recognise that you had a title, whatever "title" means in this context.
GLEESON CJ: In the way in which evidence is given in these native title claim cases is an assertion of the traditional right or interest accompanied by an account of sanctions available?
MR BENNETT: It is sometimes discussed, your Honour. In this case there was evidence about other Aboriginal groups having to ask permission before they came into particular areas, and part of the matter which will be discussed in the next appeal is that that did not extend obviously to the Macassans and did not extend to white visitors.
In paragraph 113 in the judgment of Justice Olney at page 2046 of volume 8 there is a passage which may answer your Honour's question more directly. What is said is if someone does it now, we expect the person to apologise, and there is a discussion about it, and it is dealt with verbally, and in the old days it was dealt with by war. That is discussed in that passage.
CALLINAN J: Which judgement is this?
MR BENNETT: This is Justice Olney, your Honour, paragraph 113 page 2046. It is a passage covering about a page, going to 2047 a third of the way down.
CALLINAN J: Yes, I was looking at page - - -
MR BENNETT: In fact, the passage at the top of page 2047 rather suggests that it is the imposition of the Australian law which restricts the application of the old remedies.
GLEESON CJ: I presume when you are talking about the common law in 1827 or the common law in 1824, you mean, whatever precisely the content of the expression is, the common law of England?
MR BENNETT: Yes, your Honour.
GLEESON CJ: Which I think is the expression that was used in section 80 of the Judiciary Act when it was first enacted.
MR BENNETT: Yes. As, of course, since developed and taken over and applied with hindsight today.
McHUGH J: Mr Solicitor, what I can not get clear in my mind - perhaps you can assist me on this - the King's title or the Crown's title over land arose from the tenure system, but my recollection is that the King, who claimed dominion and ownership over the British seas, including the Atlantic Ocean washing the shores of Ireland, depended upon the prerogative and although it was recognised by the common law, it did not depend on radical title in any sense. So I just can not get clear in my mind how native title can work some sort of a burden on the dominion and ownership of the King, assuming that that doctrine applies to the seas off the Australian coast. Are there any cases on that at all?
MR BENNETT: No. There is a discussion about that in footnote 111 of our principal submissions adjacent to paragraph 3.19 which discusses the judgment of Justice Jacobs in the Seas and Submerged Lands Act Case and there is a discussion of the prerogatives of the Crown and the authorities are referred to. It also involved this whole idea of the narrow seas and the development of the whole doctrine of this area.
HAYNE J: If you have answered Justice McHugh, can I take you back to this question of remedies?
MR BENNETT: Yes.
HAYNE J: Do you say that that issue is raised in the present appeal?
MR BENNETT: No, your Honour.
HAYNE J: If it were to be raised, it might invite attention, might it not, to questions of the kind dealt with in the conflicts area by cases like Phrantzes v Argenti [1960] 2 QB 19, the case about the dowry and what order an English court could make to enforce payment of a dowry owing under Greek law, as well, also, to the issues discussed by Dicey and Morris in the 13th edition at 7006 and following, the questions of remedy being entirely for the law of the forum subject to some limits, perhaps not yet identified with precision. But, as I understand you, you say the issue does not arise here.
MR BENNETT: No, your Honour. Well, it could arise as a consequential issue, in a sense. What does the bailiff do? Does he go outside the territory which he or she is sworn to administer law in and so on? Leaving that type of narrow question out, it has not been raised in the form your Honour puts it, no. Now, the second matter which I wanted to mention very - - -
HAYNE J: Can I just interrupt. I notice from that footnote you referred to both Justice Jacobs and Justice Stephen, and Justice Stephen says that:
the British Crown owned, as royal waste, the waters and bed of league seas surrounding the Australian continent -
But, again, it seems to be derived as springing from a prerogative right. This is what is troubling me at the moment. Can you have a burden on a Crown title, in that sense, as you can with the radical title which derived from the doctrine of tenure or as part of the doctrine of tenure?
MR BENNETT: I suppose only if one creates a new doctrine, your Honour. There is no precedent for that. I do not want to go through our submissions in reply in detail, I will simply refer your Honours to them, but I adopt them all. We stress that it has been held in a string of cases following the Seas and Submerged Lands Act Case, with which your Honours are familiar, Robinson v Western Australian Museum, Pearce v Florenca and others, that it is the external affairs power which gives the Commonwealth power to legislate in relation to the area beyond three miles.
We also simply point that that area is not a new territory. That was not the effect of the Seas and Submerged Lands Act Case. If it was there would be all sorts of problems in relation to the application of law in section 122 which would be quite different. It is not a Commonwealth place which would give rise to the same sort of problem. We have discussed the effect of the declaration in paragraphs 3.36 and 3.39.
KIRBY J: Mr Jackson suggested that it might be a Commonwealth place in which it falls within section 52. Why do you say it is not?
MR BENNETT: Because, your Honour, it is not owned by the Commonwealth. It is simply somewhere to which Commonwealth sovereignty extends.
KIRBY J: Why is ownership inherent in Commonwealth place?
MR BENNETT: Commonwealth place requires either ownership or, at the very least, some sort of occupation or activity. A mere area over which it has sovereignty and nothing else has never been held to be a Commonwealth place and there would be problems of exclusive powers and so on if it were, of course.
Now, it is important to note that in dealing with the pre-existing system of laws which is referred to in Mabo and which is fundamental to the concept of native title, one does not use analogies from private international law. The reason one does not use analogies from private international law is that there is a temporal gap. One is not dealing with two systems which exist side by side. One is dealing with a system of laws that has ceased to exist as the system of laws for the area and the replacement of that system with another system of laws which contains the doctrine that it recognises rights created under the former system.
So the discussion that took place two days ago about moving from canoes to outboard motors and developments of that sort simply have no application. One of the requirements of native title is a continuing exercise of what existed before but it is not done as part of an existing system of law.
That brings me to the word "recognised" in section 223 of the Native Title Act. There has been some discussion about the tense of that word. The phrase, of course, is "are recognised". It means always recognised because clearly one has to say "are recognised" because if they have been extinguished then they are no longer recognised or if they have ceased to be exercised they are no longer recognised.
My learned friend, Mr Jackson, talked about the definition of "interest". We would submit that has nothing to do with the phrase "rights and interests" in the Act which is really a hendiadys. It is a composite phrase given a composite meaning and it does not incorporate within it the subdefinition of the word "interests". The purpose of defining "interests" is primarily to deal with people who have interests who are given notice of claims and matters of that sort. There are also areas where it applies to certain of the rights. But the phrase "rights and interests" is a composite phrase, as is "native title rights and interests".
My learned friend, Mr Basten, referred to Category D, past acts. He referred to the Act in its current form, rather than its form relevant to this case, but nothing very much turns on that. The point about Category D, past acts, is that all those provisions only apply if the Act is invalid and no one suggests here that the Coastal Waters (Northern Territory Title) Act is invalid, so it is simply not a past act for any relevant purpose.
I should also say this in relation to the Coastal Waters (Northern Territory Title) Act. Your Honour Justice Gummow asked some questions about it being a government-to-government transfer. Your Honour referred to the Newcrest Case. The only point I want to make in reply in relation to that is to stress the language of the exclusion, the limited language of the exclusion, and particularly, of course, the reference to the seabed. The Act appears in our volume of legislation at page 230, the passage is at page 231. Your Honours see what is vested is:
the property in the sea-bed beneath the coastal waters . . . and the same rights in respect of the space (including space occupied by water) above that sea-bed, as would belong to the Territory if that sea-bed were the sea-bed -
et cetera. Then the exclusion also refers to the same series of matters.
There has been no discussion in this case about minerals. Can I just give your Honours the references so your Honours appreciate that this has a different effect in relation to minerals. Justice Olney, volume 8, pages 2075 to 2076, paragraph 158, held that the territory had complete ownership, not merely radical title to the minerals because of - - -
GLEESON CJ: Would it be within the competence of the Federal Parliament to enact a law divesting the Territory of that property?
MR BENNETT: I would assume that section 51(xxxi) would not apply to such a law because I think I am correct in saying it does not apply in that situation. On that assumption, it would be open to do that.
GLEESON CJ: If such a law were enacted, what would be the situation thereafter? Would there be property in any entity or body politic?
MR BENNETT: Yes, if there was an acquisition by the Commonwealth, under - - -
GLEESON CJ: A law divesting; a law simply saying, "The property that was vested by section 4 of this Act is now divested".
MR BENNETT: Yes. There would be no property, your Honour. There would not even be a radical title because of the absence of extension of the common law to the area.
GLEESON CJ: It simply may be a law-making capacity.
MR BENNETT: Yes. Yes, your Honour. There is a discussion in a case, in which decision was given a few weeks ago, in Western Australia, called Bodney v Westralia Airports Corporation, in which there is a discussion of the effect of transfers to governments in the context of - - -
GLEESON CJ: So your submission involves, amongst other things, that this legislation created property?
MR BENNETT: Yes, your Honour.
GLEESON CJ: Mr Solicitor, your argument, in one of its aspects, fastens on the concept of radical title, and treats Mabo as using radical title as though it were a foundation of the common law's recognition of native title.
MR BENNETT: Your Honour, I was accused of that by my learned friend, Mr Basten, and, I think, my learned friend, Mr Jackson. I, in my submissions, put it in a rather different way. I accept the force of Mr Jackson's submission that, to an extent, saying you have to have a radical title to be burdened rather inverts the argument. What we say is necessary is common law recognition. Now, because once the common law applies, there will be a radical title in the Crown - because that is a common law postulate - the way Mabo operates is to say the recognition of native title operates as a burden on the radical title.
GLEESON CJ: What I wanted to offer for your comment was the suggestion that radical title was used in Mabo as a means of avoiding an embarrassment to the common law's recognition of native title; the embarrassment taking the form of the asserted ownership of all land by the Crown, which would extinguish native title.
MR BENNETT: Yes.
GLEESON CJ: In those parts of the world where the Empire spread, but in respect of which it was not asserted that the Crown acquired beneficial ownership of the land, but rather the Crown had sovereignty and the capacity to make laws with respect to the land, there was no difficulty, was there, about the common law recognising native title?
MR BENNETT: Your Honour, the same difficulty would - - -
GLEESON CJ: The common law of England, I mean.
MR BENNETT: The same problem would arise, your Honour, because once the common law is brought to the colony, the common law says the Crown has radical title. The common law then also says, based on the African cases and Mabo, we recognise pre-existing titles and in order to reconcile the two, it says the pre-existing title is recognised as a burden on the radical title, otherwise one has to deal in some way with two inconsistent things, and that is the way it is dealt with. But the question "Can you have native title in the absence of radical title?" is never going to arise because, if the common law does not apply, there is no radical title and no recognition of native title. If the common law does apply, there is radical title and it is burdened by native title. So one either has both or one has neither.
GLEESON CJ: But that seems to involve the assumption that you have demonstrated that the common law does not apply by saying there is no radical title.
MR BENNETT: I am sorry, your Honour, I did not quite follow that.
GLEESON CJ: You seem to argue that in an area to which it cannot be said there is radical title in the Crown, it follows that the common law has no application.
MR BENNETT: It is the converse, your Honour. If there is no common law, then there is nothing to create the radical title in the Crown.
GLEESON CJ: There is the common law of England in the 19th century and it is your insistence on regarding the common law as being there, that is territorially located, that produces this problem, is it not?
MR BENNETT: Yes, your Honour.
GAUDRON J: Did Britain acquire the radical title to all the land in Ireland?
MR BENNETT: It was conquered, I think, your Honour, and if it is conquered - - -
GAUDRON J: Yes, so what does the common law do then?
MR BENNETT: Where there is conquest the common law is not brought unless and until it is imposed. The rule in a conquered place is that the pre-existing laws continue until displaced by the conqueror. It is the same with cession.
I was just giving your Honours the references to the passages about minerals. In Justice Merkel's judgment, it is volume 11, pages 2253 to 2254, paragraphs [683] to [686], and in the majority judgment, in the same volume, page 2168, paragraph [288]. Your Honours need not go to those passages. It was held that there had not been established any mining of the seabed by the claimants, so the claim failed on the facts, but in any event there was a finding of actual title in the Northern Territory of the minerals. I only mention that because my learned friend in his amendments uses the phrase "waters" which has a statutory meaning. He has not defined it in relation to the statutory meaning expressly but, if he did so, of course, minerals would have to be excluded.
GLEESON CJ: I had not picked up the way Justice Merkel dealt with that finding about minerals. I know Justice Olney made a finding rejecting the claim and the majority in the Federal Court agreed with him. I see Justice Merkel referring on pages 2253 and the following page to Justice Olney's conclusion. Where did he make his decision about that?
MR BENNETT: Your Honour, it is at pages 2253 to 2254, I think.
GLEESON CJ: He is just reciting what Justice Olney did.
MR BENNETT: At paragraph [686] he says:
I am not satisfied that it has been demonstrated that his Honour erred in his findings -
and there is a qualification.
GLEESON CJ: I am sorry, I have read it. What did Justice Merkel decide in relation to the mineral claims? He is suggesting they should be remitted, as I understand it. For what purpose?
MR BENNETT: No, your Honour. There was to be a remitter of some other aspects and he said:
If, on a remitter, specific rights are claimed on a more limited basis those claims will have to be considered -
if there is other evidence. That is all his Honour - - -
GLEESON CJ: I read that. What actually did he decide? What was his decision about the mineral claims? Did he reject them or are they still open to be pursued on the remitter?
MR BENNETT: We would say they were rejected and are not open, your Honour.
GLEESON CJ: So, if we were to agree with Justice Merkel in every respect, the consequence of that would be that the mineral claims would have failed?
MR BENNETT: Yes, your Honour. I think the reference to "remitter" is rather suggesting if there is a remitter on some issue and then there is an amendment, then certain matters might arise on the amendment.
GLEESON CJ: Might they include the mineral claims? I am just trying to work out whether, if we said, "We decide the case in all respects as it was decided by Justice Merkel, that the mineral claims are dead or alive".
MR BENNETT: Your Honour, we would say they are dead, but it may be necessary to qualify what his Honour says at line 50, because it is difficult to see the basis for that. His Honour seems to be making an assumption that there would be a remitter for other reasons and then an amendment and someone would seek to re-raise something in some way, but it is hard to see how minerals could be in that category.
Your Honours, we have dealt in the reply with section 80 of the Judiciary Act and section 15B of the Acts Interpretation Act at 3.29 to 3.34; I will not repeat those matters. We have dealt with Mr Jackson's submissions about the Racial Discrimination Act in paragraphs 2.10 to 2.18. That Act, of course, does not invalidate Commonwealth legislation and the answer is really as short as that, in a sense.
Finally, may I just say a few words about ground 4 and the north-east boundary. What occurred, your Honours, was that the Commonwealth was represented at the time in Darwin by a female barrister and a female solicitor.
GAUDRON J: So what?
MR BENNETT: Your Honour, I am about to explain "so what"? There is reference to Aboriginal custom that women were not allowed on New Year Island. That would not, as a matter of law, have prevented one or both of them going, but at the request of the claimants the view was taken that it would be inappropriate and, out of consideration for the claimants, they did not go. But it does not matter, because it is not a case where any cross-examination was called for. My submissions rely, in relation to that issue, on exactly what was said by the claimant, Charlie Wardaga. We accept completely what he said. No competent cross-examiner would have asked the question and, indeed, my learned friend, Mr Pauling, who fits into that category, did not ask about it for the obvious reason.
GLEESON CJ: It is a long time since I have had to look at the original Privy Council cases, which, as I recollect it, developed this rule concerning concurrent findings of fact, but that rule was originally promulgated, as I recollect it, in the Privy Council in relation to Indian appeals, to deal with exactly the sort of problem that has arisen here.
MR BENNETT: It was, your Honour. The Raj's Case was the famous case, your Honour, I think about 1946.
There is nothing we disagree in, in what his Honour found on the facts. His Honour accepted the witness. In a sense, my learned friend, Mr Basten, is almost seeking to play down the evidence of his own witness. But what was said was completely clear. Whether it was in Aboriginal English, whether it involved gestures or not, and the transcript makes it clear. He points to the north-west and says, that is for the government. He points to the other areas, where the other islands are, the south-east - one can see it very clearly on the map - and says little waters for Aborigine.
It is absolutely clear what he is saying. There is no doubt about it. One cannot read any confusion into it or any difficulty into it and his Honour accepted that was what he said and his Honour accepted that was what his meaning was. The only place where we start to draw issue with his Honour is the one sentence I read to your Honours where his Honour said - this is in the passage at page 2032 in volume 8 at paragraph 98 and point 8 of the page where his Honour says - he refers to the human footprints on New Year Island and says:
The eastern boundary of the claimed area appears to be a reasonable representation of the limit to which the sea in that area would have been used.
That is the only finding which we say there is just nothing supporting. Zero. We have shown your Honours the relevant evidence and it is discussed in the submissions. We say, in a sense, it is contrary to what the claimant Charlie Wardaga himself says. A senior member of the group, a spokesman of the group, one of the claimants who is sitting on the Island says, "Well, that's what we regard as our country", and that is totally contradicted in relation to many, many square kilometres as I have demonstrated by that sentence, which we submit, is incorrect.
