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Gumana v Northern Territory of Australia (with Corrigendum dated 22 February 2005) [2005] FCA 50 (7 February 2005)

Last Updated: 3 March 2005

FEDERAL COURT OF AUSTRALIA

Gumana v Northern Territory of Australia [2005] FCA 50

CORRIGENDUM

GAWIRRIN GUMANA & ORS on behalf of the YARRWIDI GUMATJ and Other Groups v NORTHERN TERRITORY OF AUSTRALIA and NORTHERN TERRITORY OF AUSTRALIA and COMMONWEALTH OF AUSTRALIA and NORTHERN TERRITORY SEAFOOD COUNCIL INC and ARNHEM LAND ABORIGINAL LAND TRUST and TELSTRA CORPORATION LTD

NTD 6035 OF 2002






ARNHEM LAND ABORIGINAL LAND TRUST and NORTHERN LAND COUNCIL and GAWIRRIN GUMANA, & ORS On behalf of the Yarrwidi Gumatj and other groups v NORTHERN TERRITORY OF AUSTRALIA and DIRECTOR OF FISHERIES (NT)

NTD 12 OF 2003




SELWAY J
7 FEBRUARY 2005 (CORRIGENDUM 22 FEBRUARY 2005)

ADELAIDE (HEARD IN YIRRKALA AND CANBERRA)

AND

CORRIGENDUM

In the Reasons of the Honourable Justice Selway delivered 7 February 2005 the following amendments are made:

Cover page – delete Aboriginal Land Rights (Northern Territory) Act, 1976 (Cth) from Authorities where it is mentioned for the second time.

Page 2 – delete Self Government Act (Act No 58 of 1978) from Legislation list.

Par 1 line 4 – insert the words ‘and from’ – should read ‘from the adjacent sea and from certain sites in the inter-tidal zone or in the sea’.

Par 17 line 11 – delete the word ‘sport’ – should read ‘medical treatment and to compete in sporting matches and so on’.

Par 34 line 5 – amend ‘respondent’s’ to ‘respondents’.

Page 20 – Heading of last paragraph of quote – amend section number ‘7’ to read ‘74’.

Par 121 line 2 – insert ‘: see’ – should read ‘Crown’s radical title: see Mabo’.

Par 121 line 6 – amend ‘("native title interests")’ to read ‘("native title rights")’.

Par 142 line 7 – delete ‘would’ – should read ‘which created inconsistent rights may be to "extinguish".’

Par 164 line 12 – insert the words ‘(as they did in this case)’ at the end of the sentence – should read ‘claims based on that evidence (as they did in this case)’.

Par 180 line 12 – insert ‘)’ after 32-33 – should read ‘at 32-33)’.

Par 207 part (b) line 8 – enclosed brackets should read ‘(e.g. an obligation to care for the land or an obligation to conduct or assist in particular ceremonies)’.

Par 249 line 3 – amend the sentence to read ‘For the reasons there given’ in lieu of ‘For the reasons given there’.

Par 250 line 8 – amend the spelling of ‘programe’ to ‘programme’.

Par 253 line 5 – amend ‘can be used to refer to either recognition’ to read ‘can be used to refer either to recognition’.

Par 253 line 6 – amend ‘or recognition’ to read ‘or to recognition’.

Par 271 lines 2 and 3 – insert brackets – to read ‘(which is contained in a letter dated 2 November, 2004 from the solicitors for the fifth respondent to the Court)’.

Par 275 part (c) line 5 – amend ‘of the rights of the all of the native title holders’ to read ‘of the rights of all of the native title holders’.


Associate

22 February 2005

FEDERAL COURT OF AUSTRALIA

Gumana v Northern Territory of Australia [2005] FCA 50

ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976 (CTH) – whether grant of fee simple "to low water mark" subject to public rights to fish or navigate – whether land grant limited to solid land – whether Fisheries Act 1988 (NT) can validly apply to inter-tidal zone – [51]–[93]

CONSTITUTIONAL LAW – Northern Territory – whether powers of Northern Territory Parliament to legislate within two kilometres of land grant limited by s 73 of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – [98]–[114] – whether Fisheries Act 1988 (NT) meets requirements of s 73 – [115]–[117]

NATIVE TITLE ACT – nature of determination of native title – "Translation" of indigenous right to statutory right in rem – [119]–[142] – right of exclusive possession – whether single right or "bundle of rights" – [235]–[240] – "non-recognition" at common law – public rights to fish and navigate – sacred sites – [242]–[244]

NATIVE TITLE ACT – effect of s 47A where "non-recognition" – [248]–[263] – constitutional validity of s 47A – [264]–[270]

EVIDENCE – evidence of custom – as evidence of fact – not opinion evidence or hearsay evidence – [152]–[162] – inference that custom existed since date of settlement – [196]–[202] – problems with anthropological evidence – [163]–166] – use of written statements in native title cases – [180]–[184]


Aboriginal Councils and Associations Act 1976 (Cth)
Aboriginal Land Act 1978 (NT)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Aboriginal Land Rights (Northern Territory) Act, 1976 (Cth)
Aboriginal Ordinance 1918 (NT)
Coastal Waters (Northern Territory Powers) Act 1980 (Cth)
Coastal Waters (Northern Territory Title) Act, 1980 (Cth)
Commonwealth Constitution
Control of Waters Act (NT)
Crown Lands Consolidation Act 1882 (SA)
Darwin Port Corporation Act (NT)
Evidence Act 1995 (Cth)
Fisheries Act 1988 (NT)
Interpretation Act (NT)
Judiciary Act 1903 (Cth)
Native Title Act 1993 (Cth)
Northern Territory (Administration) Act 1910 (Cth)
Northern Territory (Self Government) Act, 1978 (Cth)
Northern Territory (Self Government) Regulations 1978 (Cth)
Northern Territory Aboriginal Sacred Sites Act (NT)
Northern Territory Acceptance Act 1910 (Cth)
Northern Territory Crown Lands Act 1890 (SA)
Northern Territory Land Act 1899 (SA)
Northern Territory Surrender Act 1907 (SA)
Seas and Submerged Land Act, 1973 (Cth)
Self Government Act (Act No 58 of 1978)
Telecommunications Act 1997 (Cth)


Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)


Aboriginal Ordinance 1918 (NT)
Crown Lands Ordinance 1927
Interpretation Ordinance 1931 (NT)
Mining (Gove Peninsula Nabalco Agreement) Ordinance
Ports Ordinance 1962 (NT)
Social Welfare Ordinance 1964 (NT)
Welfare Ordinance 1953 (NT)


A Raptis & Sons v South Australia [1977] HCA 36; (1977) 138 CLR 346
AG (British Columbia) v AG (Canada) [1914] AC 153
AG (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475
AG v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643
AG v Schmidt [1961] HCA 21; (1961) 105 CLR 361
AG v Swan [1921] NSWStRp 28; (1921) 21 SR (NSW) 408
Allnutt v Inglis [1810] EngR 359; (1810) 12 East 527
Anderson v Alnwich DC [1993] 1 WLR 1156
Arnhem Land Aboriginal Land Trust v Director of Fisheries NT [2000] FCA 165; (2000) 170 ALR 1
Attorney-General (NT) v Ward [2003] FCAFC 283; (2003) 134 FCR 16
Auckland CC v Ports of Auckland Ltd [2000] NZCA 190; [2000] 3 NZLR 614
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Bienke v Minister for Primary Industries (1996) 63 FCR 567
Blundell v Catterall (1821) 5 B & Ald 268; 106 ER 1190
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Brinckman v Matley [1904] 2 Ch 313
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Butler v AG (Vic) [1961] HCA 32; (1961) 106 CLR 268
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Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
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Commonwealth v Evans Deakin Industries Ltd [1986] HCA 51; (1986) 161 CLR 254
Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1
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Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1
Croome v Tasmania [1997] HCA 5; (1997) 191 CLR 119
Crown Estate Commissioners v Fairlie Yachts [1978] ScotCS CSIH_3; [1979] SC 156
Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520
Daniel v Western Australia [2004] FCA 849; (2004) 208 ALR 51
De Rose v State of South Australia [2002] FCA 1342
De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325
Delgamuukw v British Columbia (1997) 153 DLR (4^th) 193
Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98; (2001) 109 FCR 488
Donaghy v Wentworth Area Health Service [2003] NSWSC 533
Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96
Georgeski v Owners Corporation SP49833 [2004] NSWC 1096
Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70
Goldsworthy Mining Ltd v Federal Commissioner of Taxation [1973] HCA 7; (1973) 128 CLR 199
Goodman v Mayor of Saltash (1882) 7 AC 633
Goodman v Saltash Corporation (1882) 7 App Cas 633
Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3d) 513
Hammerton v Honey (1876) 24 WR 603
Harper v Minister of Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314
Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32
Hill v Smith (1809) 10 East 475
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59
Illinois Central Railroad Co v Illinois [1892] USSC 229; 146 US 387 (1892)
Jango v Northern Territory (No 2) [2004] FCA 1004
Jango vNorthern Territory (No 4) [2004] FCA 1539
Jones v Public Trustee (Qld) [2004] QCA 269; (2004) 209 ALR 106
Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520
Lansen v Northern Territory [2004] FCAFC 257; (2004) 211 ALR 365
Lanyon Pty Ltd v Canberra Washed Sand Pty Ltd [1966] HCA 76; (1966) 115 CLR 342
Lardil Peoples v Queensland [2004] FCA 298
LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 688; (2001) 53 NSWLR 31
Lyon v Fishmongers’ Company [1876] 1 AC 662
Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Marine Board of Launceston v Launceston Corporation [1955] HCA 17; (1955) 93 CLR 472
Marshall v Smith [1907] HCA 33; (1907) 4 CLR 1617
Mason v Tritton (1994) 34 NSWLR 572
McKenzie v State Government of South Australia [2005] FCA 22
Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45; (1999) 110 FCR 244
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422
Miles v Rose [1814] EngR 626; (1814) 5 Taunt 705; 128 ER 868
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
Minister for Primary Industry and Energy v Davey (1994) 47 FCR 151
Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1
Munn v Queensland [2002] FCA 486
National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209
New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337
Newcrest Mining (WA) v Commonwealth [1997] HCA 38; (1997) 190 CLR 513
Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173
Parker v Lord Advocate [1904] AC 364
Pennington v McGovern (1987) 45 SASR 27
Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635
Port MacDonnell Professional Fishermens Assoc Inc v South Australia [1989] HCA 49; (1989) 168 CLR 340
Queen v Davison [1954] HCA 46; (1954) 90 CLR 353
R v Robertson (1882) 6 SCR 52
R v Kearney, Ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395
R v Smith (1780) 2 Doug R 441; 99 ER 283
Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511
Reid v Chapman (1984) 37 SASR 117
Risk v Northern Territory [2002] HCA 23; (2002) 210 CLR 392
Ritz Hotel v Charles of the Ritz (No 7) (1987) 14 NSWLR 104
Rogers v Squire (1978) 23 ALR 111
Sakurai v Northern Territory [2004] FCA 971; (2004) 208 ALR 483
Schleter t/as Cape Crawford Tourism v Brazakka Pty Ltd (2002) 12 NTLR 76
Southern Centre of Theosophy Inc v South Australia (1979) 21 SASR 399
Sportodds Systems Pty Ltd v New South Wales [2003] FCAFC 237; (2004) 133 FCR 63
The Genesee Chief [1851] USSC 62; 53 US 443 (1851)
The Queen v Joske Ex Parte Shop Distributive and Allied Employees’ Assoc [1976] HCA 48; (1976) 135 CLR 194
Thorpes Ltd v Grant Pastoral Co Pty Ltd [1955] HCA 10; (1955) 92 CLR 317
Tuckiar v The King [1934] HCA 49; (1934) 52 CLR 335
Wake v Northern Territory [1996] NTSC 56; (1996) 109 NTR 1
Warren v Matthews (1704) 6 Mod R 73; 87 ER 831
Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373
Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316
Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
Western Australia v Wilsmore [1982] HCA 19; (1982) 149 CLR 79
Wik Peoples v Queensland [1994] FCA 967; (1994) 49 FCR 1
Wik Peoples v Queensland (1997) 187 CLR 1
Williams v Booth [1910] HCA 12; (1910) 10 CLR 341
Wilson v Anderson (2002) 213 CLR 401
Yanner v Eaton (1999) 201 CLR 351
Yarmirr v Northern Territory [2000] FCA 48
Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533
Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606


Kaye, "The South Australian Historic Bays: An Assessment" [1995] AdelLawRw 7; (1995) 17 Adel L Rev 269
M H McLelland, "Colonial and State Boundaries in Australia" (1971) 45 ALJ 671
Sandford Clark "The River Murray Boundary: Muddying the Waters" (1983) 57 ALJ 260
Sandford Clark, "The River Murray Question"  [1971] MelbULawRw 2 ; (1971) 8 MULR 11
Secher, "The Reception of Land Law into the Australia Colonies Post-Mabo: The Continuity and Recognition Doctrines Revisited and the Emergence of the Doctrine of Continuity Pro-Tempore" [2004] UNSWLawJl 38; (2004) 27 UNSWLJ 703
Woodward, "Land Rights and Land Use: A View from the Sidelines" (1985) 59 ALJ 413


Clarke, Australian Water Law (1971) (unpublished PhD thesis)
Buku-Larrngay Mulka Centre Saltwater Yirrkala Bark Paintings of Sea Country
Freckeltyon, Reddy & Selby in Australia - Judicial Perspectives on Expert Evidence: An Empirical Study (1999)
Halsbury’s Laws of England (4th edn – re-issue) Vol 12(1)
Holdsworth An Historical Introduction to the Land Law (1927)
Lester "Aboriginal Land Rights: the territorial rights of the Inuit of the Canadian Northwest Territories; a legal argument (Repub 1985)
Plucknett A Concise History of the Common Law (5^th ed, 1956)


Mantziaris & Martin Native Title Corporations (2000)
Nettheim Governance Bodies and Australian Legislative Provision for Corporations and Councils (1999)


GAWIRRIN GUMANA & ORS on behalf of the YARRWIDI GUMATJ and Other Groups v NORTHERN TERRITORY OF AUSTRALIA and NORTHERN TERRITORY OF AUSTRALIA and COMMONWEALTH OF AUSTRALIA and NORTHERN TERRITORY SEAFOOD COUNCIL INC and ARNHEM LAND ABORIGINAL LAND TRUST and TELSTRA CORPORATION LTD

NTD 6035 OF 2002




ARNHEM LAND ABORIGINAL LAND TRUST and NORTHERN LAND COUNCIL and GAWIRRIN GUMANA, & ORS On behalf of the Yarrwidi Gumatj and other groups v NORTHERN TERRITORY OF AUSTRALIA and DIRECTOR OF FISHERIES (NT)

NTD 12 OF 2003




SELWAY J
7 FEBRUARY 2005
ADELAIDE (HEARD IN YIRRKALA AND CANBERRA)

THE COURT ORDERS THAT:

1. The proceedings be adjourned to a date to be advised to enable the parties to make submissions as to the appropriate terms of final orders.

