The Commonwealth of Australia v Yarmirr & Ors D7/2000 [2001] HCATrans 16 (9 February 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

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

NORTHERN TERRITORY SEAFOOD 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

NORTHERN TERRITORY SEAFOOD 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 FRIDAY, 9 FEBRUARY 2001, AT 9.32 AM

(Continued from 8/2/01)

Copyright in the High Court of Australia

________________

GLEESON CJ: Yes, Mr Lloyd.

MR LLOYD: Your Honour, the position I had reached yesterday afternoon was in relation to the first point I wish to develop from the Commonwealth's submissions, that point being that the findings of fact by the trial judge provided no basis for the appellants' submissions. The point I had reached was that it was common ground as between the parties that these matters have to be determined on the evidence according to the traditional laws and customs.

In my submission, that would involve naturally a consideration of who, and the obligations that arose under those laws and customs, were directed to, that it was open and appropriate, contrary to the appellants' submissions, for the trial judge to consider whether, on the facts, the laws with the Aboriginals, appellants in this case, were, in fact, directed to people other than Aboriginals and that his Honour did consider that question and found that it extended beyond the community concerned to other Aboriginal persons, but not to non-Aboriginal persons.

GAUDRON J: But did his Honour even find that? Was there not something about there was general permission - it was said general permission - but seemingly Aboriginal people who lived on Croker and the other islands, who were not part of the native title claimants, were able to travel to and from each island?

MR LLOYD: Absolutely, your Honour. My next point is his Honour was looking appropriately at the ambit of the permission system and then he turned to the question or concluded with what was the impact of that permission system and he found that that permission system was insufficient to support any exclusive rights. That is at page 2048 of volume 8 of the appeal books. Now, perhaps it is appropriate at this point to start earlier. At page 2035 paragraph 101 his Honour observes that ten rights were raised by the anthropologists. They:

do not expressly include a claim to exclusive possession, occupation, use and enjoyment -

although, as he says over on page 2036, the sum of the claims may well justify, if they be established, the claim made by the appellants in the determination which was, in fact, exclusive possession, occupation, use and enjoyment.

Now, the particular integers or elements of the rights that his Honour considered was the claimed rights at the top of that page 2036:

the right to make decisions about all aspects of the estate, the right of free access to the estate, the right to control the use of and access to the subsistence and other resources of the estate and the right to close off areas of the estate -

What his Honour then does in the succeeding several pages is consider each of those rights in turn. The first one is the right to make decisions. He considers that and finds, in substance, that what is established is that in the past 20 years or so, on several occasions, the appellants have sought to be consulted and have been involved in decision making in relation to the estate.

Now, paragraph 07 on page 2041 - this is a paragraph which my friend put quite some stress on. In my submission this is, as it were, his Honour's conclusions in relation to this first aspect, the claim to make decisions, and his Honour accepted that there had been evidence which established that - certainly in recent times it has been "consistently asserted", however, his Honour considered that there was no evidence to suggest that such a right would have ever been asserted "in pre-contact times".

I note, also - this is in the middle of the paragraph - there is a sentence:

But whether there was ever an occasion in pre-contact times for the applicants' ancestors to assert this particular right -

and that right is distinguished from the right to control access -

is not a matter upon which there is any evidence -

On that basis, because as my friend said yesterday, his Honour approached the question as a matter that the rights needed to be established, and we would say correctly, from pre-existing rights, that is to say, rights that existed prior to the acquisition of sovereignty, this right was not established. His Honour at paragraph 108 noted "the right of free access". That right was established.

GLEESON CJ: I assume that you rely upon the third-last sentence of paragraph 107 which I think was the subject of some discussion yesterday.

MR LLOYD: Yes, your Honour, I do rely upon that paragraph. At paragraph 109 on page 2042 his Honour then considers the next on that list of rights, which is the right, in effect, to exclude. His Honour considers that the permission system is not obviously all-embracing. His Honour considered that that system, whatever later he considers it to support, is only directed to Aboriginal people, the appellant and other Aboriginal people, that it is not necessary to seek permission on every occasion. Then at 112 to 113 his Honour considers the right to close off areas. At 114 on page 2047 his Honour notes the conflict on one aspect, which I suppose affects the last two rights, that there is a conflict in the evidence as between whether or not it is directed solely to Aboriginal people or also to non-Aboriginal people.

At paragraph 115 his Honour comes to his conclusion. His conclusion in the first sentence, in my submission, is a rejection in substance of the claim to the exclusive element of the right. He does that because at the highest the evidence does not support the claim to exclusive possession, occupation, use and enjoyment that had been made.

However, as the Court is obviously aware, his Honour did accept one of the sub-integers of the right, which is the one dealt with in paragraph 108, that the appellants had made out access to the claimed area and they had a right to access the area, but it was non-exclusive. That particular element did find its way into the determination.

In my submission, on a fair reading of the reasons as a whole - I will take the Court to two further passages - it is abundantly clear that the trial judge did not accept any right to exclude whatsoever. He did not accept that the permission system could support that. That is what he means at paragraph 115, but that can be tested and shown on two further occasions. If there had have been a right to exclude, as my friend suggests, it would have been necessary for his Honour to consider whether or not the public rights, as it were, overrode the right to exclude. It would have been necessary to consider whether the fishing legislation overrode the right to exclude.

Now, those questions were, of course, addressed by his Honour, starting at paragraph 128. On page 2056 there is some general discussion. I turn then to page 2061. At paragraph 134 on that page his Honour talks about the public right of navigation and at this stage he is still talking about claimed rights, the claimed rights of exclusive possession. Then on the next paragraph - and he says that could not resist the public right of navigation. He comes to the same conclusion at paragraph 135 in relation to the fishing rights. In paragraph 136 he sets - - -

KIRBY J: Could I just ask you a practical question, and it may come from my lack of understanding of all of the details, but when one looks at what is called his Honour's "determination", which is on 2092 and 2093, and he lists the native title rights and interests that he considers have been established in paragraph 5, and following these passages that you are taking us to, there is no right to exclude. Is there any practical value at all to the Aboriginal people, the claimants, in those determinations that his Honour made? I mean, they could go on fishing and hunting and gathering and so on, as they have from time immemorial. Was there any economic value to them of that determination, or was the real substance of this claim and the real battleground the question of exclusion and, therefore, the power, as other property holders have, to exact compensation for the taking and licences or benefits or payments for the intrusions?

MR LLOYD: I suppose, your Honour, it would be fair to say that the Commonwealth's position was, of course, as you have already heard, that they would be entitled to no native title rights offshore. In relation to the facts, the position - - -

CALLINAN J: Is not the benefit this, that licences and other things that might be intrusive to these people could be granted to anybody else at all; that if there were any grant that interfered with, for example, the relief given in 5(a) on page 293, then the Aboriginal people would be overly compensated.

GLEESON CJ: And does not section 211 have an impact; section 211 of the Native Title Act 1904 ?

MR LLOYD: Perhaps, I should have started the answer to my question the other way around. It is not denied by the Commonwealth that non-exclusive rights would have value to the appellants, especially as a result of the Native Title Act.

CALLINAN J: Might not be a huge value, but it could be significant, the right to do this for in perpetuity.

MR LLOYD: Well, it would be significant for them for a number of reasons. They would have the advantage of the right to negotiate. Anyone who wanted to do anything in the claimed area, they would then - - -

CALLINAN J: Well, only if what they wanted to do in the claimed area would interfere with what they were doing, for example, for their personal domestic or non-commercial communal needs, but if it did do that, then there might be a right to insist on negotiation and if that were intruded upon, there would be a right to compensation, and as his Honour the Chief Justice points out, section 211 operates.

MR LLOYD: Yes, well, I agree with your Honour Justice Callinan that that is the ambit of what would need to be shown to be affected in order for them to have the right to negotiate, but nonetheless, I hazard a guess that the appellants would still consider that to be of value to them.

CALLINAN J: No, it has; it could have real financial value, I would think.

MR LLOYD: Certainly. I mean, they sustain part of their diet on the basis of these fish, and it is not denied that the rights that were found by his Honour Justice Olney could be considered by them to be valuable.

KIRBY J: Yes, I just wondered whether the way in which we have approached the matter in - I suppose, logically, it was appropriate to take D7 first, because if your arguments there are correct then that is the end of the matter, in a sense. Whereas D9 takes us into whatever is - what may be the real substance, economically, of the claim. You have to get over the D7 threshold first. But, anyway, thank you for answering that.

HAYNE J: Before you go on, Mr Lloyd, the structure of the judgment that you have been taking us to seems to me, at least, to owe a deal to the way in which the anthropologists had put the ten claimed rights. Is that right?

MR LLOYD: I certainly could not disagree that it was affected by that, your Honour.

HAYNE J: Yes, those ten claimed rights appearing at pages 1611, 1612 of volume 7.

MR LLOYD: Yes, your Honour. It is also set out, I think, by his Honour earlier in his judgment.

HAYNE J: Yes.

MR LLOYD: On page 2062, after considering the two public rights, his Honour begins paragraph 136 with the expression:

Quite apart from the conclusions just expressed, the evidence does not establish the existence -

as it were, of "exclusive" rights. So, his Honour is not saying here that they did have some level of exclusive rights as between Aboriginals but it could not exist in parity with the public right to navigation; he is just saying, on the evidence, they do not have exclusive rights.

Then his Honour considered whether or not the fishing legislation would extinguish any native title rights. The argument had been put by the Commonwealth that the fishing legislation was inconsistent with any right to exclude persons from fishing in the region. My colleague, Dr Perry, will address that issue today. I do not need to address the substance of it. I just ask your Honours to turn to page 2073. This is the very conclusion his Honour makes in relation to the fishing matters. Paragraph 154 recites various conclusions on his construction of the legislation. The last two sentences of paragraph 154 read:

Nothing about the history of the legislative and administrative control of fishing in relation to the claimed area is indicative of an intention to extinguish a non-exclusive, non-commercial native title nor to create inconsistent third party rights.

GLEESON CJ: Is it the case that there was an argument here that cut both ways? The more extensive the rights, the easier it would be to conclude that they collided with the fishing legislation, and the more modest the rights, the more easy it was to conclude that they did not collide with the fishing legislation.

MR LLOYD: The only argument was that there was a collision if there was a right to exclude, a right to control access. It was not argued that their right to fish was inconsistent with the fishing legislation, only that their right to exclude others from fishing was inconsistent.

GLEESON CJ: Why did his Honour need to consider this issue?

MR LLOYD: In essence, that is precisely my point. He does not need to consider it. He did it because, I suppose, he heard some hours of argument on the beauty of fishing legislation, but he comes to the end and says:

The native title rights which have been established by the evidence are capable of co-existence -

which, given his previous sentence, must mean the evidence only establishes non-exclusive, non-commercial rights, which is, of course, what he found.

KIRBY J: Presumably he had to deal with it because a submission was put that this extensive fishing legislation would even have been inconsistent with the rather modest set of rights that he ultimately determined in paragraph 5 on page 2093?

MR LLOYD: I am sorry, your Honour. I think I may have inadvertently misled the Court. The Northern Territory, I am reminded, actually argued that the fishing legislation completely extinguished the native title.

KIRBY J: Yes.

MR LLOYD: As a result, he had to consider the fishing legislation to consider that question.

KIRBY J: Was that a point of difference between the Commonwealth and the Northern Territory, was it?

MR LLOYD: Yes, it was, your Honour.

KIRBY J: You did not suggest that but the Northern Territory did?

MR LLOYD: Yes, that is right, your Honour.

KIRBY J: There seems to have been a bit of disharmony between the Northern Territory and the Commonwealth in these submissions.

MR LLOYD: I do not know that I should comment upon that, your Honour.

KIRBY J: I am still trying to puzzle out why but, no doubt, it was legal analysis.

MR LLOYD: I am sure it was, your Honour. That brings me to the position that, in my submission, on a reading of his Honour's reasons, there simply is no support for the proposition that the paragraph at the bottom of page 2044 over to 2045 can be read as an independent finding that the appellants had an exclusive right, vis-a-vis, Aboriginals, to control access to the area.

GUMMOW J: Now, Mr Lloyd, you took us to paragraph 154. Some of us are wondering about 136.

MR LLOYD: The point in relation to 136 was that once again his Honour found that, independently of the public rights, the evidence did not give rise to an exclusive right.

HAYNE J: But his Honour explains that and goes on and elaborates upon that, it seems to me.

MR LLOYD: Yes.

HAYNE J: It seems to me, at least, 136 may have some quite significant importance for present purposes but everybody resolutely ignores it.

MR LLOYD: Well, I certainly do not ignore it, your Honour, but paragraph 136, what his Honour sort of goes on to say is in very similar terms to the second sentence of paragraph 115. That was the point that I made when I mentioned 136.

HAYNE J: I will not dwell on it if you do not want to, Mr Lloyd, but the fact remains that at about line 4 of 2063 his Honour speaks of "use . . . for the purpose of passage". His Honour speaks later in that same paragraph of the permission system, describing it as:

on occasions . . . one subgroup . . . of another subgroup or Aboriginals from other areas -

seek permission, and it is notable what permission they seek: "to hunt, fish or gather", not to traverse. Now, as I say, it would seem to me to be a paragraph of some importance but if it is not, then no doubt I should be told that.

MR LLOYD: I certainly do not suggest it is not, your Honour, but I had in the arguments I propose to develop a separate point which was to say simply that on any view of the evidence, on the most generous view to the appellants, the case could not support anything more than a right, an exclusive right, in relation to fishing, hunting and gathering. My point, however, is that it does not even support that, because his Honour did not say that the permission system was enough to find that exclusive right. Because it was only on occasion, it was not a thorough requirement. At paragraph 115 his Honour does not refer to it in terms of a right. He speaks about Aboriginals deferring to the claims of others "to the extent that on occasions permission is sought". In my submission, that is consistent with the previous sentence of his Honour that there is no exclusive right.

Now, it is my submission that the appellants' case, the appeal is based entirely on the proposition that his Honour found that there was an exclusive right. That proposition is based primarily upon the sentence at the bottom of 2044 to 2045. That sentence is inconsistent with both paragraph 115 and what your Honour has just observed, paragraph 136, because the sentence read alone would say that they should seek permission before entering the estate, but his Honour did not even find that. His Honour found that the permission system was not that expansive, which supports the view that I put yesterday that all that sentence is saying, at the bottom of 2044 over to 2045, is identifying the subject matter, which is what the paragraph begins with, that it is Aboriginal people and not non-Aboriginal people who are the subject of the permission system. He then separately concludes the permission system is itself inadequate to support an exclusive right.

If the Court is with me on that point, it is my submission that what would naturally follow is that none of the issues raised about public rights, about the right of innocent passage, need even be got to. This is simply not a vehicle which raises those issues, because there would be no exclusive right which would touch upon or call for the Court to address those issues.

KIRBY J: Is there a fallacy in this, and I raised this yesterday, I think, that of course before the arrival of settlers, the law of the Aboriginal people and the rights would only be addressed inter se and maybe occasionally to intruders from Indonesia, but that the essence of the law would be the exclusion of strangers. When the strangers came and they had guns, then you could not enforce that law against them but, once the common law recognised the title, then the fact that originally it was just vis-a-vis Aboriginals is really simply historical, because that is the environment in which Aboriginal law and custom operated.

MR LLOYD: I suppose there are two things to say about that, your Honour. First of all, his Honour's findings are based upon evidence given by the appellants about what they understand their law to be now which is, at the end of the day, even if the law used to be broader, that is what the law is understood by the appellants to be now, as a question of fact.

KIRBY J: Just pausing there, do you accept that the question is what the law is now and not what it was in 1824?

MR LLOYD: I do not accept that as the only test but that is part of the test. If the law now is something less than it used to be, then it is the law now. If, however, they never ever had the law and it is some expansion of what it used to be, then, in my submission, that would not be supported by the common law.

GLEESON CJ: The fallacy to which his Honour Justice Kirby refers might exist if his Honour had made different findings of fact in relation to some other aspects of the matter, but, for example, if he had found that the permission system was of a breadth contrary or different from that which he actually found, then the problem might have arisen.

MR LLOYD: It may have, although the other answer I would proffer to his Honour Justice Kirby's question is that, in any event, this is not a situation where prior to contact there was just this closed community and so, therefore, it was defined in itself.

At page 2002 the evidence relating to the Macassans is set out. That evidence is not of an occasional visit. The evidence is that for 100 years prior to acquisition Macassans, in huge numbers, had come to the area for four or five months of the year and that, as his Honour found, was not done with their permission or in accordance with their law, which leads to the next point I was going to make which is, in my submission, in any event, for a right to be recognised it must be a right that was asserted and asserted effectively at the time of the acquisition of sovereignty.

One of the people who spoke earlier took your Honours to page 51 of Justice Brennan's decision in Mabo where he uses that expression. I know my friend's answer to that is, "Well, that is just about sovereignty and it does not apply in this kind of case". In my submission, the principle underlying his Honour Justice Brennan's reasons is that the common law will only recognise rights at that time that actually truly existed. So, if someone was asserting a right which did not truly exist, they did not enforce it, whether they did not enforce it or just could not enforce it, it was not a right the common law would recognise and there is a very good reason for that.

If the contrary view were taken that rights would be recognised on the basis of what they believed rather than what was actually truly existent, then there would be no obvious capacity to resolve conflicts as between different beliefs of neighbouring Aboriginal people. For example, it would be possible for two Aboriginal groups to both believe that they had the right to control access to the same area. Now, they could not both have that right. The common law could not recognise that they both had that right and, in my submission, that is why his Honour Justice Brennan required this asserted and asserted effectively test at the time of the acquisition of sovereignty.

What his Honour Justice Olney found was that they did not have that power, did not have that capacity, had not asserted the right at that time, vis-a-vis the Macassans.

GLEESON CJ: But from one point of view, the evidence referred to in paragraphs 52 and 53 on page 2002 and 2003 is simply an illustration of the more general point that is being made in the third-last sentence in paragraph 107, that is:

The very nature of the sea renders it inappropriate to strictly apply concepts such as possession and occupation - - -

MR LLOYD: I would accept that as well, your Honour. I note also paragraph 121 on page 2053, just where his Honour made the findings that the Macassans did not seek permission in relation to their presence or use of sustenance resources for those periods when they were there.

To address a matter which your Honour Justice Gaudron raised earlier and has arisen this morning is the question of the development of rights since the time of acquisition. It is not the Commonwealth's position that the rights are absolutely static. The position is this, that the acquisition of sovereignty brought about an important change to the legal system of the Aboriginal Australians, namely, that they ceased to have a capacity to create rights under law. Their legal systems may have continued in fact but, not being sovereign any more, they could not create laws that would create rights or affects other people's rights. So in that sense laws can evolve over time but only within the ambit of the laws that existed at the time of the acquisition of sovereignty.

So, for example, in this case there is a communal title, his Honour found, to a non-exclusive right to hunt and fish. It would be within the ambit of traditional laws to adjust to time such that, for example, although his Honour does not note it, my recollection is there was evidence that in this community only men can hunt for dugongs. It may be that in the fullness of time their traditions may evolve to a position where women can hunt for dugongs. That would be within the kind of change which, in my submission, his Honour Justice Brennan was talking about as an evolutionary change. It would not allow a position where there was no effective right to control access to evolve into a position where there was an effective right. That would mean that the appellants must have had, for that new right to be created, some sovereign power to create a law that would give rise to that right. It is the Commonwealth's submission that they have no such power.

KIRBY J: Is that to stamp on Aboriginal society concepts of the way law is made, institutional concepts, concepts of sovereign power that are simply like anthropomorphism, as it were, seeing what is other features of our own system?

MR LLOYD: I certainly do not mean to do that, your Honour. My point is simply not how they make their law but what the impact of the acquisition of sovereignty and the bringing of British sovereignty was on them. They may have whatever system they have to change their law but, if they purport to change their laws in a way that would affect other people's rights or create new rights, then it is my submission that they have no sovereign power to create such rights. However their institutions work, they just do not have the sovereign power to create new rights, and that is the import - - -

KIRBY J: Is it that they do not have the sovereign power or that our common law will not recognise any purported attempt by them within their own world? This is two orbits here and they have within their orbit as much power to do things as Aboriginal society permits. It is just that our law will only give a limited recognition to it.