Whether it is a finding of fact or a conclusion of mixed fact and law or how one puts it is a question of characterisation but it is squarely within Voulis v Kozary, which I reminded your Honours about the other day. That, your Honours recall, was a lottery case and the trial judge found against the plaintiffs who claimed to be partners and part of the evidence was that the defendant had gone on television and said the other two were his partners in the win. The High Court said in the face of that evidence how could that finding stand? It is not a "no evidence"point. It is a question of just looking at a piece of evidence which is just so clear and so precise that one cannot have that generalised finding there.
It is important in relation, not only to many square kilometres of sea in this case, but also in relation to future cases where findings are made in a totally new area of law, in totally new circumstances and one needs, with respect, a little bit of discipline in relation to such findings and we would submit that one cannot stand. May it please the Court.
GLEESON CJ: Thank you, Mr Solicitor.
MR BENNETT: I am sorry. May I just say one other thing. Your Honour Justice Callinan asked yesterday about the cases on rights to air in relation to property. There are three cases. There is Pickering v Rudd (1815) 4 Camp 219, also 71 ER at page 70. That is the reference to a balloon flying over land. There is Kelsen v Imperial Tobacco Company [1957] 2 QB 334 and there is a recent discussion in an interesting case in New South Wales called LJP Investments v Howard Chia Investments (1989) 24 NSWLR 490 which involve trespass as to airspace in the course of building a tall block next to a vacant lot. There is a case in England which that talks about dealing with what are called "oversailing cranes", the same sort of problem.
CALLINAN J: There is a Queensland case of K.D. Morris about a crane.
MR BENNETT: Yes. If your Honour pleases.
GLEESON CJ: Mr Basten.
MR BASTEN: Your Honours, our appeal requires attention to three stages of the trial process in this matter. The first stage of the process was as undertaken by the trial judge to identify the content of the traditional law and custom whereby the claimants asserted a connection with the area of their sea country. A second stage, perhaps, was to translate those findings into rights and interest which might attract protection in a court. The third stage was to ask whether there were limits on the recognition, to use the term of the Act, which the common law would accord to those rights and interests.
His Honour, in effect, concluded that the traditional laws and customs were observed and acknowledged and, really, the connection of Ms Yarmirr, Mr Wardaga and the members of their yuwurrumu, to their sea country was not substantially in issue. However, his Honour held that the traditional laws and customs did not confer obligations on non-aboriginal people, nor did they bind them in that sense.
Your Honours, we say, in this respect his Honour's reasoning revealed two errors. The first was to require the traditional laws and customs to retain those elements of internal enforceability which were lost with the acquisition of sovereignty by the British Crown. The second was to insist that the claimants identify their rights in terms which could translate into our concept of rights and interests. Given the novelty and practical difficulties of undertaking that task, one can empathise with his Honour's problems, but the legal consequences of those two errors as we identify them are of some importance.
Your Honours, may I interpose that there was evidence of internal enforceability which was given, and perhaps I can give your Honours some reference to the evidence. I think that it receives only minor reference in his Honour's findings - - -
CALLINAN J: It does not seem to be in issue though, Mr Basten.
MR BASTEN: Because it was not in issue, that is so, and the reason why we have not addressed it in our submissions was that it was never raised as an issue on the appeals.
CALLINAN J: Yes.
MR BASTEN: Perhaps I might interpose at this stage also in answer to your Honour the Chief Justice's question about minerals. In this matter, there was no specific ground of appeal dealt with in the Full Court which related to minerals. The rights and interests which were identified under the traditional laws and customs were those involving control of access to the area of the sea country and the right to make decisions about the use of its resources and to use its resources. There was no evidence about use of minerals and what his Honour said about that was not under appeal in this case - it is raised in another matter - but, as I would understand it, that is why Justice Merkel perhaps made no express finding in that regard. It simply was not a ground of appeal before his Honour.
GLEESON CJ: So the decision of Justice Olney concerning the matter of minerals is one with which we are not concerned?
MR BASTEN: That is so.
CALLINAN J: In any event, Mr Basten, it is correct, is it not, that what the Solicitor told us is correct, that there was no evidence at all of use or exploitation by your clients of the subsoil below the seabed?
MR BASTEN: I think he said of minerals in the subsoil. That is so, yes. That is certainly the case. That was not in issue.
CALLINAN J: There is no evidence of it, of course?
MR BASTEN: There was no evidence of it, your Honour.
CALLINAN J: Would that not defeat any mineral claim inevitably then?
MR BASTEN: Your Honour, that raises a question as to whether use is an essential element of native title in relation to an area and use of particular aspects of the resources. We would say no, but we do not understand that it is raised squarely in this appeal. I make these qualifications deliberately, because as your Honours are aware, there is a further appeal in March in which these issues are identified specifically by way of grounds of appeal.
KIRBY J: Your interest is in the fishing. Is it also in the pearling or is pearling something that came post-settlement?
MR BASTEN: Your Honour, says our interest. In a practical sense our interest is in control of access to the area for any purpose. We do not claim - - -
GLEESON CJ: You do not have an interest in being able to charge people a fee for a licence?
MR BASTEN: Well, it goes further than that, your Honour. It goes to the extent that these activities can interfere with the nature of the area and its importance to Aboriginal people. Might I simply illustrate the point by taking your Honour to one passage in the evidence at page 400 in volume 2 of the appeal books, where a witness, Mr Yambigbig, in the middle of the page was asked that precise question:
If somebody, say, balanda -
who are white people, European settlers -
wanted to come into your Murran sea country, they want to, say, drill in the water down in the bottom of the sea there, sea bed -
He says:
Well, I say no.
You would say no?---Mm.
Why would you say no?---Because he destroy that sea. Might be let him go oil or something like that. He kill all the fish and turtle -
and so on. Then he is asked:
Why have you got the right to say no?
He says:
I got the right to say because this belong to me, that country, that sea and that reef where that hunting area.
That in a sense encapsulates both the concern and the interest in response to things like fishing or drilling or other usage of the area by people other than by members of the yuwurrumu.
GLEESON CJ: So you do not really need to assert or demonstrate an interest in or a right to minerals if you can demonstrate a right to exclude people who might want to explore for minerals.
MR BASTEN: We would say that is so, your Honour.
GLEESON CJ: Or exploit minerals, if they ever found any, including hydrocarbons?
MR BASTEN: That is so, and it becomes a matter of, perhaps, limited practical moment because that is an area where there is legislation which empowers the Crown to ground rights, and we accept that our native title would be subject to such valid Commonwealth or territory legislation.
May I, in order to indicate the nature of the evidence, take your Honours to page 2005 in volume 8, which contains Justice Olney's judgment. In paragraph 57, two-thirds of the way down that page, his Honour commences with the basis upon which he is assessing the evidence. He says of Mary Yarmirr that her:
knowledge and understanding of the culture and traditions of the applicant groups is clearly all embracing. Although in giving evidence in English, she spoke in what she said was her third language, she spoke with considerable eloquence and her sincerity was both patent and compelling. As her evidence touched upon virtually every aspect of the case, frequent reference will be made to it and relied upon, in much of what follows. Charlie Wardaga is not particularly well versed in English and on occasions some difficulty in communication was experienced, but nonetheless, he was able to convey, often in a most colourful fashion, an understanding of his traditions and culture. Frequent reference will also be made to his evidence.
There was also an anthropologists' report, which is referred to on the next page, at page 59, which was tendered without objection. I think your Honour - I am sorry. I will come back to that. At page 61 it was noted that the qualifications and experience of Drs Peterson and Devitt was beyond question.
KIRBY J: Paragraph 61.
MR BASTEN: I am so sorry, paragraph 61 on 2009. I do not take your Honours in detail through this. I think your Honour Justice Callinan was referring earlier to the passage on page 2010 where he indicates the basis on which he deals with the material. We accept your Honour's comment about that. At the top of 2011 his Honour noted that:
Whether or not a particular statement in the report is to be classified as mere pleading, as expert opinion or as hearsay is not always readily apparent but to a very large extent the report can be accepted as both reliable and informative. It contains some speculation but not much and to the extent that it does, I have not found it necessary to refer to it.
The applicants' anthropological evidence is virtually unchallenged. Drs Peterson and Devitt clearly have extensive experience in the anthropology of Aboriginal land tenure in the region.
MR BASTEN: The applicant's anthropological evidence is virtually unchallenged. Drs Peterson and Devitt clearly have extensive experience in the anthropology of Aboriginal land tenure in the region.
HAYNE J: It is by the way, no doubt, Mr Basten, but to speak of the evidence of the anthropologists when they are avowedly advocates in part, reveals the difficulty of any trial judge confronted with such material. What is evidence, what is opinion, what is advocacy? As I say, no doubt it is by the way.
MR BASTEN: In a sense, it is, your Honour, but that is what his Honour acknowledged on page 2010, and he indicated how he dealt with the material on that basis. We do not understand any error to be attributed to the manner in which his Honour dealt with it.
CALLINAN J: Mr Basten, there is some provision - facultative provision, is there not, in the Act, with respect to evidence anyway, is that right?
MR BASTEN: It is right, your Honour. It is section 82 where there are a number of facultative provisions, but it in section 82(3), in the form it was in at the time of the trial, "the court is not bound by technicalities, legal forms or rules of evidence".
CALLINAN J: But there is, on the other hand, an obligation to conduct the proceedings, I think, among other things, fairly - and that may involve perhaps not applying a different standard to the hearsay of one side from the standard to be applied to the evidence of the other. I am not suggesting that happened but that - - -
MR BASTEN: No, no.
CALLINAN J: It may not be always very easy to reconcile an obligation to conduct proceedings fairly, on the one hand, but to be receptive of evidence that would not ordinarily be received, on the other. That is all I am suggesting.
MR BASTEN: Yes. In relation to this aspect of the matter, the evidence was really all on one side.
CALLINAN J: It was not challenged - - -
MR BASTEN: And it was not challenged, no.
CALLINAN J: - - - so I do not think you have a problem about it in this case, Mr Basten.
MR BASTEN: Yes. And section 82(2) is also relevant in that respect, as your Honour will have read. One must take account of cultural and customary concerns in dealing with the evidence but I accept what your Honour says; obviously, rules of procedural fairness are directly applicable and would be applied.
Your Honours, at the top of page 2012, his Honour summarised the system of native title, and he said at the third line: "The facts asserted are not controversial". That appears to apply to what follows. At paragraph 69, he refers to certain terminology that he adopts. At paragraph 70, his Honour said:
An estate is usually made up of a single continuous tract of land and sea but it may have separate smaller tracts as well. No distinction is made between the sea and land components of an estate but as a matter of convenience the sea component of an estate is referred to as the "sea country" of the relevant estate group.
He goes on to talk about the boundaries. He says:
Each estate is normally associated with a single group of people, who trace or claim descent through the male line, know as a yuwurrumu.
That is what he later calls the "core group" and your Honours will see on page 2015, in paragraph 74, he notes that there are many people on Croker Island with "long term residence" - indeed, over generations - some of whom have "contingent interests". Those are the rights which arise, at paragraph 75, from such matters as place of "residence, place of conception" and so on. Your Honours, it is clear that there is a traditional law and custom which defines who these people are, what rights they have. This is set out briefly; one does not necessarily get the flavour of it from this material because it really was not in dispute. Perhaps an example with a little bit of colour comes in footnote 24 at the bottom of page 213.
Your Honours, there are elements of this, obviously common to communal native title, which have, I suppose, a flavour of proprietary interest, in our understanding of the word. At paragraph 73 his Honour notes that there are problems which can arise through a particular group dying out. He says:
there are established ways of dealing with succession problems caused by the extinction of such groups.
He discusses that at the top of page 2015 and notes that there may be disputes. He also notes that there may be adoption which can arise in order to bring a person within the membership of a group. I need not trouble your Honours with that detail.
May I go then to page 2022. The intervening pages are largely dealing with questions of the boundaries of the separate estates. In the pages of the anthropologist's report around 1622 to 1641, your Honours will find indications of those boundaries which are referred to there, but they are not presently relevant. Could I stop at the top of page 2020 to interpose one comment. After a reference to Mabo [No 2] his Honour states his task as:
It is the traditional basis of the currently acknowledged and observed laws and customs which attracts recognition of native title. The task of the Court is to identify those laws and customs which regulated the lives of the forebears of the present members of the applicants prior to European settlement which are currently acknowledged and observed.
We say that that is not entirely consistent with what your Honour Justice Gaudron put. The historical element caused difficulty at some stages understandably, because it is so difficult in an aural tradition to know what was done at a time prior to European settlement. We say that his Honour set himself a difficult task which he need not have addressed but that nothing followed from doing that for the purposes of the findings his Honour made in this case, as we understand them, and I will come back to that.
GLEESON CJ: Mr Basten, disregard this subject if it is unrelated to what you are talking about at the moment, but what is the practical significance for the resolution of the present case of the difference between Justice Merkel, on the one hand, and the majority in the Full Court on this question of the time to which it is necessary to relate concepts of traditional rights?
MR BASTEN: We are inclined to say "nothing", your Honour. We agree with what is said in the majority about the evidential and practical difficulties imposed by the task that Justice Merkel appears to require but, if it is correct to say that what one is seeking to identify are the traditional laws and customs now observed and acknowledged, then the time of sovereignty is of theoretical difficulty only.
The argument which is put against us is that if there was no recognition until a recent date, then there can have been no extinguishment. But that is sought to be overcome by the comment that a law which had operation in relation to what might have been traditional laws and customs and rights and interests will cap the ability of the common law to recognise them. That is a way in which the Commonwealth puts it in their written submissions. Whether anything turns on that analysis, I do not know, your Honour. I am inclined to think not.
GLEESON CJ: Is it a live issue that we have to resolve in this case?
MR BASTEN: We would say no, your Honour, because we adopt the test that Justice Gaudron identified as being the correct test under section 223 of the Act, whatever may have been said in Mabo.
GAUDRON J: But it does not have to be decided in this case.
MR BASTEN: I do not think it does, your Honour.
GAUDRON J: It may emerge in other cases and it may have importance in some cases.
MR BASTEN: It was said to arise in this case by others. We do not say it does.
GAUDRON J: In D7 or D9?
MR BASTEN: In D9 by the Commonwealth, I think, your Honour.
GAUDRON J: Yes, and I think by the Northern Territory.
MR BASTEN: The Northern Territory express a view as to the proper analysis but I am not sure that they necessarily say that much turns upon the approach adopted. May I then go to page 2022 and in the middle of that page his Honour deals with the identity of what he calls the Croker Island community where many of the yuwurrumu members live. The passage I referred to before in the middle of the page notes that the relevant estate groups are not defined simply by being residents on Croker Island but depend upon the application of traditional law and custom. Many people with a physical connection with Croker Island are not such members.
His Honour then notes in the middle of page 2023 the fact that Aboriginal law was the source of the rights identified. I mentioned before that custom did not, in terms, arise, and his Honour says nothing about it. In the next section he deals with the concept of, "THE EXTENT OF THE SEA COUNTRY" and notes that:
Peterson and Devitt state the "the applicants have traditionally thought of the sea to the horizon as being under their control" - - -
Of that he says at the bottom of the page:
Mary Yarmirr's evidence confirms these statements.
Then there is a lengthy passage which is of no direct relevance for present purposes and I take your Honours to paragraph 97 on page 2031. There he says:
There is abundant evidence that members of the Croker Island community use waters within the claimed area to catch fish, hunt for and catch turtle and dugong and collect oysters and crustacea, both for personal consumption and for use in relation to ceremonial activities.
Your Honours will note the rest of the passage. I do not read it. At page 2032 is material which your Honours have been taken to. At page 2033 he discusses "THE CLAIMED RIGHT OF OWNERSHIP" and there is some discussion in that passage which follows of the concept of ownership. Nothing much, I think, turns on that. As your Honours will see at the top of page 2034, in the extracted passage, Mr Lamilami's evidence is similar to that I took your Honours to a while ago from Mr Yambigbig. He is asked:
What gives them the right to stop you going?
That is on to the country of another yuwurrumu.
Well, firstly, it's their grass, you know. I mean, the sea bed is theirs . . . it's part of them.
"They own that area". The conceptual framework is obviously one which needs to be dealt with but the labels which are given are different but have the same emphasis throughout as that which we identify in terms of Justice Brennan's helpful and colourful extract from Stanner in Meneling Station 158 CLR. I think your Honours are familiar with the passage at page 356. Might I just say that at page 356, point 8, Justice Brennan in a passage which is no doubt correct for this case notes that:
The religious relationship o particular Aboriginal groups with their "country" (the term customarily used to describe the land with which there is a traditional connexion) -
That explains the use by his Honour in this case of country and sea country. He then indicates in that passage from "White Man Got No Dreaming" of which I will not read to your Honours but merely note that this was written by Stanner of an area close to that in which the present native title claimants live. He says on page 357 that:
This explanation renders intelligible and logical the statutory definition -
that is in the Aboriginal Land Rights Act -
of "traditional Aboriginal owners" -
These people are, of course, traditional Aboriginal owners and use of the term "owner" is no doubt something that has been with them for 25 years.