2. Question of costs be reserved.
3. Liberty to apply.





Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
AND

THE COURT ORDERS THAT:

1. The proceedings be adjourned to a date to be advised to enable the parties to make submissions as to the appropriate terms of final orders.

2. Question of costs be reserved.
3. Liberty to apply.







Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND

REASONS FOR JUDGMENT

1 The essential issue raised in these proceedings is whether, and to what extent, the traditional owners of parts of Blue Mud Bay in north-east Arnhem Land can exclude fishermen and others from the "inter-tidal zone" of the claim area and from the adjacent sea certain sites in the inter-tidal zone or in the sea. In order to raise and test this issue the applicants have issued two proceedings. In the first proceeding the relevant applicants seek declarations that by reason of land grants to the applicants under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act) and the provisions of that Act the Northern Territory lacks the legislative and executive power to issue fishing licences over the inter-tidal zone and the adjacent sea within 2 kilometres of the low water mark. In the second proceeding the relevant applicants seek a determination of native title rights under the Native Title Act 1993 (Cth) (the NTA).

2 For the reasons given below, I am of the opinion that it is inappropriate to make any of the declarations sought by the applicants in the first proceeding relating to the powers of the Northern Territory to issue fishing licences.

3 Also for the reasons given below I find:

(i) As to the "land" other than the inter-tidal zone (which term refers to the area of the foreshore between the low and high water mark and to the area of rivers and estuaries affected by the ebb and flow of the tides) – the applicants have a native title right of exclusive possession:

(ii) As to the sea and the inter-tidal zone – the applicants have native title rights similar to those identified in Yarmirr: (see Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 at 144-145 [327]) as further explained in Lardil Peoples v Queensland [2004] FCA 298.

4 I seek further submissions from the parties as to the form and terms of final orders.

INTRODUCTION

5 The area of north-east Arnhem Land has a distinctive history. The Aboriginal inhabitants of the area form a distinct cultural group with similar languages, traditions and customs. They are generally described as the "Yolngu" people. That word apparently has a number of different meanings - it is used in these reasons to refer to that cultural group. The claimants are all Yolngu people. The clans that they represent are identified by Yolngu tradition.

GENERAL CONSTITUTIONAL BACKGROUND

6 The area of north-east Arnhem land, being to the eastward of the 135^th degree of east longitude, formed part of the colony of New South Wales when it was first settled in January, 1788. Apart from a period from 1846-1848 when that area formed part of a separate colony of North Australia, the area remained part of New South Wales until September, 1863. It was then annexed to the province of South Australia pursuant to letters patent dated 6 July, 1863. Those letters patent referred to the area which had previously formed part of the colony of New South Wales, but also expressly included "the bays and gulfs therein". This is discussed in more detail below.

7 When the federal Commonwealth was created in 1901 by the Commonwealth Constitution the Northern Territory formed part of the State of South Australia. Pursuant to the powers conferred by s 111 of the Constitution the Northern Territory, "together with the bays and gulfs therein" was surrendered by South Australia to the Commonwealth by s 7 of the Northern Territory Surrender Act, 1907 (SA) and by s 6 of the Northern Territory Acceptance Act 1910 (Cth). Thereafter the Northern Territory was a Territory for the purposes of the Commonwealth Constitution. This history is described in M H McLelland, "Colonial and State Boundaries in Australia" (1971) 45 ALJ 671 and in the judgment of Gallop J in Rogers v Squire (1978) 23 ALR 111 at 116-119 and in the joint judgment of Beaumont and von Doussa JJ in Commonwealth v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171 (Yarmirr FC) at 199-200 [92] – [95].

8 In the reasons of McHugh J and of Callinan J in the High Court in Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 (Yarmirr HC) at 70-71 and 148-150 both of their Honours refer to the extension of the territory of New South Wales in 1824 to include the remaining part of what is now the Northern Territory to the west of the 135^th degree of east longitude. It may be that there is an implication that their Honours were of the view that the area of north-east Arnhem land had not been claimed by the British Crown before 1824. Nevertheless, it is clear (and was accepted by all parties) that the area that is the subject of the current proceedings (leaving aside the "bays and gulfs") was claimed by the British Crown as from January, 1788.

9 The Northern Territory was governed by the Commonwealth Government from 1911 pursuant a variety of statutes, but particularly the Northern Territory (Administration) Act 1910 (Cth) (the Administration Act). Responsible self-government was conferred on the Northern Territory by the Northern Territory (Self Government) Act 1978 (Cth) (the Self Government Act).

HISTORY OF THE CLAIMANT AREA

10 Although there had been some historical contact between the Yolngu inhabitants of the Blue Mud Bay area and Macassan trepang traders up until the early 20^th century, there was little contact between those inhabitants and "Europeans" until the late 1920s.

11 In the period from 1884-1913 pastoral leases were granted over large parts of east Arnhem land, including the Blue Mud Bay area. The leases were granted pursuant to South Australian legislation – the Crown Lands Consolidation Act 1882 (SA); then the Northern Territory Crown Lands Act 1890 (SA) and finally the Northern Territory Land Act 1899 (SA). Each of the leases was for pastoral purposes. Each of them expressly excepted to the "Aboriginal inhabitants of the State and their dependants" the "full and free right of ingress egress into upon and over the said lands and every part thereof and in and to the springs and natural surface water thereon and to make such wurlies and other dwellings as the Aboriginal Natives have been heretofore accustomed to make and erect and take and use for food birds and animals ferae naturae in such manner as they would have been entitled to do if this lease had not been made". The history of these leases is explained in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (Milirrpum) at 148.

12 On 16 April, 1931 the Arnhem Land Reserve was created "for the use and benefit of Aboriginal native inhabitants" pursuant to the Crown Lands Ordinance 1927. The land of the Blue Mud Bay area formed part of the Reserve.

13 Although the claim area had formed part of various pastoral leases and then a reserve, what limited early physical interaction there was between the Yolngu people near Blue Mud Bay and "Europeans" or other "outsiders" would seem to have been violent and bloody. In 1932 there were a number of deaths of Japanese fishermen. This led to the intervention of the police which ultimately resulted in the death of a police constable on Woodah Island (which is in Blue Mud Bay, but outside the claim area) in 1932. Those events are described in Tuckiar v The King [1934] HCA 49; (1934) 52 CLR 335.

14 One result of those events was an increasing interest by the Commonwealth government in the area of north-east Arnhem land. It engaged an anthropologist, Donald Thomson, to work with the Aboriginal people in the area and to report on what should be done. Another result was an increased involvement by the Methodist Church in establishing a mission station at Yirrkala in 1935. In the ensuing years many of the aborigines of the north-east Arnhem land, including most of those of the Blue Mud Bay area, moved to Yirrkala or to mission stations to the south at Roper River or Numbulwar (established in 1952).

15 In the 1960s the Yolngu people then living at Yirrkala and with traditional lands in the vicinity of Melville Bay took various steps to protect their traditional lands from proposed mining operations on the Gove Peninsula. In 1963 they petitioned the Parliament (the Bark petition) seeking its protection. This led to the creation of a Select Committee of the House of Representatives which reported that year. Its report is mentioned in the reasons of Sackville J in Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98; (2001) 109 FCR 488 (Land Trust Case FC) at 495-496. Apparently as a result of that report the previous reservation was resumed by proclamation made on the 27 November, 1963 and replaced by a different reserve created "for the use and benefit of wards as defined under s 6 of the Welfare Ordinance 1953-1963". As Sackville J noted:

‘The description of the consolidated Arnhem Land Reserve in the 1963 proclamation differed from that found in the earlier proclamations. In particular, the boundaries of the lands within the Reserve were identified by reference to the low water marks of various rivers and of the Timor or Arafura Seas. As with the Grant in 1980, the description of the reserved lands employed straight lines joining the extremities of the banks of rivers, streams and estuaries.’

16 The political representations of the Yolngu people were otherwise unsuccessful, at least initially. In 1968 the Mining (Gove Peninsula Nabalco Agreement) Ordinance was enacted providing for the grant of mining leases for the mining and treatment of bauxite in the area between Yirrkala and Melville Bay. In 1968 the traditional owners instituted proceedings in the Supreme Court of the Northern Territory seeking to restrain the proposed mining operations. They were ultimately unsuccessful in those proceedings, although the Court did identify that the plaintiffs had a system of traditional laws and possessed traditional rights under those traditional laws: see Milirrpum. Although the area in dispute in that case did not involve Blue Mud Bay, some of those having traditional rights in the area of Blue Mud Bay were involved in the case either as witnesses or as interpreters.

17 In the early 1970s a number of Yolngu people then living at Yirrkala, but with traditional lands elsewhere in east Arnhem land, began to relocate back to their traditional lands. This was part of the "homeland centre movement" which occurred in Aboriginal communities throughout northern Australia at that time. It was given added impetus in East Arnhem land by the creation of the town of Nhulunbuy near Yirrkala to service the mining operations and the development of better infrastructure throughout the region to service the mine. Permanent settlements were established at Yilpara, Djarrakpi, Gangan and other places on or near Blue Mud Bay. By the mid 1970s the majority of the Yolngu from northern Blue Mud Bay had moved to one or other of these homeland centres. They continue to live at those places. They are partly dependant on food obtained from hunting, fishing and gathering. They visit Yirrkala and Nhulunbuy for supplies, medical treatment and sport, to compete in sporting matches and so on.

THE LAND RIGHTS ACT

18 Following the decision in Milirrpum the Commonwealth Government established a Commission (the Woodward Commission) to report on Aboriginal rights in the Northern Territory. The direct result of the two reports made by the Commission (the Woodward reports) was the enactment by the Commonwealth Parliament of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act). The relationship of the Woodward Reports to the Land Rights Act has been discussed in a number of cases, including in Arnhem Land Aboriginal Land Trust v Director of Fisheries NT [2000] FCA 165; (2000) 170 ALR 1 (the Land Trust Case TJ) at 8; the Land Trust Case FC at 495 and 497-501 and Risk v Northern Territory [2002] HCA 23; (2002) 210 CLR 392 (Risk) at 405-406, 408-409, 414, 418-420 and 425-428. See also Woodward, "Land Rights and Land Use: A View from the Sidelines" (1985) 59 ALJ 413.

19 The area of Blue Mud Bay was contained within the area described as "Arnhem Land (Mainland)" in Sch 1 of the Land Rights Act. That area corresponds generally with the boundaries of the previous reserve created in 1963. The seaward boundary of the relevant land was defined as the low water mark. Once a Land Trust was established for the purpose, the relevant Minister was required under s 10 of the Land Rights Act to recommend to the Governor-General that he make a deed of a grant of fee simple over the land referred to in Sch 1 of the Act. Upon the establishment of the Arnhem Land Aboriginal Trust (the Trust) a grant of fee simple was made in 1980 to the Trust over the land, including the "land" area of Blue Mud Bay. The relevant terms of the grant were as follows:

‘NOW THEREFORE I, SIR ZELMAN COWEN ... Governor-General of the Commonwealth of Australia ... acting in accordance with the said recommendation, DO HEREBY GRANT to the [Arnhem Land Trust] an Estate in Fee Simple subject to the provisions of the [Land Rights Act] and subject to the conditions reservations and exceptions hereinafter contained in ALL THAT land in the Northern Territory of Australia above a line along the low water mark with its boundary along the seacoast of the Van Diemen Gulf, the Arafura Sea and the Gulf of Carpentaria, but excluding from the said line those parts along the low water marks of all intersecting rivers, streams and estuaries inland from a straight line joining the seaward extremity of each of the opposite banks of each of the said rivers, streams and estuaries so that the aforesaid boundary line shall follow that part below low water mark of each of the aforesaid straight lines across each of the aforesaid rivers, streams and estuaries ... being more particularly shown on Compiled Plan 4181 ... .

AND I HEREBY RESERVE AND EXCEPT to the Commonwealth of Australia the right to any minerals existing in their natural condition, ... on or below the surface of the said land, being minerals all interests in which are vested in the Commonwealth of Australia ....

AND I HEREBY RESERVE AND EXCEPT to the Northern Territory of Australia the right to any minerals existing in their natural condition, on or below the surface of the said land, being minerals all interests in which are vested in the Northern Territory of Australia ...’.

20 The Land Trust holds the land "for the benefit of the Aboriginals concerned": s 5(1)(b) of the Land Rights Act. The Land Trust is required to act in accordance with directions given to it by the Northern Land Council: s 5(2) of the Land Rights Act. The functions of the Northern Land Council include the protection of "the interests of traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council": s 23(1)(b) of the Land Rights Act.

PREVIOUS LEGAL PROCEEDINGS

21 In the mid-1990s members of the communities at Blue Mud Bay became aware of fishing activities in the waters of Blue Mud Bay. The communities determined to seek to control that activity. In one instance they entered into an agreement with a commercial crabber to permit that crabber to have access to their land as a base for crabbing activities and to give the crabber the "right" to take crabs from Blue Mud Bay. Others who sought access to the land and the waters were refused. Increased attempts were made by the communities to inform those seeking to fish in Blue Mud Bay that they required permission and that, in the absence of it, they should leave.

22 At the same time the communities of Blue Mud Bay sought to establish their rights in the waters of Blue Mud Bay. For this purpose a number of bark paintings evidencing the relationship of the various clans in the Blue Mud Bay with the waters of the Bay were created. Copies of a number of those paintings were put into evidence by the persons who painted them. They are also collected in a book published by the Buku-Larrngay Mulka Centre Saltwater Yirrkala Bark Paintings of Sea Country which explains the meanings of the paintings and the nature of the claims represented in them.

23 Finally, in order to assert and establish the claims of the Yolngu people to part of the waters of Blue Mud Bay, the Trust instituted proceedings in this Court. Initially two proceedings were instituted. In one – Arnhem Land Aboriginal Land Trust v Director of Fisheries NT (Action No D 5 of 1997) - orders were sought that the Director of Fisheries of the Northern Territory did not have the power to issue fishing licences in the tidal waters within the area of the land grant. In the other - Yakiki Maymuru v Northern Territory (No DG 6043 of 1998) a determination of native title was sought in the waters of the Blue Mud Bay and in the adjacent land.