MR LLOYD: I think, your Honour, that the Commonwealth would have to separate with your Honour from there. It is the Commonwealth's position that only people who have sovereign power derived under the Constitution, in effect, from the Crown have the capacity to create rights. Now, as between themselves, if they have a communal title to hunt and fish, then the controllers of that communal title can say who can hunt or fish. That is a separate sort of issue which does not involve the affectation of other people's rights, it does not involve the need for sovereign power.

But to the extent which it might be suggested that they can evolve rights which are entirely different to that which they had at the time of the acquisition of sovereignty, it is the Commonwealth position that they simply lack the power under our law. Our law would not recognise that they could do that, as a result of which they could not do it, is my submission, your Honour.

KIRBY J: You ultimately came down to what I think I was putting to you. They can do what they want in their orbit. It is just that we will not recognise it if it interferes with the rights of other Australians and other international persons. We will not give it the recognition of the common law.

MR LLOYD: Perhaps to that extent, there is no difference then, your Honour, between us. The third proposition is that it is submitted that the evidence did not support exclusive rights throughout the claimed area. I do not propose to develop this in any length. It is set out in paragraph 2.7 of the Commonwealth's submissions.

It relates to two matters. Firstly, the references and the arguments set out there support the proposition that his Honour would not have found exclusive rights because of the evidence against it; but also it relates to another proposition I will come to later and perhaps should foreshadow, which is that should the Court agree with the appellants in this matter, that they have established some measure of exclusive rights, it is the Commonwealth's submission that his Honour did not deal with an entire line of argument which was raised before him which was where the limits of exclusive rights would be.

The argument was put strongly - well, perhaps I should not say strongly - the argument was put by myself. It does not actually find its way into his Honour's reasons, so maybe it did not impact on him that much, but in the end, his Honour did not need to decide where the limits of exclusive rights would be. His Honour Justice Merkel said that he obviously differed from the Commonwealth's position, but he was also of the view that the matter should, if the appellants were successful, go back to a retrial on issues as to where any exclusive rights would be because they surely could not be through the entire claimed area.

The references referred to in paragraph 2.7 support that. In particular, I note the statement by Mr Wauchope, a senior spokesman for one of the clans, who indicated that no one had ever spoken of sea rights in the deeper waters. In my submission, if a senior spokesman is unaware that they have rights in the deeper waters, that would indicate that there simply was no permission system there. He never gave permission, presumably, and never sought permission to go there.

I have covered the fourth point. The fifth ground, which I do not propose to deal with at length, unless the Court should wish me to do so, is that the appellants misconceived the nature of native title in so far as they contend that it is sufficient to show a usufructuary right in order to imply that there is an underlying right of exclusive possession. This, of course, will come up more fully in the Ward Case.

I simply note that at footnote 59 of the Commonwealth's submissions there is a list of references from virtually all of the Justices of this Court which have adhered to the view that the content of native title there is according to the facts that are established on a case-by-case basis. It is the Commonwealth submission that implicit in that proposition is that there is no underlying right of exclusive possession, otherwise it would be entirely unnecessary to have made that observation. It would be unnecessary to indicate that the content varies. It would be just enough to show that native title existed and then they would have full exclusive rights.

That is not what any of the Judges in this Court have, in my submission, said. In essence, the Commonwealth submits that as, your Honour Justice Gummow indicated yesterday and has indicated earlier in Wik, and perhaps other cases, that in the same way that rights that depend upon statute do not require or depend upon in any way the logical postulate of the radical title, they just have force as of their own right, the effect of the common law is to recognise native title rights in relation to land and waters as of their own right. Whatever the rights are, under the Aboriginal laws, they are recognised for what they are. The common law does not impute or suggest or add anything to those rights. It is simply recognition. If, of course, the appellants can show, in any particular case, that they have in fact an underlying title, that is because they have shown it on the facts, not because the common law has implied a right they have been unable to show on the facts.

CALLINAN J: Does the Act in fact enlarge, or have any capacity to enlarge, the rights?

MR LLOYD: When your Honour say "the rights" - - -

CALLINAN J: It has been suggested that that may be the case.

MR LLOYD: In my submission, the Act works in this way: that, first of all, there needs to be recognition by the common law.

GUMMOW J: What does that mean? It is just a word at the moment.

MR LLOYD: "Recognition by the common law" means that, from the time of the acquisition of sovereignty, there were rights that relate to land and waters which the common law would enforce by way of legal and equitable remedies. Those rights must have been maintained by the claimants maintaining a connection to the land and that their traditional laws - - -

CALLINAN J: I understand all of that, but that is not the question I am asking. Does the Act in fact either enlarge, or have the capacity to enlarge, the rights?

MR LLOYD: What I was trying then to say, your Honour, was that when the Act was passed - depends on when you say "does it enlarge the right?" It confers additional rights, for example, the right to negotiate. It also, by sections 47, 47A and 47B, allows certain native title rights which have been extinguished, for the act of extinguishment to be disregarded by the court.

CALLINAN J: For the rights to be revived, in certain circumstances.

MR LLOYD: Yes. That is the effect of the legislation. So, to that extent, maybe you could say that the Act extends life to rights that would otherwise be extinguished, but, in my submission, the Native Title Act does not extend the content of native title rights. I have already foreshadowed the submission in relation to - - -

KIRBY J: What was therefore the meaning of the preamble "the rights and interests under the common law need to be significantly supplemented"?

MR LLOYD: What that means, your Honour - - -

KIRBY J: Was that just window-dressing, was it?

MR LLOYD: Certainly not. It has been significantly supplemented in two ways. First of all, there is the right to negotiate, which is a right enormously valued by native title holders. And, secondly, a greater protection against defeasance provided by that, which is a very significant supplementation of the rights as recognised by native title.

CALLINAN J: There is a restriction on defeasance, is there not?

MR LLOYD: Precisely, your Honour.

CALLINAN J: There cannot be any alienation but that is because under traditional law alienation was impossible. Is not that right?

MR LLOYD: That is right.

CALLINAN J: So that is doing no more than recognising something in the nature of the right pre-contract anyway or pre-common law.

MR LLOYD: No. I think, your Honour, that the Native Title Act would go further than simply recognising that it cannot be alienated. It prohibits, apart from anything else, the States and the Commonwealth from extinguishing rights in a great many circumstances which would otherwise or could otherwise have done so. Possibly the Racial Discrimination Act offered some protection. The Native Title Act offered additional protection and especially protection from Commonwealth - - -

CALLINAN J: It may or may not raise a constitutional question. I mean, I am not suggesting it arises in this case but in some case it might.

MR LLOYD: It may do, your Honour, but I do not propose to address it.

CALLINAN J: No, and I am not asking you to.

MR LLOYD: I do not need to address the question of subsoils any further. I rely upon the written submissions in relation to no right to trade. The Commonwealth understands it has not been pressed as a separate right but is dealt with at 2.18 to 2.20.

In relation to what my friend said in relation to the draft determination, the draft determination is only put down as an alternative order. The Commonwealth relies upon its criticisms of that draft determination in its written submissions. It submits that should it be unsuccessful when resisting the appeal the matter should be remitted for a determination to be determined finally by the trial judge rather than for this Court to do so.

Perhaps I should also note that in so far as the definition of "waters" will include airspace, that was not something found by his Honour and obviously the Commonwealth would resist any suggestion that the appellants owned the airspace over the claimed area or could prohibit or control access to that airspace whatsoever.

KIRBY J: Remember that yesterday Justice Gaudron raised the question of the freedom of movement within the Commonwealth, which is a constitutional norm. I do not think that has been, as it were, debated below but, nonetheless, in considering what the common law of Australia is, Longley and many other cases make it clear that it cannot develop in a way that is antithetical to the Constitution. Is there anything that you wish to say on that matter or is Dr Perry going to deal with that?

MR LLOYD: I must say I would gratefully allow Dr Perry to deal with that question.

HAYNE J: That is the joys of speaking third.

MR LLOYD: Should the Court have any further questions of me I am happy to address them, but otherwise I will hand over to - - -

GAUDRON J: Should I ask you or Dr Perry about paragraph 6 at page 293 of volume 8? It is the order of Justice Olney.

MR LLOYD: Page 2093.

GAUDRON J: Sorry, yes.

MR LLOYD: What was your question exactly, your Honour?

GAUDRON J: First of all, I am not too sure what the paragraph means. I would want assistance in that and secondly, given, if his Honour's determination otherwise stands, is that necessary and is it any more than a hint of a suggestion of things that may hereafter develop? I just do not understand what is said.

MR LLOYD: I suspect, your Honour, that - well, if I take your Honour to section 225 of the Native Title Act as originally enacted, it requires a determination to include:

the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests.

Now, it might be said fairly that paragraph 6 is not profoundly descriptive of the nature and extent of those other interests, but, in essence, it was meant to be a simple summary that they are the other interests, basically statutory interests.

GAUDRON J: Thank you.

GLEESON CJ: Yes, Dr Perry.

MS PERRY: Thank you, your Honour. What I would like to do is to stand back from the detail of the cases which are analysed in our written submissions and to focus primarily upon the critical concepts and principles on which we rely. It would perhaps be convenient for the Court if I began by giving the Court a short summary of those propositions.

First, the public rights to fish and to navigate are an expression in terms of right of two fundamental concepts. The first is the concept that such waters are incapable of appropriation by individuals and even by the Crown. They cannot be the subject of rights of exclusive possession. This principle derives in part from the physical nature of such waters. The second is the policy which also - - -

McHUGH J: But was not the King or the Crown regarded as in possession and occupation of the waters, and, as I mentioned yesterday, did it not have practical effects in the running of actions? The King could not make any claim in respect of land or possessions without office found. You had to summon a jury and the jury had to find that the King was entitled, unless the King had some record proving title. But in the case of any intrusions in relation to the sea, it was the contrary. The King could simply bring a writ, an information of intrusion, which was in the nature of an action for trespass; did not have to prove a title because the King's title was presumed and anybody who set up a title against the King in respect of the sea or anything in the sea or the seabed had to prove a title to it; is that not so?

MS PERRY: We would depart from your Honour in so far as we speak of a title to the seabed which comes by way of the prerogative and in some way divorced from the common law. In relation to the specific proposition that at some point in time the Crown was regarded as being both owner and in occupation of the seabed off the territorial coast we would say that that doctrine derived from the doctrine of the narrow seas which arose out of England's claims in the 16th and 17th century to extensive areas of sea territory in common with other nation states.

McHUGH J: But did it not also apply in respect of any other territories within the King's Dominions? If an island suddenly erupted, as they had around places in the Yorkshire coast, the King was regarded as owning those islands because it was part of his subsoil, that is the soil of the sea.

MS PERRY: Your Honour, I appreciate that within the King's domain the King did own the subsoil in areas, for example, such as the tidal navigable rivers and those areas and they were held, as I will come to in due course, under a public right, or subject to the public rights. I think our point of departure lies really in this question of whether the Crown owns the seabed beyond the low-water mark. If it would be of assistance to your Honour, as we have not had an opportunity overnight to explore properly the concepts that your Honour is raising, we would ask to put in a short paper with some of the references to the matters that your Honour is raising. We would be very happy to do that.

McHUGH J: Yes

MS PERRY: If I may come back, then, to the concepts which we say underlie the public rights. The second is a policy that such waters are open in the nature of public and in the territorial sea international highways and that the resources of the sea are open and to be shared. These concepts have formed the essential structure of the law as it applies to the intertidal zone and to the extent to which it is applied to sea territory. To admit of the possibility of rights of exclusive possession and occupation of the waters of the sea we would say directly contradicts these fundamental principles. It is not a question, as I will develop, of recognising what is described as a right of exclusive occupation and possession, subject to a limited concept of the public right to navigate, of excluding, in some way, according to purpose.

Neither authority nor precedent of the common law would, in our submission, admit of such qualifications on the pubic right. Nor, as I will also develop, does the fact that the English common law has accommodated several fisheries, at least within the limits of the realm, mean that such rights ought now to be recognised by the Australian common law. Equivalent claims in overseas jurisdictions have not succeeded, even as against constitutionally entrenched rights, nor did they succeed, of course, in the court below or before the trial judge.

I then propose to briefly address the Commonwealth's alternative submission that the fisheries legislation, which has applied off the coast of the Northern Territory over the last century, quite some number of volumes to read, while regulating on exclusive rights, is inconsistent with their continued existence of rights of exclusive occupation and use and such legislation has either precluded recognition of native title rights, to the extent that exclusive rights are asserted, or, alternatively, they have extinguished them.

In view of the limited time available, however, I intend to focus primarily on rebutting, in that part of our argument, certain contentions, including a number of new contentions which are raised in the submissions in reply in this appeal, but perhaps I will see where I am in terms of time at that point in the argument. Finally, I propose to deal with your Honour Justice Gummow's question in relation to the processes under the Native Title Act which would apply if a determination were made in favour of the appellants, if your Honour is happy for me to deal with it in that order. I will also, if there is time, deal with a couple of other very short and discrete points.

Perhaps it is as well just to clarify at the start of the argument exactly what the claim is and where it is made. Some of the distinctions which I wish to draw have not perhaps come out of the oral addresses so far. The appellants' claim is to exclusive possession, occupation, use and enjoyment of, first, the waters of the intertidal zone, and only the waters, and, secondly, over the waters and seabed beyond over an area which extends past the old three-nautical-mile limit of the territorial sea but lies within the 12-nautical-mile limit which Australia proclaimed in 1990.

Before that time, of course, between three and 12 nautical miles, the sea territory was high seas. There was superimposed on that Australia's contiguous zone which enabled it to exercise certain jurisdictional rights such as in relation to customs, but essentially the waters were subject to the freedoms of the high seas. Consequently, aside from the claim to the waters over the areas between high and low-water mark, the question which is raised in this appeal will, of course, only arise if the Court should find against the Commonwealth in relation to its first appeal and to the extent that the Court should find against the Commonwealth.

The first issue which I will address is the question of whether there can be a right of the nature which is claimed. Our first contention is that there can be no right to possession or occupation of the waters of the sea and the intertidal zone. As their Honours Justices Beaumont and von Doussa at paragraph [52] of their reasons and Justice Merkel in his dissenting judgment at paragraph [659], the seas are not physically occupied or possessed, but they are used and enjoyed. For these purposes we would say that there is no substantial difference between that claim and a claim framed in terms of a right to exclude others and to control access, for those elements themselves comprise the right of exclusive possession.

The principle that the seas are open and to be shared does, of course, have a very long history, as comments already from the Court have indicated. It is referred to, for example, in the writings of Justinian and subsequently in the writings of Hugo Grotius in the 17th century. In Grotius' thesis, of course, he contended that the seas and the air, but primarily the seas for his purposes, were not susceptible to occupation and its common use was destined for all mankind.

KIRBY J: It was, in fact, the source of the new international law principle that this is part of the common heritage of humanity, was it not, which has since been extended into other areas such as, lately, the genome, but also into space and, I think, the environment.

MS PERRY: The moon treaty is a classic example of the common heritage principle being applied. But it does arise, as your Honour says, out of these concepts which find their root particularly in Grotius' work, which interestingly was of course originally written for commercial purposes to defend the Dutch taking part in the East Indian trade, and it was the product of a professional opinion. But nonetheless, the concepts of which he wrote have of course endured very much and find their reflection in the common law.

Further, the physical difficulties confronted even by nation states in making a claim to jurisdiction over the seas finds reflection in the fact that originally the three-nautical-mile limit of the territorial sea was set by reference to the extent or limit of a cannon shot from the shore. In other words, it was only to this extent, that even a nation state was considered capable of exercising effective control over the waters adjacent to its shore.

Closer to home, at least in terms of the common law, Blackstone in the passages to which the State of Queensland has referred, expressed a like view. In common with the other elements of light, air and fire, he identifies water as incapable of absolute ownership. Such elements as he describes in his commentaries are of a vague and fugitive language or, perhaps to put it in more modern language, are a movable thing which of its nature must remain common.

Your Honours will recall also that a similar concept was applied in relation to wild animals in respect of which only a qualified form of property was recognised. I would refer your Honours in that regard to the decision in Yanner v Eaton [1999] HCA 53; (1999) 73 ALJR 1518, paragraph [24], and also to the quotation from Roscoe Pound at paragraph 29. I do not propose to read from those passages in view of the time but I do refer your Honours to them.

Your Honour Justice Callinan may recall that on Tuesday you referred to a distinction between airspace in which a title might be recognised and to the seas. That is found at transcript reference line 1245. Certainly, as Mr Bennett and your Honour, I understood, agreed or were of a like mind, it would seem that the landowner can own the lower stratum of airspace immediately superjacent to the land, control of which is reasonably necessary for the enjoyment of the land. However, the upper stratum remains a common area open to exploitation by all, and in that sense analogous to the seas.

There is a useful discussion of this concept and also of the case law to which Mr Bennett referred yesterday in the article by Professor Gray, Property in Thin Air (1991) 50 Cambridge Law Journal 252, especially at pages 253 and following. Of particular relevance at page 256 of his article, Professor Gray draws an analogy between the upper stratum and the high seas which he describes as remaining outside claims of property and "available to facilitate the commerce and intercourse of humanity".

KIRBY J: I see that in his article he is mainly dealing with local English cases, but within the field of international law. My understanding is that the law of space is developed by analogy to the law of the high seas and on this theory of Grotius that this is all part of the common property of humanity, and the question which is now agitated in international law circles is: into what other areas does this notion of common property extend?

MS PERRY: And some of those areas are quite controversial, as your Honour would be aware, yes, but of the high seas at least, it is a settled thing.

The distinction between the title which may subsist in land and the rights which may subsist in water finds reflection in the fact that even such title as may exist in an area which is covered, for example, by tidal navigable waters has always been held to be limited to a title to the bed or the soil itself. It has not constituted a grant to the superjacent waters. I would refer your Honours for references in support of that proposition in paragraph 3.5 of the Commonwealth's reply in its appeal in D7 and the accompanying footnotes.

This is not to say that under English common law it was not possible to have a several or exclusive fishery, if that were granted before Magna Carta, but that gave no right of exclusive possession over the waters which were subject to the fishery, nor did it give, of course, ownership of the fish prior to capture. Nor even before Magna Carta did the grant of the right to the soil necessarily entail the grant of several fishery in the waters above. Even where a right of several fishery did exist, that constituted the fullest extent of the rights which could be granted under the common law in such waters, and did not prevent the public from exercising the public right to navigate.

At no time has the common law permitted the Crown to make a grant in tidal waters which could derogate from or interfere the public right to navigate. I would refer your Honours, for example, to the decision of Gann v Free Fishers of Whitstable as an example of that, and the reference is [1865] XI HLC 192, especially at pages 207 to 208. I do not propose to take your Honours to it, simply to refer your Honours to the citation.

This distinction between the types of rights which may exist in relation to the soil and those which may exist in the waters above also has its statutory equivalents, and I came across one of those in perusing the Northern Territory Fisheries Legislation a couple of evenings ago. For example, the grant of pearling leases over land within the intertidal zone and the territorial waters under legislation in the Northern Territory vested exclusive rights to take and cultivate pearls within the area of the lease and granted exclusive possession of that area of the seabed. But the statutory provisions expressly provided that such a lease did not grant the lessee exclusive possession over the surface of the sea, or the capacity to exclude others from that area.

The two examples I have in mind are section 56 of the Pearling and Pearl Culture Ordinance 1964 which is found in volume 1 of the Northern Territory's Fisheries Legislation, tab B25. I do not propose to take your Honours to that. Also simply to refer your Honours to the Fisheries Ordinance 1965 contained in volume 1, again, of the Northern Territory's Fisheries Legislation, behind tab B26, and the relevant section of the Fisheries Ordinance is section 26.

The appellants' submissions have failed to draw this fundamental distinction between the seas and the seabed. Specifically in their reply, they contend that the existence of private interests in waters of the seas has always been well known to the common law, at paragraph 5.2(c) of their reply, and that the common law has never been troubled by any notion that the sea is incapable of possession and occupation. But the very passage which they cite from the decision in Reg v Keyn at paragraph 5.9 of their reply itself demonstrates the failure to draw this fundamental distinction.

That passage refers only to property in the soil. It also, of course, refers only to the area between low and high-water marks. In short, it is the Commonwealth's contention that the claim to exclusive possession of the waters of the sea over the intertidal zone and beyond is not a claim, which of its nature, the common law can recognise.