May I then take your Honours through to another passage to similar effect at page 2054, where his Honour is describing the right to protect places of importance, a claimed right, and says, about point 3 on 2054:
It is not uncommon for an Aboriginal person to assert, and to be recognised by others as having a right to "speak for" an estate or sometimes for a particular site on an estate. Normally such an assertion and recognition is an indication that the person in question is properly to be regarded as being a "traditional owner" or "boss" or holding some other pre-eminent position in relation to the estate or site. The right to speak for country or a site will normally entail a corresponding duty to "look after" or protect that country or site.
His Honour quotes some of the restrictions which apply to dangerous sites, quoting Peterson and Devitt at the foot of the page and on the next page notes:
The claimed right to protect places of importance is clearly a claim in relation to the relevant area of sea and sea-bed. The evidence contains many references to sites of the type described. The right as claimed (and the corresponding duty) is capable of enforcement only to the extent that those who enjoy the right are capable of having and controlling access to the relevant estate. The evidence establishes beyond doubt that according to the traditional laws and customs of the several yuwurrumus which comprise the Croker Island community, yuwurrumu members have rights and obligations in relation to sites within the claimed area which they are required to protect from unauthorised and inappropriate use. By reason of those rights, they have a connection with the sea and sea-bed in question.
May I then turn back to page 2016. There his Honour notes a number of rights referred to in the report, each of which he goes through in the following pages, and these are the rights which are discussed from page 2033 onwards. Firstly, at page 2034 he deals with the question of ownership and the term used and seeks other evidence to indicate what is encompassed by that term, although he describes it as the "aggregation of separate rights which are asserted in respect of the claimed area" at point 3. There is a danger in that because it tends to diminish that which establishes the connection with the land as described by Justice Brennan in Meneling, where his Honour compared the difference between that connection and the bundle of rights in Minister for the Army v Dalziel.
KIRBY J: Where are you reading now?
MR BASTEN: I was just commenting, your Honour, on the passage two lines below the quotation at 2034, where he talks about:
There is nothing in the evidence to explain what the applicants understand "the connection of ownership" to encompass unless it be the aggregation of separate rights -
but, of course, in the context, and in the light of the comments that I read to your Honours from further on, he understands the religious and spiritual nature of the connection.
Your Honours, may I then not take your Honours through the detail of that material, which is a summary of parts of the evidence, but go straight to page 2041. Paragraph 107 identifies a number of different matters which tend to run together. At about point 3 on the page though, there is a sentence which - and I will come back to this - in the present course of my explanation, is relevant. His Honour says:
The evidence establishes that the applicant community has consistently asserted, as a matter of Aboriginal law, the right to be consulted about and to make decisions concerning the use of its sea country.
He then goes on to consider matters of "pre-contact times", to which I do not go. At the bottom of the page at paragraph 108 he then says:
That members of a yuwurrumu claim the right of free access to the estate of the yuwurrumu is beyond question -
although he notes that, in some cases:
even that right is exercised with some circumspection -
The evidence at 2042 deals with closing areas after the death of a person, and there is some evidence there about - for example, in the middle of the page, Ms Yarmirr says:
And if I damage that country, I'm accountable for it.
Not perhaps direct evidence of sanctions, but that comes also.
At 109, at the bottom 2042, his Honour says:
The right to permit or refuse entry onto the estate of a yuwurrumu was expressed as being pursuant to traditional law.
Then there is an extract from her evidence. If I may go to the bottom of page 2044, the summary which his Honour then reaches is in the last two lines:
The evidence supports the conclusion that according to the traditional laws and customs of the Croker Island community Aboriginal people, including Aboriginal people who are not part of the Croker Island community, before going on to the estate of the yuwurrumu to which they do not belong, should first seek and obtain the permission of the yuwurrumu whose estate they wish to enter.
111. The requirement to obtain permission to enter the country of the yuwurrumu to which a person does not belong does not necessarily involve seeking permission on every occasion.
That has been explained by Ms Yarmirr. There is then further discussion of the closing off of an estate and, your Honours, at page 2048 there is a final discussion of this matter in paragraph 115. There are three sentences here and I seek to deal with these separately.
GLEESON CJ: What paragraph number, Mr Basten.
MR BASTEN: Paragraph 115.
GLEESON CJ: Thank you.
MR BASTEN: In the middle of 2048. I will come back to the first sentence. The second sentence is this:
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 that on occasions permission is sought before fishing, hunting or gathering on another clan's sea country and by inference, although the evidence is not strong, other Aboriginal people from country outside the claimed area probably do likewise.
GLEESON CJ: Now, is there a challenge to that finding?
MR BASTEN: There is no challenge to that finding, your Honour. It is sufficient for our purposes when one notes two matters. Firstly, the fact that permission is only obtained on occasion is a reference back to the explanation by Ms Yarmirr that general permission is given and understood, and I will come back to that.
But the other aspect of the finding - there are two other aspects to the findings which his Honour makes in this regard. The first sentence in paragraph 115 says:
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.
Now, that is a dismissal of part of the claim. May I take your Honours back to paragraph 107 to indicate what it is that leads his Honour to say that. The assertion by Aboriginal law to which I took your Honours in the middle of the paragraph is followed by a contact about pre-contact times, which is perhaps unnecessary and the difficulties his Honour has in drawing inferences is apparent. Then at about point 6 on the page, his Honour says:
The very nature of the sea renders it inappropriate to attempt to strictly apply concepts such as possession and occupation which are readily capable of being understood in relation to land. There is a clear distinction between possession and occupation on the one hand and use and enjoyment on the other. The claimed right of senior clan members to grant permission is limited to allowing non-members to use and enjoy the country, not to possess or occupy it.
That, as we would understand it, involves both a slide into a translation of traditional law and custom into common law concepts of possession and occupation and explains why in the first sentence of paragraph 115 his Honour rejects the global claim of "exclusive possession, occupation, use and enjoyment", because he simply does not accept the relevance of concepts of possession and occupation in relation to this evidence.
HAYNE J: That phraseology seems to have derived from the way in which the claim was framed: see page 2036 just before para 102.
MR BASTEN: I agree with that, your Honour.
HAYNE J: His Honour was dealing with the claim that was made and said that that claim as made was not made out. Was it more than that?
MR BASTEN: There are two aspects to it, your Honour. The first is that we accept that, but what he is seeking to do at paragraph 107 is to distinguish between possession and occupation on the one hand, and use and enjoyment on the other. He accepts the claim in relation to use and enjoyment, and that is clear from the previous discussion about consultation about making decisions concerning use of the sea country. What he does not accept, as I understand it, is that "possession" and "occupation" are terms which are appropriate. We come back to that question, but that involves a separate issue, as we would understand it, of the manner in which a finding about the traditional law and custom is to be translated into a right and interest for the purposes of section 225 of the Native Title Act.
GLEESON CJ: The first thing it was translated into was a claim.
MR BASTEN: Your Honour, he is addressing a claim.
GLEESON CJ: Yes, with which he had to deal.
MR BASTEN: With which he did have to deal.
GLEESON CJ: What was the meaning of the claim to possession and occupation?
MR BASTEN: In terms of, as it were, a draft determination, there has been a translation. What I am seeking to do is to say that one needs first to identify the fact-specific content of the traditional law and custom and then consider whether the change into terminology which appears to be required by the definition in the Act and by section 225 is appropriate. There are, as we would apprehend it, at least two, maybe three, stages in the process which his Honour is undertaking. I was merely seeking to identify what it was in 107 which appears to explain how his Honour summarises it very briefly at 115 without in any way contradicting the clear findings that his Honour had already made, for example, at the bottom of page 2044 concerning the traditional laws and customs about obtaining permission to come onto somebody else's estate.
GLEESON CJ: The claim that was being made was a claim that went far beyond any claim that the Crown of England had ever made to this area, is that right?
MR BASTEN: Yes, it did, your Honour. We do not suggest that the Crown ever asserted a beneficial right of possession or occupation of the area. Indeed, had it done so, our claim would fail, one would think.
HAYNE J: Can I just understand a little better perhaps where you are going or where you have been - I am not quite sure which. Can I go back to the claim as framed at page 2036. It might be seen as having five elements: possession, occupation, use, enjoyment, exclusivity - exclusivity of each of those elements. What are you saying that his Honour wrongly concluded?
MR BASTEN: Your Honour, the claim as framed is a claim which involves both the ascertainment of the traditional law and custom and the translation of any right granted under it into terminology which is of the common law, perhaps one might say.
HAYNE J: So what should he have done?
MR BASTEN: What we say, in a sense, your Honour, is that it may not matter whether it is translated into terms of possession and occupation but what he should have done was to say that under the traditional law and custom the condition for entry, the permission system which he describes, for example, at 2044 to 2045, involves an application under Aboriginal law of a right to exclusive control over those who have access to the estate and thereby those who may use it and that they have asserted, as his Honour noted, a right to control and be consulted about to make decisions about the use of the sea country. That is at 2041 point 3.
Having identified exclusivity in terms of Aboriginal law there is another step which his Honour takes of which we complain, that is to say that traditional law and custom was not applied to non-Aboriginal people. That is one basis upon which he seems to deny that the exclusivity which may have applied between Aboriginal people could be recognised by the common law.
We complain of that and we say that that is an inappropriate test. If we are right about that then the question becomes will the common law recognise the exclusivity of the right to control access and to be consulted about and make decisions about the use of the sea country. If it will recognise those things then the question is whether it is appropriate and desirable to use terms such as "possession" and "occupation" in formulating the right for the purposes of the determination and we say that it is because that terminology is, as it were, a shorthand way of describing that which will give rise to enforceable rights under the common law and to indicate what may fall for relief if those rights are interfered with or impaired by third parties.
HAYNE J: If we leave aside the use of the expressions "possession" and "occupation", leave that problem to one side, what I take from what you have said is that there may be any or all of three elements: a right to exclude others from access or use; a right to say what use might be made of the area and a right to be consulted about what use might be made. Pausing there, do I capture the essence of what you put?
MR BASTEN: Yes. That is so.
HAYNE J: The second and third of those elements seem to have some overlapping.
MR BASTEN: Yes.
HAYNE J: Perhaps we need not tarry with that but is the core of it the right to exclude others from use?
MR BASTEN: Yes, access for purposes - - -
HAYNE J: And thus the question becomes, what others?
MR BASTEN: Yes.
GLEESON CJ: The question of a right to control access to an area of the sea is a very ancient question.
MR BASTEN: Yes.
GLEESON CJ: That was a common means of raising revenue, and claims by people or attempts by rulers to raise revenue in that way, led to hostilities.
MR BASTEN: Yes.
GLEESON CJ: When you are dealing with the common law's recognition of a right to control access to the sea, was the common law's recognition of such a right related to questions of a capacity to "make good" a claim of such a right?
MR BASTEN: In a sense, your Honour, that may be a hypothetical question for us, because the next stage of our argument is that the right of freedom of movement in the seas is such a fundamental concern, and for the reasons that your Honour has indicated, that we do not suggest that the common law would recognise a right of the nature of innocent passage or navigation.
GLEESON CJ: But you did claim the right to control access to a seaway?
MR BASTEN: We do, your Honour. We say that under the traditional laws and customs, that right was apparent, and his Honour's fact finding demonstrates it.
GLEESON CJ: That is a very large claim. Historically, a claim to control access to the sea is one that is backed up by weaponry.
MR BASTEN: So also, a claim to control access to land, I suppose. But the question is not one which we suggest should be pursued in that sense, because we acknowledge that would conflict with an underlying principle: perhaps what one might describe as an aspect of sovereignty or an aspect of what in the terms of the race convention one calls a "fundamental freedom and human right", so described in - - -
GLEESON CJ: I am not sure everybody would accept that a right to control access to the sea is of the same nature as a right to control access to land. Rights of other people to use the seaway seem to be of a different order when you are dealing with the high seas.
MR BASTEN: Of a different order, but perhaps the stronger order, your Honour. I am not - - -
GLEESON CJ: The potential to give rise to international conflict is obvious.
MR BASTEN: Yes. No, no, I am not suggesting otherwise. Our proposition, which your Honour may recall from the draft determination that we discussed very briefly yesterday or the day before, acknowledges that the common law would not recognise a right which would permit either the exclusion of foreign ships exercising a right of innocent passage - that because the sovereignty upon which the British Crown relies is itself subject to that qualification - and, for the reasons we indicate in the submissions, we also suggest that the right of navigation, of freedom of movement for ships within the internal waters, would qualify common law recognition of what might have been a traditional law: a right to control access.
CALLINAN J: But, Mr Basten, the Macassans in 1720 and later; they did not seek - the evidence was not that they sought and had permission, or that there was consultation by them. Is that not right?
MR BASTEN: Well, can I say two things about that, your Honour. One is whether there had been violent or peaceful intrusions on the area before the claim of British sovereignty, we would say is beside the point, and his Honour's finding are somewhat - - -
CALLINAN J: But you adopt the word "intrusions"?
MR BASTEN: Yes.
CALLINAN J: Intrusions assumes the argument you are putting.
MR BASTEN: Intrusion on - - -
CALLINAN J: The fact that they navigated and used those waters does not necessarily mean they intruded.
MR BASTEN: We know that they did because we know something about the relationship which was turbulent at times.
CALLINAN J: They might have been asserting the same rights themselves.
MR BASTEN: And they may have been resisted.
CALLINAN J: Yes.
MR BASTEN: It is really no more, your Honour, than the proposition that the movement of an army across a country, my country, perhaps, does not affect my private property rights in relation to my land. I can not resist the army, perhaps, nor can my government.
CALLINAN J: But, nonetheless, you can not ignore the word that was included in the Chief Justice's question to you about the high seas, which was capacity.
MR BASTEN: Yes.
CALLINAN J: Capacity to protect your interest or your right.
MR BASTEN: Your Honour, that, in our submission, raises questions of effective assertion of sovereignty which are inappropriate in this area because they invite the question of the nature of the sovereignty, which was asserted by the indigenous people before European settlement.
HAYNE J: But if we shed reference to that slippery word "sovereignty," every system of law and rules has encountered a difficulty dealing with control of access to the sea.
MR BASTEN: Yes.
HAYNE J: Hence, the development of rules about how far a canon can fire and so on.
MR BASTEN: Indeed, your Honour.
HAYNE J: At the core systems of obligation assume, do they not, some means of enforcement.
MR BASTEN: Indeed. And in a primitive, technologically primitive society, the means of enforcement will, no doubt, be ineffective when faced with a technologically advanced society. That is demonstrated by what happened at Botany Bay in 1788. That did not affect the fact that there was a sufficient force available to the British Crown to, as it were, overrun Australian land, did not affect the principles established by Mabo that the common law would still recognise the property rights of those who resided there.
GLEESON CJ: But at the very least the problem of enforcement calls for close scrutiny of the claim. The problem may be expressed by saying to somebody who made such a claim, "Do you really mean that?"
MR BASTEN: Yes.
GLEESON CJ: "Have you contemplated the consequences that would flow from such a claim and having to back it up?"
MR BASTEN: I am not sure I am arguing for a position which I do not need to. My point was, rather, that his Honour's findings in relation to the traditional laws and customs - your Honour may be asking was there cross examination about this point. But his Honour's findings about the traditional laws and customs was that a right to control access was asserted.
That was his factual finding. Our concession, as it were, is that be that as it may, the common law would not recognise a level of control asserted which was inconsistent with the right of navigation or innocent passage.
Having said that, the only reason we are concerned about that aspect of the content of the traditional law and custom is to make plain our distinction between those, as we would see it, overriding rights or principles, and the questions in relation to fishing.
GLEESON CJ: But the way you put the case seems to make the claim for the right to control access and then immediately to acknowledge qualifications on the claim related to two specific matters, that is to say navigation and, perhaps, fishing. Perhaps not, it does not matter. But a possible point of view is that those well-recognised qualifications relating to navigation and fishing are simply examples which illustrate the inherent conceptual difficulty of making such a claim in the first place.
MR BASTEN: Your Honour, the question really, I think, becomes one of the stage at which the problem is said to arise. If it is correct to say, as his Honour finds, in our submission, that the connection between these people and their sea country is the same as their connection with the land, that it goes beyond, Justice Brennan's words, "a bundle of rights" to a spiritual connection with the land from which one would derive a right to control access to it because the seas are dangerous and people need to know and be introduced to the spirits and so on, then as a matter of fact under the traditional law and custom that right is asserted and established. Now, when one comes to the question of recognition by the common law, there are other factors at work.
McHUGH J: But does not that create a problem for you? The right that is possessed under the traditional laws seems to me, on the evidence, to be a right of exclusion to anybody who is not entitled to the benefit of the estate but met with some common law problems you now seek to assert a lesser right than the right which you possess under the traditional laws. How can you do that?
MR BASTEN: Consistently, we would say, with the qualifications that Mabo recognised in relation to a possible traditional right which was repugnant to the common law.
McHUGH J: But the qualified right that you now assert is not a right that you possess under the traditional laws. It is quite a different right.