24 Preliminary questions of law were agreed by the parties in the action dealing with the powers of the Director. Those questions were dealt with by Mansfield J in Land Trust Case TJ. His Honour held:

(1) The solum between the low and high water mark was included within the grant. Some forms of aquatic life, such as mussels may form part of the solum and fall within the grant: see Land Trust Case TJ at 22 [87].
(2) In relation to the ownership of the waters covering the land between low and high water marks, the issue was governed by the decision of the Full Court in Yarmirr FC which held that such waters were not included within the grant and that such waters were subject to the public right to fish: see Land Trust Case TJ at 10 [32] and 12-14 [39]-[47].
(3) The various legislative regimes applicable to fishing in the Northern Territory did not abrogate the public right to fish – rather, they regulated that right: see Land Trust Case TJ at 17-18 [70]. Nor did those regimes involve the grant of a property right to any licence holder over the area between the low and high water marks of the land grant: see Land Trust Case TJ at 18 [72].
(4) Notwithstanding the grant made under the Land Rights Act, the common law public right to fish continued in relation to waters covering the land between the low and high water marks: see Land Trust Case TJ at 19-20 [73]-[82].
(5) However, the grant under the Land Rights Act impliedly abrogated the public right to fish in relation to waters to the landward of the high water mark including in relation to the waters of rivers where the tide flows and reflows: see Land Trust Case TJ at 20-22 [79]-[84].
(6) In consequence the Northern Territory fisheries legislation operated to the seaward of the high water mark, but not to the landward of the high water mark. The Northern Territory fisheries legislation did not operate in rivers to the landward side of a line drawn between the high water mark of the land on the bank of the river, even if the river was affected by the ebb and flow of the tide.

25 The Director appealed from that decision. The Full Court in Land Trust Case FC allowed the appeal on the basis that the facts before Mansfield J were insufficient for him to answer the questions that had been agreed by the parties (see Land Trust Case FC at 519-525). Nevertheless, the Full Court considered it unlikely that the grant under the Land Rights Act had included a right in the Trust on behalf of the Yolngu communities to exclude persons exercising a public right to fish. As Sackville J (with whom Spender and Merkel JJ agreed) put it at 525-526:

‘Without expressing a final view, I should indicate that, in my view, there are obstacles in the path of accepting the cross-appellants’ contention that the grant of the fee simple estate to the Arnhem Land Trust, of itself, carried with it exclusive rights to fish in the Waters. That contention is not easy to reconcile with the legislative history of the Land Rights Act, which tends to suggest that the fee simple estate granted pursuant to s 12(1) carried "all the normal incidents of such title" (to use the language of the Second Report ...). If that is correct, it would seem to follow that the Arnhem Land Trust’s right to "enjoy the exclusive right of fishing in [the Waters] or to grant such a right to another as a profit a prendre is qualified by the paramount right to fish vested in the public"(Harper v Minister for Sea Fisheries at 329, per Brennan J, with whom the other members of the Court agreed). See also Attorney-General (British Columbia) v Attorney-General (Canada) [1914] AC 153 at 170-171. I also think that there are difficulties with the contention that the "scheme" of the Land Rights Act is to confer on the Arnhem Land Trust exclusive rights to the Waters.’

CURRENT PROCEEDINGS

26 The applicants then issued further proceedings in order to narrow the issues. Another application was made for a determination of native title in relation to a narrower claim area and that area was excised from the previous claim. The new proceedings in relation to the smaller claim area (No D6035 of 2002) are the proceedings that are before me. The claimants are Messrs Gawirrin Gumana, Djambawa Marawili, Marrirra Marawili, Nuwandjali Marawili, Daymambi Mununggurr, Manman Wirrpanda and Dhukal Wirrpanda on behalf of the Yarrwidi Gumatj, Manggalili, Gumana Dhalwangu, Wunungmurra (Gurrumuru) Dhalwangu, Dhupuditj Dhalwangu, Munyuku, Yithuwa Madarrpa, Manatja, Gupa Djapu, Dhudi Djapu, Marrakulu 1, Marrakulu 2, Wanawalakuymirr Marrakulu, Djarrwark 1, Djarrwark 2, and Gälpu groups. The groups are Yolngu clans claiming to hold native title interests in the claim area.

27 The "claim area" is described on a map forming part of the Statement of Claim and more particularly in the Amended Application filed on 13 August 2004. In more general terms the claim area is in the northern part of Blue Mud Bay and comprises Myaoola Bay, Grindall Bay and the shores of the eastern side of Jalma Bay with adjacent lands. More particularly the claim area can be described as follows:

‘(1) The south-western point of the boundary commences at a point on the coastline of Jalma Bay at about 135.56.19E and -13.02.33N and thence proceeds in a generally south easterly direction generally along the low water mark of the coastline of Jalma Bay until it reaches the southern most point at low water mark at Grindall Point.

(2) From Grindall Point the boundary proceeds generally in an easterly direction across the bight of Grindall Bay to the southern most point of Round Hill Island at low water mark, and thence continues across the bight of Grindall Bay until it reaches the southern most point at low water mark at Point Blane.

(3) From Point Blane the boundary continues in a generally easterly direction across the bight of Myaoola Bay until it reaches the southern most point at high water mark at Cape Shield at about 136.19.58E and -13.19.34N.

(4) From Cape Shield the boundary follows generally the high water mark of the coastline of Myaoola Bay until it reaches a point in Myaoola Bay at about 136.21.20E and -13.03.07N and then proceeds inland generally in a north-westerly direction to a point near Wyonga River at about 136.19.41E and -12.55.34N.

(5) From that point near Wyonga River the boundary proceeds inland generally in a south-westerly direction to a point near Gan Gan at about 135.56.19E and -13.02.33N, and from there the boundary proceeds inland generally in a southerly direction until it reaches the south-western point of the boundary of the determination area on the coastline of Jalma Bay at about 135.56.19E and -13.02.33N.’

28 The claim area does not comprise all of the traditional lands of at least some of the claimant clans. It is accepted by all the parties that the claim area has been identified by the claimants on a relatively arbitrary basis so as to enable them to test the issues that they seek to have resolved in these proceedings.

29 In addition the Arnhem Land Aboriginal Land Trust (‘the Land Trust’) and others have instituted proceedings under s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) seeking declarations of their rights under the land grant and seeking orders to restrain the Director of Fisheries and the Northern Territory from issuing fishing licences in relation to parts of the claim area. It is claimed that the issue of those fishing licences is in breach of the provisions of the Land Rights Act and is unlawful. Subject to an argument of the Commonwealth that there is no relevant "matter" (discussed below), this Court has jurisdiction to hear those proceedings in that they involve a matter arising under a Commonwealth Act. In any event, they are associated with the proceedings seeking a determination of native title rights.

30 The two proceedings were heard together. Evidence in one was treated as evidence in the other. In these reasons the words "the applicants" and "the respondents" need to be understood in the context of the proceedings being discussed so as to refer to one or other group of applicants and respondents. Given the close correspondence between these groups I hope that this does not result in too much confusion.

ISSUES IN THE PROCEEDINGS

31 The application under the Judiciary Act was based, in part at least, upon an argument that the Trust had a right to exclude from the whole of the area of the land grant, including a right to exclude persons fishing or navigating in the "inter-tidal zone" (a term which is used in these reasons to refer to "the foreshore" (being the area of the shore between high and low water marks) and that part of rivers and estuaries that is affected by the tides).

32 The application for a determination of native title initially involved, at least in general terms, a claim of a native title right of exclusive occupation over the whole of the claim area comprising both land and sea.

33 The potential issues in both proceedings were limited significantly by agreements and concessions made by the parties during the course of the proceedings.

34 It was accepted by all parties that a land grant of a fee simple estate had been made to the Trust pursuant to the Land Rights Act and that the "land" area of the claim to the low water mark was included within the grant. Save for an argument by the Commonwealth about common law rights to navigate in navigable rivers (an argument not reflected in the pleadings) the respondent’s accepted that the Trust and the other applicants have an exclusive right to occupy that area except in relation to the inter-tidal zone.

35 In the native title proceedings the respondents have conceded in their respective defences that the applicants have a native title right of exclusive possession to that part of the claim to the landward of the high water mark excluding rivers and estuaries that are subject to the tides.

36 During the course of his opening address Mr Basten QC, appearing for the applicants, made significant concessions in relation to the native title claim to the seaward of the low water mark. In the course of giving reasons in interlocutory proceedings I described those concessions as follows:

‘In relation to the claim to the seaward of the low water mark, Mr Basten conceded that the claimants could not succeed in their claim for exclusive possession of all of that area. He conceded that the applicants could only succeed in relation to that area in obtaining a determination of nonexclusive rights of the sort identified in Yarmirr v The Commonwealth, and I refer in particular to [2001] 208 CLR at page 33 paragraph 2, and 144 to 145 paragraph 327. Mr Basten said that he was not limiting his argument to the specific form of words used in that determination, but plainly enough the concession was that rights of that sort were the rights being claimed.

The concession was qualified, however, Mr Basten said that the claimants continued to claim rights of exclusive possession, and in particular the right to exclude, in relation to two or maybe three areas. First, sites of particular spiritual significance to which all persons were excluded. This either included
or involved in addition, areas where women and uninitiated or uninvited men
were also excluded. Finally, there were larger sites generally associated with
the particular spiritual sites already referred to, from which people were excluded either generally or for particular purposes during particular times, usually associated with funerals but perhaps also with other ceremonies.

As I understand it, the claimants do not seek to resile from those concessions. I note that they would require leave to do so, and that they may face considerable difficulty in obtaining such leave. See the discussion by Moore J in Annayev Proprietary Limited ats L. Fott Proprietary Limited,(T3,10.40M) unreported judgment given on 11 November 1997.’

37 The applicants did seek to amend their Statement of Claim in the proceedings arising under the NTA for the purpose of reflecting these concessions, but I declined to grant them leave to do so because in my view the proposed terms upon which they sought to amend their pleadings would not have clarified the position.

38 The concessions made by the applicants were accepted by the respondents. As I understand it none of them disputed that the applicants could and should obtain a determination in relation to the claim area to the seaward of the low water mark in the same general terms as the determination made in Yarmirr HC. In a letter from the Solicitor General of the Northern Territory (Mr Pauling QC) to the solicitor for the Northern Land Council dated 6 April, 2004 the position of the Northern Territory was stated as follows:

‘... I wish to formally advise that the Northern Territory would be prepared to consent to a determination of non-exclusive and non-commercial native title rights and interests in the claim area of the abovementioned matter, in the same or similar terms which have been recognised and accepted by the Courts in determinations of native title relating to waters of the sea, such as in Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 and, more recently, in Lardil Peoples v Queensland [2004] FCA 298.’

39 At the directions hearing on 6 April 2004 Ms Webb, counsel for the Commonwealth stated:

‘I’m instructed that the Commonwealth is prepared to make admissions to the effect that the applicants hold native title rights of the kind found in Croker Island and Lardil seaward of high water mark.’

40 At the same directions hearing Mr Hiley, counsel for the Northern Territory Seafood Council Inc stated:

‘... we make admissions of the same kind as those which Ms Webb has just made on behalf of the Commonwealth. And as those which are defined in the letter that Mr Pauling has ... to the Court on behalf of the Northern Territory.’

41 As already noted, there were qualifications to the concessions made by Mr Basten QC. The applicants continued to claim rights of exclusive possession (and, in particular, the right to exclude) in relation to the sea below low water mark in relation to particular areas. First, from sites of particular spiritual significance (called djalkiri areas) to which all persons were excluded or to which specific groups, particularly women, uninitiated men and men not relevantly associated with the relevant land were excluded. Second, somewhat larger sites from which persons were temporarily excluded either generally or for specific purposes (such as fishing or hunting) in relation to particular events, such as the deaths of clan members or the conduct of particular ceremonies.

42 The result of the agreements and concessions referred to is that the contested issues which require resolution are largely limited to the inter-tidal zone and to the djalkiri areas.

43 In addition the applicant’s also seek to argue that the Fisheries Act 1988 (NT) (‘Fisheries Act’) should be read down so as not to apply within 2 kilometres of the boundary of the land grant by reason of s 73 of the Land Rights Act.

44 Notwithstanding the agreements reached and the concessions made, there are still a significant number of issues raised by the proceedings. In particular:

(a) Do all of the issues raised in the Judiciary Act proceedings raise a "matter" for the purposes of Chapter III of the Commonwealth Constitution?
(b) If they do, does the land grant confer on the Land Trust the exclusive right of occupation over the whole area of the grant? In particular, does it exclude any subsisting public right to fish over the whole area of the grant? If not, does it do so:

i. Between the high water mark and the low water mark?

ii. In those parts of rivers affected by the flow and reflow of the tide and, if so, in which parts?

(c) If there is a "matter" does s 73 of the Land Rights Act limit the powers of the Northern Territory Parliament in relation to the regulation of fisheries within the area of the grant and/or within 2 kilometres to the seaward of the area of the grant?
(d) For the purposes of s 225 of the NTA what are the native title interests of the claimants in relation to the area covered by the grant? In particular, do the applicants have a native title right of exclusive occupation to the inter-tidal area? Do they have a right to exclude from the djalkiri areas?
(e) For the purposes of s 225 of the NTA what other rights and interests exist in relation to the area covered by the grant?
(f) In light of the answer to issue (d) what is the effect of s 47A of the NTA?
(g) Is s 47A of the NTA within the powers of the Commonwealth Parliament? In particular, is s 47A invalid for being inconsistent with the separation of judicial power implicit within Chapter III of the Commonwealth Constitution.
(h) In light of the answers in relation to the above issues does the Fisheries Act authorise the Director to grant licences in relation to:

i. The inter-tidal zone within the claim area?

ii. The djalkiri areas?

(i) In light of the answers to the above issues what determination of native title should be made pursuant to ss 81, 94A and 225 of the NTA.

45 These issues (including whether it is inappropriate to address any of them) and the subsidiary issues that need to be resolved in respect of them are considered below.

"MATTER"

46 In the Judiciary Act proceeding the applicants seek declarations that they have the right to exclude people who seek to enter, for the purposes of fishing, land and waters anywhere within the boundaries of the land including the inter-tidal zone and inland waters. The applicants also seek declarations to the effect that the Fisheries Act does not affect the rights just described to any extent; that the Fisheries Act does not permit the issuing of fishing licences which permit fishing in the inter-tidal zone of the Arnhem Land grants, or waters of the sea within two kilometres of the external boundaries of the Arnhem Land grants and that the Fisheries Act has no application to waters of the sea adjoining, and within two kilometres of the boundaries of the Arnhem Land grants.