HAYNE J: How does that sit with the fact that you can have property rights in airspace, as for example, strata title to an apartment in a high-rise building, the building is burnt down, and you still have the fee simple in that airspace?

MS PERRY: Your Honour, we see no inconsistency between the two concepts. The extent to which title exists in airspace is restricted to the lower substratum which is necessary to the reasonable enjoyment of the land below. It does not apply to the upper stratums of airspace which remains an area common to use, in a sense the same as the high seas.

HAYNE J: In the end, are you not driven to a circular argument which is that these rights are granted, these rights are not, not these rights can be granted, these rights cannot?

MS PERRY: Your Honour, there are a number of reasons why we say that these rights cannot be recognised and one of them relates to the physical nature of territory and the nature of the relationship which exists between us as human beings and territory of that physical nature. It is obvious that it cannot be physically occupied in the same way as land territory, more that it can be controlled in the same way as land territory. Also we rely upon the policy which underpins these principles and that is judgment - - -

CALLINAN J: But Dr Gray's analysis would suggest that what airspace you may use, or occupy and own, is really measured by the capacity of the technology of the day to enable you to utilise it. Now, current technology might allow you to build an airport right out into the sea - indeed, Osaka Airport extends out into the sea - and there are suggestions of putting airports out to sea, perhaps within the 12-miles limit. Why could you not get a title, if the technology allows that, consistently with the sort of title you can get for airspace?

MS PERRY: I suppose the question of airports, perhaps, arises in a slightly different context because that would normally involve reclamation of land.

CALLINAN J: That is just an example, but if you can have an airport, you could have a shopping centre out there.

MS PERRY: The reason that we say that could not occur by the common law is because of the policies which underlie the public rights - - -

CALLINAN J: I am merely suggesting your analogy with the airspace may not be a complete analogy. You may have to demonstrate that there is, in fact, a difference. In fact, there may not be the analogy that you seek to draw.

MS PERRY: My argument does not need to rely on the analogy but, with respect to the question of airspace, of course, our capacity to enjoy airspace has increased as our technology has developed but nonetheless an area of the upper stratum has remained identified as an area which has to remain open to international commerce. In a sense, the questions of airspace have really only arisen, in any event, in very recent jurisprudence because of our capacity to build high buildings and to fly has been largely limited to the last century.

CALLINAN J: There is a balloon case of the early 19th century, is there not?

MS PERRY: Yes, there is, yes. Perhaps then if I might deal with the question of characterisation. In particular, I would like to deal with the question of the public rights and the right of innocent passage and to address the question of characterisation of the rights to exclusive possession which are now claimed in a qualified form and these build to some extent upon the first propositions that I have outlined.

We deal with the question of characterisation particularly in paragraphs 3.6 to 3.26 of our submissions. I would also refer your Honours to the more general discussion in Appendix 2 of the Commonwealth's submissions in its appeal in No D7, which contains a history of the international legal status of the claimed area, and, specifically, at paragraphs 4 and following, we discuss the evolution of the nature and extent of the rights and obligations which exist in the territorial sea, including the concurrent evolution of the right of innocent passage with the territorial sea.

In essence, it is now contended by the appellants that the right to exclusive possession which is claimed will be subject to the right of innocent passage by foreign ships and to a qualified form of the public right to navigate. I will deal in due course with the qualifications, but perhaps if we just start with the simple propositions.

Even though no equivalent concessions are made in relation to the public right to fish, it is the Commonwealth's contention, first, that even those limited concessions leave no room for rights to be characterised as rights of exclusive possession, occupation, use and enjoyment, or, as it has also been put, for a right to control access. The difference between the right of exclusive possession and to control access seems to be a largely semantic one.

To rebut this proposition it is said by my learned friends that native title takes its content from traditional law and custom and that the relationship must be viewed from the perspective of those who enjoy it. As Mr Lloyd said this morning, it is correct, in the Commonwealth's submission, to say that the content of native title is defined by the traditional laws and customs of the native title holders. However, that does not mean that the native title holders' characterisation of their rights binds the Court.

The characterisation which they have proposed is one which involves the use of concepts which are understood by the common law and which can only be used to described those rights if, as a matter of fact and law, rights exist which correspond with that known concept. In other words, it is for the Court to determine what is the appropriate characterisation of the rights. For example, the assertion by the appellants that they draw no distinction between land and sea country does not mean that, as a matter of law, the Court must find that to be the case. That assertion is effectively the legal conclusion which they seek this Court to find.

KIRBY J: I understand that submission, but given that the theory of Mabo, as I understand it, is that you have the two orbits, that they can have their law and will have their law, and it will be of a different quality and character than our law, but that our orbit lends recognition and enforcement, in certain circumstances, the first step is to find out what their orbit provides.

MS PERRY: Yes, your Honour.

KIRBY J: And if, in their orbit, it does not make the distinction between land and sea, which, because of international law, Magna Carta, the common law, the prerogative, and all the other baggage of the common law of England inherited in Australia, it is scarcely surprising that the first step is to find out what their orbit is and then the second step is where they may run into a problem, because you may then say, "The history of our law has for centuries been such that we cannot give you recognition", or, "International law and notions of the common heritage of humanity make it incompatible to give you recognition", or, "Many other reasons of policy make it undesirable to give you recognition".

MS PERRY: We do not disagree, I think, with your Honour's proposition but, nonetheless, it is put that it is appropriate for this Court to make a determination of exclusive possession, using the concept, as I have said, which is a concept of the common law, and then it is said that that should be qualified in some way, but the actual assertion of a right of exclusive possession is one which has to be determined, according to the evidence.

My point, with respect to the assertion that no difference is made between land and sea territory is that that is an assertion which must be assessed against the whole of the evidence. So, for example, your Honour may recall, that the map of sites on the claimed area in fact identified a very great number of sites on the islands themselves and on the land but in the area of the seas identified a very small number of sites. So that, for a start, we can already see a differentiation in terms of the evidence between land and sea territory.

That is why I say, your Honour, that of course the assertion made in evidence is one to be taken into account but it is ultimately one that has to be assessed against the whole of the evidence. Essentially - we would say, in any event, that event if the appellants had been able to demonstrate exclusive possession, according to their laws, they would not be entitled to a determination in those terms if, as the Commonwealth contends, the public rights to fish and to navigate contradict the right to exclusive possession in the first place.

If I might perhaps give your Honours some flesh to those bones. The public right to navigate is a right, of course, to pass and repass over water and includes ancillary rights such as mooring and anchoring. This right is distinct from the right of innocent passage although the existence of the public right may well have contributed to the development of the international right and it is a very much more ancient right.

GUMMOW J: The right of innocent passage is a right between nations, is it not?

MS PERRY: It is, your Honour. They operate in different spheres. The right of every member of the public to exercise the right to navigate in the claimed area as elsewhere is inconsistent with the right to exclusive possession, as is the right of foreign ships to - - -

GUMMOW J: But Mr Jackson's point is of course it is. That is what native title is all about. You are always going to have a clash.

MS PERRY: The appellants in this case have conceded, at least subject to argument, is the content of the right to navigate that their rights must be subject to the right to navigate.

GUMMOW J: Yes, I know that, but on the border question?

MS PERRY: But on the question of the public right to fish we would say - perhaps it is appropriate if I just deal briefly with that point. We would say that there is a fracturing of skeletal principle, and we distinguish Mabo.

GUMMOW J: How do we know if it is part of this skeleton?

MS PERRY: Your Honour, I was just about to illustrate why I would say that it is part of the skeleton. In Mabo the fact that recognition was inconsistent with the common law which previously had recognised only grants in the Crown of course was not held to be a problem with recognition. The recognition fractured no fundamental principle in that case. The departure from existing principle lay in recognising an allodial title but most importantly the decision in Mabo did not occur in a common law vacuum. Other common law jurisdictions confronted with the same question with whether the acquisition of sovereignty had extinguished native title, or pre-sovereignty rights in land, had held that it did not, so that when the Court in Mabo reached the decision that it did it did so picking up on and applying principles of the common law which existed elsewhere.

KIRBY J: There would have been some people who thought it fractured some principles.

MS PERRY: Yes, your Honour, there would have been. But, nonetheless, it was a decision - - -

KIRBY J: I think we had a man in the mining industry who kept writing about it.

MS PERRY: Yes, but it was a decision for which there was common law principle and a very large body of precedent, in fact, across the common law jurisdictions. In this case, however, the departure from existing principle urged in this appeal would involve the recognition by the common law of private interest in an area which before now have been common, under the common law, and jealously guarded as such by the common law, and this is not a result which received support from the overseas jurisdictions.

So, instead, as in Mabo, of drawing upon principles which are well established in other common law jurisdictions to assist us to reach a result in favour or recognition, when we look to the common law of other jurisdictions, they point in the other direction. They say that exclusive rights cannot be recognised.

Now, as we have explained in Appendix 2, there has been a recognition in other jurisdictions of non-exclusive indigenous rights. But they have been - - -

KIRBY J: Is your proposition that you have just stated a statement of the position that has been reached in Canada?

MS PERRY: Yes, your Honour, it is. We would say that there are indications also, very clear indications, in the New Zealand jurisprudence that they would reach a like result, and, of course, in the United States the Supreme Court has recently denied certiorari in the Village of Eyak Case, and that case had involved a claim to exclusive rights. The District Court of Appeals decision was, therefore, affirmed, and in that case they had denied the exclusive claims which were made.

KIRBY J: Was that a common law or a constitutional development? They have notions of the treaties in the United States that we do not have.

MS PERRY: Well, they held that no treaty rights could, in fact, exist offshore, and they held also that no Indian title could exist offshore. But they had said in the Village of Gambell v Hodel Case - and we refer to and give the citations to these decisions in our appendix - to some of the common law principles. In that case the court held that what could be recognised were non-exclusive subsistence personal rights.

Now, in the Village of Gambell v Hodel Case I remember in a footnote at the end of the decision there is a reference there to the fact that they did not have to look at the reasons of the judge at first instance. They did not have to decide it on the public rights grounds.

KIRBY J: Are you referring to the Supreme Court or the second court?

MS PERRY: The Court of Appeals in the - perhaps, I should get the precise name for your Honour. It is the Ninth Circuit.

KIRBY J: And you tell us there is not a single case in any other, what one might call, settler society where exclusive rights have been recognised as common law entitlements of indigenous people over sea?

MS PERRY: Your Honour, it would be true to say that our research is focused on the United States, Canada and New Zealand. We can, if your Honour would wish, see whether there is any other jurisprudence, but we considered those were the principal - - -

KIRBY J: I do not think any other country that I can think of would be analogous with our common law.

MS PERRY: No, I would not have thought so and it was for that reason that we primarily confined our research to those jurisdictions.

GLEESON CJ: Now, Dr Perry, at the risk of interrupting you, we will adjourn for five minutes.

AT 10.59AM SHORT ADJOURNMENT

UPON RESUMING AT 11.07 AM:

GLEESON CJ: Yes, Dr Perry.

MS PERRY: Thank you, your Honour. In answer to your Honour Justice Kirby's question, we are attempting to get hold of the elusive footnote which referred to the decision in Village of Gambell v Hodel. Perhaps if I might say though that in the decision of the Court of Appeal in Village of Gambell v Hodel - - -

KIRBY J: Have I got the wrong one? I have Native Village of Eyak. That is a different case?

MS PERRY: That is the most recent decision, your Honour. The one that I was referring to was The People of the Village of Gambell v Hodel, and in that case the Court of Appeal held that non-exclusive Aboriginal subsistence rights could be recognised in the continental shelf. In its reasons it indicated that any greater claim would not be able to be sustained, and that was largely on the basis of the paramountcy cases. The paramountcy cases were picked up again in the later decision of Native Village of Eyak and relied upon - - -

CALLINAN J: Doctor, I am having a little trouble hearing you.

MS PERRY: My apologies, your Honour, I will speak up. The point I made in relation to the public rights and the United States decision was that the trial judge at first instance, as I recall, in Village of Gambell v Hodel, did have regard to the public rights in holding against the claim which was made to exclusive rights and that the court, on appeal, did not find it necessary to deal with that, and it was referred to only in a footnote where their Honours also referred to an earlier decision which was consistent with the view that the public rights had an impact on this question.

If I might just say also in relation to the reasoning in Village of Eyak, we have dealt with that in some length and it is fair to say that one of the matters that their Honours took into account was also the right of innocent passage, which is a matter to which the trial judge, of course, had regard here, as did the Full Court, in saying that the claim to exclusive rights could not succeed. I will endeavour to give your Honour those references, perhaps, at the end. One of my juniors is looking for that.

KIRBY J: Is this dealt with in detail in the Commonwealth's submissions?

MS PERRY: It is, your Honour.

KIRBY J: Speaking for myself, I regard it as quite important that we, in taking the steps we have since Mabo, should be fully informed of developments in the United States and Canada.

MS PERRY: Your Honour, it is precisely because we considered it was important that we put in a separate appendix which dealt specifically with those cases in detail. These matters were also discussed in the judgment of Justice Merkel. We disagree with his analysis, particularly of the New Zealand authorities, and we have specifically dealt with those points on which we differ from his analysis.

If I might turn then to the proposed determination which now appears in the further amended notice of appeal. The tension that I pointed to between the public right to navigate and the right of innocent passage is not resolved by saying that the declaration should reflect the position said to exist under traditional law and custom and then saying that it is subject to the right of innocent passage and the right to navigate.

In this regard, your Honour Justice Gaudron asked yesterday whether the claim would not permit an officer of the Commonwealth to enter upon the claimed area for some purpose other than navigation and your Honour gave the example of effecting an arrest. The transcript reference is at 252. That question would, in the first place, of course, as your Honour would no doubt be aware, be a question of statutory interpretation because the powers of a Commonwealth officer would normally be determined by statute. But in relation to, for example, warrants under the Crimes Act, those normally provide for a right to enter onto premises and it is, of course, unclear as to how that right relates to rights in relation to the sea.

But we understood your Honour to be raising a more fundamental question by that question and so it is with that that I would like to deal. Leaving aside that question and statutory interpretation, if we go to paragraph 6 of the draft determination it would, we say - - -

KIRBY J: Where is this?

MS PERRY: This is in the further amended notice of appeal.

GLEESON CJ: It is on page 5 of the further amended notice of appeal.

MS PERRY: It is on page 5. It begins at the bottom of page 5. The part of the proposed determination which I am particularly drawing to your Honours' attention appears on page 6. It is subparagraph (b). We say that it would be almost impossible from that proposed determination to determine whether a person might enter for a purpose which would satisfy the terms of that. It said that the right to exclude must be subject to:

the reasonable exercise by the public of the liberty to navigate -

which is incorrect. We say it is a right. I do not think that is in dispute. Not only must that exercise be reasonable but it must also be:

for the purposes permitted by the laws of Australia -

and it is not clear what this means, whether it means there must be a law which specifically authorises a person to enter onto the property or not. If we look at the practicalities of making determination in these sorts of terms the questions arise such as whether, for example, a person exercising a right of reasonable passage could be halted in their passage and an inquiry made as to their purpose. Further, they then deny, in effect, the public right to navigate by the next part of the draft determination which says that the exercise of that right is subject to the appellants' right to close off areas:

in accordance with their traditional laws and customs -

and that would seem rather curiously to completely deny, in any real sense, the qualification. Then again it said that the right to close off areas is subject to a further qualification that it not:

impair or impede the bona fide passage of vessels -

whatever that may mean. So we would say that even a constable armed with a warrant to arrest would not know whether he or she had a capacity to enter on the waters claimed. The attempts to reconcile these two rights is an unworkable one.

More fundamentally what we say is that this attempt reveals that the two rights cannot be reconciled. In effect, this draft determination reveals itself in its terms the contradiction between the rights as well as revealing the fundamental change to the principles which are sought to be achieved by seeking to control access for the first time to the sea.

So, our contention at bottom is that, properly characterised, the appellants' claim is really a several or exclusive fishery over the seabed and over the waters above. The Commonwealth takes no issue with other rights which were found to exist by the trial judge and which were, essentially, non-exclusive rights to access the area for particular purposes.

So it is really now, on their public right to fish that I wish to focus. As I have said rights of several fishery were recognised by the common law of England in tidal waters if granted before Magna Carta in derogation from the public right to fish.

KIRBY J: Could you just pause there? You said the Commonwealth takes no objection to the non-exclusive rights in the present determination.

MS PERRY: In this appeal, your Honour.

KIRBY J: I just wondered how that fitted in with your position on D7? Have you abandoned D7?

MS PERRY: We certainly have not abandoned D7, your Honour.

KIRBY J: You say in this appeal it is assumed that you have lost D7?

MS PERRY: Precisely, your Honour. We are making that assumption.

KIRBY J: And that on that footing you make the point?

MS PERRY: Yes, that is exactly how we would put it.

KIRBY J: Very well.

MS PERRY: Rights of several fishery under the English common law could exist in connection with a grant of the soil or independently of it. There is a very helpful discussion of these ancient rights in Coulson and Forbes, "The Law of Waters", sixth edition, 1952, at pages 405 and following. They look at the concept of several fisheries in some detail, at least to a person from a jurisdiction where we do not have such rights. However, since Magna Carta the common law has protected that public right even against the Crown. It has lain only within the province of the Parliament to authorise the grant of such rights. What this did was to bring the public right to fish into line with the public right to navigate even though the public right to navigate is given a priority over the right of fishing. It is of course incorrect to ascribe - - -

McHUGH J: Dr Perry, one species of fishing which was not available to the general public was the royal fishes, which consisted of sturgeon and whales, if I remember rightly. Was there any alteration in the historic common law principles concerning that? What about the early history of whaling in Australia? Did it go by default or did the Crown ever assert any rights?

MS PERRY: The question as far as I am aware has never arisen under the Australian common law, but there is an early decision in New Zealand. I think it is Baldick, but we have referred to it in a footnote in our submissions. In that case they decided that the prerogative to royal fish was not something which had been received into New Zealand law. That is the position which we would take also in relation to Australia. We would say it was something that was left on the wharf in England.

GUMMOW J: With Coulson and Forbes, what pages were you referring to?

MS PERRY: Your Honour, I was referring to pages 405 and following.

GUMMOW J: I only have pages 1 to 4 at the moment.

MS PERRY: I am sorry, your Honour. I do not think the Commonwealth has supplied your Honours with a copy of those pages from Coulson and Forbes. We would be very happy to do that.

GUMMOW J: I think it would be useful.

MS PERRY: We will arrange for that to be done. If it is helpful to your Honour, we can find the footnote also which refers to the prerogative right to royal fish.

GUMMOW J: And that New Zealand case?

MS PERRY: That is where I am hoping to locate the document. Your Honour, it is being found, so we will give that reference shortly.

The existence of the public right to fish and also the priority that is given to it are principles which have been embraced by the common law of Canada, the United States and Australia. We refer your Honours to paragraph 3.30 of our submissions. It should also be said that the public right to fish not only relates to free-swimming fish of the sea. Even though the English authorities are sometimes confused on the issue, it is clear from the decision of this Court that the public rights extend to shellfish which are attached to the seabed.

I would refer your Honours in that regard to the decision in Harper v Minister for Sea Fisheries (1989) 163 CLR 314. I did intend to take your Honours to that case but, in view of the time, I would merely ask your Honours to read that. It picks up on many of the principles that I have begun to develop. Also, we would say that the identification of fisheries as a public resource was a central aspect of the reasoning in that decision.

It was, of course, a case which considered the validity of a State law, challenged by section 90 of the Constitution as imposing an excise and it was said that the licence fee was a tax on a step in production and in disposing of that argument the Court decided that the fee was a privilege analogous to a profit à prendre over the property of another and the reasons which underlay that were that this was public property. The discussion of the public rights to fish are found particularly in the judgment of Justice Brennan at pages 323 to 330 and also at page 335 and the remainder of the Court agreed with his reasons.

GUMMOW J: Well the idea seems to be that the legislation does not run into any constitutional provision dealing with misappropriation of property, because there is no private property involved.

MS PERRY: Yes. In that case it was a matter of - - -

GUMMOW J: Yes.

MS PERRY: Yes, your Honour, I am assure your Honour is aware.