MR BASTEN: It is a right subject to significant qualification. The mere fact that for particular purposes the common law would not recognise our right to exclude others does not mean that we have no right to exclude them for any other purpose and that the common law would not recognise that right. The qualification itself is a diminution of that which we assert. We can accept the diminution in its own terms and retain a claim for that which is left. I see no logicality in that position, your Honour.
McHUGH J: I do at the moment. It seems to me the rights that you now claim are not the rights that you possess under the traditional laws.
MR BASTEN: They are a part of the rights which we possess under traditional law and custom. In the same way, one might perhaps think that the right of the freeholder to exclusive possession and to exclude all others is subject to qualifications when people obtain mining leases in relation to that land. There is no - - -
McHUGH J: But that is the effect of the law, the common law, or the statute law, but what you have to establish is a right possessed under the traditional law and your right is a right to exclude everybody. Now you want to say, "Well, we have a right to exclude some people".
MR BASTEN: Yes.
McHUGH J: Your traditional law denies that. It does not say you can only exclude some people. It says you can exclude everybody. It says we can exclude everybody and the limitation imposed by the common law is not if somebody has a specific purpose which entitles them under our law to come upon the seas. Or one should put it a different way: the remedies which may be available under the common law to protect our sea country from intrusion are not available when the purpose for the intrusion is the right of navigation, the right of passage and re-passage and so on, and the incidence thereof.
GLEESON CJ: My recollection, which may very well be imperfect, is that a lot of public documents entered into in the early days referred to bêche-de-mer which were once recovered from the seabed and were regarded as valuable. Would the common law have recognised the right of your clients to exclude Englishmen from recovering bêche-de-mer from these locations?
MR BASTEN: Your Honour, I am not sure whether that is different from the assertion of a right to fish.
GLEESON CJ: Neither am I.
MR BASTEN: Perhaps I can put it in this way: we say that if it is part of the right to fish, which I think it probably is, we would say that our interest in the resources of the area can be recognised by the common law. That is the distinction we seek to make between the qualification we concede in relation to passage, which does not include fishing - we explain that in our written submissions - and the separate purpose of coming on to the area in order to fish.
GLEESON CJ: But it may be that problems about freedom of navigation and problems about fishing are just illustrations of a more fundamental problem about recognition of some personal right to exclude access to an area of the sea.
McHUGH J: You go so far, as I understand it, to assert that you can exclude the right of people to swim in the sea, the board riders who take their surfboards there, and assumes - - -
GLEESON CJ: Or the tour operators who take visitors there and stop for a while and encourage them to dive.
MR BASTEN: Well, that may or may not be an incident of a right of passage through the waters. There are difficult questions in relation to how far that goes. I accept in principle what your Honour puts to me. Your Honour's example, absent the tour operator, is perhaps a little artificial because the land on all sides is Aboriginal land and people have to get permission to come onto that. It is no different, in our submission, to say that they should have permission to come on to our sea country too, and that is the right which we assert in the same way as we do in relation to the land. Our rights in relation to the land have been recognised by a grant under the Land Rights Act, they are not in doubt.
McHUGH J: Yes.
MR BASTEN: The application of those principles in relation to the sea is in doubt.
McHUGH J: But there are claims in Victoria, for instance, we were told, over half the coastline of Victoria, are there not, in one of the cases? People wander along the beach from land that is not subject to native title and then they wander into that beach area and want to surf there.
MR BASTEN: Your Honour, there are two aspects to that. One is an acceptance of the proposition, and indeed a basic and fundamental underlying principle in this area, that the content of traditional law and custom as currently acknowledged and observed is a matter of fact to be determined in each case. Might I put it, without perhaps being offensive to anyone, the likelihood of the connection established in this case applying, say, in the surrounding beaches around Melbourne is remote. So that that question of whether such a right could be asserted there is simply not a realistic one.
The second aspect to your Honour's question is that these matters are dealt with in part under the Native Title Act and section 212 deals expressly with protection of access to beaches and places like that. So that there is, as it were, an acceptance by the Act that such problems may arise and an attempt has been made to deal with them. It does not require a refusal on the part of the courts to recognise an element of exclusivity in order to solve all these problems.
May I come back to the question of recognition. Your Honour the Chief Justice puts it to me in the context of difficulties with recognition. The problem which we face - and I think it has already been identified - is that recognition is, in the terms of Mabo, protection; protection of rights in relation to land. When a case comes before the Court for a determination of native title, there is no factual material demonstrating interference with a right which is claimed or asserted and then has to be determined and the question of whether there is actual interference adjudged and a relevant aspect of relief given.
So that what section 225 requires is, as it were, an abstract definition of the rights and interests which the common law recognises without reference, unfortunately, to the, as it were, hard-nosed examples that the court applying the common law would no doubt have to assess in a particular case. That is why the question of recognition arises in a slightly different way in this aspect of the matter than it would if there were relief sought by way of protection of a right.
McHUGH J: At some stage can you assist me by some submissions about this problem I have raised earlier, that the doctrine of native title is based on tenure which applies on the land but that the title to the oceans and to the seabed depends upon the prerogative. It had a very different means of proof. If the King was out of possession of land, you had to have an inquest of office to establish the sovereign's title to the land but the sovereign did not have to have an inquest of office to establish its rights over the seabed or any part of the sea. A monarch can bring an information of intrusion for trespass. So they were two quite different concepts of property.
It is one thing to say, as we held in Mabo, that native title can attach to land of which the Crown has the radical title. At the moment it seems to me it may have quite a different matter to say that native title can attach to the title derived from the prerogative in respect of the sea or the seabed. At some stage if it is convenient to you, I would like to hear some submissions on that.
MR BASTEN: May I deal with them now, your Honour?
McHUGH J: Yes.
MR BASTEN: In part it was a matter which I was seeking to address in the - I know there is an overlap between these cases and it is readily apparent, but in taking your Honours to the Seas and Submerged Lands Case, I was seeking to adopt the analysis that Justice Jacobs undertook in that case, which I think is not inconsistent with what your Honour is putting to me, about the nature of the claim to the waters on the part of the Crown and I think his Honour, in a passage at page 491, if I have the right passage, says, in effect, that, as your Honour put it, the interest of the Crown in relation to the seas was derived under the prerogative, not under the common law, but that the common law recognised that which was the power which was available under the prerogative. It may not be that passage. It may be at page 489, two-thirds of the way down the page, where his Honour refers to the Banne Fishery Case, where he notes that "the seas of Ireland" were "outside the common law", but I think there is a better passage. I am so sorry, it is at page 487.
McHUGH J: The difficulty for me at the moment is that a notion of radical title is associated with the doctrine of tenures and the doctrine of tenures had nothing to do with the King's claim under the prerogative to the seas, to the ocean and to the seabed. It was never regarded as a fiction as the King's title was, in effect. He was out of possession but, nevertheless, the King was held to have the title to the land, but since it is very difficult or almost impossible for anybody else to possess the sea, in some sense, unless they built a jetty out there or did something similar, he was always regarded as being in occupation.
That was the reason, historically, if I remember correctly, why he did not have to prove his title - he could just simply bring an information of intrusion - and the onus was on the defendant to show some Crown grant or some other right to be occupying the sea. Whereas, if the King was not in possession of land, he had to prove - one had to have the inquest of office, which was a separate jury trial in the old action.
MR BASTEN: Your Honour, I do not wish to dispute what your Honour says, I think I rather adopt it, because we say that the principle derived from Mabo is that the courts will seek to protect pre-existing rights of the indigenous inhabitants. Now, that means that, if you need to assert that right against the Crown, you look not to a Crown grant but to the customary title of the kind that Mabo discusses and that that title will be recognised on a fact-specific basis on a case-by-case analysis, and that the remedies which the court will allow will be available.
The mechanism by which the law applies in relation to the sea, the legal mechanism, may be different from that on the land and in that sense it may be that the precise reasoning in Mabo does not apply in relation to the sea. I suppose we would not be here if it clearly did. Might I also just go back to the question of the role of radical title as understood in Mabo. The passage at the bottom of page 50 in the judgment of Justice Brennan at 175 CLR is slightly perhaps more guarded in its assertion of the role of radical title than a broad, general role which your Honour perhaps was putting to me. I may be mistaken. After the quotation from Amodu Tijani, his Honour said:
Recognition of the radical title of the Crown is quite consistent with the recognition of native title to land -
May I pause there? In other words, the radical title did not preclude the recognition of common law. He says:
for the radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereignty power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereignty power to appropriate to itself ownership of parcels of land within the Crown's territory).
It seems to suggest that the logical or legal postulate of radical title is a concept which only need come into play when the need for it arises. Now, it may be that that is a more guarded use of the concept than some general assertion of radical title at all times over all of the land mass of Australia. It may not be but it indicates a purpose which is a limitation on the concept of radical title and which demonstrates the limited role which it has to play in the Court's acknowledgment of pre-existing indigenous usufructuary other rights in relation to land which was what Amodu Tijani had just been discussing. As your Honours will know, there is a lengthier discussion in Amodu Tijani than that which appears at page 50 which perhaps gives more context to that summary part which is quoted there.
McHUGH J: I have not read the Canadian cases about fisheries - there was a case about British Columbia, if I remember rightly and I do not think I have read it - but my recollection from Mabo is that the notion of native title really began with Chief Justice Marshall's judgment in McIntosh's Case and was developed from there and I have a recollection that there was a case in which it was held native title in effect applied to some reefs off one of the Solomon Islands, or somewhere in that area, but apart from that I do not know. Is there any other cases, apart from the Canadian cases, that deal with native title in relation to waters or fishing rights?
MR BASTEN: Your Honour, I think, was given a case in New Zealand yesterday by Mr Jackson of Tolain, which involved a reef in New Zealand waters and an assertion of ownership over it.
KIRBY J: That was complicated by a New Zealand statute, I think, and the Treaty of Waitangi.
MR BASTEN: I am so sorry. I did not mean New Zealand. I meant New Guinea. Your Honour would have been incorrect. Tolain was a New Guinea case, I am so sorry, where I think the reef was thrown up above the water by volcanic action and then there were claims of native title based upon the fact that the people of the village had used the reef while it was totally submerged and it was accepted that they had a sufficient interest in that sense to allow them to claim a native title in relation to the reef once it became dry land too.
In relation to the Canadian cases, your Honour, we deal with the - and perhaps this is an answer to some questions that Justice Kirby was asking yesterday. In our submissions in reply at pages 36 to 47 we seek to deal with those overseas authorities, including Sparrow's Case, to which your Honour Justice Gummow made mention. Our conclusions are set out at page 47 and I am not sure that I can greatly improve on them orally.
KIRBY J: Do those cases help you or harm you?
MR BASTEN: We say that, properly understood, they do not harm us. In relation to the Canadian authorities they involve the existence and enforcement of an Aboriginal right of fishing under the charter and the cases are generally concerned, not with the question of recognition as such, but with the question of the justification of legislative or executive action which would impinge upon enjoyment of the Aboriginal right.
KIRBY J: But I thought that passage from Chief Justice Lamer, I think it was in a case of Gardiner - - -
MR BASTEN: Yes. Gladstone?
KIRBY J: - - - was suggesting that his Lordship was not dealing in terms of the charter but of the common law.
MR BASTEN: I think that was Gladstone which Mr Jackson - no, I am not sure.
GUMMOW J: Some of them are pre-charter cases.
MR BASTEN: I am so sorry?
GUMMOW J: Some of the Canadian cases are pre-charter cases.
MR BASTEN: Some of them are, your Honour, and they are mainly criminal cases involving claims of a right to fish - - -
KIRBY J: But Chief Justice Lamer is not pre-charter.
MR BASTEN: No, I am sorry. No. I think it was Gladstone's Case, which from recollection was 1996, to which your Honour was referring. May I come to that? I should get the case out and come back to it. My point was simply going to be that, in relation to the Canadian cases, at least post-1982, the discussion is whether the intervention of the legislature or the executive is justified, and their Honours in the Canadian Supreme Court have identified a priority of purposes which might justify legislative interference with a charter right which is not in terms absolute. And that that is what most of the cases are concerned with, although they are consistent with the existence of an exclusive right in some cases.
GUMMOW J: This expression "radical title", is that found in any of the Privy Council cases dealing with other questions in various parts of the British Empire?
McHUGH J: I think it is referred to in a 1915 Appeals Case.
HAYNE J: It is Amodu Tijani, is it not?
GUMMOW J: Yes.
MR BASTEN: Yes, I thought it was 1920.
HAYNE J: It is [1921] 2 AC at 403.
McHUGH J: Yes, the Rhodesian case maybe, or one of those.
MR BASTEN: Yes. I am not sure whether it was in Re Southern Rhodesia, but it is that case which is referred to in Amodu Tijani [1921] 2 AC 403. The footnote refers to the Canadian case in [1920] 1 AC 401. I do not have the Canadian authority in the Privy Council with me. I am not sure whether it uses the term "radical title", in answer to your Honour Justice Gummow.
GUMMOW J: Radical or final title.
HAYNE J: You see, I wonder whether, in the end, radical title may have use as a term to explain and reflect at least that there is a distinction between an assertion of sovereignty by a political entity over land or in respect of territory, on the one hand, and the rights which an individual may have when it is said that that individual owns land. That may be one of its purposes. It may have - I do not know - a second purpose to explain or reflect, perhaps both, that sovereignty asserted by a political entity is not necessarily inconsistent with the continuation of rights in relation to land which exists under, and owe their origin to, some earlier legal system, being the rights now described as native title.
MR BASTEN: Yes.
HAYNE J: But, if that is its utility, it is a utility in respect of land and the problem presented by sea may lead to a similar result, but without the need to use the construct that we refer to as radical title. It may be that the result is identical, but you do not at the end of that analysis of rights and obligations refer to any of the steps along the way as a step involving this concept of radical title.
GUMMOW J: Because you do not need to rationalise a tenurial system when you are offshore.
MR BASTEN: Well, with respect, I would accept that, and that is why I intervened in reading Justice Brennan to say that he starts with the proposition that a radical title would not be a reason not to recognise the pre-existing right. He starts with the proposition that that is not a hurdle which needs to be overcome. As he says, it has a different purpose in relation to feudal tenure.
HAYNE J: Whether it may be sufficiently or entirely explained by references to tenure or whether in the case of the sea it is enough to notice the questions of ownership of any kind, tenurial or otherwise, do not intrude, it may be the point at which the two sets of issues diverge. Again, I do not know. I proffer it in the hope that it may focus the argument a little.
MR BASTEN: We have no difficulty in accepting the way your Honour puts it, and partly for this reason, there is nothing in Mabo which suggests that the protection of the allodial title is, itself, in any way dependent upon the existence of a radical title. The argument was the other way round, to see whether the existence of a radical title might prevent such protection being accorded.
McHUGH J: Part of the problem in respect of land was that the Crown was not in possession or occupation in any physical sense and seisin and possession were at the heart of the whole system of tenure. So you had this notion of radical title which explained the Crown's title. It is all based on a fiction. But in respect of the sea, the Crown is just regarded as having both the title and being in occupation of the sea. At the moment the fundamental problem I have is whether, consistently with the common law, you can assert what seems to me to be possession or occupation of the sea when by the common law the Crown was treated as both owning and being in occupation of the sea. It is not merely a question of running contrary to certain public rights of navigation but you are asserting an occupation contrary to the occupation which the common law itself recognises, namely that the seas are occupied by the Crown.
MR BASTEN: Your Honour puts it very nicely and it is a way which has never before been put against us. The argument being put against us before is always that the Crown has so little interest in the sea that even its own common law does not intrude upon rights in the sea.
GLEESON CJ: Has not anybody in the earlier stage of this case been impolite enough to ask you the question, when you claim an exclusive right to control access to the sea, do you mean, exclusive of the Crown?
MR BASTEN: In a sense, your Honour, that question was addressed by Justice Merkel, when he referred to our native title as a burden upon the sovereignty of the Crown.
GLEESON CJ: Well you see, in Amodu Tijani they say, a usufructuary right, which is a usual form of title, is a mere qualification or burden on the radical title of the sovereign.
MR BASTEN: Yes.
GLEESON CJ: But what kind of qualification or burden does your claim of exclusive right to control access to sea place on the sovereign?
MR BASTEN: I was going to go on to say that I do not adopt that terminology, because it seems to me to be inappropriate. The interest that we have in the sea involves no burden on the sovereignty of the Crown at all. The sovereign Crown can, at any time, act within its powers to do things inconsistent with out rights, just as it could on land grant freehold estates, which were inconsistent with and extinguished our rights. It could enact a law which extinguished our rights by declaration.
GLEESON CJ: So your claim to an exclusive right means a right exclusive of everybody except the sovereign?
MR BASTEN: Yes, subject to the basis upon which the sovereign acts. We talk about a sovereign but that is in large part not an unqualified power. The sovereign's rights to act in various ways these days are controlled and vested in statute.
GLEESON CJ: I was thinking about 1824.
MR BASTEN: That may be so, your Honour, yes. At that stage the imperial sovereign could have taken such steps as it thought necessary to interfere with the pre-existing rights.
GLEESON CJ: You did not have the right to control access by the British Navy but you had the right to control access by the French Navy.