47 The jurisdiction of this Court is confined to the resolution of "matters": see ss 75 and 76 of the Commonwealth Constitution. A "matter" requires a real dispute concerning an immediate right or liability. In particular, a declaration cannot be sought as a means of obtaining an advisory opinion: see Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 355-356 [47].

48 In this case it seems to me that the general declarations as to the nature and extent of the rights conferred upon the applicants by the land grant do not give rise to a matter. In particular, I do not think that any of the respondents have a necessary interest in opposing those declarations, except to the extent that they affect their own powers and rights.

49 The Commonwealth also argued that the specific declarations sought by the applicants in relation to the powers of the Director and the operation of the Fisheries Act, did not give rise to a "matter". The Commonwealth said that it was necessary for the declarations to relate to specific licenses granted under the Fisheries Act which were claimed to be invalid. In my view the application for those declarations does concern a "matter". The application was preceded by an exchange of correspondence. In a letter of 21 April 1997 the Director asserted that he did have the power pursuant to the Fisheries Act to grant licenses in relation to the inter-tidal zone and in relation to waters within two kilometres of the land grant. In my view that correspondence was sufficient to identify a real dispute as to the powers under the Fisheries Act and whether those powers could be used to interfere with the rights claimed by the applicants. It was not necessary to show that the power would be exercised: see Croome v Tasmania [1997] HCA 5; (1997) 191 CLR 119. Even if that were necessary, the clear implication from the correspondence is that the Director intends to exercise the powers that he has in the manner in which he understands them. In my view that dispute between the parties can be tested by declaratory proceedings in this Court.

50 In my view this Court has jurisdiction to determine whether the Fisheries Act validly permits the issuing of fishing licenses authorising fishing in the inter-tidal zone of the land grant, or waters of the sea within two kilometres of the external boundaries of the land grant and whether the Fisheries Act has any application to waters of the sea adjoining, and within two kilometres of the boundaries of the land grant and to make appropriate declarations in that regard.

THE RELATIONSHIP BETWEEN THE FISHERIES ACT AND THE GRANT

51 The powers of the Northern Territory Parliament are contained in s 6 of the Self Government Act. That confers upon the Territory Parliament the power to legislate for the "peace, order and good government" of the Territory. That power, combined with the power contained in s 5(c) of the Coastal Waters (Northern Territory Powers) Act 1980 (Cth) (Coastal Powers Act) empowers the Northern Territory Parliament to enact the Fisheries Act.

52 However, the powers conferred by the Self Government Act and the Coastal Powers Act must be read in the context of other Commonwealth statutes which may limit the apparent breadth of the powers conferred upon the Northern Territory Parliament: see Fullagar J in Butler v AG (Vic) [1961] HCA 32; (1961) 106 CLR 268 at 273-274 and see Brennan J in R v Kearney, Ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395 at 418-419. In particular, s 57(3) of the Self Government Act acknowledges that the Northern Territory Parliament does not have the power to alter or repeal laws made by the Commonwealth Parliament.

53 For present purposes the Fisheries Act has two relevant effects: (1) it prohibits commercial fishing within the Northern Territory, including the coastal sea, unless the person taking the fish holds an appropriate licence granted by the Director under s 11 and (2) it authorises a person who holds such a licence to take fish in accordance with the Act and the licence. (I note that there are exceptions in relation to persons taking fish for "subsistence or personal use" subject to prescribed limits.)

54 The applicants argue that the powers of the Northern Territory Parliament to enact the Fisheries Act are relevantly limited by the Land Rights Act. They argue that the land grant made under the Land Rights Act was a grant made to the low water mark and included the area of navigable streams to a boundary line drawn between the points of the shore at low water mark. The applicants say that that grant was necessarily inconsistent with the power of the Northern Territory Parliament to authorise persons to fish on the landward side of the boundary of the land grant.

55 In addition s 70 of the Land Rights Act prevents access to the land by persons who are not traditional owners of it. It provides in part:

‘Entry etc. on Aboriginal land

(1) A person shall not enter or remain on Aboriginal land.

Penalty: $1,000.

(2) Where a person, other than a Land Trust, has an estate or interest in Aboriginal land:

(a) a person is entitled to enter and remain on the land for any purpose that is necessary for the use or enjoyment of that estate or interest by the owner of the estate or interest; and

(b) a law of the Northern Territory shall not authorize an entry or remaining on the land of a person if his or her presence on the land would interfere with the use or enjoyment of that estate or interest by the owner of the estate or interest.

(2A) In proceedings for an offence against subsection (1), it is a defence if the person enters or remains on the land in performing functions under this Act or otherwise in accordance with this Act or a law of the Northern Territory.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2A) (see subsection 13.3(3) of the Criminal Code ).

(3) In proceedings for an offence against subsection (1), it is a defence if the person charged proves that his entry or remaining on the land was due to necessity.

(4) ... ’

56 Sections 73 and 74 of the Land Rights Act make specific provision for the powers of the Northern Territory Parliament. They provide:

’73 Reciprocal legislation of the Northern Territory

(1) The power of the Legislative Assembly of the Northern Territory under the Northern Territory (Self-Government) Act 1978 in relation to the making of laws extends to the making of:

(a) laws providing for the protection of, and the prevention of the desecration of, sacred sites in the Northern Territory, including sacred sites on Aboriginal land, and, in particular, laws regulating or authorizing the entry of persons on those sites, but so that any such laws shall provide for the right of Aboriginals to have access to those sites in accordance with Aboriginal tradition and shall take into account the wishes of Aboriginals relating to the extent to which those sites should be protected;

(b) laws regulating or authorizing the entry of persons on Aboriginal land, but so that any such laws shall provide for the right of Aboriginals to enter such land in accordance with Aboriginal tradition;

(c) laws providing for the protection or conservation of, or making other provision with respect to, wildlife in the Northern Territory, including wildlife on Aboriginal land, and, in particular, laws providing for schemes of management of wildlife on Aboriginal land, being schemes that are to be formulated in consultation with the Aboriginals using the land to which the scheme applies, but so that any such laws shall provide for the right of Aboriginals to utilise wildlife resources; and

(d) laws regulating or prohibiting the entry of persons into, or controlling fishing or other activities in, waters of the sea, including waters of the territorial sea of Australia, adjoining, and within 2 kilometres of, Aboriginal land, but so that any such laws shall provide for the right of Aboriginals to enter, and use the resources of, those waters in accordance with Aboriginal tradition;

but any such law has effect to the extent only that it is capable of operating concurrently with the laws of the Commonwealth, and, in particular, with this Act, Division 4 of Part 15 of the Environment Protection and Biodiversity Conservation Act 1999 and any regulations made, schemes or programs formulated or things done, under this Act, or under or for the purposes of that Division.

(2) Subsection (1) does not affect the continued operation of any Ordinance of the Northern Territory relating to a matter referred to in that subsection made before the commencement of this section if that Ordinance could have been made in accordance with that subsection, but an Ordinance of the Northern Territory made before the commencement of this section and relating to a matter referred to in subsection (1) has effect after the commencement of this section to the extent only that it would have had effect if made after the commencement of this section.

7 Application of laws of Northern Territory to Aboriginal land

This Act does not affect the application to Aboriginal land of a law of the Northern Territory to the extent that that law is capable of operating concurrently with this Act.’

57 I note that s 74A of the Land Rights Act (which was inserted by Act No. 16 of 1982) makes provision for financial assistance to persons seeking to put submissions to a commissioner as to whether the powers under s 73(1)(d) of the Land Rights Act should be exercised.

58 Other provisions of the Land Rights Act make specific provision for the continued operation of other laws and powers of the Northern Territory. For example, Part IV of the Land Rights Act makes specific provision in relation to mining and minerals. As discussed below, the word "minerals" is defined in s 3 of the Land Rights Act to include "water". There are also specific provisions relating to the construction of roads (s 68) and the powers of compulsory acquisition of aboriginal land (s 67).

59 The applicants argue:

(a) That the grant of a fee simple estate to the "low water mark" combined with the prohibition on entry onto the land in s 70 of the Land Rights Act has the effect that the Northern Territory Parliament cannot authorise persons to enter onto the inter-tidal zone for the purpose of taking fish. Consequently, the applicants say that the Northern Territory and the Director (supported by the Commonwealth and the Seafood Council) are wrong in their assertions that there is power under the Fisheries Act to issue a licence for that purpose. The respondents, on the other hand, say that the land grant and the prohibition on entry by s 70 of the Land Rights Act are subject to public rights to fish and navigate. The respondents say that those public rights are regulated by the Fisheries Act pursuant to the Self Government Act, the Coastal Powers Act and s 74 of the Land Rights Act.
(b) That the only power of the Northern Territory Parliament to regulate fisheries within 2 kilometres of land granted under the Land Rights Act is the power contained in s 73(1)(d) of the Land Rights Act. The applicants say that the Northern Territory Parliament has not complied with the pre-conditions to the exercise of that power with the consequence that fisheries licences cannot be granted within two kilometres of the land. The respondents say that the power in s 73(1)(d) of the Land Rights Act is not the only power the Northern Territory Parliament has to regulate fisheries within the area of two kilometres of the land. In any event, they say that the Fisheries Act complies with the relevant pre-conditions.

THE LEGAL EFFECT OF THE LAND GRANT

60 The boundaries of the Arnhem Land Reserve created in 1963 and of the 1980 land grant both extended to the low water mark. In order to understand the significance of this it is necessary to consider some arcane aspects of English property law.

61 The common law of tenure applied only to the low water mark: New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 (New South Wales v Commonwealth) at 487. However, special common law rules applied in relation to land above the low water mark that was covered or affected by the sea. In relation to the area of the foreshore between the high and low water marks (hereinafter "the foreshore") the Crown had property in the soil pursuant to the prerogative. Both the high and low water marks were identified as the mean of average or ordinary tides: see AG v Swan [1921] NSWStRp 28; (1921) 21 SR (NSW) 408 at 420-421; Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 (Yarmirr TJ) at 547. In England the Crown’s rights to the foreshore seem to have been treated as a separate prerogative of the Crown. In Australia they can perhaps be treated as part of the broader prerogative of the Crown in relation to wastelands: see Southern Centre of Theosophy Inc v South Australia (1979) 21 SASR 399 at 411-412.

62 The Crown’s prerogative rights in the soil of the foreshore did not confer full rights of dominium over the land and waters. The Crown did not have a fee simple over the foreshore – if its rights can be usefully described in terms of the theory of tenure, they were analogous to a radical title: contrast Yarmirr HC at 59 and 102 and Lardil Peoples v Queensland [2004] FCA 298 (Lardil) at [221].

63 In particular, the prerogative rights of the Crown were subject to the common law public right to fish and the public right to navigation: see Harper v Minister of Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314 (Harper) at 329-331; New South Wales v Commonwealth at 419, 423, 489; Minister for Primary Industry and Energy v Davey (1994) 47 FCR 151 at 168; Anderson v Alnwich DC [1993] 1 WLR 1156, 1166-1170.

64 Pursuant to the prerogative the Crown could make grants of the land within the foreshore: see AG v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (AG v Ngati Apa) at 679. However, as the rights of the Crown were subject to the public rights to fish and navigate, it could not make any grant which was inconsistent with those public rights: see Warren v Matthews (1704) 6 Mod R 73; 87 ER 831; Blundell v Catterall (1821) 5 B & Ald 268; 106 ER 1190 (Blundell); AG (British Columbia) v AG (Canada) [1914] AC 153 (British Columbia) at 168. Consequently the Crown did not hold and could not grant a "bare" fee simple.

65 There were at least four qualifications to the rule that the Crown’s prerogative rights in the soil in the foreshore (and any grants made by the Crown in relation to the foreshore) were subject to the public rights to fish and to navigate:

(a) First, as Mansfield J commented in Land Trust TJ some aquatic creatures, particularly mussels, are so fixed to the solum that they are considered to be part of it: see Parker v Lord Advocate [1904] AC 364. In relation to these creatures the Crown could confer exclusive property rights on third parties.
(b) Second, an exclusive right to fish in a class of the public could be established by proof of custom from "time immemorial": see Goodman v Saltash Corporation (1882) 7 App Cas 633, 651-652, 654-655. This would seem to be analogous to proof of copyhold or other specialised customary rights and laws (discussed further below).
(c) Third, exclusive private rights to take fish could be established by prescription. However, in order to establish the relevant private right, the user had to show that it had been exercised contrary to the rights of the public from "time immemorial", so as to create a fiction of a "lost grant" made by the Crown prior to Magna Carta: see discussion by Kirby J in Yarmirr HC at 128-129; Merkel J in Yarmirr FC at 296 [540]-[541], 304-305 [587]-[591] and see British Columbia at 170-171. The issue of how custom or prescription from "time immemorial" might be established by evidence is considered further below.
(d) Fourth, the public right of navigation was not a right to cross every part of the sea: see Yarmirr HC at 67-68 [96]; Crown Estate Commissioners v Fairlie Yachts [1978] ScotCS CSIH_3; [1979] SC 156 at 178. The building of wharves and jetties, for example, was viewed as consistent with the right of navigation, rather than inconsistent with it. So too was the creation of ports and harbours – indeed, the right to create such ports and harbours and to assign their limits was another prerogative of the Crown: see Halsbury’s Laws of England (3^rd ed) Vol 7 par 637. The Crown, or the person or body granted the rights to the port or harbour by letters patent from the Crown, could regulate navigation within the port or harbour. Although those using the port and its facilities had a "public" right to do so, the Crown or the person or body granted rights over it, could, at common law, impose reasonable charges for that use: see Bolt v Sennett [1800] EngR 198; (1800) 8 TR 606; 101 ER 1572; Allnutt v Inglis [1810] EngR 359; (1810) 12 East 527 at 538-539; [1810] EngR 359; 104 ER 206 at 210-211.

66 The above discussion concerns the foreshore. The same considerations apply in relation to the "arms of the sea" meaning estuaries and rivers capable of navigation and subject to the ebb and flow of the tide: see Miles v Rose [1814] EngR 626; (1814) 5 Taunt 705; 128 ER 868; R v Smith (1780) 2 Doug R 441 at 444, 446; 99 ER 283 at 284, 285; British Columbia.