GUMMOW J: The decisions which are just pointing to are decisions in Canada about that problem, I think.

MS PERRY: Thank you, your Honour. Now, not surprisingly, the exception in favour of pre-Magna Carta grants is not one which has been applied outside of the English common law. Specifically, it was not imported, we would say, into the Australian common law: at paragraphs 3.38 of our submissions and 2.12 of the reasons of Justices Beaumont and von Doussa at appeal book volume 11, page 2154 to 2155, and also at paragraph 581 of the reasons of Justice Merkel, which is at appeal book volume 11, page 2230. Further, we would also refer to the decision again in Yanner v Eaton, to which I have already given the reference, at paragraph [27], in relation to rights such as warren and piscary, of which it was said, they never made the journey to Australia.

The question which arises in this appeal is therefore whether the common law of Australia can now derogate for the first time from the public right to fish, to recognise the existence of several fisheries in the intertidal zone, the waters of which your Honours will recall are claimed, and in the seas and on the seabed beyond. It was on this precise point that the majority of the court below and Justice Merkel were divided. There was, of course, no division between them on the fact that the public right to navigate and the right of innocent passage contradicted the claim to exclusive possession. This, as your Honours are, no doubt, acutely aware, not a question in practical terms which relates to the possibility of acknowledging some small exception to the public right, and reference has already been made, for example, to the claim of one of the interveners in this case, as involving a claim to 50 per cent of the coastline of Victoria. So I say that simply to rebut the suggestion that this may be some small exception.

As I have indicated, the difficulties which confront this Court, in answering the question posed by this appeal, have also faced courts in other jurisdictions. As our analysis in Appendix 1 of our submissions demonstrates, those jurisdictions have not accepted the proposition that an exception in favour of recognising exclusive fisheries ought to be made in relation to indigenous rights in the sea. Now their reasons may not be entirely identical, but, nonetheless, the fact remains that for various reasons they have not considered that this kind of claim can succeed.

This is so, as we say in paragraph 3.50 of our submissions, even though the case for recognition in those jurisdictions was stronger than it is here because of the additional protection given to indigenous rights in those jurisdictions by treaty and constitutional guarantees. It is for this reason, as I indicated earlier in answer to his Honour Justice Gummow's question, that we do say that there is a difference between this question and the question in Mabo.

We intended to take your Honours to the decision of the Supreme Court in Gladstone v The Queen. We do discuss this at length in our appendix and I think, in view of the time, that it is probably appropriate simply to ask your Honours to read that. The critical point that we say in that decision is that even against the constitutional affirmation of Aboriginal and treaty rights in section 35(1) of the Constitution Act the public's right to fish prevailed against the recognition of an exclusive fishery.

Now, the question arose in a slightly different context because there it concerned the validity of legislation and whether the constitutional requirement involved an absolute and exclusive priority to the Indian rights offshore, but nonetheless, the question is essentially the same, "Can an exclusive right to fish be recognised?". Your Honours will see also in our appendix that we refer to a passage from his Honour Chief Justice Lamer's judgment in Delgamuukw which makes it completely clear, yet again, that in Gladstone their Honours rejected the proposition that exclusive rights could exist offshore.

Finally, before departing from this topic, I would like to deal briefly with a couple of arguments which are put by the appellants. First, in paragraph 5.23 of their reply they contend that not only has the common law long recognised the existence of proprietary interests in the sea but the modern notion of a territorial sea under international law concedes to the coastal state the right to create such interests, subject to a defined qualification. In paragraph 5.11 of the reply the argument is put in terms that the sovereignty conceded to a coastal state by:

international law recognises that the territorial sea may be `propertised' by a coastal nation -

adopting the language of Professor Gray. The short answer is that international law of the sea simply has nothing to say about whether the coastal state claims title to the seabed of the territorial sea. It is concerned with questions of exclusive jurisdiction, exercised, vis-a-vis, other states and their nationals and with a more restricted form of sovereignty than that exercised over land. The vesting of title of the seabed is not, of course, a necessary element of the sovereignty exercised by the coastal state over its territorial sea as a matter of international law.

So, the right of the coastal state, under international law, is not to property. It would not, however, I should add, be inconsistent with the common law for the coastal state to claim a title and an example of where that discretion has been exercised is the Coastal Waters Title Acts.

However, it may well be inconsistent with international law for a coastal state to claim a title to the waters above, because such a claim would seem to contradict the right of innocent passage. This distinction, which is one I am picking up from my earlier submissions made at the start, reflects again this distinction between the seabed and waters. If I might refer your Honours, without taking your Honours to it, to section 4(11) of the Coastal Waters (Northern Territory Title) Act and its State equivalents.

Your Honours will see that under those Acts, rights and title to the seabed are vested in the Northern Territory, but only rights are vested in the space above, including that occupied by waters. Those Acts are reproduced, of course, in our joint volume of legislative materials. Your Honours will also see from that Act that the international status of the territorial sea is expressly preserved by section 6 of the State and Territory Act and, further, that the right of innocent passage is also expressly preserved.

The further assertion made in the reply that in international law the sovereignty of a coastal nation in its territorial sea is the same sovereignty as that it has on land territory, is denied, not only by the existence of the right of innocent passage, but also, and importantly, by the limitations which are imposed on the coastal state's capacity to exercise jurisdiction over foreign ships and foreign nationals on those ships and to apply its laws to those ships. There, of course, are no equivalent limitations on Australia's sovereignty over the land mass, and I would refer your Honours again to the appendix to our submissions in D7.

I should also mention, while I am in the area of innocent passage, that the right of innocent passage does not just exist through the territorial sea, but it also exists through internal waters in this case. By "internal waters" I am referring to waters which lie on the landward side of the baselines from which the territorial sea is drawn. Normally, internal waters are not subject to a right of innocent passage, but in this case Australia proclaimed new baselines in accordance with the straight baseline principles developed in international law which moved the territorial sea outwards.

Straight baselines are essentially drawn between islands, or points of an archipelago, whereas prior to that time the baselines for drawing the territorial sea lay at the low-water mark. So I point to that simply as an important point in this case, that there is a right of innocent passage through part of the internal waters. We discussed this right and its impact on the claim area in paragraphs 18 to 22 of Appendix 2 to the Commonwealth's submissions in its appeal in D7.

Your Honours will also see the various lines depicted in the map which is attached to Justice Olney's decision at appeal book volume 8 at page 2082. That map depicts the straight baselines, the limits of the Northern Territory, the old three-nautical-mile limit of the territorial sea, and the new 12-nautical-mile limit of the territorial sea, as it stands today. Your Honours have already been taken to the diagrammatical representation of those changes to the status of the claim area by my learned leader.

I think in view of the time, your Honours, I will endeavour to deal just very briefly with the question of extinguishment. I understand our time, according to the allocation, expires at midnight - sorry, midday, not midnight. That would be a very long day.

GLEESON CJ: Ten past 12, actually. You get the benefit of the break.

MS PERRY: The extra 10 minutes could be very valuable, but I will endeavour to finish by midday in any event.

The claim for exclusive fishery in this case is, we say, essentially comprised of two rights. The first is the right to fish, which the trial judge found to be established, as Mr Lloyd has explained, and the second is the right to exclude others from fishing or, perhaps more accurately in terms of the appellants' case, a right to control access. That, of course, was something which the trial judge did not find to exist.

The Commonwealth has never contended that the features of the legislative scheme which is applied to the claimed area are inconsistent with a non-exclusive right to fish. This matter is very important because when the reply in this appeal is read, it appears to be directed largely at rebutting a submission by the Commonwealth that the legislation would extinguish also the non-exclusive right. As Mr Lloyd has already explained, that is not the Commonwealth's position on the question of extinguishment or non-recognition.

Rather, the Commonwealth's submission is that it is the right which is claimed to exclude others from fishing or to control access which runs counter to the legislative scheme, and it is this aspect which the Commonwealth says precluded recognition of such a right or has extinguished it. It is also this exclusive aspect which distinguishes the question of the effect of this legislation upon the rights claimed from its effect upon the public rights. In essence, in this area we say you cannot answer the question whether a right is extinguished simply by asking in a vague and general sense: is this a regulatory law? The question is, rather: is this a right which this law regulates? That has been the approach which underlies our written submissions.

Now, while it was not necessary for the court below to address this question, the majority did express the view that even if an abstract claim of ownership to the waters were in principle open, it would be difficult to accept that any such right would have survived wholly intact, given the complex and far-reaching legislative and administrative action in this place at the domestic and international levels, including the fisheries legislation.

Your Honours will find that conclusion at appeal book 11 page 2156 paragraph 223.

Now, Justice Merkel was of a different view at least in so far that he considered that the legislation would not have extinguished any native title rights to an exclusive or commercial fishery. While I do not propose to take your Honours to Justice Merkel's judgment, he deals with this at appeal book 11 page 2264 paragraph 730 and following. We specifically identify in paragraph 4.14 of our written submissions the error which we say his Honour fell into. In essence, his Honour decided that there was no inconsistency primarily on the basis that there was no general prohibition on fishing. We say that that approach failed to take account of other features of the legislation.

It is perhaps helpful just to say something briefly about the way in which our written submissions deal with this issue, as I feel I must rely primarily upon those. It is said by the appellants in paragraph 6.6 of their reply that:

the generalised nature of the argument put by the Commonwealth indicates that it is not possible to point to any particular statute or provision that displays the requisite intention to extinguish native title.

That comment ignores the context in which these issues arise and it does not give proper weight to the Commonwealth's submission.

If I might step back for a moment, simply to identify for your Honours what we have perhaps labelled as non-recognition. If the Commonwealth is correct that native title has only been capable of being recognised offshore at some date after 1824, then the question whether native title can be recognised will not arise in some legislative vacuum.

If it occurred at any date after 1904, it will occur within a complex structure of fisheries legislation which is being applied offshore at that time. So that in determining the extent of the rights which the common law can recognise, it is the Commonwealth's submission that legislation which is inconsistent, in part, with recognition will effectively cap or limit the extent to which the common law can recognise the native title right.

Now, if we are wrong in our contention that native title could not be recognised offshore in 1824, then the question will resolve itself as a question of extinguishment. But we do draw a distinction between the two concepts, the question of whether a right could be recognised within a pre-existing statutory regime and the question of extinguishment. Now, we deal with those concepts, of course, in our written submissions. But what that has meant is that the Commonwealth has had to address the question of non-recognition and extinguishment against a whole range of possible different dates which have been put forward by the appellants, and also by the interveners in this case, those dates being dates on which it said that native title could first have been recognised.

In the Full Federal Court no fewer than eight different dates were suggested by the appellants, starting with 1824. So what we have had to do is to analyse the legislation as it has applied offshore over the period during which recognition may have become possible. So we have analysed the details of the legislative scheme and the evidence of its administration in relation to the claim area and generally in Appendix 2 to our submissions. These are fully referenced with the relevant provisions of the legislation. That history is, as we say in our written submission, the same as that which was before the trial judge and it is uncontroversial.

The Commonwealth's approach was then to draw out from that history the features which it said were common to fisheries management, at least since 1904, and which it says were inconsistent with the recognition or continuation of exclusive native title rights. These features are set out in Part 4 of our written submissions, as are the reasons why the inconsistency is said to exist. While the history contained in the appendix was not contentious, of course, its effect on native title was.

If I can perhaps then just shortly summarise for your Honours some of the features and otherwise ask your Honours to focus upon our written submissions. The first point is that, consistently or perhaps as a mirror image of what we say is the common law position, fisheries offshore have been treated as a public resource which are subject to the exclusive control and regulation of the Crown under the fisheries legislation which is applied to these areas.

From the Fisheries Act which was, of course, a South Australian Act applying in the Territory, fisheries legislation has provided a comprehensive scheme for the management of commercial fishing off the coast of the Northern Territory. It has also regulated the exercise of the public right to fish which continues to be exercisable to some extent in relation to non-commercial fishing. I say to some extent because, obviously, it is not exercisable in relation to endangered species and from time to time restrictions are imposed upon it, for example, by the closure under statutory authority of particular areas to fishing for conservation reasons.

The goal of this legislation has been and remains the achievement of a maximal level of exploitation consistent with the continued and indefinite exploitation of the fisheries, even though it is free to say that conservation has become an increasing issue. Consistently with achieving that goal, control has been vested in the Crown to comprehensively manage and regulate the whole of the offshore fisheries along the whole length of the coastline and this has been achieved in a number of ways. If I might indicate to your Honours some of those ways.

The earlier legislation, for example, was expressed to apply comprehensively to fish, which was defined in the widest terms. More recently the approach has been a different one. The fishing capacity of a particular fishery - - -

GUMMOW J: What does all this go to, Dr Perry?

MS PERRY: Your Honour, we say that the intention which comes through in the legislation is for the Crown to have exclusive control of fisheries and it would be inconsistent with that scheme for an individual to have control of fisheries and to be able to close areas off to others to fish. So, it is in that way that we say if our principal submissions in relation to the common nature of the area and the public rights were not accepted, then it would be necessary for the Court to address the question as to whether the fisheries legislation had extinguished or prevented the recognition of an exclusive native title right.

GUMMOW J: But you do not suggest it would extinguish a non-exclusive native title right?

MS PERRY: No, your Honour, we have never contended that.

CALLINAN J: Dr Perry, could I ask you a question in relation to section 211(2)?

MS PERRY: Yes, your Honour.

CALLINAN J: Which provides, in effect, a particular:

law does not prohibit or restrict the native title holders from carrying on the class of activity -

The class of activity is set out in (a), but it is the conjunctive "and", and in "exercise or enjoyment of" their "native title rights and interest". Does that mean that there has to be something else established or does that really mean as an exercise or enjoyment of their natural title rights and interests? Do you follow what I am asking?

MS PERRY: I think so, your Honour. If I have not understood, perhaps your Honour might correct me. But we would say that both (a) and (b) would need to be satisfied.

CALLINAN J: What does (b) add? What is the further requirement that (b) contemplates?

MS PERRY: If (b) were not present, your Honour, then the section would not be confined to the exercise of native title rights. It could apply to any kind of right or even to something which was not a right. The intention by including subsection (b) is to say first of all that the activity is to be carried out for a particular purpose and, secondly, that it must be in exercise of or enjoyment of the native title right.

CALLINAN J: But would not the satisfaction of personal domestic or non-commercial communal needs be itself an exercise of a native title right?

MS PERRY: It could be in a particular case but in a case, for example, where native title had been extinguished, it would not be possible to rely upon section 211 because of the additional requirement.

GLEESON CJ: But does not (a) also operate as a qualification on (b)?

MS PERRY: Yes, your Honour.

GLEESON CJ: So that if somebody asserts a native title right to recover abalone, you cannot do it for the purpose of supplying the local Chinese restaurant.

MS PERRY: No, your Honour, precisely. Of course, that subsection is to be read in conjunction with the preceding one, but the effect of the provision overall is to ensure that in certain circumstances native title holders will not be prohibited from engaging in a particular - - -

CALLINAN J: I have the answer, I think, that (a) is in fact a qualification on (b), is it not?

MS PERRY: Yes, I think the Chief Justice put it more elegantly and I would adopt what his Honour said. Perhaps I might just refer your Honours to our written submissions on the question of extinguishment because we have covered those areas in some detail. What I want to just spend my last few minutes doing is to rebut a number of new points which have arisen in the submissions filed in reply and then to address your Honour Justice Gummow's question in relation to the Act. So I will deal with those as quickly as I possibly can.

The appellants' submissions in paragraphs 6.7 to 6.14 in reply assume that the Commonwealth's point is that powers to close off areas under the fisheries legislation were directed to prohibiting the appellants from exercising their native title right. Consequently, they attempt to rebut that proposition on the basis that the power to close off areas of the sea had not been exercised in relation to the claim area and that it was intended to enable areas of the waters to be closed off for the benefit of Aboriginal people. Their assumption as to the point that the Commonwealth makes is in error. As a result, as I have already indicated, the appellants' reply does not meet the more confined submission of the Commonwealth on the issue of extinguishment and it does not meet the Commonwealth's point that the legislation did not leave room for the appellants or other people to close off areas of the sea to the public and to licensees.

It is also said that the purpose of the power to close off areas of water under the fisheries legislation was probably to enable areas of water to be closed off for the benefit of Aboriginal people. I would refer your Honours in that regard to paragraph 6.9 of the appellants' reply. Aside from the specific power which is contained in the Fisheries Act 1988 under which land could be declared to be a reserve for the benefit of Aboriginal people in which only Aboriginal people could fish, there is nothing to support that proposition. It is clear that such closures were for conservation and related purposes. This finds reflection in the flexibility with which that power could be exercised, for example, through closure of areas of sea to fish in generally or closing to the use of certain devices or fishing for particular species and so on. It is not a point that is borne out on any close analysis.

Finally, the appellants reply upon the fact that Croker Island fell within an area declared to be a reserve under the Aboriginals Ordinance 1981 and that from that time, under various legislation, there has been a general prohibition upon entry on land by non-Aboriginal people and between 1937 and 1957 a prohibition on entry by a vessel in the territorial waters adjacent to the reserve and they refer to section 19AA of the 1918 Ordinance, as amended in 1937.

Now, while this argument is a new one the Commonwealth does not dispute that Croker Island was declared to be a reserve under the 1918 Ordinance. However, the argument that the waters adjacent to the reserve were closed for a certain period does not take the appellants' case any further. First, the closure occurred by force of legislation; secondly, the appellant's had no power to control access. Those could authorise entry were only a protector or a police officer or otherwise as provided for in the provision. Thirdly, the statutory closure was enforced for a 20 year period and only in relation to three nautical miles.

The land grant, of course, gives no right to exclude others from the adjacent waters. In relation to the intertidal zone, the appellants have expressly abandoned the ground of appeal in which they contended that the land grant under Aboriginal Land Rights Act to low-water mark included the waters above. I would refer your Honours to paragraph 1.7 of the appellants' primary submissions where they abandoned that ground of appeal.

If I can turn then to your Honour Justice Gummow's question on the future acts regime under the Native Title Act and endeavour to give a slightly potted version of that. Now, I should first clarify that the Native Title Act, as in force at the time relevant to these proceedings, did have provisions relating to the validity of future acts in relation to offshore places. Those provisions were section 23(2) which provided that permissible future acts were valid and the definition of a future act in section 235(8)(b) and that provided that future acts in "an offshore place" was a "permissible future act".

Now, of course, it is the new Act which governs now and that is as amended in 1998 and the position under that Act is more complex. First, there are many different categories of future acts dealt with in the provisions of Division 3 of Part 2 of he Native Title Act. The question of what category an act falls into is important because different consequences may follow. For example, different procedural or compensation arrangements may apply or the non-extinguishment principle might apply in one case or another and that is defined in section 238 of the Native Title Act.

Now, because these many different categories of future acts may overlap section 24AB(2) of the new Act provides a rule for determining which validating provision applies in such cases. The order of priority which is prescribed is a chronological one. So, in essence, the first second which one comes across which applies to the particular act that is proposed to be done will actually apply to that Act and there is no need - in fact, one ought not to go any further than that first provision.

On this basis, the example which your Honour Justice Gummow referred to yesterday of the Commonwealth expanding its fisheries plan to include a new species would in fact be covered by section 24HA(1) and that is because it is a legislative Act:

in relation to the management or regulation of:

(a) surface and subterranean water; or

(b) living aquatic resources -

Your Honours will also see that subsection (2) applies to licences and leases. So, for example, a pearling lease might be an example of a lease falling within this provision and fishing licences obviously are licences in relation to "living aquatic resources".

GUMMOW J: There would be a compensation then?

MS PERRY: With respect to the question of compensation - - -

GUMMOW J: It is subsection (5).

MS PERRY: It is subsection (5) and the question of whether there is an entitlement to compensation will depend, of course, upon whether native title is affected and, therefore, whether it has been impaired in some way.

GUMMOW J: Yes, I understand that.

MS PERRY: So of, course, it is not an automatic right, and the principal purpose of section 24HA, of course, is to ensure or to provide for the way in which the Act is to be valid. It validates a future act which is done in accordance with its terms. In accordance though with the general scheme which applies to future acts under the Act, the capacity to carry out activities in accordance with legislation or the grant of a licence, for example, is not covered by these provisions. That is covered by section 44H.

GUMMOW J: 44H?