MR BASTEN: Your Honour, the question of control of the access of the British Navy, in a sense, was lost with the loss of sovereignty. The exercise by the Crown of its prerogatives was something which this Court, any court, the 1823 Supreme Court of New South Wales, would have recognised and given effect to.
GLEESON CJ: After lunch, could you just give us a reference to the evidence as to what actually happened in relation to the Macassans.
MR BASTEN: I will do my best, your Honour, yes.
GLEESON CJ: Thank you. We will adjourn now until 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
GLEESON CJ: Yes, Mr Basten.
MR BASTEN: I have an answer for your Honour the Chief Justice but before I give that may I go back and deal with a discussion I was having with Justice McHugh in order to finish that point. May I just make one or two points in relation to that which your Honour Justice McHugh put to me before lunch. When the ownership of the solum of the seas was treated as the source of the Crown's jurisdiction, as we would understand it, Lord Hale who was one who accepted that view treated it in the same way and as an extension of the ownership of the land. That approach has now changed. But in Attorney-General for British Columbia [1914] AC at 168 in the middle of the page there is reference to Lord Hale in a passage cited with approval by Lord Blackburn in Neill v Duke of Devonshire to the effect in relation to "The right of fishing" - and your Honour may see at about point 6 some dots in the middle of page 168 - he says:
But though the King is the owner of this great waste, and as a consequence of his propriety hath the primary right of fishing in the sea and the creeks and arms thereof -
et cetera. So that was an approach which was then adopted. At the bottom of the page:
their Lordships agree with Lord Blackburn in his approval of this citation from De Jure Maris -
And then qualify the question as to the:
assumption that the Crown is the owner of the solum of what he speaks of as the narrow seas.
Then, at page 174 your Honour will recall that the ultimately say they do not wish to decide that question, international law being uncertain.
Of course, the matter was then dealt with in this Court in Bonser v La Macchia 182 CLR in a passage in the Chief Justice's judgment at page 186 where, in effect, his Honour says that the rights of sovereignty accorded by international law may constitute a sounder basis for the claim to the bed of the sea than the claim of ownership, and that is at 186 after referring to the North Sea Continental Shelf Cases, at about point 6 on the page in a passage running through - and I obviously will not read it to your Honours - to about point 7 on the following page, where his Honour noted at about point 6:
Further, the bed of the sea for some undefined distance from the shore according to some authorities came to be regarded as vested in the Crown, so that accretion bringing into existence land above the tidal level within the territorial waters was regarded as vested in the Crown -
Chelikani, which is referred to there may be the example your Honour Justice Gaudron was mentioning yesterday about the island popping out of the seas. The Chief Justice goes on:
It should be noted, however, that according to those cases, it was the Imperial Crown in whom the "ownership" vested.
GAUDRON J: Why do we not in this case, though, simply look to international law and, relevantly, the convention which the Commonwealth has legislated to take the benefit on?
MR BASTEN: Yes.
GAUDRON J: I mean, the claim to sovereignty now seems to me to be wholly legislatively based.
MR BASTEN: Yes. Well I was going to come to that, your Honour, with the qualification that both, in that passage at 186 in Bonser and in the WMC Case, what, of course, is being discussed is sovereign rights in relation to the continental shelf and one must be cautious of extrapolating from those cases as your Honour Justice Gummow noted in Commonwealth v WMC Resources [1998] HCA 8; 194 CLR 1 at paragraph 160.
There is obviously a distinction between sovereignty which your Honour describes as a stronger term than sovereign rights, so that with that qualification, because we do not go beyond the coastal waters, we adopt what your Honour says in relation to the present acceptance by the courts of the power to enforce native title rights. The discussion we were having, I think, was positive on the basis that we were considering 1824, not 1998.
Your Honours, can I also just note that if the matter were relevant and in answer to your Honour Justice McHugh's question, in our primary submissions we deal with this matter at pages 25 to 26 and we set out what we understand to be the correct analysis of those authorities at footnote 107. Could I simply leave that material with your Honour.
CALLINAN J: Mr Basten, I am sorry to keep on coming back to this but do you remember - and I appreciate what you say about absence of issue, perhaps, on this, but my concern about recognition of a title that itself cannot be in some way identified and enforced - there is a passage in Mabo in Justice Brennan's judgment at page 51 at about point 3, where his Honour says:
Whether or not land is owned by individual members of a community, a community which asserts and asserts effectively -
which seems to suggest to me that there must be some effective means of maintaining and enforcing its assertion before there can be a native title anterior to the common law which the common law can enforce itself.
MR BASTEN: I accept that, your Honour, with this qualification, that we would read that as referring to within its own society, otherwise the failure to enforce its rights as against the British Army - - -
CALLINAN J: Quite, but by some internal, curial or like means with effective sanctions.
MR BASTEN: Yes. Well, that was the question your Honour asked earlier and I did not give your Honour the reference. Could I perhaps at least do this. In volume 8 in Justice Olney's judgment at page 2046 through to 2047 there is the extract from Mary Yarmirr's evidence as to how these matters were dealt with in the old days, and at 2047 point 2, the second last answer she gives is:
Today because of your law that comes in and restrict us to kill we then negotiate instead of using force.
Now, that obviously is a reference to a limitation on the power to enforce, understandable and correct we would say - - -
CALLINAN J: That is a clear enough passage, I think, Mr Basten.
MR BASTEN: Yes. Could I just, since I have it, refer your Honour to volume 1 page 85 where Mary Yarmirr expands upon that and is specifically asked the question which your Honour put yourself, at about line 22:
Are there any punishments or sanctions that occur as part of that?
So that the issue was addressed and it is addressed at lines 12 through to the foot of the page in a slightly different - - -
KIRBY J: What page is it, Mr Basten?
MR BASTEN: Volume 1 page 85.
CALLINAN J: That looks like a fairly effective sort of punishment.
MR BASTEN: Yes. And, just in relation to that idea that, of course, our law now intervenes, we would understand that that may have been one of the matters that Justice Brennan had in mind in his definition of native title at page 60 of Mabo, at about point 4 on the page, where he says: "and observe those customs (so far as it is practicable to do so)". Obviously, if the general law of the country forbids something, then - - -
CALLINAN J: It is the anterior position that interests me, and that answer seems to cover that, Mr Basten. Even though it was not an issue in this case, apparently, it is covered in any event.
MR BASTEN: Yes. That is so, yes. May I then come back to answer your Honour the Chief Justice in relation to Macassans? Firstly, staying with the judgment of Justice Olney in the first instance, at page 2036, his Honour considers at paragraph 102 - and I need to start here to explain a later passage - a number of instances in which Ms Yarmirr gave evidence of attempts to insist that oil companies, tourist operators and commercial fishing people complied with their requests to come onto the land with consent only, and act in accordance with their traditional laws. I will not go through those examples, but at paragraph 107 at the top of page 2041 his Honour says:
All of the uses or proposed uses of the sea country under claim to which reference has been made -
that is, in those paragraphs -
arise out of events which have occurred since European contact and relate to the use of the country for purposes other than those which took place prior to 1824. The only evidence concerning non-Aboriginal use of the claimed area prior to European contact relates to the activities of the Macassans to which some reference has been made in the historical overview -
and that is a reference to a discussion at pages 2002 through to 2003. A long paragraph 52 in the judgment, which I will not read to your Honour, his conclusion at about point 2 on page 2003 is that:
Early records (i.e. records from 1818 through to 1829) indicate that violence and mistrust were rife between Macassans and the local Aborigines but that situation improved in the 1830s and 1840s, to the extent that Aborigines frequently assisted Macassans with trepang fishing and in addition a trading relationship sprang up whereby the Aborigines provided turtle shell, seed pearl, pearlshell and buffalo horns and in return for these goods and their labour received dugout canoes, tobacco, rice, cloth, iron and alcohol.
There is a further discussion of that aspect in relation to trading as a right at pages 2050 to 2053 in paragraphs 120 and following. At the bottom of page 2050 what his Honour does is to examine, obviously with limited results, the current claimants' evidence as to what was happening prior to 1906 when the trade ceased because the Macassans no longer came.
GLEESON CJ: How far did the Macassans have to travel to get to this locality?
MR BASTEN: I think they came from Sulawesi.
GUMMOW J: The Celebes, it used to be.
MR BASTEN: A considerable distance in, of course, the open seas. His Honour's conclusion in relation to this evidence at the bottom of 2052 was that:
This evidence suggests no more than that the Macassans sought and received permission to take trepang from the waters around the islands. It falls short of establishing -
trade. This evidence probably did, although the earlier historical evidence perhaps had a different effect. Then there is a comment about the turbulent relationship making the likelihood:
that the Macassans' presence in the area was as the result of having first obtained the consent . . . remote.
That is his Honour's conclusion.
Your Honour asked for the evidence. We have references to the evidence which we could supply to the Court in written form if that would be convenient.
GLEESON CJ: Yes, thank you. I notice too that there is quite a deal of discussion of this in some parts of Justice Merkel's judgment.
MR BASTEN: Yes. Maybe we should seek to add the references to that to our list and do it in writing if that is convenient.
May I then go from that point to the issue which I was going to deal with before lunch. I will deal with this briefly. It is a point which I have, I think, dealt with to some extent already. It is the hurdle that appears to have been placed by the trial judge in the way of acceptance of an exclusive right under traditional law and custom, namely, that the right was apparently required to apply with binding force to non-Aboriginal people.
That is the matter which is dealt with at paragraph 110 at page 2044 in the judgment. His Honour summarises his conclusion at the beginning, but it is, perhaps, most apparent from the final answer of Mary Yarmirr quoted two-thirds of the way down the page:
I have a rights under my - according to my traditional law I have the rights to ask them to leave, and if they refuse then I have no other way but to ask the Balanda law to come in, because the Balanda law is their culture -
and so on. In the following paragraphs his Honour at 112 and 113 then discusses the consequences of closures of areas for Aboriginal purposes, and then says, again a reference in the passage to which I took your Honour Justice Callinan at the top of 2047 to the restrictions imposed by balanda law, his Honour says:
The general thrust of the foregoing confirms the view expressed earlier that the traditional laws and customs which relate to the use of country apply to Aboriginal people rather than to non-Aboriginals, although Charlie Wardaga seems to have a different view -
which he then refers to. We would understand him to mean by "apply" as are applied or are not applied to balanda because they will not participate and there is no mechanism for their enforcement. That is the thrust of the evidence which he has just cited in some detail.
HAYNE J: Can I just take you back to the answer of Ms Yarmirr that you first took us to. In its context is the witness there speaking of other Aboriginal peoples or other people generally?
MR BASTEN: No, she is speaking of people generally, I think. She says at the beginning of the quotation at the top of the page:
No. They won't be stopped because all Aboriginal people respect each other, and we do not trespass into another clan's estate without asking permission.
Then there is the general question:
Q. If there is someone on your country -
and we would understand it to be clear from the fact that although she speaks generally and the long answer, the final answer is talking about the effect of Balanda law, which she compares in the final two lines:
but it it's in regards to my own people, Aboriginal people, they respect who I am -
So the quotation I took your Honours to, I think refers to non-Aboriginal as - - -
HAYNE J: What struck me was, in first of her answers:
A. I have a law for the other person also - holds the old culture, right.
MR BASTEN: Yes.
HAYNE J: I have taken that as limiting her answer to other Aboriginal peoples who held to the old culture.
MR BASTEN: Yes, yes. Well, I think "a law for the other person", she is there qualifying it as being, yes, an Aboriginal person who holds to the old culture, that is, her culture, "in my law". It says that "those people are seen to be breaking my law" and so on. I do not think I disagree with what your Honour is putting to me in that regard. She seems to carry the matter a bit further in the next answer. I think that is the way his Honour reads it too because, as I indicated, the first sentence of this paragraph is in relation to the binding effect on Aboriginal people, or he puts it negatively. Your Honours we have dealt with this matter in more detail in our submissions at paragraph 2.4 at page 4 through to 2.8 and at 2.11 through to 2.15. That is in the principal submissions, your Honours.
We note there at footnote 12 that in another case his Honour seems to have accepted that in relation to the question of the approach prior to contact the question is an arid one because there were no settlers. With respect, we say that thereafter it invites and, perhaps, demands some form of physical resistance to intrusion by those who owe their allegiance, correctly, to a different sovereignty and a different court system.
Your Honours, the next matter I was going to address was the basis upon which we seek to distinguish between that qualification which we acknowledge applies to the recognition for the purposes of relief under the common law in relation to innocent passage and the right to negotiate and the correct understanding of the position in respect of fishing.
The propositions we seek to put are these. The underlying principle established by Mabo [No 2] in relation to land was the preservation and protection of existing rights and interests. That, on one view, would have denied the Crown its beneficial ownership of unalienated land, recognised an allodial title inconsistent with feudal tenures and precluded the use of the land by the settlers, which was the very purpose of British settlement.
Those factors, for the reasons explained by the Court, do not preclude the recognition of a native title in relation to land. As we know, those rights were widely ignored and, as a result, the legal dispossession proceeded on a parcel-by-parcel basis. Similarly, it may be said that fishing rights have been ignored and legally impaired area by area by the grants of licences by the Crown which would prevail over native title.
Ignorance of native title has no doubt hitherto avoided, as was noted in Western Australia v The Commonwealth, any perceived need for statutory attention beyond that which is now acknowledged by the Native Title Act in section 24NA. We, with respect, would not think that there was any stronger case for non-recognition in relation to the resources of the sea. Importantly, however - and we deal with this in our principal submissions at paragraph 5.12 - the common law rights in relation to fishing were themselves subject to the interest of any person, in the words of Lord Hale, having a propriety exclusive of that common liberty. The public right itself was properly understood no more than a fetter on the grant by the Crown under its prerogative of such a propriety.
We would submit it is quite inconsistent with the policy of preserving pre-existing rights that, by the very act of claiming sovereignty, native rights to control resources of particular areas of the sea were thereafter to be denied protection. The courts in applying the common law principles do not fail to recognise proprieties exclusive of the common liberty to fish where their existence is proved. What they will not recognise or protect are such proprieties purportedly created by the Crown without statutory authority and, in short, it is the power of the Crown, in this respect, as in others, that is not unqualified as are not most statutory powers.
It follows that, in relation to native title, limitations on powers to create such interests under the prerogative or, indeed, under statutory authority are beside the point. Furthermore, as Mabo says at page 59, native title need not be consistent with the common law nor need there be rights of a kind which have been created by the Crown pursuant to prerogative powers. Such a principle would have precluded the recognition of allodial titles at all. Accordingly, in our submission, it is not apt to describe the purported basis of non-recognition as the need to avoid fracturing some skeletal principle of the legal system. Mere inconsistency with the common law will not achieve that result and Mabo is authority for that proposition.
We say that the appropriate test is rather repugnancy to what might, in modern terms, be described as a fundamental right or principle operating in a field of public life. Freedom of movement, we accept, is such a principle. That was acknowledged in Gerhardy v Brown in which the Court was considering the effect of the grant of a communal title to a large part of South Australia. There is acknowledgment in that case that it might have been necessary, had it not been for the operation of the special measures provision in the convention, to treat that very grant as an infringement of the right of freedom of movement, which was itself protected by the convention.
Hence, to acknowledge that the right to navigate as a reflection of that right of freedom of movement must be respected is merely consistent with those principles to which the common law will undoubtedly be subject. No such principle justifies overriding a communal title of the kind in issue here and indeed, to the contrary, requires respect for it.
Might I then turn to say some brief things about the form of the determination which we proposed in the amendment to the notice of appeal which was filed, with leave, earlier this week. In doing so may I note that there is a curiosity about the form of the trial judge's determination which appears in volume 8 at page 2093. One of the matters which we address in the determination is how the right to control access to the determination area should be given effect. In paragraph 5 of his Honour's determination he said that one of the rights was to have access to the sea for two particular purposes identified in 5(b)(iii) and (iv), in the middle of the page, namely:
to visit and protect places within the claimed area . . . to safeguard the cultural and spiritual knowledge of the common law holders.
If one goes back to page 2054 to 2045 one finds the relevant discussion of those rights. At the bottom of 2053 the heading is, "THE CLAIMED RIGHT TO PROTECT PLACES OF IMPORTANCE". I will not take your Honours through that set of paragraphs again - I read it this morning - but the conclusion in paragraph 125 was, at about point 2 on the page:
The right as claimed (and the corresponding duty) is capable of enforcement only to the extent that those who enjoy the right are capable of having and controlling access to the relevant estate. The evidence establishes beyond doubt -
and so on. The right so described is not a right which is exercised by having access. Having access invites, presumably, some physical resistance to intrusions on to the waters of the determination area. The right is one which is enforceable in the courts. According, it would seem, with respect, that his Honour's formulation of the right is not in accordance with that which we now seek to assert, namely, the qualified right to control access, subject the restrictions which I have mentioned.
Secondly, in relation to the right to safeguard cultural knowledge we have included such a right but, again, not as a right of access which appears to us to make little sense. At page 2056 his Honour said the:
Cultural knowledge of the type here described is clearly a manifestation of traditional law and custom and of its very nature is knowledge in relation to places within the relevant area by which the claimant group have a connection with places concerned.