67 The above discussion concerns the various rights and entitlements of the Crown and the public under the common law and the prerogative. Very different considerations apply in relation to grants made by or under legislation. There is no doubt that the Commonwealth Parliament has the legislative power to abrogate the public rights to fish and navigate in the foreshore and the rivers and estuaries of Blue Mud Bay. There is no doubt that it can create an exclusive right in the applicants to the land of the foreshore and the relevant rivers and estuaries including a right to exclude those seeking to fish or navigate there: see Harper at 330. As it was put by J Angell in Tide Waters (1826) at 106:

‘But it is conceived that there is an important distinction in such cases between royal and legislative grants. And although the king cannot alienate the public right of fishery, it being one of those rights inherent in his subjects, which he is not authorized to destroy, or restrain; yet it will not be denied, that parliament is vested with the power of alienation. Indeed it has been amply shewn, that an exclusive right of fishery may be acquired by prescription in an arm of the sea, which prescription is founded only on the supposition of a grant, and as the king cannot grant the fishery, the prescription must of course suppose a parliamentary grant. .... There can, in fact, be no question but that the legislative power may destroy a common right, by prohibiting the use of it entirely, or by converting it into an exclusive right. Thus a right of way, either by land or water, may be shut up by law, and the use of it prohibited and discontinued. So the public right of fishery in salt and tide waters may be interdicted altogether by the legislature, or converted into an exclusive or several fishery. The legislature, in fact, are the public, and no one can deny the authority of the public to relinquish what belongs to them, without at the same time denying that it does belong to them.

It being then too clear to admit of controversy that the legislature may grant an exclusive fishery in an arm of the sea, it would seem to follow, that a legislative grant of the soil, would carry with it the right of exclusive fishery.’

68 The question is, has the Commonwealth Parliament exercised its undoubted power to grant or to authorise the grant of an exclusive right over the tidal foreshore and the arms of the sea? That question is to be resolved by considering the relevant legislation – in this case the Land Rights Act - and the grant made pursuant to it. The relevant common law principles provide a background and context for the consideration of the meaning of the legislation and grant, but are not necessarily determinative: see Williams v Booth [1910] HCA 12; (1910) 10 CLR 341 (Williams) at 359; Wik Peoples v Queensland (1997) 187 CLR 1 (Wik) at 108, 149-154, 174-175, 195, 242-245; Wilson v Anderson (2002) 213 CLR 401, 450-452 [109]-[119], 462-465 [152]-[162]. It might be, for example, that if the terms of a statutory grant were ambiguous as to its seaward boundary, that boundary might be presumed to be the high water mark by reason of the public rights: cf Williams at 349-350. But that is not this case.

69 The Land Rights Act and the grant made pursuant to it, give to the Land Trust an estate in fee simple to the low water mark. If the issue was free of authority I would have thought that s 70 of the Land Rights Act excluded persons from the waters to the landward of the low water mark. If it were free of authority I would also have thought it reasonably clear that the land grant was a grant of a right of exclusive occupation over the area (including waters) to the landward of the low water mark including the arms of the sea and the tidal foreshore and that that right excluded public rights such as the public right to fish or the public right to navigate. In particular:

(a) The use of the term "fee simple" connotes the most absolute of all rights of tenure known to the law: Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1 at 42. It connotes rights of "full ownership": Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 (Fejo) at 126. Such a right, "simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title": Fejo at 126.
In England, the grant of a fee simple to the bed of the river may be subject to common law riparian rights: see Lyon v Fishmongers’ Company [1876] 1 AC 662 at 682-683. Whether or not the same rule would apply in Australia given the regulation of land and of water in this country is a matter that does not need to be resolved in these proceedings. Such Australian authority as there is would seem to assume that English law is applicable: see Lanyon Pty Ltd v Canberra Washed Sand Pty Ltd [1966] HCA 76; (1966) 115 CLR 342 at 347-348.
Leaving aside the issue of riparian rights, on the face of it the conferral of a right of fee simple would include the right of exclusive possession of the land and the exclusive right to control and use the water and even the air immediately above it. As the majority of the High Court noted in Risk at 405 "there is nothing in the Land Rights Act which appears to limit the rights of the holder of an estate in fee simple in land granted under the Act to rights over only the solid substance of the earth’s crust, as distinct from those parts of the superadjacent fluid (be it liquid or gas) which can ordinarily be used by an owner." (Contrast the terms of the lease in Goldsworthy Mining Ltd v Federal Commissioner of Taxation [1973] HCA 7; (1973) 128 CLR 199 at 207, 216).
The grant made under the Land Rights Act is of a fee simple. It is difficult to imagine a more extensive property right than a fee simple granted by a Commonwealth statute. Such a property right is to be contrasted with the "fragile" right of native title holders which was recognised by the common law in Mabo. As Yarmirr establishes, a native title right of exclusive possession of the sea could not be recognised because it was inconsistent with the public right to fish and navigate. That provides no justification for concluding that a statutory grant of a fee simple should be limited for the same reason.
Even if the grant would otherwise be read as being subject to common law rights, this can only be done if the grant does not clearly exclude those rights. In my view the grant of a fee simple clearly does do so.
(b) The principle that a statute should be read subject to common law rights has much authority to support it. It must nevertheless be treated with caution. Many of the rights ascribed to the common law are, in fact, statutory in origin. And many "common law" rights were (properly) abolished hundreds of years ago. On this basis the rule of statutory interpretation is best considered as a rule protecting "existing" rights, whatever their source – the rule being based upon the assumption that the Parliament is not to be taken to have intended to abrogate existing rights unless it does so clearly: see Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 (Bropho) at 18.
Looked at in this way it is clear that the fact that there were ancient common law public rights to fish and navigate is not particularly important in itself in construing the Land Rights Act. The important questions are, what were the existing rights that might be affected by the grant and what can be assumed to be Parliament’s intent in that regard?
It seems to me that the answers to those questions are reasonably clear. Neither the public right to fish nor the public right to navigate have been thought appropriate for protection by Australian legislatures. The very opposite is the case. Both activities have been highly regulated:

(1) The control and management of the inter-tidal zone over much of Australia has been conferred on local councils and/or on port authorities by a variety of statutes including Crown Lands Acts, local government Acts and harbour Acts: see, for example the discussions in Burrum Corporation v Richardson & Gehmann [1939] HCA 30; (1939) 62 CLR 214; Marine Board of Launceston v Launceston Corporation [1955] HCA 17; (1955) 93 CLR 472; City of Rockingham v Curley [2000] WASCA 202; Auckland CC v Ports of Auckland Ltd [2000] NZCA 190; [2000] 3 NZLR 614; AG v Ngati Apa at 663, 685; Lardil at [161]-[162],[222]-[225] and see Georgeski v Owners Corporation SP49833 [2004] NSWC 1096 at [77]-[90]. Invariably the relevant regulatory bodies have been given the power to control activities within that zone, including fishing and navigation. Reference can be made, for example, to the powers of the Darwin Port Corporation to make by-laws pursuant to s 48 of the Darwin Port Corporation Act (NT). The area of that port includes the sea and the foreshore to the high water mark: see the Ports Ordinance 1962 (NT) as amended. Nevertheless, in my view it is scarcely arguable that those powers should be read as being subject to public rights to fish and navigate;
(2) Fishing, and particularly commercial fishing, has been highly regulated by "special" statutes regulating the right to fish. The relevant legislation in its impact in the Northern Territory has already been discussed and will be further discussed later in these reasons.
(3) Rights in streams and rivers and in the waters thereof (including tidal waters) have also been heavily regulated in most jurisdictions, such regulation significantly affecting, if not abrogating, private riparian rights and other public rights in those waters: see Thorpes Ltd v Grant Pastoral Co Pty Ltd [1955] HCA 10; (1955) 92 CLR 317; Reid v Chapman (1984) 37 SASR 117.

In this context, to talk of existing public "rights" to fish and to navigate in Australia may be misleading. Indeed, such rights were effectively ignored by Australian law until they were resuscitated in a public law context in Harper and were subsequently applied in a native title context in Yarmirr. This is not surprising. Apart from a limited role in interpreting whether the boundary of a grant is the low or high water mark (see above), those public rights are best understood as restrictions on the Crown’s prerogative powers, rather than restrictions on statutory grants. The relevant prerogative powers have had no application in Australia since 1842: see Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 at 533; Wik at 108-111, 139-143, 171-174, 227-228, 243. What is effectively left of these public law rights (if anything) are not enforceable common law "rights", but rather the common law principle that a person can do that which is not prohibited (see Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520 at 564). In most contexts this would mean that persons can engage in some non-commercial fishing and in some uncontrolled navigation on some coastal waters. The extent that persons can still do so it is simply the result of there being no law which would prevent them doing so.
Brennan J commented in Harper at 330 that the public right to fish was "freely amenable to abrogation or regulation by a competent legislature." Although his Honour’s reasons for that view were somewhat different from mine, nevertheless the comment is plainly correct. Indeed, not only is the right to fish amenable to abrogation or regulation, it has been either abrogated or regulated in the Northern Territory (see below). If the issue were free from authority then in my view the grant of a statutory fee simple to the low water mark would abrogate the public rights to fish and navigate in the inter-tidal zone.
In any event, for the reasons given below, in my view the relevant public rights to fish and navigate had already been abrogated by the creation of the 1931 and 1963 Reserves over the same area.
(c) It would seem clear that the purpose and intent of s 70 of the Land Rights Act was to secure the rights of the traditional owners by limiting access to the land: see Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 117. Given this purpose I can think of no reason why the terms of s 70 should be read down so as not to apply to water (including sea water) over that land. The better view would seem to be that access is limited to "the land" including the water and air above it and the soil below it, at least to the extent that interference with the water, air or soil might interfere with the traditional rights of the inhabitants.
The history of access to the reserves that existed over the same area seems to me to confirm this view. The 1937 Reserve may not have included the inter-tidal zone, but s 19AA of the Aboriginal Ordinance 1918 (NT) prohibited unauthorised access in a vessel to the territorial waters adjacent to the reserve unless the person was an Aborigine or was otherwise authorised. Although the Commonwealth argued that the provision did not apply to the inter-tidal zone, that argument seems to me to miss the point entirely. What seems to be clear is that those making the Ordinance intended to limit access to the Reserve for the purpose of protecting the Aboriginal inhabitants living on it. That limitation included a limitation on access from the sea.
The boundary of the Arnhem Land Reserve created by the 1963 proclamation did extend to the "low water mark". All unauthorised access to the area of the Reserve, including for the purposes of navigation and fishing, was prohibited: see s 45 of the Welfare Ordinance, 1953 (NT) and subsequently, s 17(3) of the Social Welfare Ordinance 1964 (NT). Given the beneficial purposes for which that reserve was established, it would seem to me to be clear that the prohibition on access extended to the water over the inter-tidal zone.
In my view the effect of the creation of the 1931 and 1963 Reserves in the context of the Ordinances then applying was to abrogate any public rights to fish or navigate in the inter-tidal zone. In those circumstances it does not seem to me that those rights should then be treated as "existing rights" for the purpose of interpreting either the land grant or s 70 of the Land Rights Act. I say this notwithstanding that the Commonwealth also submitted that in the Northern Territory the repeal of an Ordinance other than one giving effect to the law of a State had the effect of reviving the previous common law rule: see s 20 of the Interpretation Ordinance, 1931 (NT) and see Marshall v Smith [1907] HCA 33; (1907) 4 CLR 1617 at 1634. However, the question in issue is not the legal effect of the repeal of an Ordinance, but the broader question of what the Commonwealth Parliament intended when it enacted the Land Rights Act. Given that access to the inter-tidal zone for the purpose of exercising any public rights to fish or navigate had effectively been regulated, if not abrogated, since 1931, I cannot think why the Land Rights Act should now be interpreted on the assumption that the Parliament intended that those rights should be resuscitated so as to qualify and limit the grant of the fee simple title under the Land Rights Act. On the contrary, it seems to me that Parliament’s intent is relatively clear.
Finally, as already mentioned the Land Rights Act was a consequence of the Woodward Reports. It is unnecessary to set out the detail of the Reports. As already mentioned the Reports have been discussed in a number of cases. It is clear enough that the Parliament did not accept those parts of the Reports which recommended the creation of a "buffer zone" beyond the low water mark. However, the Parliament did appear to accept those parts of the Second Report dealing with the arms of the sea and the tidal foreshore. There is nothing in either of the Reports or more generally in the legislative history of the Land Rights Act which would suggest that the ordinary meaning of the words "fee simple" should be read down in relation to the arms of the sea or the tidal foreshore. Nor is there anything to suggest that s 70 of the Land Rights Act should be read down in its application to the inter-tidal zone. To the contrary, they confirm that the words should be read beneficially as intended to protect the interests of the traditional owners.
Given this history it would seem to me to be a reasonable conclusion that the Commonwealth Parliament, in making a grant of the fee simple described generally in the same terms as the 1963 proclamation and in expressly legislating in s 70 to prohibit access to the land, intended to abrogate any surviving public rights to fish and navigate in the inter-tidal zone.

70 If the Land Rights Act did confer upon the applicants the power to exclude from the inter-tidal zone that right would not include the "ownership" of the water or of the fish within it. In the ordinary course, a grant (including a statutory grant) over an area of land includes the right to the exclusive use of the airspace above it and the land below it: see Thomas J in Schleter t/as Cape Crawford Tourism v Brazakka Pty Ltd (2002) 12 NTLR 76 and see note at 78 ALJ 431. But this does not mean that the owner of the land "owns" everything physically on it. In the normal course, a person cannot sensibly be said to "own" free flowing water. What the owner has is a right to control access to that water and to use it for his or her own purposes. Similarly in relation to fish and other ferae naturae: see Goodman v Mayor of Saltash (1882) 7 AC 633 at 646.

71 The right to exclude is subject to some restrictions. Riparian rights have already been referred to. Further, as already mentioned, the rights of the applicants as holders of the fee simple are subject to a number of statutory restrictions. Under s 12(2) of the Land Rights Act the rights of the applicants are subject to a reservation in respect of "minerals" which is defined in s 3(1) of the Land Rights Act to include "water". The rights in relation to "water", at least in relation to waters contained within a water course, are vested in the Northern Territory: see s 12(2) of the Land Rights Act and see s 3(1) of the Control of Waters Act (NT). For practical purposes these reservations and qualifications make little difference to the issues raised in these proceedings. There is no present dispute between the applicants and the Northern Territory in relation to the use of water on the land. The issue is whether the applicants can exclude those seeking to fish and those seeking to navigate in the inter-tidal zone. The statutory reservation from the land grant does not affect the answer to that issue.

72 If the grant, combined with the provisions of s 70 of the Land Rights Act, did have the effect that there was no right of entry onto the inter-tidal zone and/or that the applicants had the right to exclusive possession of that zone, then in my view the Northern Territory Parliament could not legislate to confer rights to take fish in respect of that zone, any more than it could confer a right to take fish over land or waters not affected by the tides. The relevant principle was expressed by Mansfield J in Land Trust Case TJ at 21 [83]:

‘The Legislative Assembly of the Northern Territory does not have power under the Fisheries Act to authorise actions which:

"... affect the operation of a law of the Commonwealth or to destroy or detract from a right thereby conferred unless a law of the Commonwealth so provides, expressly or by implication".