MS PERRY: Yes, your Honour. It effectively provides that the doing of the activity will prevail, but not extinguish the native title, because the way in which the Act, of course, is structured is on the basis that the validity of the licence or the lease or the Act is dealt with at the time that it is enacted or granted and the questions of compensation, for example, are determined as at that time. What occurs later, in terms of activities pursuant to legislation or pursuant to a licence, does not affect the native title. The Act prescribes the way in which they are to relate to each other.

GUMMOW J: Yes, and no compensation right?

MS PERRY: No, there is no compensation. That is because compensation, as I have said, is dealt with at the start.

GUMMOW J: Yes, thank you.

MS PERRY: Does that answer your Honour's questions?

GUMMOW J: Yes, thank you.

MS PERRY: Now, there were just a couple of last things to deal with, your Honour. The first was a New Zealand authority dealing with the prerogative to royal fish, is Baldick v Jackson (1910) 30 NZLR 343. It was obiter - I am relying on my note here rather than my memory - that the royal fish prerogative did not apply in New Zealand and the decision was actually premised on the view that the doctrine would be inconsistent with the Treaty of Waitangi and the Moari right of fishing.

Your Honour Justice Kirby may recall that during the course of argument I referred to a United States decision which had a footnote referring to an earlier decision in which the question of recognition of Indian rights offshore had taken account of the public rights. The elusive footnote is found in Native Village of Eyak v Trawler Diane Marie Inc [1998] USCA9 1781; 154 F 3d 1090 and the footnote 6 appears at page 1097. Reference is made there to a decision in Wahkiakum Band of Chinook Indians v Bateman, but I will not give the Court that reference. It appears in that footnote. There is also some discussion of it in the decision of the judge at first instance in the Village of Gambell v Hodel decision, and that reference is being obtained for your Honour.

Before I give that reference, your Honour Justice McHugh also raised a question relating to admiralty jurisdiction and its origins. The Commonwealth would agree with your Honour's analysis of that at transcript page 197 and 201 and we would say that admiralty jurisdiction was originally conferred by a Royal writ and extended by legislation. The Court of the Admiral was considered to be a separate court exercising separate admiralty jurisdiction. A clear distinction was drawn between the Admiral's jurisdiction and the jurisdiction of the common law. Even after the jurisdiction of the Admiral was transferred to common law courts, it remained a separate jurisdiction, and there is reference to that in the decision of Reg v Keyn.

Governor Phillip's commission expressly provided for the exercise of admiralty jurisdiction and the Admiralty Court in early New South Wales was a separate court to common law courts. We would respectfully agree with the view that your Honour Justice McHugh expressed, that maritime law would not be encompassed by the common law. And I do remember, in fact, in reading Hungerfords v Walker that there is a reference, for example, in that case, between differences in the calculation of interest in the admiralty jurisdiction. That was just one illustration that came to my mind.

GLEESON CJ: Do you remember that Mr Justice Zelling wrote an article on admiralty jurisdiction in Australia, some years ago?

MS PERRY: I am not familiar with it, I am afraid, your Honour.

GUMMOW J: It is in the ALJ. It is referred to, I am sure, in Shin Kobe Maru, certainly in the Federal Court. I do not know if it is referred to here.

MS PERRY: Yes.

McHUGH J: It is around about 31 ALJ - - -

MS PERRY: Thank you, your Honour, yes. We do have a few references for your Honour in relation to those propositions. The first is the decision in Reg v Keyn, your Honours have the citation for that, specific passages are at pages 162 and following; a book by Wiswal, "The Development of Admiralty Jurisdiction and Practice Since 1800", that was published in 1970; "Halsbury's Laws of England", volume 1, title 1, paragraphs 301 to 303; and White, "Australian Maritime Law", second edition, 2000, chapter 1.

HAYNE J: That may require some reconciliation with the whaling cases to which you referred where I think I am right in saying that action was brought in trover, in common law courts, in respect of oil rendered from a whale captured off Greenland. There was much debate in the common law court about whether the custom of the trade - applicable not simply between English boats, but between English and foreign boats - entitled, in effect, successive harpooners to a rateable proportion of the oil.

MS PERRY: Yes, your Honour.

HAYNE J: At first blush, it looked like a regular common law action.

MS PERRY: Your Honour, I think that we put submissions in relation to those authorities in the footnotes in our written submissions. We will give your Honours the reference, perhaps, as to the manner in which we put an answer to those cases.

KIRBY J: The New Zealand, Canadian and United States cases that the Commonwealth has referred to, do they, in your assertion - so that if it is an assertion, Mr Basten can deal with it in reply - reach a common position that in none of those societies, none of the legal systems of those societies, has the common law recognised exclusive rights to exclude others from sea areas?

MS PERRY: Your Honour, as we explain in the appendix, of course, the question has arisen in constitutional treaty context, but in each jurisdiction - - -

KIRBY J: That would be the case in New ZealandS with the Treaty of Waitangi.

MS PERRY: The treaty context New Zealand - that is correct, your Honour. In that jurisdiction, the question has primarily arisen in construing statutory exemptions from fishing offences and in the decisions of the Land Claims Court, which had a statutory power, as your Honour would be aware, to make grants.

KIRBY J: They are, perhaps, significantly called Maori Land Courts, I think.

MS PERRY: They are, your Honour. The issue only arose, I think, in Kauwaeranga, a very early decision, about 1876, where a grant, in fact, in fee simple was sought from the Land Claims Court in the intertidal area. The judge who was determining that case held that he did not have jurisdiction to make a grant in fee simple, but he did consider that he had jurisdiction to make a statutory grant - it is not a recognition; it is a statutory grant - of an exclusive fishing right in that intertidal zone.

KIRBY J: The first holding was on the principle that the Commonwealth has submitted in D7, was it not?

MS PERRY: I do not think so, your Honour, because in - - -

KIRBY J: I do not want to take you off your track. It may have been that it was a Maori Land Court and that did not have more general powers, I do not know.

MS PERRY: Of course, they had statutory powers and the questions largely relate to jurisdiction to make a particular grant. The public rights, as your Honour will see from our analysis, were not actually discussed by the judge in the Land Claims Court.

KIRBY J: You see, one would think that this problem would arise not only in Alaska in the case that we have been given, but also in Hawaii and in other areas of indigenous people in the United States.

MS PERRY: I am not aware of any other decisions in the United States that deal with this issue and, as far as we are aware, the Village of Eyak Case is the only one which has made its way up to the Supreme Court.

KIRBY J: But that was certiorari denied.

MS PERRY: Yes certiorari was denied. There was no judgment.

McHUGH J: I think when I was researching Mabo, or maybe it was referred to in argument, there was a case about 1951 concerning a reef somewhere in the Solomon Islands area and the native people were entitled to exclusive possession of that because I think it emerged out of the sea, but they had fished in that particular area. Have you seen anything?

MS PERRY: I think that that may have been the case that my learned friend, Mr Jackson, referred to. I do not know off the top of my head exactly how that was resolved, your Honour. I had intended to read that before this morning.

GLEESON CJ: Thank you, Dr Perry.

MS PERRY: Thank you, your Honours.

GLEESON CJ: Mr Solicitor for the Northern Territory.

MS PERRY: Just, your Honour, before I sit down, footnote 55 of our reply deals with the questions of trover and so on to which your Honour has referred. Thank you, your Honours.

GLEESON CJ: Thank you. Yes, Mr Solicitor.

MR PAULING: Your Honour, in view of the extensive submissions on behalf of the Commonwealth, I can be brief. I would like to say that we would adopt all of the submissions of the Commonwealth, but we do not. There is a map that you were shown, the map at page 282 of volume 8 which is appended to Justice Olney's remarks. It purports to set out the geographical limits of the Northern Territory. We disagreed with the map at first instance and Justice Olney found, along the lines of our submissions, that it did not correctly set out the geographical limits of the Northern Territory.

GLEESON CJ: What page is that?

MR PAULING: Page 2082 in volume 8.

GLEESON CJ: Thank you.

KIRBY J: I am sure the Government of the Northern Territory would like to have the geographical bounds plumbed and determined, but do we have to do that in this case?

MR PAULING: No, your Honour, you do not, but it already was decided by Justice Olney. It is just that the map, as it is, is misleading. Also, the other area of disagreement is, as apparent from our submissions in D7, is that we do not agree with the idea that there are variable dates at which one tests the existence depending on sovereignty because our submissions in that matter were that there is no burden, either on the radical title or sovereignty, necessary, but that the date to be ascertained is the date of gaining sovereignty in respect of the land, which is inextricably linked with the sea that is being exploited.

KIRBY J: I do not quite understand this. I mean so much time was taken at trial securing from Aboriginal witnesses their understanding of the law, which, presumably, was not the law back in 1824 but the law now.

MR PAULING: As currently acknowledged.

KIRBY J: So how does that fit in? What is the theory here, that it was received at the moment or it cannot change after the moment of sovereignty?

MR PAULING: No, we do not say that. We do not subscribe to a frozen rights theory or anything like it, your Honour. We say that what one must show is a degree of continuity, but the continuity may involve change. Just as people are exploiting the waters off Croker Island might be using aluminium dinghies and outboard motors, we do not suddenly say "Hey, that is not traditional. You cannot do that." What one looks at and gathers - and in this case Justice Olney drew inferences about it from the evidence of contemporary practice, he drew inferences to the rights and interests of the people at Croker Island and surrounding islands, and found the requisite traditional nature of them. But it is as currently acknowledged and customs currently observed.

There is, I might say, another contribution to the jurisprudence in this area which is a decision of the Full Court of the Federal Court in Yorta Yorta, which was handed down yesterday, and there are, again, more discourses about the meaning of "traditional" and the effect of "traditional", but as we put in D7, we say the relevant date is the adjacent land, and in this case 1824, and to get back to there one really looks to see whether we are dealing with a traditional society living according to laws and customs, and Justice Olney found in this case that they were.

KIRBY J: So you do not go along with Commonwealth's submission that you cannot enlarge Aboriginal custom that will be granted recognition by the common law in Australia because - - -

MR PAULING: We say you cannot in contemporary times gather in more rights, yes. If the proper inference was that the laws and traditions did not involve a right to exclude others from some areas, we say they cannot develop new rights to exclude them because - - -

KIRBY J: But you can develop a new right to row out there in an aluminium boat?

MR PAULING: That is not a right, your Honour; that is a mode of exercising your right to fish or your right to be on the water, whether you are in a paperbark canoe, which is what the Macassans found Aboriginal people using, or whether you are in a dugout canoe, which the Macassans introduced, or whether you are in a dingy, it does not matter. It is a mode of exercising a right.

McHUGH J: And you are using a rod and line as opposed to a spear, I suppose.

MR PAULING: Yes, we do not argue that - I think it is in one of the submission somebody put that you do not - no, it is in the Yorta Yorta judgment, that you do not suddenly decide that people are not traditional because they buy food at a supermarket. One looks to the rights and interests that arise out of the traditional laws and customs and how they are currently acknowledged and observed. To get to an expression that the right in interest is a right to, as in Yanner v Eaton, catch juvenile crocodiles with a wok but not otherwise, we would say will not stand up. You do not halt the society at 1824 and say you are not allowed to develop, you are not allowed to take advantage of technology.

KIRBY J: I understand that, but, you see, in traditional society there was no substantial need to exclude others because things went on as they had for aeons. There were the occasional Macassans, they came down, but basically they were there alone in their part of Australia. But then along come the settlers and with the settlers come the pearlers and the mineral explorers and so on, and what is the difference between moving to an aluminium boat and saying, well, if we allow everyone else to come in, they are going to completely change the nature of our society, our sea country, and we do not want that, and in order to preserve our sea country, we have got to take a step forward, just as we do with an aluminium boat, now we will exclude others or we will only let those come in who are consistent with our sea country. It is all defending our sea country but it is just doing so in a way that is relevant to the contemporary situation.

MR PAULING: Your Honour, we do not accept the proposition that here we had a closed society. I mean, there were ways and the evidence points to ways in which intruders from other places, other Aboriginal intruders were dealt with and how relations developed. But can I take you briefly to volume 8 because it only occurred to me last evening that the description that your Honour just gave of the occasional visits of Macassans is quite misleading. It certainly was not occasional.

McHUGH J: It was almost a century, was it not?

MR PAULING: Well over a century, yes.

GUMMOW J: And annual.

MR PAULING: And annually. Indeed, could I just hand up - because Isaac Isaacs as Attorney-General in 1905 was asked to advise the Prime Minister as to whether they could direct the Macassan proas to make port in Darwin. The effect of that would be if they made port in Darwin, there was no way they could get it back out and around the coast. They would have to go trepanging so it was really a ruse to work out some way to stop the trade. In fact, what happened was that in the wet season of that year people went to Macassar and, in effect, talked them out of coming down and the trade stopped.

But I came upon it in another context and it is interesting. If I can hand you that. If I can take you to the appeal book at page 1823, appeal book 8 that is. That is the start of a report which we commissioned and which his Honour at paragraph 52 described as uncontroversial. I only want to touch on a few passages but the most important occurs at 1829. Alfred Searcy, who wrote a lot about the Territory, gives a vivid "description of a Macassan camp at Bowen Straits". Bowen Straits are on the western side of Croker Island. In 1883, here is the picture:

To think that such a scene was possible in Australia! There were four proas anchored close to the beach, some sixteen dredging canoes at work, and numerous smaller ones plying between the proas and the beach. On shore were four great smokehouses, built of bamboo and palm leaves. Of Malays there were about one hundred...engaged with the preparation of trepang. Some had only scant clothing, others wore gay saarongs, and all had gaudy handkerchiefs twisted around their heads.

The `Malays' -

as the author writes -

that Searcy referred to were a group of highly organised Muslim fishermen, most of whom derived from the port of Macassar (now known as Ujung Pandang) in southern Sulawesi. Although dominantly Macassarese, the crews could include Bughis people from southern Sulawesi and less frequently individuals from Timor, Java, and even Irian Jaya.

Then, if your Honours go to 1830 at the top:

Macassan fleets could be extremely large: for example in 1829 the residents of Fort Wellington, in Raffles Bay, were visited by 34 Macassan proas manned by 1056 men. These visitors represented half the Macassans in Arnhem Land that year. Macassan proas with as many as 60 crew members have been documented, and over two hundred Macassans have been recorded working in Port Essington at one time.

Port Essington is just two bays along to the west of Croker Island.

The size of the industry declined throughout the nineteenth century after the introduction of taxes, and after the mid 1880's Macassan fleets generally contained between 100 and 300 men.

Then at 1833 below the - - -

GLEESON CJ: These trepang were bêche-de-mer.

MR PAULING: Yes, same thing.

KIRBY J: They brought with them benefits and new boats and trade.

MR PAULING: There was extensive trade, your Honour.

KIRBY J: Therefore, could it be said that the Aboriginal people consented to this but what they are now saying is, "We consented then but we've reached the limit of our consent. We don't want more or, at least, we want to control what is more."

MR PAULING: Justice Olney considered such a thing and found there was no evidence to support it. That is his finding. In 1833:

Captain Joseph Bradshaw made the following comments on the small islands in the northeast corner of the claim area:

...some [contain] fertile valleys and never-failing springs of fresh water. My engineer poetically but truly described them as "emerald gems in an amethyst sea". If unclaimed they are not unoccupied at times when Macassar proas make a haven of each or most of them during the trepang season.

KIRBY J: You are making the Northern Territory seem so attractive.

MR PAULING: Yes. If I could then take your Honours to page 2002, only to point out that that is where Justice Olney summarises these matters from an historical overview. Then at 2041 is paragraph 107. That has been read to your Honours before. I merely direct attention to it. It is there he takes into account the Macassan presence and other European possible visitors and says it is not a matter upon which there is any evidence before the court. So that is the reference there. Can I then go to our written submissions.

McHUGH J: What are we to make of the evidence that there is a great degree of violence and distrust between the Macassans and the Aboriginals? Does that indicate that they were opposing these intrusions?

MR PAULING: I think you can conclude, your Honour, that probably in the late 1700s and early 1800s there was a lot of hostility, but somehow or other that was resolved and then there seemed to be co-operation. Could I just say that stopping the Macassans from coming to the north coast of Australia had disastrous effects for the coastal communities because they had set up trading networks much further inland because they were getting cloth and axes and liquor, tobacco, particular types of clothing and these sorts of things. They were suddenly enormously rich in those terms in what they could trade backwards and forwards. But when the Macassans did not come, they were in a sense bankrupt, and there are repercussions even to today in those sorts of things.

The other thing is that the Macassans really were here for long periods of time every year. The lingua franca round the coast was Macassan. If you wanted to take an Aboriginal from one area to another, he could not talk to the other Aboriginal person in that Aboriginal person's tongue; he spoke in Macassan. This was quite common. There are 800 common words still in the languages around Gove, Rirratjingu and Gumatj and those languages, Macassan words for "money" and particular clothing and "boat" and "sail".

CALLINAN J: It is very interesting. Is it in evidence, all of this?

MR PAULING: No, your Honour. But I do want to dispel the notion that we had a few sort of drifting Macassans coming every now and then to the north coast - very extensive.

Could I then just go quickly to a few propositions. It is so stark in this case that we are dealing with two quite different concepts between land in Mabo and a claim to the sea. I will not take your Honours to the passages where it has been said over and over again. It is completely different. But to reject this claim to exclusive rights is not to reject Mabo and it is not to qualify Mabo. There is no seamless intersection between Mabo principles on land and just sliding them into the sea. They are different concepts, the underlying notions are different, and really in this case one has to go to those principles which we say are fundamental and which I will do no more than adopt what Dr Perry said about them and the Commonwealth has put in its written submissions and I do not seek to improve on that.

But one thing is certain, in our submission, that the law cannot countenance the idea that by some process private citizens can get a right greater than the Crown in relation to closing off waters as a means of communication, as highways, as being involved in the right of navigation. We just say that really strikes at the core of principles in our law.

McHUGH J: It is also a fundamental principle recognised by the common law that the Crown had the right, and on some views an obligation, to erect ports and havens along the coast for the protection of shipping.

MR PAULING: Yes. Your Honour, it has been alluded to by others, this is not a situation, as Mr Jackson sought to characterise, as just a very small bit of ocean in a huge continent or coast. I think others will point out that a lot more is involved and this is the leading edge, as it were. It is a bit like the Romeo Case where it was suggested to your Honours that all we were really talking about was a metre of cliff in Darwin when, in fact, what we are talking about is any attractive spot that it has dangers because it is elevated.

Once we talk of those sorts of claims then we come into the situation of what is required of people like commercial fishermen in an intersection with Aboriginal people. Mr Hiley will make some reference to that. But, suffice it to say, that licences in the Northern Territory do not specify a bit of coast that you fish at, it is the whole lot. If you are going to have a licence to fish on the whole lot of the coast - if you have to pay compensation you have got to pay compensation to everybody.

McHUGH J: The leading cases in this area have all been carefully chosen by those who appear for the Aboriginal interests, they get the best cases from a merits point of view, Mabo, Wik and perhaps this case.

MR PAULING: Yanner v Eaton was not bad, either.

GLEESON CJ: Yes. That is about your time.

MR PAULING: Yes, thank you. Your Honour, can I just say one last thing, that really - and if you have a look at his Honour in 117 and 136, what we are talking about is the fact the control of access cannot be looked at as some sort of abstract thing. To control access to the fishery, to control access to the waters is the equivalent of having exclusive possessory rights. May it please the Court.

GLEESON CJ: Thank you, Mr Pauling. Yes, Mr Hiley.

MR HILEY: If the Court pleases, we adopt the submissions made before us and hopefully will not trouble the Court with duplicating any of it. Primarily, we wish to respond to some of the questions raised by the Court concerning, firstly, the value of those native title rights and interests found by the trial judge and, secondly, the question of interaction between native title rights and the common law and statutory rights held by other users of the waters primarily by force of the operation of the Native Title Act. We also propose to make a few short submissions and observations, given sufficient time, regarding the different fact circumstances in Mabo, and, secondly, appropriate relief, should this appeal be allowed.