A reference, we would understand, to the terminology of section 223(1):
But the right and duty according to traditional law and custom to safeguard that knowledge can only be classed as a "right or interest in relation to land or waters" to the extent that the exercise of the right and duty involves the physical presence of relevant persons on or at the estate or site in question.
That, to us, reveals a similar error as that which is reflected in the form of the determination.
That is, although those changes have been pointed out by the Commonwealth as perhaps not intended they were intended because they flow, we would say, from the nature of the interest which properly recognised, according to the terms of our appeal, we seek to have reflected in the determination.
There are two further matters that I should mention in relation to the proposed determination. The first is that the intention in referring to the waters of the determination area rather than the seas and seabed was not intended to broaden the scope of the finding beyond that which I have outlined. If, however, there is a right to occupy, use and enjoy in the terms which are set out there, it may be that some qualification needs to be made in relation to minerals, which is not presently there. That occurred, I am afraid, only this morning, in relation to the matter raised in the course of argument. There is no qualification, ironically, in relation to minerals and ownership of minerals in the trial judge's determination but we can see it, as I indicated, that that is not a matter in issue.
The final thing that I wish to say in relation to the qualifications which we have suggested is that the description of the reasonable exercise of what we describe as the public liberty to navigate within the territorial sea is intended to reflect the proper limitation of that right which we have discussed in our written submissions in passages to which I do not need to take your Honours except by reference and, in particular, in the principal submissions at pages 23 paragraph 5.25 and following.
I think your Honours received yesterday from Mr Jackson and Mr Gageler a case in (1979) SC entitled Crown Estate Commissioners v Fairlie Yacht Slip Ltd. There is a passage in the judgment of the Lord President, I think Lord Emslie, at page 178 at about point 3 in the page where his Lordship accepts the proposition that an intrusion by way of a jetty or a permanent mooring or something similar does not, itself, interfere with the public right to navigate in so far as it is concerned only with a small area of the seas. That, we would have thought, was implicit in the notion but we would respectfully adopt his Lordship's statement of the principle as part of the justification for the way we express that matter in paragraph 3(b) of the proposed determination.
HAYNE J: Is the only way in which the claimed right to control access finds reflection in your draft determination, paragraphs (a) and (b) of proposed paragraph 4?
MR BASTEN: Yes, possibly with the (e) in relation to protection of places. That is probably so, your Honour, yes. I was going to say something about the concepts of possession and occupation. We have grappled, perhaps not very satisfactorily, with the exercise which is required by the Native Title Act in seeking to turn what might be a factual description of the content of the traditional law and custom into concepts which are envisaged by section 225 and it may be that we have not done that appropriately.
The proposition which we put in the written submissions is that so long as concepts such as possession and occupation are understood to take their content from traditional law and custom, which is, of course, implicit in the operation of that part of the Native Title Act, sections 223 and 225, then their use is not objectionable in this context and may indicate the nature of the relief which might possibly be available from a court for contravention of those concepts. But obviously the underlying principle is control of access.
HAYNE J: Because it seemed to me at first blush that if you say that controlling access is reflected by a determination of occupation, use, enjoyment, possession - I do not think it matters which - to the exclusion of all others, then the tension that is created between the right claimed being a right to control access and the conceded allowance of right of innocent passage and the other contents of proposed paragraph 6 is put in very stark relief.
MR BASTEN: Well, perhaps you would say it is no worse for that because it is clear what is intended. But we wonder whether it is any different in principle between the reservation in the pastoral lease which may allow the pastoralist to exclude persons who do not fall within those reserved rights which entitle others to come onto the land, be they officers of the Crown or timber getters or whoever else, and within those qualifications, relief would be available to the pastoralist against others who sought to trespass.
HAYNE J: Undoubtedly, if the slate were clean and you were creating a new set of rights, I can well understand that the rights thus created would be certain admitted enforcement. The tension to which it seems to me to give rise, though, is the tension between the rights existing by custom and tradition and the rights to which reflection is given in the determination.
MR BASTEN: But the tension arises, your Honour, because of our concession that the rights which the Court will enforce are more limited than those which, in fact, arise under the traditional law and custom. That is a reflection which is required, we would have thought, by the terms of section 223(1)(c). That is why it is formulated in that way.
GAUDRON J: Now, as I understand the relief you would seek, an officer of the Commonwealth taking a ship through the area, in the interests of defence or in the interests of executing the laws of the Commonwealth, would be susceptible of an injunction under 75(v) of the Constitution. Your claim would not permit an officer of the Commonwealth to enter in to execute the laws of the Commonwealth.
MR BASTEN: Your Honour, we would not say that.
GAUDRON J: Why not?
MR BASTEN: The variation, perhaps, between our proposal and paragraph 6 of the trial judge's proposal is that what his Honour included was a qualification that the native title rights may be affected by rights and interests in relation to the sea and seabed within the claimed area validly granted or which exist or may hereafter exist pursuant to the laws of the Commonwealth of Australia or the Northern Territory. We simply take the view and if it were the Court's view that that were a useful concept, then we would be happy to include it.
In relation to section 225 of the Native Title Act, it seemed to us to require the definition with some precision of other interests and interests, as we read it, were interests in relation to land or waters. In other words, the whole premise of the Native Title Act and its effect is that persons with relevant authority under a statute will be able to do whatever that permission - I am so sorry.
GAUDRON J: Let us forget about statutory authority. Let us simply take an officer of the Commonwealth, being a Customs officer, who has no particular statutory authority to do any particular thing and - well, there may be statutory authority, but let us assume some other officer of the Commonwealth who has reason to believe that the law is being breached, perhaps even by the native title claimants, that some Commonwealth law is being breached. Now, it seems to me, whatever your claim is, it cannot be such as to preclude somebody coming to investigate a breach of federal law in that area.
HAYNE J: Are you saying they need a warrant before they go in?
MR BASTEN: They may well do under the common law.
HAYNE J: Well, it is a very large claim.
MR BASTEN: The answer to that question will depend upon what the general law of the country provides.
GAUDRON J: But we need to know that, do we not? Before we can formulate it, we need to know.
MR BASTEN: The answer to that question?
GAUDRON J: Yes.
MR BASTEN: Your Honour, if the terminology which the trial judge adopted and which we thought was too vague to be helpful covers that question, we are happy to adopt it.
HAYNE J: But that would not extend to the customs officer entering to search the motorboat for narcotics. Paragraph 6 of the original determination would not extend that far, would it?
MR BASTEN: If that is a problem, your Honour, it is a matter of which someone other than we should complain - the Commonwealth perhaps - and that complaint has not been made.
GAUDRON J: We have not heard from the Commonwealth on this aspect yet.
MR BASTEN: It is not something that has been raised with us in three hearings so far, but no doubt more things will come.
GAUDRON J: Look at it more practically, if you like. A member of the Croker Island community seeks help from a law enforcement agency. There happens to be a police launch outside the claimed area and the quickest, most direct route to the person calling for assistance is through what is the sea country of your claimants.
MR BASTEN: I am not sure that that would not be covered by a right to navigate. The purposes of the passage are not limited.
GAUDRON J: What if the person seeking help says, "My assailant was a member of the people who own the native title and he's hiding out there and he's going to stay out there because he thinks you can't go out there and get him"?
MR BASTEN: He would be wrong.
GAUDRON J: Not to navigate; to make an arrest.
MR BASTEN: I am not seeking to disagree with the proposition that your Honour is putting to me that any native title rights which are subject to those general laws permitting intrusion on private property in particular circumstances would not have application. What section 225 appeared to us to seek to do was to provide, as it were, a form of title deed which defines, as best it can and perhaps in general terms, the nature of native title. For that purpose one would not expect to find qualifications of that kind recorded, but if it were - - -
GAUDRON J: When you come to the right to control access is where the problem arises as I see it. Even if you make it subject to rights of innocent passage and rights of navigation, it still seems to me that there are problems in defining it as a right to control access.
MR BASTEN: Well, in the terms in which we have done it, your Honour, I think I would have to take on board, if I might the question of whether that causes a problem of provider response. I would rather not. It has not been raised in those terms with us yet. I do not think I can assist your Honour further at this stage, but I understand your Honour's question. Is that convenient, your Honour, if I do it in that way?
GLEESON CJ: Yes, thank you, Mr Basten. Mr Jackson.
MR JACKSON: Your Honours, there are some aspects of our written submissions that I wanted to mention briefly, and also to add something arising from an observation made by your Honours this morning.
Could I take your Honours to our written submission in D9 for just a moment, in particular paragraph 2.3 on page 5. The particular point we would seek to make is that to which we refer in paragraph 2.3, namely, that one is, after all, speaking in a context about native title rights and interests which of their very nature may but may well not be similar to the rights and interests that would be provided for by the principles of the common law, and the existence of the difference between them means that one is likely to start from a position where there is inconsistency. That is hardly surprising, of course, since the hypothesis underlying native title rights and interest is that their source is a different system of laws and customs.
It is in a context where there is that inconsistency or potential inconsistency that one looks to see whether the recognition of the rights and interests given by the native title, given by the native laws and customs, traditional laws and customs, whether the recognition of them by the common law would be so inconsistent with the common law as to militate against recognition. It is a question of the degree of inconsistency, not, if I could return to something your Honour Justice McHugh said yesterday, making words used in the judgments - judgments in Mabo - be like the words of the statute because they are explained on a number of occasions in Mabo and it is really a question of the degree of inconsistency.
But, your Honours, in attempting that task, could I say two things about the common law? The first is that one does not really treat the common law as, in its application to issues of this kind, being absolutely immutable. Your Honours will see, if I could give two references in that regard, one being the quotation which we have set out in our written submissions in paragraph 2.4, Justice Brennan in Dietrich, where he was referring to Mabo [No 2]. I will not read it out, but your Honours will see the quotation, in particular, the part we have emphasised.
The other thing to which I would refer is that the ability of the common law to change as the need for change arises was the reason why section 12 of the Native Title Act was held invalid in Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373. Could I refer your Honours to pages 484 and 485 in that regard. At page 484, your Honours will see, about two-thirds of the way through the main text, the heading "The validity of s 12 of the Native Title Act", and then your Honours will see, after setting out section 12, a discussion of the way in which section 12 operates. Then at the top of the next page:
But the common law is not found in a text; its content is evidenced by judicial reasons for decision.
And there is a reference, a couple of lines further down, to the evolution of the common law. Your Honours will see, going halfway down page 485, their Honours saying:
In construing s 12, the "common law" must be understood either as a body of law created and defined by the courts or as a body of law which, having been declared by the courts at a particular time, may in truth be - and be subsequently declared to be - different.
Your Honours, that is the first aspect of it. The second aspect is - if I could just say something about what is contemplated by the common law in section 223 of the Act. Probably it means non-statutory law, but your Honour Justice Gummow this morning said "What about admiralty - does it include admiralty law?".
If one goes to what was said by Justice Jacobs in the Seas and Submerged Lands Act Case (1975) 135 CLR 491, there is no doubt that if one treats the term "common law" in the narrow sense, one would not treat it as including the law of admiralty, but it is apparent enough - and, your Honours, I intend to move from this to another case in just a moment - but it is apparent enough, if one looks at what is the English maritime law, that a broad description of it is as forming part of the common law, and Lord Morris, in a case to which I will come in a moment, used that reference.
What I wanted to refer to your Honours at page 491 was the last paragraph on the page and about six lines into that paragraph Justice Jacobs said:
The courts of common law had no jurisdiction because the common law did not extend to regulate the rights and obligations of persons beyond the boundaries of the counties. The law (other than statute law) governing the rights and obligations of persons and things upon the sea was the English maritime law in content substantially the same as the common maritime law (unless any statute provided otherwise).
And your Honours will see reference to two decisions, and if I may come to those in just a moment, but your Honours will see then at the top of the next page, he said:
The jurisdiction of the Lord High Admiral extended to those persons matters and things which under the maritime law could be subject to or determined by this court. The criminal jurisdiction under the maritime law did not extend to the acts of foreigners on a foreign ship in a place where the maritime law was the applicable law.
They went on to say that was really Keyn's Case. But your Honours will see the two cases referred to at the bottom of page 491 and in those cases one sees references to the fact that the maritime law is part of the ordinary law of England.
GUMMOW J: Lord Diplock says that in The Tojo Maru, I think.
MR JACKSON: Yes, your Honour. Perhaps I could give your Honours copies of those cases, I do not think they are on a list, and perhaps if I could go first to The Tojo Maru [1972] AC 242. Your Honours, I have just extracted the relevant passages of it in the pages your Honours are given, but there are two passages to which I wish to refer. One is at page 273 where Lord Morris, towards the top of the page, just a little above letter B, speaking about salvage cases, said:
In some cases salvage work may be commenced without the knowledge of owners. If in any of these cases there is a claim for salvage the claim will be adjudicated upon by reference to that part of the common law of England which has been evolved in and is administered as English maritime law in the English Court of Admiralty.
McHUGH J: Well, it is not a very accurate way of speaking. Just take the doctrine of contributory negligence. I mean, Admiralty law had the apportionment rule in the very beginning whereas the common law did not and I find it difficult to say that Admiralty law is common law.
MR JACKSON: Well, your Honour, it depends what one means by common law, of course, and undoubtedly there can be different rules. The Judicature Act which came into the more civilised jurisdictions of Australia fairly early, your Honours, that - - -
McHUGH J: Well, that may be disputable.
MR JACKSON: I am sorry, your Honour, I should not have said that, I withdraw it.
HAYNE J: Go on, Mr Jackson, go on.
MR JACKSON: Your Honours, what I was going to say in relation to it was that one of the perceived reasons for the enactment of it was because of differences of approach, differences of principles, in the different jurisdictions and, your Honour, one of the provisions of the judicature Act was that the rules of equity would prevail. Now that carried with it, inherently, the notion of conflict between the two and if there was the beneficial rule of contributory negligence in Admiralty, the fact of the matter was, it was not picked up or arguably was not picked up by the common law and had to be the subject of statute.
But, your Honours, the fact that there were differences does not mean that it is not appropriate to describe them both as being the common law, in the broader sense of the term. Very frequently, one sees the term "common law" used, including equity. Why would not one treat it as including, as Lord Morris said, the admiralty law as well, or maritime law as well. The other reference was the one to which your Honour Justice Gummow adverted. That is, I think, a the bottom of page 290 commencing, about letter G, and going through to page 291, letter C.
I will not read it out but it is the paragraph commencing, "What has been suggested, however" and going on to the end of the first new paragraph on page 291.
GUMMOW J: I think Tojo Maru has been referred to in this Court in the constitutional cases on admiralty in recent times.
MR JACKSON: Yes, it was, I think, your Honour.
McHUGH J: Kobe Maru I think might have been mentioned.
MR JACKSON: Yes. I have just forgotten the name of the case. It was the case about the ambit of admiralty provisions.
McHUGH J: Yes, Kobe Maru, was it not, the ship the "Kobe Maru"?
MR JACKSON: The other decision that is referred to by Lord Diplock and also by Justice Jacobs in the passage to which I referred is Gaetano and Maria (1882) 7 PD 137. The relevant page is page 143. The paragraph that is material is the second new paragraph on page 143 and that treats maritime law as being, in effect, part of the law of England.
Now, I move from that to one further aspect and that concerns the common law right to fish. What we would seek to submit is as we have done in paragraph 3.2 of our written submissions that this is, in relative terms, hardly a fundamental right of the common law. It is one which has been frequently overridden without there being great difficulty with the structure of the common law. It also is one which is not absolute but subject to the existence of private fishing rights and also subject to the right of innocent navigation.
In that regard we have given a reference to the right to innocent navigation being a matter to which fishing rights are subject in our written submissions in the earlier case and your Honours will see the quotation in Gann - - -
CALLINAN J: Mr Jackson, can you assist me with this matter, please? I do not know whether it applies in your case but I would assume that in your case you have a claim in the alternative for non-exclusive rights, as his Honour the trial judge found here.
MR JACKSON: Yes.
CALLINAN J: Now, what utility does a non-exclusive right have unless there are laws, and perhaps I could add "effective laws" or "enforceable laws", as to the times, places, persons, numbers, permissible extent of the catch, means of access to an area and other essential matters which are bound to be in contest among all of the users? How can you say that a non-exclusive right has any utility at all and has any meaning unless there is this substratum of regulation which enables it to be given effect to?
MR JACKSON: Your Honour, for example, section 211. That would enable persons who have a native title right to fish to do so without the need to obtain any other right that might be given by it.
CALLINAN J: I understand that, but in this case the trial judge found that there was a non-exclusive right. Without the sorts of regulations that I am speaking about, how can you say that that is a right recognisable at common law?
MR JACKSON: Because it may well be - and it would depend very much on the facts of a particular case - that the right that the claimants have is one which is not exclusive because there are other persons who have the same right. But if it is possible to define the other groups of people who have the same right, then the right of the claimants, though non-exclusive, is one which is identifiable and enforceable.
CALLINAN J: Yes, but that is the rub, is it not? You need to be able to define what the other users' rights are in order to give any real content to the rights of your clients or the rights of the applicants here.