See R v Kearney; ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395 per Brennan J at 418. His Honour added at 419:

"By whomsoever the Crown Lands Act power to grant an estate in fee simple in Crown lands was or is exercisable, it could not be exercised to destroy the statutory right conferred upon applicants in respect of land under claim unless a law of the Commonwealth so provides. There is no law of the Commonwealth which does so provide".’

73 As I say, if the matter were free of authority then it would seem to me to be reasonably clear that a statutory grant of an estate in fee simple to the low water mark necessarily conferred a right to exclude from the inter-tidal zone, including a right to exclude those seeking to exercise a public right to fish or to navigate, with the consequence that the Fisheries Act would need to be read down pursuant to s 59 of the Interpretation Act (NT) so as not to authorise the grant of a licence to take fish in relation to that inter-tidal zone.

74 However, the issue is not free from authority. The claim in Yarmirr involved, in part, a claim to native title over the sea adjacent to Croker Island, but excluding any lands or reefs within a land grant under the Land Rights Act. Croker Island itself was within a land grant made pursuant to that Act. So too was the land grant at issue in this case (although not the actual area of the claim in this case). The land grant to the Trust formed the outer limit of the claim area. As already noted the land grant was of a fee simple to the land "above low water mark". None of the Trust or any of the claimants were parties to the application. None of them sought to be or were heard by the primary Judge. In Yarmirr TJ the primary Judge accepted that a claim under the NTA could be made to waters separate from the land under them: see at 545-546. The determination made by His Honour reflected that approach (see par (b) of the Schedule to the determination as set out in Yarmirr FC at 242 [293]).

75 His Honour would appear to have treated the ability to make a claim for water separate from the land as a sufficient basis for treating the waters of the foreshore as falling within the claim, although the soil beneath those waters would not. It would seem to be implicit in the determination made by his Honour that rights might be granted (including, for example, fishing rights) over the "claim area" which his Honour accepted included the waters of the foreshore. In light of the determination actually made, it is difficult to treat his Honour’s approach as simply reflecting an understanding of the claim made by the claimants in the case before him. Indeed, it is clear that Mr Basten QC (who appeared for the applicants in that case) put submissions to his Honour that the grant of a fee simple to the low water mark included the right to exclude to the landward of that mark, including from the waters of the foreshore. In these circumstances the determination actually made would seem to reflect an understanding by his Honour that the waters of the foreshore were not within the grant made under the Land Rights Act. The basis for that understanding is not clear from his Honour’s reasons.

76 The issue was dealt with by the Full Court in Yarmirr FC at 201 [98] and at 221-222 [201]-[203]. It would seem, however, that the majority of the Full Court treated the issue on a slightly different basis to the way it was dealt with by the primary Judge. They commented at 222 [203]: "Such an outcome [that the grant of a fee simple to the low water mark does not exclude a claim in relation to the waters] accords with the terms of the Land Grants and also with the position at common law in any event." In my view that sentence can only be understood as a conclusion of law that the grant under the Land Rights Act of a fee simple estate in the tidal foreshore did not authorise the holders of the fee simple to exclude those exercising common law public rights to fish or navigate from the inter-tidal zone. It would appear that the issue was not addressed by Merkel J.

77 I note that the Trust intervened in the appeal before the Full Court. It put submissions to the Full Court that the land grant conferred on the Trust the right to exclude persons from the inter-tidal zone. Indeed, the Trust sought to have the Full Court re-open its orders so as to deal expressly with the issue. Although the Full Court declined (see Yarmirr v Northern Territory [2000] FCA 48), there can be no doubt that it was aware of the issue.

78 It would not appear that the High Court dealt with the inter-tidal zone in its reasons in Yarmirr HC. Indeed, in Risk the majority of the High Court treated the issue of the rights to exclude from and to exercise control over the waters in the inter-tidal zone where there had been a grant of the fee simple to the low water mark as still being open (see at 405). I note, however, that in his reasons in that case McHugh J may have distinguished between land above the low water mark and the sea over such land for the purposes of the Land Rights Act (see at 407-408 [42], 412 [60], 413 [62] and 414[66]). That distinction was drawn by his Honour on the basis of his Honour’s understanding of the meaning of the word "land" in the Land Rights Act. In this regard I note that the grant to the Land Trust involved in this case was also a grant of "land".

79 The Northern Territory argued that the Trust was estopped from denying that the grant was subject to the public right to fish and navigate. In my view none of the applicants are relevantly estopped. True it is that the Trust intervened in the Full Court and put an argument to that Court (although the other applicants did not). However, that Court was exercising appellate rather than original jurisdiction. Having not been heard at trial, the applicants cannot now be estopped from arguing what their rights are (see discussion by Full Court in Yarmirr v Northern Territory [2000] FCA 48 at [10]). I also note that the decision in Yarmirr did not apply to the actual area which is the subject of this claim and that some of the other applicants in these proceedings had no direct interest in the area under claim in that case. Even if the determination in that case operated in rem (see below) it nevertheless does not finally determine the issues in this case.

80 The question, then, is whether I am bound by the reasons and decision of the Full Court in Yarmirr FC to hold that the grant of the fee simple to the Land Trust does not confer on the Trust the exclusive right to control access to the inter-tidal and/or that s 70 of the Land Rights Act either does not apply in that zone or does not apply to those exercising rights to fish and navigate. Mansfield J in Land Trust Case TJ at 13-14 [46] noted that "It is evident from [the conclusion that the waters and the soil of the inter-tidal zone were treated separately in the determination] that the court in Yarmirr did not consider that the waters in the inter-tidal zone were the subject of the grant ... or that the grant ... to the low water mark gave to the Land Trust ... the exclusive right to control who may fish in waters overlying the land between the high water mark and the low water mark." In my view Mansfield J was correct in his understanding of the Full Court’s decision. The determination actually made in Yarmirr and the reasons of the Full Court require me to hold that the grant of the fee simple to the Land Trust over the inter-tidal zone does not confer on the Trust the exclusive right to control access to the sea over the tidal foreshore and/or that persons exercising public rights to fish or navigate can come onto the inter-tidal zone without breaching s 70 of the Land Rights Act.

81 There would seem to be two alternative explanations to explain the reasons and orders in Yarmirr. The first is that the land grant is only of solid land and that it does not extend to the (sea) waters above it. On this view if the grant was of the solid land only then the Land Trust would have no right to exclude persons from the water no matter what they were doing there. On the other hand it would be a trespass to place anything (including nets, anchors etc) on that solid land, whether as an aspect of fishing or navigation or otherwise. The determination made in Yarmirr would seem to distinguish between the water and the soil and thus suggests that the grant is of the solid land, but not the sea water over it. This accords with the approach which appears to have been taken by McHugh J in Risk.

82 There are a number of problems with this approach. Given that the grant is of a "fee simple" which is not limited to a particular three dimensional strata, the approach creates conceptual difficulties in relation to rights to airspace: is airspace not included, or is it only included if the land is not covered by water, or is it included but the space occupied by water is not? For example, can the applicants build a jetty and control its use? It creates similar difficulties in relation to tidal rivers. It even creates difficulties in relation to fresh rivers. If there is some difference between "land" and "water" then it is not obvious to me why fresh water should not also be excluded. Plainly enough, as Risk has established, land permanently covered by salt water is not "land" in common parlance. But that approach does not involve the differential treatment of strata which a distinction between soil ("land") on the one hand and water on the other would seem to do. And that approach does not have the consequence that land covered by fresh water or intermittently covered by tidal water is not "land": see AG v Ngati Apa at 691-693.

83 The second possible explanation is that the grant of a fee simple to the low water mark includes the right to exclude persons from the land and the water above it, but that that right is qualified in relation to the right to fish and the right to navigate. A similar qualification would be made to s 70 of the Land Rights Act. On this approach the Land Trust could exclude persons from the water where those persons were engaged in activities other than fishing or navigation e.g. bathing: see Blundell; Brinckman v Matley [1904] 2 Ch 313. On the other hand, persons exercising those public rights to fish and navigate could attach nets, anchors and other things to the soil of the foreshore if such attachment was an incident of the exercise of the public rights: see Blundell.

84 In this case I am bound by the decision and reasons of the Full Court in Yarmirr FC. The reasons of the majority of the Full Court refer to the "common law". Presumably this is a reference to the public rights to fish and navigate. The comments of Sackville J in the Land Trust Case FC at 525 (quoted above) would also seem to refer to the public rights to fish and navigate. These might be taken as suggesting that the grant of the fee simple is over both the land and the waters, but is subject to the public rights to fish and navigate.

85 I consider that I am bound to hold that the fee simple in the foreshore is qualified in that the rights of the applicants do not include rights to exclude those exercising public rights to fish or navigate. Nor are they excluded by s 70 of the Land Rights Act. This is the same result reached by Mansfield J in Land Trust Case TJ at 19 [75]-[77].

86 Although not argued before me, s 4(1) of the Aboriginal Land Act 1978 (NT) (Aboriginal Land Act) which also limits entry onto Aboriginal land, would also have to be "read down" so as not to limit entry for the purpose of exercising public rights to fish or navigate.

87 Mansfield J also distinguished between the extent to which public rights were limited in the foreshore, on the one hand, and in tidal estuaries and rivers on the other: see at 20 [79]-[80]. I note that the orders and reasons in Yarmirr did not deal with tidal waters in estuaries and rivers and to that extent I am not strictly bound to follow the Full Court in that regard. However, I am unable to discern any sustainable distinction between the application of the public rights to fish or navigate in the foreshore or in respect of other tidal waters, whether such waters are in estuaries, in rivers or elsewhere. I do not see how the principle established by the Full Court in Yarmirr FC can be limited to the foreshore. It also must extend to the "arms of the sea". Accepting that I am bound by the principle as applied in Yarmirr FC, it follows, in my view that the applicants do not have a right pursuant to the grant to exclude persons exercising the public rights to fish or navigate from the waters between the high and low water marks or from those parts of estuaries or navigable rivers where the waters are affected by the flow or ebb of the tide. Nor are they excluded by the operation of s 70 of the Land Rights Act.

88 Although the issue was not raised on the pleadings, the Commonwealth argued that the rights of the applicants pursuant to the grant are also subject to other common law rights. In particular the Commonwealth argued that the rights of the applicants were subject to common law public rights of navigation in navigable streams. In this regard the Commonwealth argued that Australia should adopt US and Canadian law which recognises such a public right (see The Genesee Chief [1851] USSC 62; 53 US 443 (1851) at 457; Illinois Central Railroad Co v Illinois [1892] USSC 229; 146 US 387 (1892) at 436; R v Robertson (1882) 6 SCR 52 at 114-115, 129-130) rather than English law which does not recognise it except in respect of tidal waters: see Sandford Clark Australian Water Law (1971) (unpublished PhD thesis). This issue has a long history in Australian political and constitutional discourse. At and before federation South Australia argued that the US rule applied with the effect that the major irrigation developments then underway on the River Murray in New South Wales and Victoria were unlawful in that they diverted water from the river thus making navigation more difficult. The issue was referred to in the Convention debates and ss 98 and 100 of the Commonwealth Constitution were inserted, in part at least, to address the respective concerns and interests of South Australia, New South Wales and Victoria respecting navigation and irrigation on the River Murray: see Sandford Clark "The River Murray Boundary: Muddying the Waters" (1983) 57 ALJ 260 at 266-267. The issue is discussed in Sandford Clark, "The River Murray Question"  [1971] MelbULawRw 2 ; (1971) 8 MULR 11 at 24-40 and 229-231. The disagreement was eventually resolved by the statutory agreements for the management of the River Murray.

89 It is unnecessary in this case to consider whether Australian law should now recognise a common law public right to navigate in navigable streams, interesting as that question may be. The declarations sought by the applicants relate to the validity and effect of the Fisheries Act, not to the right to navigate in navigable streams. There was no evidence before me that would suggest that any waterway within the claim area was navigable, at least beyond that part of the waterway which was tidal. Nor were there any submissions on the question of whether the continued existence and effect of a common law public right of navigation in non tidal waterways is consistent with the regulation of waterways in the Northern Territory. The question of whether or not a common law right to navigate is recognised by the common law of Australia must be left for another day.

90 In Land Trust Case TJ Mansfield J held at 22 [86] that a number of the rights granted by a licence under the Fisheries Act "fall within the exercise of the public right to fish ... , as regulated by the Fisheries Act and the instruments made under it" (see also at 15-19 [54]-[74]). His Honour held that the Fisheries Act had application to the inter-tidal zone, at least to the extent that the rights conferred by or under it did not exceed those rights that could be exercised by a person exercising a public right to fish.

91 The applicants dispute this analysis. They say that the rights conferred by a fishing licence are different in nature from the public right to fish. So much may be conceded: see Bienke v Minister for Primary Industries (1996) 63 FCR 567 at 584-585; Pennington v McGovern (1987) 45 SASR 27 at 31, 45-46. However, the question is not whether the rights are exactly the same. The relevant question is whether the Fisheries Act is capable of operating concurrently with the Land Rights Act: see s 74 of the Land Rights Act. Once it is accepted that the rights conferred by the grant are to be read subject to public rights to fish and navigate then in my view legislation regulating or even abrogating those public rights can operate concurrently with the Land Rights Act provided that the legislation does not authorise any interference with the rights conferred by the Land Rights Act. Even though the Fisheries Act replaces (whether in whole or in part) the public right to fish and navigate with exclusive private rights this does not mean that it is not capable of operating concurrently with the Land Rights Act.

92 As Mansfield J noted, to the extent that any rights conferred by the Fisheries Act extend beyond the rights that could be exercised pursuant to the public right to fish so as to interfere with the rights conferred by the Land Rights Act, then to that extent the Fisheries Act would need to be "read down" in its application to the inter-tidal zone within the area of the grant. However, there is no evidence in this case that any rights that have been or could be granted under the Fisheries Act extend beyond the public right to fish. Nor are there any pleadings or submissions identifying such rights.

93 In the Judiciary Act proceeding the applicants are seeking declarations. Notwithstanding the possibility that there may be some circumstance as yet unidentified where the Fisheries Act may need to be read down so as to avoid some incompatibility with the Land Rights Act, in the absence of relevant evidence or submissions, the appropriate course is simply to decline to make the declarations sought: see Sportodds Systems Pty Ltd v New South Wales [2003] FCAFC 237; (2004) 133 FCR 63 at 82.