Turning to the first matter, that is concerning the value of those native title rights and interests found by the trial judge. Put perhaps briefly, namely, non-exclusive rights, inter alia, in relation to rights to fish, Dr Perry has already outlined part of the scheme of the Native Title Act but there are additional comments that may be useful. Firstly, section 211 has already been referred to. The appellants, having been found to hold native title and having been found to hold the particular rights set out in the determination of the trial judge, are entitled to the benefits of section 211 - which has already been explained - entitle those people to fish without a licence if they satisfy the requirements of section 211(2). That is a right that other members of the public do not have, in circumstances where they would normally require a fishing licence to fish for any purpose. As the appellants have already said, in many States of Australia, but not in the Northern Territory, even recreational fishers do require licences.

The other consequence of the application of section 211, your Honours, is, of course, that a defence is then available to a prosecution that could otherwise be brought, and Mason v Tritton and Yanner v Eaton are examples of that. Secondly, your Honours, apart from the fact of a declaration of the existence of the native title and of the particular rights will more readily assist their protection and enforcement in the common law courts, the Native Title Act itself confers other rights, both procedural and substantive, that are not available to other members of the public.

Again, Dr Perry has referred to the example proffered by your Honour Justice Gummow yesterday and, perhaps to take another example, if the Northern Territory decides to close a certain area of the sea for conservation reasons, for example, or to prohibit the taking of abalone or some other particular species of marine life - by the way, the power for that is in section 28 of the Fisheries Act - then the Native Title Act future act regime sets up a mechanism, namely, that provided by section 24HA(7), the section to which Dr Perry took the Court before, and that mechanism involves a right in the native title holders to be notified and an opportunity to comment about the doing of the act.

So, for example, on the rights found by his Honour Justice Olney, if it was proposed to close off a part of the seas within the determination area, then the appellants would have the right under section 24HA to be notified of that proposal and to comment on that.

KIRBY J: Rather soft rights, and they do not seem to sound very heavily in dollars and cents, which is what property rights normally sound in.

MR HILEY: Maybe not, your Honour. Yes, it may well depend upon the extent of the closure of the sea involved and as to whether or not it involved the closing of a sea that was particularly important to the Aboriginal people concerned and to the extent of the closure and the like, so the question of compensation, yes, would - - -

GAUDRON J: Well, that is right, you have a 51(xxxi) equivalent provision in the Northern Territory (Self-Governing) Act.

MR HILEY: Yes there is, your Honour.

GAUDRON J: Yes, so there would be questions of compensation.

MR HILEY: Yes, the Native Title Act itself does incorporate a "just terms" provision, so it is section 51(1), so it is not, with respect to Dr Perry, correct to say there is no entitlement to compensation unless your native title is impaired; it works rather the other way round. If there is a future act that occurs such as the granting of a fishing licence even, if it is a future act then the native title holders have the right to be notified and to comment; secondly, they have a right to compensation pursuant to the sections that have already been identified and then one would go to section 51(1) to quantify the rights and, as I say, that is a "just terms" provision.

KIRBY J: That would assume acquisition which closure or temporary closure of the sea might not be - - -

MR HILEY: No, with respect, and indeed that is perhaps why section 51(1) does go beyond the acquisition-type power - - -

GUMMOW J: It talks about "impairment".

MR HILEY: Yes, it contemplates impairing of rights, your Honour, so it does not have to be an acquisition such as would have to be under section 51 of the Constitution or of the Northern Territory equivalent, so compensation is for mere impairment.

The third right given in the same context, that is, in the context of a closing of seas or, for that matter, any future act set out in section 24HA and, for that matter, in most of the other future act sections, the third consequence is that the non-extinguishment principle would apply. That has already been explained, I think, but as far as a non-native title holder is concerned, well, for example, the Minister could prohibit the taking of abalone, full stop, thereby abrogating that part of the public right to fish. The non-native title holder, of course, has no remedy in that respect, whereas the native title holder would have.

Your Honours, the other aspect to the discussion, namely, the second point that I wish to discuss, was the interaction between native title rights and those otherwise held by fishermen and other members of the public, having regard to the operation of the Native Title Act, the - - -

KIRBY J: Who are your clients? Would you just, in a sentence, remind me?

MR HILEY: Yes, your Honour, generally described as the fishing parties, your Honour, but they are the third through to the seventh respondents and the fourth respondent - - -

KIRBY J: They presently fish throughout the area, do they, without hindrance?

MR HILEY: Yes, your Honour, they include commercial fishers with all various kinds of commercial fishing licences who fish in this area and in other areas. In fact, that does remind me, your Honours, the first to the fourth respondents has changed its name. It was the Northern Territory Fishing Industry Council; it is now the Northern Territory Seafood Council. We have filed a change of name and we would just ask perhaps that the Court note that change.

GLEESON CJ: Thank you.

MR HILEY: Thank you, your Honour.

GUMMOW J: So, is it the "NT"?

MR HILEY: No, it is Northern Territory - - -

GUMMOW J: In full?

MR HILEY: - - - Seafood Council Incorporated, all in full. Perhaps just following from your Honour Justice Kirby's question, fishing licences in the Northern Territory - and I suspect in most places in Australia - are not area specific. They may be species specific, but they would entitle one to fish for Spanish mackerel anywhere in the seas off the Northern Territory. The prawning licences granted by the Commonwealth within the Northern Prawn Fishery, of course, has a broader geographic ambit because it covers parts of Queensland and parts of Western Australia as well.

The other part of the Native Title Act that I wanted to take the Court to is section 227 of the Act, because that really is the starting point. It defines "Act affecting native title", and the way the Act works is this, that unless a particular act - and let us take, for example, the granting of a fishing licence - is an "Act affecting native title", which is defined in section 227 to include an act that is:

partly inconsistent with their continued existence, enjoyment or exercise -

of a native title right, unless an act falls within the category of section 227, the Native Title Act really has no operation at all. So the granting of a commercial fishing licence at the moment, that is, in circumstances of non-exclusive rights found by the trial judge, would not be a future act, in our submission, contrary perhaps to the submissions made by Dr Perry, because it would not be an act that affects the "continued existence", et cetera of the native title rights found to exist.

CALLINAN J: What if it affected even the sustenance - the possibility of getting enough fish for sustenance purposes - would it not affect the rights then?

MR HILEY: Yes. It would then, your Honour, and that then becomes an interesting question of fact, I suppose. I could be wrong but, as I understand it, most governments at the moment, some governments, are taking the attitude that they can proceed to issue fishing licences in respect of waters that are not subject to exclusive rights.

GLEESON CJ: Did the evidence show whether the Aboriginal people had any use for bêche-de-mer?

MR HILEY: I think it did, your Honour. I think it was to the effect that they did not. They, to a large extent - - -

GLEESON CJ: What I wanted to ask you was this: if they had no use themselves for bêche-de-mer, and we know the Macassans had a use for it, they wanted to sell it to the Chinese - - -

MR HILEY: Yes.

GLEESON CJ: - - -who thought it had certain desirable properties. Would an exclusive right to fish cover an exclusive right to a kind of fish for which the Aborigines had no use?

MR HILEY: Yes. We would respectfully submit it would.

GLEESON CJ: So the consequence of having an exclusive right to fish would be the capacity to prevent other people taking something for which you had no use yourself?

MR HILEY: Yes, yes. Another example was pearls, because one of my other clients is a pearling company, and there was minimal evidence of any use of - diving for pearls; same example. Your Honour, Aboriginal people did dive for trepang but only, as I recall it, as employees or to do it for Macassans, who used to employ them to go and do it for them. My recollection is there was no independent evidence of them actually using it themselves.

KIRBY J: The evidence was that they did not dive for pearls, is that what you are telling the Court?

MR HILEY: That is the evidence, your Honour. There is one piece of evidence to the effect that Mary Yarmirr saw her father dive for some pearls. Pearl shell, I am sorry, your Honour.

GLEESON CJ: Is recovering pearls fishing?

MR HILEY: I am told it is, your Honour, but - - -

GLEESON CJ: I should have thought recovering bêche-de-mer was.

McHUGH J: The same with abalones, regarded - and abalone adhere to the rock face.

MR HILEY: Yes, and I would submit that it is the oyster that contains the pearl. I mean, the oyster would be regarded as a - - -

GLEESON CJ: Was there any attention given in the judgments below to this question of what you have described as a "species-specific" right to fish?

MR HILEY: Yes. I am sorry, not in the judgment below, I do not think there was, no. There was certainly argument at first instance about particular species. For example, there was a lot of evidence about strong use by Aboriginal people of turtles - hunting for turtles and dugong, and other evidence about them hunting for other fish, but for other purposes.

GLEESON CJ: But the claimants' claim to an exclusive right to fish - - -

MR HILEY: Yes.

GLEESON CJ: - - -did not distinguish between fish for which they had no use and fish for which they did have a use.

MR HILEY: That is correct, your Honour, yes.

KIRBY J: But did it establish that they do not like some fish, or was it just neutral on that? I mean, we all have our preferences. It may be they like all the fish?

MR HILEY: Yes. That unkind question Mr Pauling asked about - I think it was dugong - crocodile, was it - to the effect that it was worse than McDonald's, but, yes, the answer came back, "Yes, I would not eat that, your Honour".

All I wanted to demonstrate by taking your Honours to 227 is that on our submission, and perhaps with the caveat raised by your Honour Justice Callinan, 227 would not normally operate with the mere issue of a fishing licence, however, if there are exclusive rights or a right to control access, which seems to be how the case is really put, if there is right to control access every time a fisherman wants a licence, then these procedural rights are conferred upon the native title holders. Not only would the native title holders in this case have to be notified of the proposal to issue the licence, so would every native title holder off the seas of the Northern Territory.

Secondly, every native title holder off the seas of the Northern Territory would be potentially entitled to compensation, not just these people, because, as I say, fishing licences are not site specific. Much different, of course, to the granting of mineral licences, and the like, which are area specific. That is a consequence of exclusive rights being recognised in the sea. If I can take your Honours now briefly just to point out that the fact situation in Mabo is much different to the fact situation here - - -

GUMMOW J: That has been said already.

MR HILEY: It has and that is quite readily apparent when one looks at some of the notes made by Justice Brennan at pages 16 to 19, 21 to 24 and 60 to 61 of the Mabo decision, but perhaps - - -

KIRBY J: But they were island people and they were presumably eating fish and they were fishing. It is just that it seems procedurally to have got sidetracked.

MR HILEY: Yes, because it ultimately turned out to be a claim only of the land above the high-water mark, but one of the more important factual situations was that by the time of sovereignty, 1879, there were already laws in place prohibiting strangers, for example, from going onto the island. So there were a number of other factual circumstances that make that case rather peculiar and make it perhaps different even from a Botany Bay situation such as Mr Basten alluded to.

Your Honours, in our written submissions - I do not take the Court to them - but we have contended that if the appeal is successful, the matter should be remitted. The appellants appear to have agreed with that in their initial submissions but I am not sure that they presently are. The Commonwealth has already advanced a number of reasons why it should be remitted if it is successful. We have advanced an additional reason in our written submissions, that is that the trial judge has made no findings as to loss of connection, or what others sometimes refer to as abandonment, and the appellants concede that. That is that the trial judge made no express findings of abandonment in their reply, paragraphs 2.7, 2.15 and 6.13.

Next, your Honours - these are a bit broken up - but one of the grounds of appeal, in fact the primary ground of appeal, ground 1, criticises the Full Court for not making various findings of fact and for not finding, in effect, that the appellants have exclusive rights. Then, over the page at little (g), it says:

subject to -

(g) the exercise of native title rights and interests by other Aboriginal peoples in accordance with traditional laws and customs -

That qualification is not reflected in the draft determination or any of the versions suggested by the appellants, but the fact of the qualification, again, is an additional reason for asking how can it be asserted that the appellants have exclusive rights when they, themselves, in ground 1(g) of their notice of appeal, contemplate that there may be other Aboriginal people with native title rights and interests who may be able to exercise those rights within the determination area. If that is time - - -

GLEESON CJ: Yes, thank you, Mr Hiley, then we will adjourn now and we will hear Mr Fraser at 2.15 pm. We will adjourn until 2.15 pm.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ: Yes, Mr Fraser.

MR FRASER: May it please the Court. The State's written submissions sought to develop the proposition that the very nature of the sea rendered inappropriate a determination of occupation and possession as opposed to non-exclusive rights of use and enjoyment of the sea sought by the appellants. The State's interest in the matter was set out in the affidavit of Majella Mary Pollard which was filed on 15 January, which indicated that there are some 44 sea claims in the State of which - this is not in the affidavit - some 15 are on the eastern seaboard roughly and some 29 or more in Torres Strait, there may, in fact, be 45. The majority of them, or most of them, are for exclusive possession of the sea, and that is in addition to the Wellesley Island Case.

My learned friend, Dr Perry, has orally developed a submission which really comprehends nearly all of our written submissions, so I do not seek to add to it. Can I just then respond, and only partially, to a matter raised by your Honour Justice Gaudron concerning the value of freedom of communication in its relationship to possession of the seas, and it is only a partial response. I just mention that in Gerhardy v Brown (1985) 159 CLR there are some dicta, in particular by Justice Mason. The topic relevantly probably starts around about 102, but of particular relevance to the matter raised by the Court, at the bottom of page 103 is the statement:

However, in exceptional circumstances freedom of movement may include access to privately owned lands. If, for example, the purpose and effect of vesting extensive tracts of land in private ownership and denying a right of access to non-owners was to impede or defeat the individual's freedom of movement across a State or, more relevantly, to exclude persons of a particular race from exercising their freedom of movement across a State, the vesting of ownership and the denial of access would then constitute an interference with freedom of movement and amount to racial discrimination -

I am not suggesting, of course, that any of this is directly in point, just that it is relevant to the matter raised. There is also dictum by Justice Deane which commences around about page 150 which discusses the topic in similar sorts of terms. Of course, that was a case dealing with the statute and dealing with land and we do not suggest it is directly applicable but, if anything, we would submit that the nature of the sea and its use historically and international themes also support the proposition that that kind of concept would apply with more force in the sea than on the land.

KIRBY J: But the old law developed in the context of England which was asserting itself as a maritime power and the common law of England did not have to solve in England anything quite like the problem that is presented to Australian common law by the existence of indigenous people and the relationship between the indigenous people and the majority community and their law.

MR FRASER: Yes, I accept that, your Honour.

KIRBY J: So there is nothing quite analogous. We are really, if I can use the word, in uncharted seas of our own.

MR FRASER: Yes, that is so, and we can only reason by analogy, your Honour. The other analogy that we mention with some trepidation is that which we discuss in paragraphs 13 to 15 of our written submissions which concern the poor analogy with land but, in particular, with vast areas of relatively unproductive land in which there has been some discussion about the inappropriateness of concepts of possession.

The other thing I wish to mention is that my learned friend, Mr Jackson, in a response to a question from the Court referred to the concept of private property as constituting a legitimate interference with the value of freedom of communication. The case which we have just mentioned is relevant to that but also the example he gave of an oyster lease at the border, we submit, is not particularly relevant and we would, in that respect, draw attention to a passage in the judgment of Justice Merkel in appeal book volume 11 page 546 at paragraph [573] where his Honour made the point that:

The question which is to be answered is not whether that kind or type of right or interest is not to be recognised but rather whether the right claimed, if proved, is not to be recognised by the common law -

and his Honour said that, at about line 55 or below:

In the present case different answers to that question might be given to a right in general terms to a claim for exclusive possession or to control access to expanses of the sea than to a claim for the right to regulate access to a sacred site in a discrete part of the sea in the claimed area.

Then his Honour went on to deal with it.

GLEESON CJ: Was not that a point of departure between Justice Merkel and the majority about the meaning of section 223(1)(c)?

MR FRASER: Yes, it was, your Honour, and I was not particularly citing it for that point but it was. What I was citing it for was the proposition that the example given by my learned friend, Mr Jackson, is really not particularly relevant to a claim for an expanse of the sea and his Honour goes on to deal with this and it may also have relevance to his Honour's decision that the matter ought to be remitted. That is all I have, may it please the Court.

GLEESON CJ: Thank you, Mr Fraser. Yes, Mr Solicitor for Western Australia.

MR MEADOWS: May it please the Court, the only matter that I wish to raise was to refer the Court to the judgment of the Privy Council in Oteri v The Queen. I think we provided a copy of the judgment for the Court's perusal.

GUMMOW J: There is some doubt about that decision, is there not? There is some doubt about the jurisdiction of the Privy Council to make that decision.

MR MEADOWS: True, your Honour, but - - -

GUMMOW J: They embarked on inter se questions, on one view.

MR MEADOWS: I think they may have here, but nevertheless, I only refer to this case because of the explanation that was provided for the application of the criminal law in the Courts of Admiralty and the application of the criminal law of England to the high seas. I refer to the report in the Weekly Law Reports, [1976] 1 WLR 1272, and the reference that I wish to refer to is at page 1276, the passage at about point 7 where their Lordships said:

The explanation sometimes given to this extension of the applicability of English law that "an English ship may be considered as a floating island" should, however, be understood metaphorically rather than literally. A British ship is not accurately described in law as part of the United Kingdom. A more acceptable rationalisation juristically is that at common law a British ship fell under the protection of the sovereign; those on board her were within the King's peace and subject to the criminal law by which the King's peace was preserved.

KIRBY J: Why would one not say, metaphorically, this is more relevant to D7 than D9?

MR MEADOWS: I accept that it is probably more relevant - - -

KIRBY J: But once you have asserted the sovereign's sovereignty, you fall under the King's peace or the Queen's peace.

MR MEADOWS: Well, your Honour, in one sense, what I have put is against us in D7, but it does, we would say, with respect, show why the criminal law, as opposed to other aspects of the common law, were applied by - - -

KIRBY J: It is once you allow any of the law to run. You cannot say, "Well, we will just take the criminal law, thank you".

MR MEADOWS: What I am suggesting is that the Privy Council has indicated that that is what has happened, that the reason why the criminal law, as opposed to other aspects of the common law, have been extended is because of the need to preserve the King's peace. Apart from that, if it please the Court, we would rely on our written submissions.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Basten.

MR BASTEN: Thank you, your Honour. Firstly, in relation to your Honour the Chief Justice's question about the evidence concerning Macassans, we have supplied to the Court Officer - your Honours may or may not have them, yet - a list of references. Your Honour has already been taken to some of them. I do not intend to take your Honours to any more, nor do I invite your Honours to read the material, except perhaps by way of background interest.

His Honour made two findings in relation to it. One related to the trading relationship to which the Solicitor for the Northern Territory referred this morning, the second related to the probable absence of any consent at the outset of the incursions by the Macassans, a matter which must surely be of more historical than other interest. Our point is, again, that if there were an overriding external force at some stage, that does not necessarily affect an internal legal system and it is a test of the strength of the sovereign to resist the force which may be illustrated. The fact that the force is resisted, if it was, may suggest an intention to maintain one's own integrity, sovereignty and traditional laws.

KIRBY J: But you have to overcome the finding of fact by the primary judge. I mean, you effectively, in the light of the majority opinion in the Full Court, have got to persuade us that both the primary judge and the Full Court made a serious error of fact in terms of what the Aboriginal law contained and it is not really - - -

MR BASTEN: I do not think I seek to do that, your Honour, not in relation to the role of the Macassans.

KIRBY J: No, they are just one indication, but the primary judge found that there was not this assertion of exclusiveness. The Macassans are simply one, in a sense, objective illustration, so it is said, of the fact that other people came. They were not the settlers, they had nothing to do with Australia and they were not driven out and consent was not extracted; they just were permitted to come. That stands against the exclusiveness and supports the primary judge's conclusion.

MR BASTEN: With respect, your Honour, that was my point in relation to the inference that we drew from the fact, namely, it is not a question of overcoming his Honour's factual finding. It is rather the legal significance of a finding that people did not have the technological power to resist an incursion from abroad. The overrunning of a country by an army does not destroy the internal property rights necessarily. Other things may do that, but by the time the second half of the 19th century came, there was, as the Solicitor colourfully explained, a very close trading relationship between these people and the Aboriginal people. What one makes of that in terms of the Aboriginal right to exert, as it were, their sovereignty against the intruders is one thing. Whether it means that the number, the power and so on of the intruders destroys in some respect a traditional law or changes it is another thing.

KIRBY J: Cannot it be said that first the Macassans and then the settlers came and that the tide of history washed over whatever may have theoretically at some stage been an assertion, in Aboriginal custom, of exclusiveness?