MR JACKSON: Of course, your Honour, yes. When I say "of course", what I am seeking to say is that one does need to appreciate the context in which one is speaking. It is unlikely in relation to any of the claims for native title that one is speaking about vast numbers of persons. One is speaking about groups which are likely to be identifiable. In relation to that, in the context of that kind it is very likely that the identification of the rights will be one that carries with it the identity of the persons able to exercise them.
CALLINAN J: What I am really putting to you - and perhaps I am not putting it very clearly - but take the findings in this case. It is the last finding, finding 3 in the summary of his Honour's conclusions, in which he refers to non-exclusive rights to fish and the like without in any way making any findings as to the rights of those others who have non-exclusive rights.
MR JACKSON: Your Honour, that may be so.
CALLINAN J: Or ever had them.
MR JACKSON: I do not want to enter into the particular case as advocating it one way or the other, but the point I would seek to make about it is that the right that is given may be - I am sorry, I am putting that badly. What I am seeking to say is this. If I could speak perhaps a little more generally than the precise thing. To identify persons as being persons having a right, even though one says it is not an exclusive right, does indicate, firstly, the absence of a prohibition upon their doing it. But one is speaking, of course, about traditional laws and customs, so they are persons who are entitled to do it; there is no prohibition upon them entering into that area. That is stage one, as it were. When one comes to stage two, there may well need to be in particular cases some further definition of other persons who have a similar right or who have some rights in relation to it.
CALLINAN J: I think that is really the proposition I am putting to you, that you cannot have any meaningful right perhaps and, therefore, no native title in respect of a non-exclusive right unless you define the rights of those other users who have a right to use it. Take fish, for example. There is a non-exclusive right to fish and, unless you have a definition of how much everybody can catch, there is nothing to stop somebody else coming in and depleting the whole of the area or, indeed, nothing to stop, say, 200 fishing boats coming in and depleting the area. What I am really suggesting to you - and I find this a fundamental problem in this case, the finding of non-exclusive use, giving any meaningful content to that at all, such that it can be recognised at common law.
MR JACKSON: Well, your Honour, I would not pretend to be sufficiently familiar with the detail of the facts of the case to offer an answer one way or the other in relation to the particular case. But may I just say this, that one does start from the proposition, your Honour, that what is to be the subject of the determination of the native title, in terms of the definition of that expression "determination of native title" in section 225, is not really to be an exhaustive disposition of all the testator's property, as it were.
What I mean by that, your Honours, is the way in which section 225(b) is expressed is that what is required is that there be a determination of those native title rights and interests that the maker of the determination considers to be of importance. So that two things emerge from that. One is that not everything has to be there. The second thing is, your Honour, that one is talking about determinations of native title that take place in a context.
Now, if the only persons who have made any claim so far as native title rights and interests are concerned in relation to a particular area are the people of a particular group, and if the evidence demonstrates that there is no other group who has any potential interest in it - - -
CALLINAN J: But it can be contrasted, say, with the pastoral lease on the extinguishment question.
MR JACKSON: Yes.
CALLINAN J: At least if you have the pastoral lease, you have a definition of the competing interests, as it were, which enable you to define what has been acquired or what has been extinguished, so you know exactly what the residue is and the potential area in which there can be native title rights. But if you have just a broad, non-exclusive right without any definition of inevitably competing rights, I suspect you have nothing at all.
MR JACKSON: Your Honour, it may be in particular cases that that is a valid ground for saying that the determination has not been made in the way that is most appropriate, as a matter of drafting of the determination. It may be in other cases that the absence of that evidence is fatal to the case. But, your Honour, it is difficult to say more in relation to it than - - -
CALLINAN J: You do not went to get into the case anyway, is that what you are really saying?
MR JACKSON: Your Honour, I do not want to express a view one way or the other because our position is that we have a case of our own in which the evidence has been given, but the case is not completed.
CALLINAN J: I am troubled by that matter in this case, I must say.
MR JACKSON: Well, your Honour, if may I leave that to Mr Basten to deal with any issue that arises from that.
CALLINAN J: Yes.
MR JACKSON: Your Honours, what I was going to say was something in relation to the common law right to fish. Even the several fisheries that exist are themselves subject to - in the United Kingdom, of course, have been always subject to the public right of navigation. Your Honours will see that referred to in the quotation from Gann v Whitstable Free Fisheries that we have given in paragraph 4 of our written submissions in the other case, in D7.
What I also wanted to say in relation to this right, recognition of native title rights and interests of a similar kind are hardly a major incursion into the common law and the legislature certainly did not think so, and your Honours will see that from the provisions of section 212. Now, if one goes to section 212, what your Honours will see is that in subsection (1) it provides that:
Subject to this Act, a law of the Commonwealth, a State or Territory may confirm -
and, your Honours, if I pass over (a) and (b), but go to (c):
that any existing fishing access rights prevail over any other public or private fishing rights.
Then in subsection (2):
A law of the Commonwealth, a State or a Territory may confirm any existing public access to and enjoyment of:
(a) waterways; or
(b) beds and banks or foreshores of waterways; or
(c) coastal waters; or
(d) beaches; or -
your Honour Justice McHugh mentioned walking on the beaches, I think -
(e) areas that were public places at the end of 31 December 1993.
Now, subsection (3) says that:
Any confirmation under this section does not extinguish or impair any native title rights and interests and does not affect any conferral of land or waters, or an interest in land or waters, under a law that confers benefits only on Aboriginal peoples -
But, your Honour, why I said it does not extinguish or impair the rights or interests, confirmation must to some extent, one would think, have the effect of rendering what might otherwise have been, for example, exclusive rights, ones that are no longer exclusive.
GAUDRON J: You see, I wonder if in subsection (2), Mr Jackson, there is not a hint or a suggestion of something that has really, I think, to be dealt with in this case and it is, perhaps, the other side of the coin. How can native title, a determination of native title, ever restrict anyone's freedom of movement? If you can restrict freedom of movement through these waters, you can restrict communication. You can come immediately up, I should have thought, against the statutory equivalent of section 92 in the Northern Territory Self-Governing Act and I would have thought, even if you put aside constitutional problems that would seem to be inherent in the notion of a right to control access on the part of native title holders, you must be dealing with something very fundamental to the common law which would guarantee freedom of movement across these waters.
MR JACKSON: Your Honour, may I say two things in response to that? The first is that if one goes to the order that was made by the Court in Mabo [No 2] 175 CLR 1 at page 217 what your Honours will see that the way in which declaration no (2) is expressed - and I am taking your Honours to the last four lines of it, it declares:
that the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands -
Now, that is speaking about land, of course.
GAUDRON J: The problem is that it is water. From my point of view the problem is that it is water.
MR JACKSON: Your Honour, if one goes to any form of area to which access is restricted by the existence of property rights, it would not really matter whether it was land or land and/or water. May I try to explain what I mean by that, your Honour? The quickest way between two places may be to go through the property of some other person and that property might, if one goes to the analogy of section 92, be very close to the border. It may be on the border. It does not mean you can go through it to get to the other side and rely on section 92 or some implied freedom of communication. Equally, your Honour, if the quickest way to get from Coolangatta to Tweed Heads is to take a boat and go through an oyster lease - or there would be something of that kind there - then one cannot do it.
GAUDRON J: One understands that but you see, Mr Basten claims a right to occupy the seas to the exclusion of all others, the seabed and the airspace to the exclusion of all others. We know, at least, that there other claims by other claimants to native title for other tracts of sea. Now, at the end of the day, it seems to me, it is just not enough to say a right of innocent passage or a right to navigate. One could postulate a situation in which everyone was kept out from any island on which Aboriginal people were living. They could, themselves, enforce an exclusion zone, it seems to me, which would run counter to some very fundamental principles of the common law.
MR JACKSON: Your Honour, could I say in relation to that situation - may I come back to the water aspect in just a moment, but if one took some of the beachside villages that have grown up recently in the United States, and there are some, I gather in Australia, that are built by particular developers in a kind of nostalgic way, or so it is suggested, but there are ones in which there is difficulty of entry. Only a particular class of people can enter; only a particular class of people can do various things there.
One might say that those people who, collectively, have title to the land have, in effect, built up an area of that kind. The same happens, of course, in suburbs where one sees the "gated developments", I think may be the terms that us used, the ones that are protected by security guards and so on. Now, one could say the same thing about those. There are various areas where there are, for example, industrial developments in relation to which there is a number of activities carried on there by different owners and where one were to see the ordinary roads can not be used except for very limited purposes because they are, in effect, private roads. Now, one could say all those thing affect freedom of communication.
One could say similar things in a way in relation to various areas that are partly land, partly water, and there are the ones that in developments that are internal waters where there is no question, for example, the power of the State to create such a development or allow it to be created. In relation there is not real difference that arises when a part of the seashore has been taken for development for jetties, for all kinds of things of that kind. One can have going out for very long distances, for example, bulk sugar handling terminals. In some northern parts of Australia jetties have to go out a long distance because the fall of the tide. And when I say "jetties", your Honours, I am not talking about things that are small affairs. Now, all those things can cut out the freedom of communication, but they are rights that have to be respected. It is a question, of course, in the particular case whether the native title right or interest exists in relation to a particular - - -
GLEESON CJ: I am not sure that is quite right, Mr Jackson. In one of those English cases you referred us to earlier it was pointed out that right of free navigation does not involve a right to go across every square inch of the surface of the area of the sea in question. But the right to control access to an area of the sea does affect every square inch of it, does it not?
MR JACKSON: Your Honour, put broadly, that is true. But if one says, ultimately, in whom is the right to control to access, that is a question that involves looking at what has taken place. Broadly speaking, one can say, by the declaration of sovereignty, the right to control access to it is one that belongs to the relevant polity. Having said that, one looks to see within the polity - because one is talking, relevantly, about the internal effect of sovereignty - one looks to see whether the polity has given to private persons any of the rights which it has in relation to it.
The polity could, if one left aside native title altogether, do that, certainly by legislation, as has been done in relation to fisheries all around Australia. In relation to those fisheries, there cannot be entry into them or participation in them, unless one is one of the persons who is entitled to do so. Now, that is legislation, of course, but a question arises whether it could be given by grant. In our submission, there is no especial reason, in Australia, why it could not be done. Grants have been given in relation to numerous things that have proceeded into the ocean.
I have taken your Honours to section 212 - I am sorry, I should say one other thing. Apart from the use of section 212, one does have the situation that if an area, the subject of native title rights and interests, is required for some other purpose, then the procedures of the Native Title Act allow that to take place. May I refer your Honours, in that regard, to a further provision of the Act which, I think, was not in force at the time in relation to these proceedings, but I simply do it by way of completeness. It is section 24NA. That was added in 1998 and that deals expressly with the offshore areas.
KIRBY J: How can you use it?
MR JACKSON: Your Honour, could I say two things about it. First of all, if one is talking about the dire consequences that might happen, one does have to look at the Act in the form it now occupies and section 24 NA is one which recognises that there may be native title in relation to the offshore areas, and the offshore areas are defined in such a way as to, again, include the areas presently in question.
The second thing I would say about it is that I simply wanted to refer your Honours to the fact that there had been a potentially relevant change. I do not rely upon it particularly for any purpose other than those things. I suppose I could say, your Honours, that it represents a continuing recognition by the legislature of the ability to obtain native title in the offshore areas.
May I just say one last thing, and that is that we too would invite your Honours not to express a view on an issue which is really sought to be raised by the written submissions on behalf of Queensland, paragraph 15, and Western Australia, paragraphs 23 to 26, in relation to the extent and geographical area of use that is required for native title because that, of course, is an issue to be determined in a later case.
GLEESON CJ: Thank you, Mr Jackson. Yes, Mr McIntyre.
MR McINTYRE: If I could take your Honours to our written submissions and take your Honours immediately to paragraph 41. What we wish to focus on there is what his Honour Justice Olney said about there being a clear distinction between possession and occupation on the one hand, and use and enjoyment on the other. It was that conceptualisation which caused him to come to the view that there could be no possession and occupation of the seas because all that was exhibited by the evidence was use and enjoyment. We suggest that that is a false dichotomy, that, really, one needs to get back to the more basic concept which can be found in Justice Toohey's judgment in Mabo [No 2] at page 188 of the report, where he says that:
The requirements of proof of traditional title are a function of the protection the title provides. It is the fact of the presence of indigenous inhabitants on acquired land which precludes proprietary title in the Crown and which excites the need for protection of rights. Presence would be insufficient to establish title if it was coincidental only or truly random, having no connexion with or meaning in relation to a society's economic, cultural or religious life.
And we suggest that that is really the elemental concept from which one proceeds. If you look to the concept of presence, presence has within it concepts, the concept of occupation. Use and enjoyment are really manifestations of the occupation which is reflected in presence.
On that basis, we propose to put a slightly different way of looking at the concept of exclusive occupation from that which has been put so far. It is our contention that you do not need to prove the existence of traditional laws and customs or have evidence as to them in order to reach a conclusion that a title is an exclusive title, provided one has the evidence of occupation. We also put the proposition that there is no logical difference between the presence or the occupation which may occur on land and the presence or the occupation which may occur in relation to the sea - - -
GAUDRON J: Well that really is a fundamental issue, I think, and I do not think the assertion of that proposition takes it very far.
MR McINTYRE: What we say is that if you go back to the elemental concept that you are looking at presence, if you have presence on the sea, or in relation to the sea, and that a presence on the land there is no true difference. Now, historically, in our system, we have always regarded them differently. Certainly in terms of the kinds of activities one can undertake on the sea as against the kinds of activities one can undertake on the land, they are different, but if all one was looking at was the question of presence, presence is the same, regardless of where one is and what activities one engages in in exercising that presence.
McHUGH J: But you would not describe the surfboard riders at Bondi, who sit in much the same place, hour after hour, waiting for waves, as being in possession of Bondi Beach, would you?
MR McINTYRE: No, because they are exercising their public right of access. It does have to be something more obviously - - -
GUMMOW J: That is the point. There is a public right of access across the sea, different on land.
MR McINTYRE: Well there is a public right of access across the land, subject to the fact that there are a range of private proprietary titles.
GUMMOW J: Exactly, which there are not with the sea, hence the problem.
MR McINTYRE: But there have not been historically, that is the reality. We are now confronted with the fact that there may well be titles which have not been, until now, recognised. What is required to conceptualise is that there may well be that the sea - - -
GUMMOW J: If it has not been recognised so far, why should such manifest inconvenience been willingly been brought into existence?
MR McINTYRE: Well, only for the same sort of reason that the - - -
GUMMOW J: Other than to meet the interests of your clients; but there are some other stakeholders, you see.
MR McINTYRE: Well, only for the same reason that the High Court decided that they would recognise the concept of native title in Mabo [No 2].
GAUDRON J: But it is not really a question of recognising or not recognising native title that is in issue. It is the content of that title and how to describe it and what is put. You really cannot, it seems to me, come to an adequate or accurate or even a useful description of the content of native title with respect to sea country if you just say it is the same as the land, because the sea is a general highway and its importance as a general highway, in relation to island peoples - and there are islands off the coast of Australia, but within its territory - has always been understood and accepted. So when you are talking about what the common law can recognise, you have somehow got to work it in to - - -
MR McINTYRE: Mr Basten has made that concession, I would suggest, your Honour. The general highway character of the sea is reflected in the right to navigation.
GAUDRON J: It is not simply reflected in the right of innocent passage or the right of navigation.
McHUGH J: You seek to control entry.
MR McINTYRE: Yes, because we have a private property interest in the same way as the farmer with 200 hectares of - - -
GLEESON CJ: That is the point in that it is not in the same way.
GUMMOW J: That is what the argument is about.
GAUDRON J: Under your law you may have it, under the law of the native title holders that may be so but the question is how can that be recognised by the common law, given the nature of the sea.
GLEESON CJ: The common law has long accepted land with signs on it saying, "Trespassers will be prosecuted" but not the sea.
MR McINTYRE: Yes. Because there has been no other group who held property in it and in that sense this is a novel case that is certainly coming before this Court for the first time to suggest that there may in fact be people who are private property holders within the sea who may be just as entitled to put up "no trespassing" signs.
GLEESON CJ: What is being suggested is that erecting a sign on the sea saying "Trespassers will be prosecuted" in terms of the concept of fracturing skeletal principals inflicts more than mere soft tissue injury.
MR McINTYRE: We would suggest that it is no different from the concept of native title on the land which, on many views, in 1992 and before, was regarded anathema. It is in that same category.
HAYNE J: The contrast can be put, can it not, as starkly as this, that Aboriginal law and custom was, "We can say who can come or go there". With sovereignty the fundamental principle was, "Anyone can come or go there". How do the two coexist.
MR McINTYRE: It is not entirely so, as Mr Jackson point out. In English common law there are instances of private interests within the seas and certainly within the internal waters.
McHUGH J: Yes, by statutes after Magna Carta.
MR McINTYRE: And prior to Magna Carta.
McHUGH J: Prior to Magna Carta the King could make grants inconsistent with the public right of navigation. Magna Carta put an end to it. Thereafter any lease of the seabed or greater alienation of property had to be done pursuant to statute. Common Law would not let you do it.