SECTION 73 OF THE LAND RIGHTS ACT

94 The applicants also seek to argue that the Northern Territory Parliament does not have the legislative power to enact the Fisheries Act so as to authorise the grant of fishing licences within 2 kilometres of the low water mark. This result is said to follow from s 73(1)(d) of the Land Rights Act.

95 On 26 August, 2004 the applicants amended their application under the Judiciary Act with the apparent effect of removing any argument based upon s 73(1)(d) of the Land Rights Act. This followed upon a concession made on behalf of the applicants by Mr Basten QC during his opening that the applicants did not intend to pursue an argument based upon s 73(1)(d) of the Land Rights Act. However, subsequent to the amendments Mr Keely for the applicants submitted that whilst s 73(1)(d) was not relied upon for the purposes of asserting rights, it was still relied upon for the purpose of arguing that the Northern Territory Parliament lacked the legislative power to enact the Fisheries Act in relation to the relevant waters. As I have previously suggested to the parties in my reasons on an interlocutory application, if that argument was to be pursued even on that limited basis then it would be necessary to further amend the application in the Judiciary Act proceedings to enable that to be done. In any event, leave to put that argument would also seem to be required in light of the concession previously made.

96 The Northern Territory has argued that any leave that might be required should not be granted because the Trust had not sought to put the relevant argument in Yarmirr. As I have already mentioned, the Trust was not a party at least during the trial in Yarmirr. Nor was any argument about the powers under the Fisheries Act in relation to Blue Mud Bay relevant in that case. It does not seem to me what the Trust did or did not do in Yarmirr provides any basis upon which leave should or should not be granted in this case.

97 This issue of the power of the Northern Territory Parliament is one of law. No facts, other than the existence of the grant (which is not in dispute) needs to be proved. No party is prejudiced by the withdrawal of any concession or by any uncertainty as to whether the point was being maintained by the applicants. In the circumstances it seems to me to be appropriate that I grant whatever leave is necessary for the purpose of the applicants pursuing this argument. I will hear the parties as to what leave is required.

98 On the face of it, s 73 of the Land Rights Act confers powers on the Northern Territory Parliament – it does not purport to limit power. In the ordinary course the conferral of legislative powers is assumed to be cumulative. So long as a power exists, it does not matter that some other power might also support the relevant legislation: see Newcrest Mining (WA) v Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 534.

99 However, s 73(1)(d) is subject to limitations – the limitations protecting the rights of Aborigines and the limitations relating to the relevant law being able to operate concurrently with Commonwealth laws. Further, special entitlements to financial assistance are conferred by s 74A of the Act. Usually the effect of a proviso to the grant of a power is merely to limit the specific power which it qualifies, not other powers: see Western Australia v Wilsmore [1982] HCA 19; (1982) 149 CLR 79 at 90, 98-99, 104-105. However, in some instances the relevant proviso may lead to an inference that more general powers (in this case, those conferred by s 6 of the Self Government Act and by the Coastal Powers Act) are qualified so that the relevant proviso would not be defeated: see AG v Schmidt [1961] HCA 21; (1961) 105 CLR 361 at 371-372; Bourke v State Bank of NSW [1990] HCA 29; (1990) 170 CLR 276. This is particularly so where the relevant proviso can be viewed as containing some entitlement. The applicants argue that such an inference should be drawn in this case and that the Fisheries Act does not comply with the requirements of s 73(1)(d) of the Land Rights Act.

100 It seems to me that there are two answers to this submission. The first is that, in light of the mischief to which s 73(1)(d) is directed, the powers in the Self Government Act and the Coastal Powers Act do not need to be read down. Second, the Fisheries Act is consistent with the requirements of s 73(1)(d) of the Land Rights Act in any event.

101 In my view the question whether an inference can be drawn limiting the general powers of the Northern Territory Parliament depends in large part upon the mischief to which s 73 (1)(d) was directed.

102 When the land that is now the Northern Territory was claimed by the British Crown in 1788 and in 1824 the claims did not include the territorial sea: see New South Wales v Commonwealth; Yarmirr HC at 53, 71, 103, 148-149. The boundary of the relevant colony was the "low water mark". This included the waters within the "arms of the sea" such as bays (as recognised at common law), tidal streams and so on.

103 A slightly different position applied in South Australia in that the claim by the British Crown in relation to that province included the "bays and gulfs" adjacent to it: see A Raptis & Sons v South Australia [1977] HCA 36; (1977) 138 CLR 346. This included a number of bays (such as Encounter Bay) which did not answer the description of bays at common law: see Kaye, "The South Australian Historic Bays: An Assessment" [1995] AdelLawRw 7; (1995) 17 Adel L Rev 269. In relation to the areas included within the expanded claim to "bays and gulfs", the Crown had the same prerogative rights as it had at common law in relation to the foreshore – namely a radical title subject to the public rights to fish and navigate.

104 The situation in the Northern Territory was the same as that in South Australia after "bays and gulfs" were included within the British claim in 1863: see Risk at 435 ff and see Yarmirr FC at 202 ff. The result is that, subject to statute, the territory of the Northern Territory includes its gulfs and historic bays, but is otherwise limited to the low water mark.

105 Leaving aside any differences relating to "gulfs and bays" the area of the Northern Territory did not include the territorial sea adjacent to the Territory.

106 When the Land Rights Act was first enacted, the Northern Territory was administered under the Administration Act. At that time the Legislative Council of the Northern Territory had the legislative power to make ordinances for the "peace, order and good government" of the Territory: s 4U of that Act. It may be that the power conferred on the Legislative Council, being delegated power, was subject to greater judicial scrutiny than would have been appropriate for a self governing polity. It may also be that the "territories power" in s 122 of the Commonwealth Constitution (being the ultimate source of the legislative power of the Legislative Council) does not have the same extra-territorial reach as does the legislative powers of the States. Nevertheless, on the face of it, the power under the Administration Act would have authorised the making of ordinances that had operation outside of the territory of the Northern Territory, so long as there was a sufficient nexus with the Territory: see Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1 at 33.

107 However, "the Territory" for this purpose has to be understood in the context of the enactment by the Commonwealth of the Seas and Submerged Land Act, 1973 (Cth) and the High Court’s decision in New South Wales v Commonwealth upholding the validity of that Act. The Act vested in the Commonwealth the "sovereign rights" in relation to waters to the seaward of the low water mark, save only for bays, gulfs etc that were within the sovereignty of a State at federation. There were consequent concerns about the powers of the States and of the Northern Territory to legislate in relation to the territorial seas where the relevant legislation had no greater nexus with the State or Territory than that it applied in adjacent waters. These concerns included concerns as to the validity of legislation dealing with fisheries and navigation. Whether those concerns were well founded or not is not to the point (contrast Port MacDonnell Professional Fishermens Assoc Inc v South Australia [1989] HCA 49; (1989) 168 CLR 340 (Port MacDonnell) at 371-373). Plainly the States and Territories could legislate as to these matters in relation to their own citizens. Undoubtedly some other nexus could have been relied upon. However, the legislation then in place invariably purported to apply to all persons on or within the adjacent waters whether or not there was some closer nexus with the territory of the State or Territory.

108 The Second Woodward Report had recommended that the Commonwealth legislate to authorise the conferral of freehold title two kilometres to the seaward of the low water mark (see at pars 91 and 422-425). It also suggested that the whole of Blue Mud Bay should be contained within the relevant title. Those recommendations were not adopted by the Commonwealth Parliament. Instead, as discussed above, the Parliament legislated in the Land Rights Act to grant title only to the low water mark. Instead of creating the "buffer zone" recommended in the Second Woodward Report, the Commonwealth Parliament adopted what Gummow J in Risk at 420 described as a "compromise": it conferred upon the Legislative Council of the Northern Territory the power contained in s 73(1)(d) of the Act, subject nevertheless to the constraints in s 73(2). That "compromise" enabled the Northern Territory Legislative Council to make laws having the same effect as s 19AA of the Aboriginal Ordinance 1918 (NT) discussed above.

109 It is not disputed by any party that the area of the claim (including the relevant waters of Blue Mud Bay) are part of the Northern Territory as it existed as at the date of federation. To that extent s 73(1)(d) of the Land Rights Act may have been unnecessary at least in relation to the waters within Blue Mud Bay in that the Northern Territory Legislative Council had the necessary legislative power pursuant to the Administration Act. Nevertheless, the reason for the enactment of s 73(1)(d) seems clear enough - at the time that the Land Rights Act was enacted there were real doubts as to the powers of the Northern Territory Legislative Council. Those doubts concerned the power to enact legislation applying generally to persons in the territorial sea where there was no greater nexus to the Northern Territory than that the persons were near or adjacent to it. That is the issue to which s 73(1)(d) is directed. Having been expressly granted the legislative power to close areas of sea the Legislative Council exercised the power in Part III of the Aboriginal Land Act.

110 As already discussed, the Northern Territory was afforded a significant degree of self government by virtue of the Self Government Act (Act No 58 of 1978). By s 6 of that Act the Legislative Assembly, with the assent of the Administrator or the Governor General, had the power to make laws for the "peace, order and good government of the Territory". By s 31 of that Act the duties, functions and authorities of the Executive government of the Northern Territory included the prerogatives of the Crown so far as they relate to the duties, powers and functions conferred by the Self Government Act or by the laws of the Territory. The Self Government Act authorised the Northern Territory Parliament to make laws having effect within the Northern Territory (including the waters of Blue Mud Bay) and outside of the territory of the Northern Territory (which included the territorial waters), so long as there was a sufficient nexus with the Territory. It would appear that at least the executive power conferred by the Self Government Act (which might include the powers of the Administrator to assent to legislation) did not extend to rights in respect of Aboriginal land under the Land Rights Act: see Regulation 4(2) of the Northern Territory (Self Government) Regulations 1978 (Cth) and see Wake v Northern Territory [1996] NTSC 56; (1996) 109 NTR 1 at 9-14, but this limitation did not apply in relation to waters beyond the low water mark. The question of whether general laws applying to all those in the waters adjacent to the Territory had a sufficient nexus to the Territory remained unclear.

111 Upon the enactment of the Self Government Act, s 73 of the Land Rights Act was amended to reflect the changes made by the Self Government Act, but was otherwise not varied.

112 Ultimately, those difficulties and concerns about the powers of the States and Territories in the waters adjacent to their territories were resolved by the "Offshore Constitutional Settlement" reached between the Northern Territory, the States and the Commonwealth (see note at (1979) 53 ALJ 605). Insofar as the Territory was concerned, it led to the enactment in 1980 of the Coastal Powers Act and the Coastal Waters (Northern Territory Title) Act, 1980 (Cth) (Title Act): see Yarmirr HC at 153. Whatever doubts there may have been about the powers of the Northern Territory Parliament to legislate in relation to "coastal waters" were resolved by those Acts: see Port MacDonnell at 357-359, 363-368, 374.

113 Against this background it would seem to me to be clear that the mischief to which s 73(1)(d) of the Land Rights Act was directed was the concern as to the legislative powers of the Northern Territory in relation to "coastal waters" not otherwise within the limits of the Territory. The Commonwealth Parliament enacted s 73(1)(d) to confer extra legislative power upon the Northern Territory administration, if it was required.

114 Against this background I do not think there is any basis for considering that s 73(1)(d) of the Land Rights Act contains some implicit limitation upon the subsequent conferral of legislative powers of the Northern Territory Parliament to legislate for the "peace, order and good government" of the Northern Territory as part of a general arrangement to confer responsible self government upon the Territory. In my view the conferral of powers of self government on the Northern Territory by the Self Government Act and extension of these powers to coastal waters by the Coastal Powers Act should not be read down by reason of s 73(1)(d) of the Land Rights Act.

115 The second reason why I think that the applicants argument based upon s 73(1)(d) of the Land Rights Act cannot succeed is that it seems to me that the Fisheries Act meets the pre-conditions applicable to s 73(1)(d). To the extent that it applies within the waters of the claim area it is a law "regulating [and/or] ... controlling fishing ... in waters of the sea ... adjoining, and within 2 kilometres of Aboriginal land". The claimants argue that the Fisheries Act does not answer this description because it is an Act of "general application". However, in my view s 73(1)(d) cannot be construed as limiting the power of the Northern Territory Parliament such that any legislation passed in reliance upon s 73(1)(d) of the Act can only deal with that subject matter and cannot deal with other matters relying upon other powers, I can think of no obvious reason why the Commonwealth would have so legislated; nor is there anything in s 73(1)(d) of the Act which would require such an anomalous result.

116 The Fisheries Act also provides for the "right of Aboriginals to enter, and use the resources of, those waters in accordance with Aboriginal tradition". Section 53 of the Fisheries Act provides:

‘Aboriginals

(1) Unless and to the extent to which it is expressed to do so but without derogating from any other law in force in the Territory, nothing in a provision of this Act or an instrument of a judicial or administrative character made under it shall limit the right of Aboriginals who have traditionally used the resources of an area of land or water in a traditional manner from continuing to use those resources in that area in that manner.

(2) Nothing in subsection (1) shall authorize a person to enter any area used for aquaculture, to interfere with or remove fish or aquatic life from fishing gear that is the property of another person, or to engage in a commercial activity.’

There is no evidence in this case of any use or exploitation of the fish of Blue Mud Bay by the claimants in accordance with their traditions that would not continue to be permitted under the Fisheries Act. Although the Fisheries Act may authorise others to exploit the fish in the waters of the claim area, it does not prevent the claimants from continuing to do so in accordance with their traditions.

117 Even if the only power to support the Fisheries Act in its application to the waters of Blue Mud Bay to the seaward of the low water mark was that contained in s 73(1)(d) of the Land Rights Act, the Fisheries Act would nevertheless validly apply to those waters and licences could be issued permitting fishing in them.

THE JUDICIARY ACT PROCEEDING

118 For the above reasons it is inappropriate to make any of the declarations sought by the applicants in the Judiciary Act matter being Action No D12 of 2003.

THE NATURE OF A DETERMINATION OF NATIVE TITLE

119 In Action No D6035 of 2002 the claimants seek a "determination of native title". That term is defined in s 225 of the NTA:

‘A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b) the nature and extent of the native title rights and interests in relation to the determination area; and

(c) the nature and extent of any other interests in relation to the determination area; and

(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease--whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.’