MR BASTEN: That is what I referred to in the written submissions as a concept of partial abandonment, which is where, as I understand it, Justice Brennan's comments about "washing away" come in. That was not the basis on which his Honour approached it. His Honour's approach was that these laws did not in their terms seek to apply to the European settlers, if I may take that as the more powerful aspect of the case. We say, in respect of that, they may or they may not have, but they could not be asserted consistently with British sovereignty.

So it is an invitation to exercise the mechanisms which may exist within a traditional law and culture against those who are not party to it. That was what, as Mary Yarmirr and perhaps even Charlie Wardaga say rather colourfully, they could not do. As Ms Yarmirr says, in relation to her people who follow the old culture, that is all right; these people understand the fact that, perhaps, violence can no longer be used when they contravene does not affect the force of the traditional law and custom, but it just has no binding effect and could not be enforced against intruders with another legal system. Now it can be, since 1992, and that is what they seek to do.

As your Honour said, in relation to a question to one of my learned friends, the time has perhaps come when they are entitled to say "enough is enough", and that is not a novel idea. As your Honour may have been aware, at page 2039, Justice Olney set out a letter in which, in 1983, they were saying, "Enough is enough. We do not want these developments, by way of a marine park, on our shores." And perhaps it illustrates that which your Honour Justice McHugh was putting earlier, perhaps facetiously to an extent, that the first cases are often the test cases which are best likely to demonstrate on the merits how a point may be run.

We take some solace from that. If this is a strong case which, in terms of a vibrant community with a proud tradition, which they have been here in Court for a whole week to listen to the support of, then so be it.

McHUGH J: Well, you certainly have a strong case on the merits. The problem is the law.

MR BASTEN: I appreciate that, your Honour. I mean, that cuts both ways. The sort of implicit in terrorem threats that there may be such cases all around the south of the southern coast of Australia does not follow at all.

GLEESON CJ: But, Mr Basten, there is an interrelationship between these issues, is not there, as is indicated by some questions you were asked about capacity? A claim may be made to appear implausible by reflecting upon some of the implications of it and those implications may include questions about how you would ever go about enforcing the rights that you are claiming against, for example, Macassans.

MR BASTEN: Yes. The enforcement, though, in that case follows - and I thought it was the Solicitor's point in a way - from the superior numbers in size of boats and so on of the Macassans. It may be that it cannot be enforced against an external power of that kind but it may be enforceable against those who have similar technological skills and mechanisms and that is as far as the law can go.

That, with respect, we would say, is enough in order to establish the content of the traditional law and as long as it does not make claims which go beyond that technological capacity, in which case it may be implausible in a legal sense. That was really what Mr Wardaga was saying when he said that the government beyond that. He accepted too this concept that perhaps there was a property common to humanity, as it were, out there beyond their interests and that they did not seek to claim or control and that, I suppose, is why I have harked on control of access because it seems to me that that is the underlying element of, as it were, a property right in a generic sense, which one obtains from the material in a case like this.

CALLINAN J: It has to be effective, though, as we discussed. I think your submissions really accept that, Mr Basten, do they not, and when you start talking about a conflict with a more powerful intruder in historical times and you might - perhaps not in this case on the evidence, but you might run into the problem of being unable to demonstrate that there was ever any effective means of asserting and maintaining your title.

MR BASTEN: Yes.

GLEESON CJ: This is an aspect of Mabo I am not sure I understand, Mr Basten. You may be able to help me. We use the expression "Aboriginal law", but was there one body of Aboriginal law or were there dozens or hundreds of bodies of Aboriginal law?

MR BASTEN: I am so sorry. Did your Honour say in Mabo we did?

GLEESON CJ: I am just saying I am not sure I have studied Mabo closely enough to know what the answer to this question is but when we hear reference to Aboriginal law, are we referring to one system of law or to hundreds of systems of law?

MR BASTEN: We are referring to - yes, it may be that there are hundreds. That is the fact-specific element which needs to be established.

GLEESON CJ: But that then leads to this question: I was going to ask you whether a right only has to be asserted or effectively asserted against other people who are bound by the system of law in which the right is asserted. You seem to be putting an argument like that.

MR BASTEN: Yes.

GLEESON CJ: But what if the people most likely to threaten or challenge the right are another Aboriginal group who live next door and who have a different system of law?

MR BASTEN: I am sorry. I did not mean to restrict the law in that way in that context.

GLEESON CJ: Well, what if a right claimed is contested?

MR BASTEN: Yes, indeed, and in the sort of American tradition of Llewellyn and Hoebel and so on, the contest is often seen as the demonstration of the existence of a right, although there is a dispute as to its application or its limits. That is one way of testing it. It is something that arises perhaps in relation to the element of succession to an area, which is discussed in the material. The possibility of a dispute suggests that there is a system of law against which the dispute may be resolved, but I do not have any difficulty, your Honour, in the context of a national system of laws within Australia governed by traditional law and custom of Aboriginals. The rules or the rights, or the persons who enjoy rights, may vary from place to place.

GLEESON CJ: It is not this case.

MR BASTEN: It is not this case, your Honour.

GLEESON CJ: You seem to be answering the problem about the Macassans by saying they had dugout canoes and the claimants only had paperbark canoes, so you do not cast doubt on their claims by showing that they had to yield to the Macassans, thousands of Macassans annually. But would the position be different if, instead of the Macassans coming into this area in large numbers annually, you had the Aboriginal inhabitants of one of the other islands come into this area in large numbers annually?

MR BASTEN: We would say yes, your Honour, it would be different, and I did not mean to suggest otherwise by suggesting that there might be hundreds of Aboriginal systems of law. In fact, that was probably the wrong answer in that sense, because the particular aspects of traditional law may vary from area to area and region to region. Indeed, one would suspect that they will, partly because of the nature of the land, but it would obviously follow that a traditional law, which is not enforced as against neighbouring Aboriginal people, would not be a traditional law which could be said to have been established as a matter of fact.

GLEESON CJ: Well, forget about the special problems of the sea for the moment. Consistently with Mabo, and in relation to land, what happens where it appears that there were contestable and contested claims as between adjoining or neighbouring groups of Aborigines?

MR BASTEN: We would say, your Honour, that the laws asserted would be recognised and the contest would now need to be decided in our courts rather than by traditional methods perhaps, if ultimately it came to that, but - - -

GLEESON CJ: What would be the issue for our courts to resolve?

MR BASTEN: The issue would be to resolve what, as a matter of fact, the traditional laws are which determine the answer to the dispute.

GLEESON CJ: But there could be two systems of traditional law existing, one in Port Jackson and one in Botany Bay, which produced a contest of claims in relation to land around Maroubra. Now, if you say the common law court would then resolve that contest, what would be the issue that would arise for determination by the court?

MR BASTEN: The first issue might be whether there was a traditional law which applied to and settled the dispute.

CALLINAN J: Whether there was a private international law, a private international Aboriginal law, in effect.

MR BASTEN: That sounds somewhat like applying a system of our taxonomy to a law which may not enjoy it, but in principle your Honour is right, or it may indicate - and this was what I was trying to say to the Chief Justice earlier - that there is no rule or principle or custom that could be described as an acceptable traditional law and custom in that case.

CALLINAN J: But then there would not have been any prior effective means of making out your assertion, would there?

MR BASTEN: Yes, that is so.

McHUGH J: Supposing Cooper v Stuart instead of Mabo had recognised native title in this country and late last century a contest had arisen between your clients seeking some sort of relief against Macassan fishermen and the Macassans said, "We've been coming here since 1100 AD". How would the Court resolve that? Would you say, "We're entitled to succeed because we are residents of the mainland of Australia"? The Macassans might say, "We're entitled to be here under international law".

MR BASTEN: I would think the answer to that would be that international law does not, unless the domestic law adopts it for this purpose, answer the question.

KIRBY J: I would just like to say that a factor in my thinking, subject to anything you want to say, in terms of how one develops the common law of Australia in this particular context is that for my own part I would hesitate long to develop the common law of Australia, even in a matter so important as this, in a way that conflicted with 400 or 500 years of international law which developed around the principle of the freedom of the high seas and the non-exclusiveness of possession of the high seas, because that is such an important foundation not just for this area of the law. It is, as you saw in the book on "The Law of Waters", the foundation of the universal jurisdiction in respect of pirates, for example, because they were common enemies to all mankind, and it is the foundation of so much else that has developed in international law from the seas by analogy to outer space and so on. So, as far as I am concerned, that is a hurdle you have to overcome.

MR BASTEN: I appreciate that, your Honour, and I did not mean to suggest otherwise in answering Justice McHugh's question, I do not think. If I did, I withdraw what I said. But might I say this perhaps in further answer. Can I come back to that, your Honour, because I do want to say something about that.

This may not be, as it were, an answer to an issue which arises in this case, but I think the discussion may have gone slightly beyond that. At page 1606 in the anthropologists' report, there is a statement under a heading "GROUPS: REGIONAL AND CONTINGENT" halfway down the page:

The broadest social group in this area of western Arnhem Land is the regional population. This kind of group is the group that shares common customs and traditions and its members are usually united by language, geography, history and kinship. Some members of a regional population may live outside the region for a range of reasons.

As a broad answer, your Honour, may I simply say that I understand that to be commonplace throughout Australia, that there are regional groupings of people who share customs and traditions. Indeed, the next case involving this area involves such a basis on which a claim is put, namely, that there is a regional grouping whose shared customs define the group.

HAYNE J: When we come to consider questions - if we come to consider questions of capacity to enforce, it may be important to bear in mind that we are dealing with more than rights, that it is rights and interests possessed under traditional laws and traditional customs.

MR BASTEN: Yes.

HAYNE J: Language of right may carry with it notions of enforceability. What do you say about the language of custom and the language of interest?

MR BASTEN: Two things, if I may. One is that there is a real danger in this area that not only the taxonomy but the language of the common law of English lawyers is drawn back into a consideration of the factual elements of establishing the traditional law. Indeed, traditional law is itself a term that we impose, perhaps.

GUMMOW J: That is right.

HAYNE J: It may be more l-o-r-e- than l-a-w.

MR BASTEN: That may indeed be so. That is what brings one perhaps back, ultimately, to the comment of Justice Blackburn in Milirrpum which I think is quoted in Mabo, that he said on the evidence if ever this was a system of laws rather than of man this was it. In other words, what one is looking for is a system which is non-arbitrary which has some rational basis in principle. But, the purpose of the fact-finding exercise of identifying the traditional law requires one to look at those underlying principles against which, no doubt, disputes may be settled. It is one aspect of that which is inherent - - -

HAYNE J: Is it settled more than by coercion?

MR BASTEN: Coercion is a sanction, but, yes.

HAYNE J: Just so. We associate law with the sheriff coming to call but disputes of that kind may be settled by nothing more than ostracism which may be of fundamental importance in that society.

MR BASTEN: Indeed, your Honour, and we must also remember that - and by negotiation, and that can be a powerful weapon in a society in which consensus is the way that decisions are made and the decision making may take as long as it takes to reach a consensus. So, there is a sort of absence of the element of force there but a dispute settlement mechanism. But having said that, your Honour, yes, I think I accept what your Honour was putting to me. I suppose my point is, and it was something I was seeking to say before, it is at that process of translation of the facts found as constituting the traditional law and custom and a translation into something that the common law can recognise and which will trigger a remedy at which the difficulties arise.

GUMMOW J: In the notion of recognition is bound up some idea of characterisation.

MR BASTEN: Yes, indeed, your Honour.

GUMMOW J: That is not really yet clearly articulated, I think, what it is that one applies to characterise and whether it is our characterisation or someone else's characterisation.

MR BASTEN: Yes. There are, however, common elements, in our submission, in relation to the approaches of all the traditional evidence that we have seen in the common law, and much of it is reflected in Professor Kevin Gray's article and the Gray and Gray article, the idea that what we describe as property rights involve those two inherent elements of control of access to a place or an area and control of uses of the resources that are found there and that was why I was seeking to use that language before. Coming back, in part, to what your Honour Justice Kirby was putting to me, we of course have accepted the qualification of passage and re-passage through the area, but the idea - - -

KIRBY J: That is just part of the notion of the common heritage of humanity. The common heritage of humanity is antithetical to exclusive possession or exclusive rights to keep people out.

MR BASTEN: In relation to the high seas, I accept that, your Honour, and that, as I say, is what I think Charlie Wardaga was indicating when he said, "That for government out there." That high concept of the common heritage of humanity in relation to this particular area of waters which these people seek to asserts rights in relation to is a much more attractive concept to the Sydney tourist than it is to the indigenous inhabitants.

KIRBY J: No, but we have to test the case by the possibility there will be - as Mr Pauling said, you just cannot take the one case; you have to formulate a principle if you can that faces the fact that there may be similar claims all around this continent. Then you have intruded in the common heritage of humanity of the open sea.

MR BASTEN: Yes, but it is not a common heritage which requires Australia to allow any person to come and fish in its waters, certainly not in its coastal sea, and the right of innocent passage is expressly, I think, in the convention on the sea made subject to the right of the country to control and regulate fishing within its waters and it does not extend to coming here to fish. So there are matters of degree and kind.

Your Honours, might I say this in relation to how one looks at the waters. The right of navigation is, no doubt, the appropriate concept in relation to the foreshore which is covered by the water from time to time; but there is no sensible distinction - I mean sensible in the physical sense of the word - between land above the mean low-water mark and that just beyond. Indeed, the mark will be a somewhat imprecise and possibly irrelevant delineation when the tide is not right out or is not right in. But the title of the Crown renders that mark of limited relevance for legal purposes also.

At least since 1983 with the offshore constitutional settlement legislation, the Northern Territory has held the radical title to the seas to the third nautical mile and the Crown lands legislation of the Northern Territory has expressly applied so that the Territory may and does grant interests in the seabed within that area. Your Honours, with respect, that is a distinction which may have some merit in terms of assessing where the common heritage of humanity begins and ends. It may, no doubt, be that one would still want to acknowledge the freedom of movement and the right of innocent passage to which the high seas and the seas beyond the coastal sea and the internal waters remain subject.

With respect, that does not require one simply to ignore - I should not say "ignore", of course, but refuse to provide - any level of protection to the interests of persons who in their own view whose property interests extend beyond the low-water mark.

GLEESON CJ: Mr Basten, you claim is expressed in language which is very easily understandable to a modern lawyer. If you succeed in your claim, a determination in your favour will be expressed in that language with all the consequences that flow from it. It is a little difficult to protect yourself against questions about the implications of your claim to say, "We don't really mean that. That's not the way we think of these rights. That is the way you claim - - -

MR BASTEN: Yes. It is funny, because I was not sure that I had said that, but, certainly, my clients would say that. But I understand the distinction that your Honour is seeking to make. That may come back, perhaps, to what Justice Gaudron was putting to me in part, yesterday: namely, that there are implications which would flow from recognition of a control of access of the whole of the determination area, even subject to the qualifications. My response, I suppose, at that time, was to say that we did not think that consequences necessarily followed, and there may be different sorts of consequences.

The purpose of the Native Title Act is to recognise rights in relation to land and waters. We would have thought it was never the intention of that Act that that recognition would infringe, in any way, upon people's statutory functions, obligations and powers and so on, under the general laws. What the Act seems to envisage is that protection will be given, where there has been recognition, against extinguishment either by statutory declaration, by the ground of interests, or by the appropriation by government for its own purposes. Sections such as 44H to which your Honours were taken this morning would seem to preclude an argument to the contrary. Accordingly, powers which exist under other laws, both of the Northern Territory and the Commonwealth which would continue to have application, would not be in any sense ineffective.

Your Honours, if there is a difficulty there which still needs to be resolved because it flows from - albeit a qualified - a general claim to control access, then may we say that there remain two other ways in which we would seek to approach the matter. One is that the control of access could, as I mentioned on the last occasion, be limited either by place, purpose or person, and, in relation to what might be thought to be the central core of concern of the claimants, it would be to control access to places of particular significance.

This, of course, is a function which can arise under sacred sites legislation, heritage protection legislation, in any event. Obviously, the difficulty of such a limited right of control in the present case is that those sites - there are not many, as a matter of fact - are not identified in the material before the Court, or in the findings of the trial judge, and we accept that it would need to be remitted if a limited right to control access were established on that basis. And it appears to be that concept that Justice Merkel had in mind in paragraph 574 of the majority judgment, at page 2229 of the appeal book. His Honour seems to have thought that there might be a possibility of a limited right in that sense.

Secondly, your Honours, it is obviously also possible and perhaps on one view of the evidence - perhaps that suggested in argument by your Honour the Chief Justice - it might be necessary, if it were thought that the findings of fact in relation to traditional laws supported no more than a right to control access for those who sought to hunt, fish or gather in the area. And I think your Honour put that to one of my colleagues this morning. If that were the limited finding which were open, or which were thought to be justified as protectable under the common law, then that would be an alternative way of granting a level of protection which would be not insignificant in the circumstances of the present case.

GLEESON CJ: Even if you look at the expression "an exclusive right to fish", we were told this morning - I do not know whether you agree with it - that the evidence indicated that your clients had no interest in bêche-de-mer except as employees of Macassans, that the right to fish would, as I would understand it, cover the right to recover bêche-de-mer. So you are claiming an exclusive right in something in which your clients have never had an interest. I use the word "interest" in the widest sense.

MR BASTEN: Yes. Well, one of the ways in which we put the argument was that control of the resources flowed from control of access to an area and decision making in relation to the area. In relation to a fishery, of course, there can be a several fishery in relation to a particular species or there can be a territorial fishery in relation to an area.

What we would say in that regard, your Honour, was that if we have a right to fish as his Honour found, what was intended was a territorial fishery. That was what his Honour appeared to have in mind. We would think that that was the appropriate understanding because if it were - obviously some people do not like certain sort of fish, but that is a matter of preference, not a matter of legal right and the traditional laws and customs which relate to fishing, hunting and gathering do not appear to be specie specific.

What we would say in regard to that would therefore be that our traditional rights should be defined as a territorial fishery. If we do not like and do not catch a particular fish, that does not take it outside the traditional law and custom. Any other approach to the matter, of course, is subject to two problems. One is a problem of the case, that the matter would need to go back for findings in that regard in any event.

GUMMOW J: Is that the only basis on which it would need to go back? There was some talk about abandonment not having been dealt with.

MR BASTEN: Our argument is that his Honour did not accept that there had been abandonment. Might I explain the reason for that? It simply was that the strong cultural and spiritual connection with the land, which is ultimately that which provides the basis of the claim for control of access as appears from that letter at 2039, was not said to be impaired in any way.

KIRBY J: No, but I think the suggestion to us was that, in so far as you are simply getting recognition of non-exclusive rights of the kind that Justice Olney defined, there is no need to consider abandonment but once you assert that it goes beyond that to exclusiveness, that the history of the Macassans and what has happened since the settlers came and other matters of that kind do present an issue for determination, namely whatever may have been the position in traditional society, you have abandoned the entitlement to exclude because you have not done it for 150-more years and it has not been decided so that if it goes back that is another string in the bow of the Commonwealth and others that they want to have the chance to litigate.

MR BASTEN: Yes.

KIRBY J: That would seem to be right.

MR BASTEN: That may be so, your Honour, but there may still be an issue of principle because if it is not possible for people lawfully to continue to enforce that which they did not know they could come to the Court to enforce, whether that in itself amounts to abandonment if their evidence is that they continued to assert a traditional right to insist on, whether it be fishing or access or whatever the matter may be, that may involve an issue for this Court perhaps as to how that is to be formulated.

That issue has not really been addressed before your Honours, but I understand the point that your Honour is seeking to make. It may follow also in relation to what your Honour the Chief Justice is putting to me that the territorial fishery may be consistent with the handling of permission to come onto an estate. That was not found to have been abandoned in any sense, as I understand his Honour's reasoning, and, therefore, there is no specific evidence that it should be treated as other than a territorial fishery. That alone would not justify remittal, we would say. The question of protection of places, however, might.

So I said, I think, before in the submissions that we formulated an alternative determination. I do not imagine that this Court would be in the slightest bit interested in redrafting a determination or having it redrafted in terms which accorded with principles established by the Court. It may need to be remitted in any event, but at least we thought it might focus attention on the issues which we say underlie the appeal.