MR McINTYRE: We, of course, would assert that the kinds of interests that we are claiming pre-existed Magna Carta and so they are in a similar category to those pre-existing Magna Carta. Magna Carta has prevented the Crown from granting any of those interests and we do not quarrel with that. The Crown cannot grant any interests but if there is a pre-existing interest which is not affected by the Crown's inability to grant titles then it is entitled to be recognised. It is just as valid as the pre-existing interests which existed, prior to Magna Carta.
McHUGH J: I have other problems about that because of the fact that the Crown is regarded as - or before the enactment of legislation about the territorial sea, the Crown had the property of the sea, whereas it only had a radical title to the land, but that is another question.
MR McINTYRE: We would say that there is no true distinction to be drawn in that regard. The property that the Crown has in the sea is the same kind of fictional property as the property it has in the land. I say "fictional" in this sense that it, as I was arguing yesterday, we would suggest the Crown has a pure legal interest which might be called radical title or might be called something else, but it is fictional in this sense that it does not connote the rights to possess, occupy, use and enjoy which - - -
McHUGH J: But it did. It did, and that was what I was saying earlier about the historical learning about the writ of intrusion and the Crown did not have to prove its title. It was entitled to bring an action under the writ of intrusion, claim damages for trespass or whatever else it might. You had to assert your title. You had to prove your title. Whereas, when the Crown was not in occupation of land it had to prove its title.
MR McINTYRE: Can it not be said that those are really procedural differences as to enforcement of a particular right rather than a definition of what the right is, which makes it any different from the radical title on the land?
McHUGH J: Under the ancient common law you could not distinguish rights from remedies. If you did not have a form of action, you did not have a right.
MR McINTYRE: I have just had handed to me a reference to a case which may be of some assistance. I will just refer it to your Honours. It is the case of A History of the Foreshore 1888 - I am sorry, it is a text. It is the last page of Mr Jackson's submission. Perhaps I will just refer it to your Honours. It is being suggested to me that your Honours might look at it with a view that it is not a novel concept that we are suggesting. If I can come to another related topic, we put in our submissions the view that the concept of exclusivity of native title is not an absolute concept. I think that may help some of your Honours in the concerns that - - -
GUMMOW J: It may help with fishing and the extractive activities. It does not help with access. At the moment I think you are stuck with problems of access, exclusivity of access. Non-exclusive is a different matter there perhaps.
MR McINTYRE: Yes. As I said yesterday, unless you have the capacity to control the entry of another who does not have the title that you have, one wonders whether you have a title at all. As Justice Callinan said, if you have a right - - -
GAUDRON J: There may be quite a difference, particularly I think because of section 211 which was considered in Yanner v Eaton. If you can control access, I suppose you can stop the Electoral Commissioner from coming to Croker Island to conduct elections for the Federal Parliament.
KIRBY J: Presumably he does that pursuant to statute.
MR McINTYRE: Yes. I can stop the Electoral Commissioner from coming into my home to conduct an election in my lounge-room because I have a property interest. I might have a 200-hectare property in which I have a number of servants and workers who ought to be participating in the election and I can, as their landlord, stop the Electoral Commissioner from coming along and allowing the community of workers on my property to engage in the election, but - - -
GUMMOW J: We are back to where we were before. The sea is different, it has been put to you. I understand what you say about it. I am not going to get any further by having it said again.
MR McINTYRE: No. One other proposition, again related, which we wish to put is that it is not a necessity to prove exclusivity in order for that to be an element of title. We suggest it is a necessary and an essential element of title that one has the ability to control, the ability to exclude, which may be subject to a whole range of limitations. That follows, we suggest, from what the High Court did in Mabo [No 2] in the factual circumstances there. What the Court had before them was some evidence as to the customs and traditions of the Miriam people, and that can be conveniently in part found in the Commonwealth's volume of material filed in accordance with paragraph 7(i) of the practice direction.
They there set out some extracts from Justice Moynihan's determination in the Supreme Court of Queensland on remitter from this Court. At page 67 of that volume he there sets out what the plaintiffs claimed in that case. It was:
A right to use land at the discretion of the owner and to the exclusion of others . . .
A right to or to share in the produce of land or sea or as to its disposition.
A right to the land within boundaries defined by natural features or artificially placed marks . . .
A right to dispose of the land or interests . . . by transfer as a dowry or gift or by way of lease or loan . . .
A general right to dispose of the land.
Then it followed on to tell us about what Dr Beckett had to say to the court about:
"(i) `Owners' have the `right' to dispose of their land during their lifetime or at death -
and various inheritance customs and traditions.
Now, those were the customs and traditions which the Court had before it. The evidence as to the exercise of those rights was as between families, individuals and families within the broader Miriam community and there was evidence as to exclusion by one family from another family's block. From village to village there were rules about trespass. There was Malo's law which was said to be the Ten Commandments. Teter moki moki, that a man should not walk on another man's land. Teter moki moki, a man should not touch another man's goods. All of that was there and there were enforcement processes.
What the High Court in that case said was that the Miriam people as a community had the right to possess, occupy, use and enjoy as against the world. The Court concluded that there was an exclusive proprietary interest in that community with no evidence as to any exclusion by that community of anybody else. The only evidence about exclusion and the only evidence about customs was within the community.
What we say you conclude from that is that if the evidence demonstrates an occupation and demonstrates an occupation in accordance with a set of customs and traditions, the conclusion that results from that is that there is an occupational title which carries with it the right to exclude as a necessary element of title, otherwise you do not, we suggest, have any real title. You are in the situation - - -
GUMMOW J: I understand what you say in your written submissions about that. We are starting to fall behind.
MR McINTYRE: Well, I think I might be finished, your Honour. Yes, I do not think I can take the matter any further.
GLEESON CJ: Thank you, Mr McIntyre. Now, just before we hear Dr Perry, so far, with the relevantly minor exception of the Commonwealth reply in the first appeal, the parties have consistently taken less time than was allotted to them for argument and the interveners have consistently taken more time. Is there any reason why, from here on in, we should not hold the parties and the interveners to the times agreed on this document? I am not suggesting you should take the whole of your 165 minutes, Dr Perry.
One more thing I will add. On that basis, on the assumption that we hold all the parties to these times, if we were to adjourn at 4.15 tonight and resume at 9.30 in the morning, that would give us an opportunity which we would regard as a valuable opportunity to meet to discuss the submissions in this case tomorrow afternoon before we have to turn our attention to the business of next week, and for that reason we will resume at 9.30 tomorrow morning, but we will go ahead now. Yes, Dr Perry.
MS PERRY: Your Honour, we have arranged things so that Mr Lloyd will be addressing the Court first in relation to the submissions dealing with factual issues on the appeal.
GLEESON CJ: Yes, Mr Lloyd.
MR LLOYD: May it please the Court. As Dr Perry has just indicated, I will address the Court on the construction of Justice Olney's reasons and what his factual findings are and also on questions about the proposed draft determination by the appellants in this matter. My learned colleague, Dr Perry, will deal with the balance of the matters in our written submissions. I should perhaps note at the outset that the entirety of the Commonwealth case in this appeal is, of course, in the alternative to the arguments raised in D7.
I propose to develop eight arguments, the first being the most substantial and in the end being the most critical to the appellants' case. It is the Commonwealth's contention that the findings of fact made by the trial judge provide no basis whatsoever for the appellants' appeal. That is to say, the appellants' case is premised upon an assumption that the trial judge found that the appellants as between themselves and other Aboriginal people had rights to control access to the claimed area and the use of resources therein. He then says that his Honour erred because it was inappropriate to consider the question to whom the right is enforceable against, namely, only Aboriginal people, and if that error were, in effect, overturned, your Honours would make a finding that the control of access would be enforceable against everyone.
If I just outline quickly the five points I would make under this heading before expanding on each. The first is that the content of native title is to be determined by the facts in each case. I think that is common ground between the parties. That involves, in my submission, that the trial judge when considering evidence about the content of Aboriginal laws and traditions should include consideration of the persons against whom any obligations are imposed under those laws. The trial judge in this case, in my submission, found on the evidence, which he considered to be conflicting evidence, that the permission system was, on its terms, on the terms of Aboriginal customary law, a custom that applied only to Aboriginal people.
My fourth proposition is that recognition by the common law of rights arising from such a system would involve making them enforceable in Australian courts, but would not involve expanding the rights to people who they were otherwise directed to under Aboriginal customary law.
Finally, but perhaps most importantly of all, in my submission, a fair reading of his Honour's reasons shows that the trial judge considered that the permission system was too ad hoc to support any exclusive rights, even as between Aboriginals whatsoever. I do not need to expand the first proposition I just made because it is common ground, but I note that authority for the proposition may be found in the references set out at footnote 59 of the Commonwealth submissions and also his Honour Justice Brennan's reasons in Mabo at page 58. That is the proposition, of course, that the content of native title is to be determined on the evidence according to the facts of each case.
The second proposition is that if a right under Aboriginal law is enforceable only against a particular class or group of persons, the recognition of that right by the common law would not expand the right. This is simply because the process of recognition involves only the enforcement of rights under Aboriginal law and nothing further. If I might ask your Honours to turn to volume 8, his Honour Justice Olney's decision at paragraph 116, which is page 2049, I can provide an example of how, in my submission, this proposition can be made good. On page 2049 there are a number of rights which were included in the appellant's anthropologists' report. The third of those rights provides an example. It is a:
Right of senior members of the yuwurrumu to receive a portion of major catches -
against, as it were, co-residents, people who lived with them, if they made such a catch. Now, in fact, I simply note that at paragraph 118 over the page his Honour found that that right was not, in any event, related "to lands or waters". But to make my point, I assume, for the sake of argument, that that right were capable of recognition. In my submission, that right, on its terms, would only be a right enforceable - query how it might be enforced, but I do not need to address that - enforceable against co-residents of senior yuwurrumu members.
The process of recognition would not say that that right meant that anyone who caught fish in the area would have to provide a share of the catch and that, in my submission, is a simple proposition that the process of recognition does not involve an expansion of Aboriginal customary law.
Now if one turns back a couple of pages in this volume to page 2044, the passage at the bottom of that page, of paragraph 110, is the paragraph chiefly relied upon by the appellants:
The evidence supports the conclusion that -
and these words, in my submission, are critical -
according to the traditional laws and customs of the Croker Island community Aboriginal people . . . should first seek and obtain permission -
The point made at the beginning of the paragraph was to identify, not what the content of the right is, but who it is against. That is what his Honour was talking about at this point.
KIRBY J: And, of course, it was natural in an Aboriginal setting to develop the rules in a way that would address only Aboriginal people, because they were the only people save for some people from the Indonesian islands, as we now describe them, who came into their milieu, so the question is, what the law that addressed that phenomenon says when you have balanda coming into the milieu.
MR LLOYD: Certainly, your Honour. I entirely accept that it may be, and in many cases would be, the case that an Aboriginal group would have laws that were designed to bind everyone. If that was the law, then the question of recognition of such a law would involve recognition of a law which, on its face, bound everyone. His Honour, however, perceived on the evidence that these laws were not intended to bind everyone. Your Honour, Justice Hayne referred earlier to the quotation in 110 as perhaps carrying the suggestion that it was only directed to Aboriginal persons. That is the point, in my submission, that is being made here. And this point is made crystal clear at the beginning of paragraph 114. At that point, after referring to further evidence, his Honour considers again:
The general thrust of the foregoing confirms the view expressed earlier that the traditional laws and customs, which relate to the use of country apply to Aboriginal people rather than to non-Aboriginals, although Charlie Wardaga seems to have a different view.
In my submission, that reinforces the view that his Honour, in construing their law, understood that they did not intend it to apply - to be directed against, to be binding upon, non-Aboriginal people. But he accepted that others had a view. And the quotation from Mr Wardaga indicates that Mr Wardaga had a view that it did apply to balanda. However, my friend, Mr Basten, has said, in effect, that I am now misunderstanding what his Honour was saying, and that "apply" must mean "enforce".
But the quotation from Mr Wardaga does not suggest the contrary to that position; it suggests that - he accepts readily that he can not enforce the law against them, but he is saying that he considered they should be bound by it.
Now, my friend, Mr Basten, also referred to other evidence from Mr Yambigbig, which also might carry that proposition. His Honour appreciated that there were conflicting views, and at the beginning of 114 noted that there was this conflict, but over the page 115 - paragraph 115, sorry, his Honour comes to the conclusion that there are no exclusive rights or there is no exclusive right of possession, occupation, use and enjoyment. That "at its highest the evidence suggests" something much less.
KIRBY J: Is his Honour there speaking of the exclusive, vis-à-vis, other Aboriginals, or is he speaking exclusive vis-à-vis Aboriginals and - - -
MR LLOYD: Well, in my submission, your Honour, and I will develop this later, he is not talking exclusive at all; however, he is saying that the permission system, whatever it does support, is directed only as between themselves and other Aboriginal people.
KIRBY J: But that is because that is the only milieu in which it operated. The question is whether its essence was a permission system to strangers who at that time were only Aboriginals but who later became balanda.
GLEESON CJ: But he is saying a good deal more than you just attributed to him. He is also saying the permission is sought before hunting or fishing or gathering. He does not say, for example, permission is sought to cross the sea.
MR LLOYD: Absolutely, that is another point I was proposing to make later. He first of all does not really talk about obligations, he talks about - - -
GLEESON CJ: That last point is rather material in relation to a claim for exclusive control of access, is it not?
MR LLOYD: Absolutely, your Honour, there is no - - -
KIRBY J: But, presumably permission to fish, hunt or gather can be given or can be withheld.
MR LLOYD: The evidence was that generally speaking there were these general permissions so that permission was not asked but on occasion people would ask permission.
GLEESON CJ: But was there evidence given that permission was needed to cross the sea for purposes unrelated to fishing, hunting or gathering?
MR LLOYD: If I turn back to page 111, his Honour deals with that at paragraph 109 on page 2043 to 2043. There his Honour deals at more length with when permission might be required. Mary Yarmirr indicated there that she would not seek permission just to cross somebody's territory to go to an airport but if she was taking something "off the country" she would seek permission. And, the next paragraph:
I only seek permission when I am hunting -
His Honour in the next paragraph says, "Well, that should not be read too narrowly because it is not just hunting but they also fish a lot and it would certainly extend to fishing".
GUMMOW J: Mr Lloyd, can I raise one related matter with you. It follows upon what Justice Callinan was saying earlier in the afternoon and you might consider it overnight. Appendix 2 to the Commonwealth's submissions is the fishing legislation.
MR LLOYD: Yes, your Honour.
GUMMOW J: I gather from that that the Northern Prawn Fishery does embrace this area we are talking about here.
MR LLOYD: Yes, there is a great deal of evidence that this area is highly used and the Northern Prawn Fishery. I can take your Honour to it, but - - -
GUMMOW J: No. So, that is a Commonwealth statutory regime presently in force?
MR LLOYD: Yes, it is, your Honour.
GUMMOW J: There would be power under that legislation to expand it to other sorts of marine life, would there not?
MR LLOYD: Yes and no, your Honour. There are agreements between the Commonwealth and all the States and the Territories, dividing marine life into different categories, but under the current agreements, the Commonwealth has tuna and prawns, and the States and Territories have everything else.
GUMMOW J: But they do not have tuna at the moment at Croker Island, do they?
MR LLOYD: No, your Honour.
GUMMOW J: That is what I take from page 35, as Justice Hayne pointed out to me. What I want to know is, what would happen, as you see it, if after a favourable determination of title in favour of your opponents, the Commonwealth expanded to bring in tuna within its fishing plan to save their resources?
MR LLOYD: My colleague, Dr Perry, will be dealing with the fishing legislation, so I might - - -
GUMMOW J: Yes, I just thought I should put it on notice.
MR LLOYD: I might let her deal with that.
GUMMOW J: It goes to this question of resources and competing claims to finite resources.
MR LLOYD: Certainly, your Honour.
GUMMOW J: The compensation provisions of the Act, section 211, so on and so forth.
MR LLOYD: In the end, in my submission, what paragraph 115 supports is not any exclusive rights - but perhaps I should finish the point I was making, is that it was a finding of fact by his Honour, in my submission, that the Aboriginal law and custom was directed only to Aboriginal people. Now, it may be that in other cases that finding would not be made, but in this finding it was made on the basis of conflicting evidence and on the basis that there have been concurrent findings, because the Full Court adopted the findings, reviewed the evidence in detail and adopted the findings of the trial judge that that aspect should not be disturbed. That being the case - - -
KIRBY J: That is not the view the Commonwealth takes of that little island, New Year Island.
MR LLOYD: No, certainly it is the view the Commonwealth takes, your Honour. That is not a case in which there are concurrent findings of fact upon which the Commonwealth disagrees.
KIRBY J: That is right. Well, what is sauce for the goose is sauce for the gander, as they say.
MR LLOYD: Certainly, your Honour. My point simply is that in relation to the north-east corner, the Commonwealth position is, and was, that the problem was not - - -
KIRBY J: I know - I do not want to go over it, I was just making a comment.
GLEESON CJ: Is that a convenient time, Mr Lloyd?
MR LLOYD: Yes, it is, your Honour.
GLEESON CJ: We will adjourn until 9.30 tomorrow morning.
AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 9 FEBRUARY 2001
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