KIRBY J: But where is it in your amended notice of appeal and determination that raises this question of, as it were, a fall-back position of rights of access to particular sacred or other sites?

MR BASTEN: Well, we did not raise it in those terms, your Honour.

KIRBY J: If you did not raise it, why are you raising it now in reply? Why should we be concerned with it if it is not before us as a matter that has been litigated?

MR BASTEN: I am not saying that it is not - well, your Honour, we raised an issue as to whether we had a right to control access to the whole area. I would not have wished to be precluded, and I say this perhaps guardedly in the light of your Honour's comment. Your Honours might find that there was no ability in the common law to recognise and protect rights beyond three nautical miles. That is part of the Commonwealth argument. We would not think our whole claim failed because we only succeed to that extent. There are numerous ways in which this appeal might be decided, which might or might not require remittal or redrafting. Our claim is put, perhaps, at the highest level. Contained within it are various alternatives, as Justice Merkel recognised.

GAUDRON J: Certainly, the evidence was that your clients enforced closure of parts from time to time. Is there evidence of the specific parts closed?

MR BASTEN: There was evidence, your Honour. The problem was not the lack of evidence. The problem was lack of findings because of the way his Honour dealt with it. The evidence about closures is very limited in terms of sea. Closures occur generally on land. For example, Ms Yarmirr's father had died recently and part of the land area, which I think extended into the seas a short way, had been closed as a result, but there was evidence about all those matters. There were no findings of fact as to the precise limits.

GAUDRON J: The enforcing of closures did not concern sacred sites, do I take it?

MR BASTEN: No, that is a separate concept, at least I think it is, your Honour.

GAUDRON J: Thank you.

MR BASTEN: There may be a link, but as I understand it, it involves a separate issue. Your Honours, in answering questions, I think I have diverted somewhat from the course of what I was going to say. Might I just have a moment to see what I have covered.

GAUDRON J: If I can perhaps concentrate your mind to at least one aspect, I would be assisted by having a response to what was said by Dr Perry with respect to the fishing legislation.

MR BASTEN: Yes. Your Honour, we have dealt with the fishing legislation in our written submissions in reply in some - - -

GUMMOW J: She was dealing with that, as I understood it, as a response to your submissions on exclusivity.

MR BASTEN: It was the closing off power, as I understood it, which was at least one of her focuses. In relation to that, your Honour, we do not think that her response necessarily answers the points we make and we still rely upon the written material. But the question ultimately which was raised by her response came in response to your Honour Justice Gummow when you asked about whether this was a question about an exclusive right only and she said yes to that but, with respect, why that power might extinguish the exclusivity of the right when it is a power to close an area but not extinguish a non-exclusive right is not entirely clear.

It seems to us to underline the doubt arising from the suggestion that the existence of a power to close absent exercise of that power would extinguish anything in accordance with the understood principles in relation to extinguishment. It is not a question of inconsistency of incidencts because there is no ground or appropriation of land for a purpose. It is more in the nature of operational inconsistency and, in the absence of exercise of the power, that simply would not arise. If that was the matter which your Honour had in mind in relation to what she raised - - -

GAUDRON J: I understood it somewhat differently. I understood it to go to this point: the fishing legislation by licences actually conferred rights.

MR BASTEN: By the grant of commercial fishing licences.

GAUDRON J: Yes.

MR BASTEN: Yes, I am sorry.

GAUDRON J: Which rights were exercisable within this area. Perhaps she did not go so far as to say "had been exercised within this area", although I think the evidence is that it had been. In your draft determination you acknowledged the rights of those commercial fisher people. Question then: how can you consistently say that exclusive rights to possession, occupation, right to control entrance, et cetera, has not at least been lost to the extent of the rights conferred by licences?

MR BASTEN: Your Honour, that raises a large question with ramifications well beyond the area of these particular licences, but if the grant of an annual licence itself does not interfere with the title or the underlying basis of the native title right, then we would say that it merely suspends the operation of that right to the extent of the period during which it operates. It is the point made by Justice Toohey in Wik to the effect that there is something curious about the proposition that a temporarily limited interference by granting to another a right to enter or do something on land extinguishes the underlying native title, in whatever way one describes that.

GAUDRON J: Well, the question really is, "How can it be said to be exclusive?".

MR BASTEN: It is not during that period, your Honour, but when the person whose licence has expired no longer has that basis of entitlement to come onto the waters, in this case, then there is no reason why that person could not then be excluded. The legal basis of the entitlement has gone and if there is no extinguishment by way of inconsistency of incidents arising from a grant of an interest in relation to land, then there is no extinguishment, we would respectfully say, by the operation of the licence which may or may not, in a particular case, have involved incursions into the particular waters. That would be a question of fact to be addressed on a case-by-case basis.

GAUDRON J: When? How? Where? Why? That is the exact problem with your determination and the way you put this case. Native title is not something to be worked out square kilometre by square kilometre on a case-by-case basis according to particular facts which may be true for November, but untrue for December. It cannot be that.

MR BASTEN: Well, in some respects, the difficulties arise from generalising from more specific pieces of evidence to the whole of an area, but I understand what your Honour is saying, as a matter of principle. I do not know that I had appreciated that that was the way the point was put, but if that is right, then it is a question of control of access being no longer exclusive, whereas before I think the question went to the right of a fishery no longer being exclusive, and it was that aspect of it which I was seeking to answer. But in principle it may not matter greatly.

There is no doubt that there have been continuing licences, and there are, and that is why the qualification was worded in terms of current licences, because we accept that, as a practical matter, there are still licences which entitle people to come onto the waters to fish in accordance with them. That is why Mr Hiley, I think, said nothing about that. I am not sure that there is anything further I can say - I am sorry, I had another - yes.

KIRBY J: There is one matter, if I can say so, arising out of what Dr Perry put. I realise that we are not in Australia hostage to what other societies with similar but different problems do but at least when one is considering what the common law of Australia requires it is useful in this domain to be examining what other countries with like problems have done and it is said that none of the countries that we would traditionally look to, Canada, the United States and New Zealand, have gone as far as you are urging this Court to go in terms of recognising exclusive rights. What is your answer to that?

MR BASTEN: Three-fold, your Honour. First at page 36 of our reply we do with the United States, Canada and New Zealand. In relation to the United States of America we say that there are different constitutional explanations for the course that the courts have taken. Secondly, in relation to the cases which Dr Perry referred to this morning, some at least relate to the continental shelf. We have provided to the Court copies, only I think of the first few pages, of the decision of the Supreme Court of the United States in Amoco Production v Village of Gambell [1987] USSC 38; 480 US 531. In part to demonstrate why it is that these questions have not arisen in this form.

At page 536 there is set out the legislation which was at the heart of a string of cases, most of which Dr Perry and the Commonwealth have referred to either orally or in writing. What had happened, though, was that the section set out in the middle of the page had provided that:

"All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas, both inland and offshore, and including any aboriginal hunting or fishing rights that may exist, are hereby extinguished."

There was a settlement which went that extinguishment.

GUMMOW J: Am I right in thinking that that can be done without compensation in the United States - not being a treaty right?

MR BASTEN: Yes. Tee-Hit-Ton, I think is the authority in relation the treaty rights but this in fact was accompanied by some $900 million in compensation and grants of land. That was not what was purported to have been done in this case.

KIRBY J: Why does not the Fifth Amendment cover that sort of case? Any way, it does not appear it does.

MR BASTEN: Yes. No, there is a discussion about it in - - -

GUMMOW J: It is treated as a permissive occupancy.

MR BASTEN: It was treated as a permissive occupancy, I think, and not a property right, or not an acquisition of property. It may be that I can give your Honour a reference to the case in which that is discussed. I do not have the reference but it is, I think, called Tee-Hit-Ton, or a name to that effect.

GUMMOW J: It is [1955] USSC 24; 348 US 272, Tee-Hit-Ton.

MR BASTEN: Yes, thank you. Was it a Court of Appeals decision?

GUMMOW J: No, US.

MR BASTEN: US Supreme Court. The statute had, as it were, stepped in before a decision had been made as is clear from "if any" in the first line. Your Honours, in relation to Canada, each of the cases which deal with fishing rights from Sparrow onwards are all post-charter and I think we say something about the different questions which have arisen in that regard.

KIRBY J: We were told that Chief Justice Lamer based his holding - or he said in the little passage that was extracted not on the charter but on the common law.

MR BASTEN: Yes.

KIRBY J: In the second case, not Sparrow. I think it is Gardiner.

MR BASTEN: I am sorry, I have not found that passage and it was Gladstone, I think, which was the 1996 decision. I think we quote that passage in our - - -

McHUGH J: The Canadian cases are very strongly against you, are they not, because section 35(1) of the charter makes the native title rights a charter right and yet, notwithstanding the terms of the charter, the Supreme Court has read it down as giving them priority but not as interfering with the rights of other people to fish.

MR BASTEN: Yes, I think it extends to rivers too, your Honour. It is not at all clear that it is simply based on a sort of public right to fish which is applicable in tidal waters. None of the cases actually refer to the sea either, but I accept what your Honour puts in terms of the way that it has been dealt with and I think what Justice Kirby says is correct in relation to the reliance his Honour placed upon a line of authority going back well before Delgamuukw and the discussion in that case of rights in relation to land. We do not seek to obtain any particular support from the Canadian authorities. It just appears that the development of that line of authority long pre-dated the cases which now come to Delgamuukw in 1998 and therefore - - -

KIRBY J: But my question was addressed to what may, in a sense, be a type of policy question as to what the common law should say in Australia, what it does say.

MR BASTEN: Yes.

KIRBY J: It is at least arguable significant that no other settler society in its adjustment of its legal relationship with its indigenous people, Canada, the United States, New Zealand, has taken the step that you are urging us to say that the Australian common law should take. We do not have even the charter that the Canadians had to hang the common law on. On the contrary, in so far as our Constitution says anything, section 92 says that:

trade, commerce and intercourse . . . shall be absolutely free.

That would include on the high seas around Australia and in the coastal waters.

McHUGH J: Section 92, the words in parentheses says, "whether by internal" transportation "or ocean navigation".

MR BASTEN: Yes. This comes back, perhaps, to the right to control access. We thought our qualification covered that aspect of the matter because we do not seek to interfere with transport through the area or passage of vessels in any way.

KIRBY J: You do if you are asserting an exclusive right. You do, you are asserting a right to exclude pearlers who at the moment can and do go there, fishermen, fishing vessels that do or can go there.

McHUGH J: What about a charter boat that wants to take people from Perth to Darwin, or Perth and drop-off stops at different spots? You would say you can stop them.

KIRBY J: Mineral explorers.

MR BASTEN: Your Honours give me a number of examples. May I just take the tourist boat for the moment. We do discuss in the written submissions the limits on the public right to navigate which is what would be relied on in that case. We would not have thought that there was likely to be any problem with that boat complying with the conditions which attach to a public right of navigation, just as that is its basis for going over freehold estates up a river somewhere, a tidal estuary.

McHUGH J: But if they wanted to stop, the boat would pull up along the side of some reef and would be there for three or four hours.

MR BASTEN: I would have thought that that was squarely within the rights, your Honour. The right of anchoring is expressly identified as one of the incidents of a public right of navigation. A right of permanent mooring is not, so you could not put a - - -

McHUGH J: No, but if you are using it for scuba diving or snorkelling and throwing food over the side at some of the areas, your clients would strongly object to that?

MR BASTEN: Well, they would, your Honour, whether that was something that would be covered by any right that we have sought I doubt. I just had not envisaged that, much as we would object, especially if it were meat - - -

McHUGH J: Exactly.

MR BASTEN: - - - there is anything we can do about that.

McHUGH J: I mean, that is why you want to keep people out because - - -

MR BASTEN: Well, it is one of the reasons.

McHUGH J: - - - one of the reasons, yes.

MR BASTEN: But I am not suggesting that we were seeking to go so far in the rights we claimed could be protected. Fishing comes into a different category.

Your Honours, just to complete the review of the fishing legislation - I am sorry this taking a little longer than I had anticipated - in relation to New Zealand what we say at pages 43 and following is largely that the New Zealand position is still unsettled and that although the Treaty of Waitangi, again, influences the case law that has developed, as we say in footnote 178, there is pending a case in which a question as to an exclusive Maori right of fishing in the seas is being considered.

KIRBY J: I suppose the best that you can say is that all of this is unchartered waters, unexplored territory, and all four societies and, perhaps, others are embarked upon a journey upon the unchartered seas and you can not be sure where that journey is going to take us.

MR BASTEN: In a nutshell, that is so. The Americans foreclosed the question in the biggest of native title claim, namely, Alaska. The New Zealanders are hearing the case, I believe, in May in the court there, and the Canadians have dealt with it in other ways as well.

Your Honours, might I just make a number of very short points. One was in relation to the submissions that Mr Lloyd made about the findings with respect to the permission system. It is in the passage at 2045, to which your Honours were taken, noted by Ms Yarmirr that in a sense the permission system operates in automatic on a daily basis.

These are not people who see many strangers; they live on an island, they see each other day to day, face to face, and, as she says, there are only certain circumstances in which permission is sought. If I failed to go, in answer to your Honour Justice Hayne, to paragraph 136 at page 2063, it was an error. I had marked it in the material I was intending to read to the Court, but we say that the passage at pages 2044 to 2045 elucidates the basis of that aspect of the conclusion relating to the occasions on which express permission was required, which is very summarily dealt with in a conclusionary fashion in paragraph 136.

I was going to put to your Honour some reasons why we said that even a limited right in relation to fishing was important, partly in answer to your Honour Justice Callinan's question yesterday to Mr Jackson. I am not sure that that has not been completely answered by the discussion both from your Honour and Mr Hiley this morning, so I will say no more about that.

In relation to Coulson and Forbes, your Honour Justice Gummow asked if there could be copies of the Commonwealth's pages. We refer to a number of pages also. If it would be of assistance to the Court to have copies of that material provided, we can do that in the next two days.

GLEESON CJ: Thank you.

MR BASTEN: Two minor points. Your Honour Justice Hayne referred to a whaling case. I presume that was Fennings v Lord Grenville [1808] EngR 200; 127 ER 825, to which your Honour no doubt has a reference.

Mr Lloyd suggested that the right to negotiate in Part 2 Division 3 subdivision B applied offshore. The answer is that it does not and the Court should not consider that it does. That flows from section 24MC together with section 26A(3). And, if I might just come back to a matter which your Honour Justice McHugh raised with my learned friend, Dr Perry, we are not inclined to disagree with how your Honour put the old rule in relation to establishing rights against the Crown in the sea. Indeed, it seems to have been applied relatively recently in Fowley Marine v Gafford [1968] 2 QB 618 in Lord Justice Russell's judgment - I think probably on the last page, your Honour, we could not get the Queen's Bench reference this morning - but it may be that we will not disagree with anything in the Commonwealth's proposed paper. We generally leave that to the States and the Territory, but we would like the opportunity to consider a response, if that is necessary, if the Court pleases.

McHUGH J: Could I just ask you one question that I meant to ask at an earlier stage. In this Court, and probably in the courts below, you have concentrated on claim to title in respect of the sea, but does that really reflect what the native custom is? If I have understood the evidence correctly, it would appear to me that under the customary law you do not distinguish between the land and the sea, that there is a single country, so to speak, and that you have an estate which comprises both land and sea.

Now, that is quite inconsistent with any common law recognition of such a title like that. Common law can recognise a claim in respect of land but the evidence seems to indicate that it is a single estate covering both land and sea and that there is no distinction between them from the point of view of the traditional law.

MR BASTEN: Yes. Your Honour, that is so. As far as the traditional claim in this case is concerned, there is some evidence which suggests that these people who call themselves salt water people - - -

McHUGH J: They call themselves island people.

MR BASTEN: Or island people - would see the distinction between the bush and the waters as much more dramatic than the distinction between the hard land of the shore and the waters in which they fish, operate and so on. I do not know that there is an inconsistency except in the fact that we accept that for the common law purposes when we need to do the exercise in translation we have to put the claims in terms which will properly accommodate the differences between sea and dry land and we do not pretend then - - -

McHUGH J: I understand that. That is why I asked you the question because I am not clear at the moment as to whether or not by doing that you have, in effect, rejected the essence of the traditional law claim.

MR BASTEN: We think not, your Honour, for two reasons. One is that the essence of the claim is that religious relationship with land to which Justice Brennan refers and that is common to the land and the seas but obviously that has to be translated into some questions of control over use or access in order to be meaningful in a common law sense.

The other aspect of the claim is fishing, hunting and gathering - the foraging, usufructuary aspects perhaps. In the way that they are recognised, subject, of course, to the arguments we have been having, by his Honour in the determination, we do not see any distinction or inconsistency between that and what we sought to claim. We sought to claim more but not something different.

Perhaps I might just say in that regard that although your Honour the Chief Justice mentioned it, hunting and gathering have featured very little in the discussion in the Full Court judgments, including in Justice Merkel's, whose concentration was on fishing, and when his Honour thought it should be remitted for further evidence or the consideration of the evidence in that regard he says nothing of hunting and gathering. We would suggest that those three elements are to be treated equally however the Court seeks to treat them.

CALLINAN J: Mr Basten, could I just ask you one question? I think the Act contemplates, does it not, that native title rights are inalienable? Is that right?

MR BASTEN: Yes, I think it is based on that assumption, your Honour.

CALLINAN J: Indeed, I think that probably stems from what Justice Brennan said in Mabo. He said that this was, in effect, something, I think that stemmed from the nature of the title.

MR BASTEN: Yes. And, the relationship of the people of the land which is one of mutual right and obligation.

CALLINAN J: So, if you were to get exclusive rights here how could you, without alienating those rights or parts of them in some way, give people access and share around the fishing entitlement and things of that kind? Would not that involve an alienation?

MR BASTEN: Subject to a qualification I will come to, we would say no, your Honour, that the right is the right to control the use of the resource, fish or dugong or whatever it may be, not the actual activity of fishing or hunting.

CALLINAN J: Is a regulation of the right rather than an alienation of it?

MR BASTEN: That is so, yes, or a grant of permission to undertake the activity which the right envisages.

CALLINAN J: There might in some circumstances be, perhaps, an alienation. Care might have to be exercised to ensure that that was so. Is the common law, or perhaps contemporary law, and indeed, I think, fairly old law that inalienability was contrary to public policy, was that the common law or does that stem from the statute quia emptores or does it have some other source?

MR BASTEN: Depending on the nature of the interest - - -

CALLINAN J: I asked that because I am interested in the compatibility of whether a title which involves inalienability in some fractures the skeletal nature of the common law?

MR BASTEN: Well, I understand that point, your Honour. I am not going to be able to do it, I think, but that was expressly addressed by the Court in Mabo in a passage which I may not be able to put my finger on, but I think it should be around page 51, where it was considering - I think, Justice Brennan considered alienability as an inherent feature of a proprietary interest under the common law and said that it was not for the purposes of native title a necessary element.

CALLINAN J: Yes. Is it compatible with the common law?

MR BASTEN: That is what the Court found, I think, your Honour.

CALLINAN J: I suppose the Court must have, otherwise it would not have held - - -

MR BASTEN: I think it did expressly, your Honour.

CALLINAN J: Yes.

HAYNE J: There is another associated problem, is there not, that if you have the right to control access, the exclusive right to control access, based on traditional law which was founded in, amongst other things, gathering for consumption and ceremonial use, it is perhaps use of a different order to say, "Pursuant to our exclusive right to control access, M.G. Kalis can come in and clean the whole prawn fishery out".

MR BASTEN: That may, indeed, be so, your Honour. One of the qualifications which is sometimes expressed in determinations - I am not sure whether it is in this one - is that the rights must be exercised in accordance with traditional law and custom. It may, therefore, follow that anything which would either alienate or destroy the underlying res, perhaps, it could not be so dealt with. So that if one were, for example - sometimes the example is given of a development of a motel site or a hotel in a tourist development, it would be necessary to surrender the title and take back a grant in order to do that. We would accept the condition or the restriction that is imposed by your Honour's comment.

GLEESON CJ: Thank you, Mr Basten.

MR BASTEN: Thank you, your Honour, and thank you for your indulgence.

GLEESON CJ: We will reserve our decision in this matter and we will adjourn.

AT 3.36 PM THE MATTER WAS ADJOURNED