120 In order to understand the significance of a determination under the NTA it is necessary to contrast it with the common law recognition of native title. In Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (Mabo) the High Court held that communal or group rights in land held in accordance with Aboriginal tradition could be "recognised" by the common law: see at 60-62, 70. The act of "recognition" acknowledged the intersection of "traditional laws and customs with the common law": Fejo at 128. The relevant right remained a traditional right, not a common law right. The common law merely "recognised" that right.

121 The potential inconsistency between the common law of tenures and traditional Aboriginal rights in land was resolved by the theory of the Crown’s radical title Mabo at 50-51; Yarmirr HC at 51 [47]-[49]; Secher, "The Reception of Land Law into the Australia Colonies Post-Mabo: The Continuity and Recognition Doctrines Revisited and the Emergence of the Doctrine of Continuity Pro-Tempore" [2004] UNSWLawJl 38; (2004) 27 UNSWLJ 703 at 720-723. Where there were subsisting Aboriginal rights in land ("native title interests"), the Crown’s radical title at settlement was subject to those native title rights, which were recognised by the common law and which could be enforced at common law. Unless extinguished (meaning, in this context that the rights were no longer "recognised": see Fejo at 155-156), the native title rights would continue to be recognised by the Australian common law providing that holders of native title continued to exercise such rights and maintain their connection to the land in accordance with their laws and customs. The rights could be enforced by common law proceedings: Mabo at 59-60, 62.

122 It was clearly accepted by the High Court in Mabo that Aboriginal tradition could change over time and that it was that tradition, as changed, which provided the necessary continuity for the purpose of the continued recognition of native title by the common law.

123 It can be seen that the "recognition" of native title in a particular case and at a particular point in time was necessarily a limited and transitory recognition. Not only could the native title rights evolve over time in accordance with Aboriginal tradition, they were subject to extinguishment. They could also be lost if the holders of the native title ceased to maintain their traditional connection with the land.

124 The NTA creates an alternative and fundamentally different procedure for identifying and enforcing native title. As discussed below, "native title" for the purpose of the NTA is a statutory concept, similar to common law native title, but different from it. Section 13(1) of the NTA provides:

‘Applications to Federal Court

(1) An application may be made to the Federal Court under Part 3:

(a) for a determination of native title in relation to an area for which there is no approved determination of native title; or

(b) to revoke or vary an approved determination of native title on the grounds set out in subsection (5).’

125 There is no procedure under the NTA for "group" applications, much less any recognition of the relevant Aboriginal group as a political entity. Instead the application for native title must be made by an individual or individuals who are authorised by all the persons who hold the common or group rights: see McKenzie v State Government of South Australia [2005] FCA 22. Section 61 of the NTA provides in part:

‘Applicant in case of applications authorised by claim groups

(2) In the case of:

(a) a native title determination application made by a person or persons authorised to make the application by a native title claim group; or

(b) a compensation application made by a person or persons authorised to make the application by a compensation claim group;

the following apply:

(a) the person is, or the persons are jointly, the applicant; and

(b) none of the other members of the native title claim group or compensation claim group is the applicant.

Applicant’s name and address

(3) An application must state the name and address for service of the person who is, or persons who are, the applicant.

Applications authorised by persons

(4) A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:

(a) name the persons; or

(b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.’

126 Persons so authorised can apply to the Federal Court for a determination that native title exists. Ultimately, this Court has power to determine whether native title exists and, if it does, its nature and extent: see NTA ss 79A, 81, 94A, 225.

127 A determination, once made, operates "in rem": see Wik Peoples v Queensland [1994] FCA 967; (1994) 49 FCR 1; Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 (Ward FC) at 368-369. It determines the existence of the relevant native title for all purposes and binds third parties. This follows both from the terms of the NTA as a Commonwealth law for the purposes of s 109 of the Commonwealth Constitution and as a necessary inference from the terms of the NTA, particularly s 13. To this extent a determination of statutory native title would preclude any future proceedings seeking common law "recognition" and enforcement of traditional native title over the area comprised in the determination.

128 Under the scheme of the NTA the determination "translates" rights under Aboriginal tradition into rights enforceable in the "ordinary" legal system. Whilst the common law "recognised" the rights, the scheme of the NTA is that the rights are of the same nature as any other rights created or vested under Commonwealth legislation. It is for this reason that the determination must identify "how rights and interests possessed under traditional law and custom can properly find expression in ... terms" comprehensible in the courts: see Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 (Ward HC) at [89]. Subject to the comments below, the determination must be expressed in terms that can be understood and interpreted by a court without further evidence of Aboriginal tradition and custom. Otherwise the determination would not have "translated" the traditional right into one made under the NTA.

129 Obviously, considerable care needs to be taken to ensure that any determination by this Court does not simply seek to enforce Aboriginal tradition as it evolves. Whilst this Court can exercise the jurisdiction conferred by the NTA to "translate" a right under Aboriginal tradition into a right under Australian law, it is still a Court established under Chapter III of the Commonwealth Constitution. It cannot administer or enforce Aboriginal tradition as such, any more than it can administer or enforce the laws of an Australian State (see Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511).

130 Subject to the limited capacity to vary a determination in s 13 of the NTA, once made the determination is subsequently binding and enforceable. Rights granted by or under the determination are enforceable in the ordinary law courts. Native title rights not included in the determination are not enforceable thereafter in the ordinary courts. The determination should be a final resolution of the extent of native title in the area that is the subject of the claim: see Munn v Queensland [2002] FCA 486 at [8].

131 The reasons why the Parliament treated a determination as operating in rem are obvious enough, particularly within a legal system where (equities aside) rights in land are fundamentally statutory. The determination provides the desired certainty as to the existence and incidents of native title which the common law may not have provided. In particular, it provides certainty as to the effect and relationship of native title with other rights and interests in the land.

132 Given the requirement of certainty the relevant determination must be detailed and specific: see Ward HC at 82-83. It must ‘exhaustively indicate the determined incidents’ of native title: Attorney-General (NT) v Ward [2003] FCAFC 283; (2003) 134 FCR 16 at 22-24 [15]- [22].

133 The detailed specification of all aspects of native title would prove virtually impossible. For example, if it were necessary to specify not only who currently held rights, but who could succeed to them, it would then be necessary to identify all of the persons holding all of the traditional rights and obligations over the claim area, to identify all of the potential relationships that could be relevant to the succession of those rights and, where the relevant relationship was itself defined by Aboriginal tradition (such as traditional marriage, traditional relationships etc), to define the tradition in sufficient detail that it would not need to be explained by further evidence. It would also be necessary to detail the interaction of the rights held inter se by particular subgroups within the claim group. All of this would undoubtedly have the effect of "codifying" Aboriginal tradition with the result that the procedures of the ordinary courts could then be used to prevent the further development of that tradition. If the determination stated in considerable detail which individuals held which rights, and provided as to the rules of succession in relation to those rights, then it would not be possible to vary those rights except in accordance with the procedure under s 13 of the NTA. Persons holding the rights could enforce them notwithstanding that there had been further developments in the traditions that affected them. Any problems in that regard would be exacerbated to the extent that the exercise of any rights was dependent upon discretionary decisions in accordance with Aboriginal tradition. It would be necessary in the determination to set out the nature of the discretion, who could exercise it (including any rules of succession) and so on. In effect, the determination would end up as a detailed and authoritative statement of the traditional law and custom of the native title holders. Once made, the relevant traditional rules could not change except in accordance with s 13 of the NTA.

134 The NTA does provides a mechanism by which some of the potential problems arising out of a "translation" of rights operating in rem can be avoided: see Mantziaris & Martin Native Title Corporations (2000) at 66 ff. In making a determination of native title under the NTA the Court must determine whether the native title will be held by a prescribed body corporate ("PBC") on trust for the native title holders (s 56 NTA ) or, if not, it must determine which PBC will perform the relevant functions under the Act and Regulations as agent for the native title holders (s 57 NTA). In either case the PBC is registered on the National Native Title Register and becomes a registered native title body corporate: (s 193 NTA). The practical result is that, if the native title holders wish to seek a determination under the NTA they must establish a PBC which will act either as trustee or as agent for them in relation to their native title interests.

135 A PBC must comply with the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). Those requirements include (Reg 4):

(a) The body was incorporated on or after 30 December 1994 under the Aboriginal Councils and Associations Act, 1976 (Cth) for the express purpose of being the subject of a PBC determination; and

(b) All the members of the corporation are persons who have native title rights and interests.

136 The functions of the PBC are to act as trustee or agent (as the case may be) for the native title holders (Reg 6 & 7). If it does any act which will affect the native title rights it must consult with and obtain the consent (in accordance with Aboriginal tradition) of the native title holders (Reg 8). In some circumstances it is also required to consult with the relevant representative body (Reg 8(3)(a)).

137 This role of native title corporations (together with the "representative role" of the Land Councils) reflects the proposals in the Woodward Reports. It also reflects the use of corporate bodies to "manage" native title in other contexts: see for example Nettheim Governance Bodies and Australian Legislative Provision for Corporations and Councils (1999).

138 Given the role of the PBCs in acting for and on behalf of the native title holders and given the potential difficulties that a detailed determination might cause if it detailed the "internal" issues relating to the native title holders, the plain intention of the NTA would seem to be that those rights should be left to later resolution from time to time in the context of the performance by the PBC of its own functions and duties: see Ward FC at 368-374, [189]-[213], 391 [280]; Mantziaris & Martin Native Title Corporations (2000) at 70ff, but contrast Daniel v Western Australia [2004] FCA 849; (2004) 208 ALR 51 at 54-57 [10]- [23].

139 For this reason it is not necessary to identify the native title holders by individual name; it is sufficient that the persons be members of an identified group or groups: see Attorney-General (NT) v Ward [2003] FCAFC 283; (2003) 134 FCR 16 at 22-24 [15]- [22]. These groups can be identified by adopting the relevant group descriptions under traditional law. They do not require further definition. As Olney J commented in Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32 (Hayes) at [36]:

‘Be all that as it may, in the event that it finds that native title exists, the Court is charged with the task of identifying the persons or group of persons who hold the native title rights (s 225(a)). It would be impossible in a case such as the present to name all of the relevant individuals and it would be a useless exercise to do so. With the passage of time the composition of the group will change as senior members pass on and new members are born.’

See also Nicholson J in Daniel v Western Australia [2004] FCA 849; (2004) 208 ALR 51 at 61-63 [49]- [53].

140 Similarly, so long as the rights of all of the native title holders are expressed in detail, it is not then necessary for the determination to identify expressly which particular group can exercise what particular rights. That is an issue that can be left for resolution by the PBC.

141 As Mantziaris & Martin make clear, the potential for conflict between the traditional owners (with their traditional "political" structures) and the PBC is obvious. However, that is a problem that falls outside of the issues raised in this case.

142 Finally it is necessary to mention one further problem that was referred to in the submissions. It relates to the obvious possibility (at least in claims involving co-existing rights) that a right or title which might otherwise limit the native title right might be overlooked in the determination. Plainly it was not the intention of the Parliament that the NTA would create rights inconsistent with the ordinary system of land tenure except to the extent it does so expressly: see Lansen v Northern Territory [2004] FCAFC 257; (2004) 211 ALR 365 at 378 [34]. On the other hand, the effect of a determination which created inconsistent rights would may be to "extinguish" other rights or titles, including, for example, a right or title under the torrens system, contrast Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59 at [53]. In order to avoid any such possibility all parties submitted to me that any determination should include a "catch all" qualification of the sort often used in such determinations: see for example pars 8(c)-(f) of the draft determination in De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325 (De Rose) at 375.

ELEMENTS OF STATUTORY NATIVE TITLE

143 The first question under s 225 of the NTA is whether or not "native title" exists in the claim area. "Native title" is defined in s 223 of the NTA which provides in part:

‘Common law rights and interests

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

Hunting, gathering and fishing covered

(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

...’

144 There are three questions that need to be addressed under s 223(1) of the NTA. As it was explained in the joint judgment in Ward HC at 66:

‘... the immediately relevant elements in the definition in s 223(1) of "native title" and "native title rights and interests" have remained constant. Several points should be made here. First, the rights and interests may be communal, group or individual rights and interests. Secondly, the rights and interests consist "in relation to land or waters". Thirdly, the rights and interests must have three characteristics: (a) they are rights and interests which are possessed under the traditional laws acknowledged, and the traditional customs observed", by the relevant peoples; (b) by those traditional laws and customs, the peoples "have a connection with" the land or waters in question; and (c) the rights and interests must be "recognised by the common law of Australia".

The question in a given case whether (a) is satisfied presents a question of fact. It requires not only the identification of the laws and customs said to be traditional laws and customs, but, no less importantly, the identification of the rights and interests in relation to land or waters which are possessed under those laws or customs. These inquiries may well depend upon the same evidence as is used to establish connection of the relevant peoples with the land or waters. This is because the connection that is required by par (b) of s 223(1) is a connection with the land or waters "by those laws and customs". Nevertheless, it is important to notice that there are two inquiries required by the statutory definition: in the one case for the rights and interests possessed under traditional laws and customs and, in the other, for connection with land or waters by those laws and customs.’

145 Par (c) incorporates the common law requirements for recognition of native title. To that extent it gives rise to issues of law, albeit issues of law that may be highly fact dependent.

146 As the High Court expressly noted, the questions raised in pars (a) and (b) are questions of fact: Ward FC at 338 [58]. This has important ramifications in understanding the judicial task under s 225 of the NTA. As already remarked it is not the role of this Court under s 225 of the NTA to apply, administer or enforce traditional law: see Jones v Public Trustee (Qld) [2004] QCA 269; (2004) 209 ALR 106, 112 [14]. In this regard the Court’s task is to be contrasted with the role of a court in giving effect to a foreign law in a case involving private international law (see, for example National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209 at 226). Consequently, it is not the Court’s task to adjudicate upon disputes that may arise under traditional Aboriginal law. Indeed, such a role might well be entirely inappropriate for a Chapter III Court. Rather, the role of the Court is to determine as a matter of fact questions (a) and (b).

147 In order to determine the questions of fact in pars (a) and (b) it will usually be necessary to receive some evidence to establish the existence of traditions or customs which have "normative content": see De Rose at 377-378. It will also usually be necessary to receive some evidence of the rules and principles of the alleged tradition or custom in order to identify the "existence and content" of native title: see Ward FC at 338 [58]. Unless it is otherwise agreed it will also be necessary to receive evidence of the alleged tradition or custom in order to establish the connection between the claimed law and the land or waters in question. The continuity of the relevant tradition is also a question of fact falling within pars (a) and (b): see Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 (Yorta) at [45]-[56].

148 It may be necessary to inquire more generally into the rules and principles of traditional law if there is some real evidentiary dispute as to whether or not such traditional laws or customs existed, or whether particular rights and interests were "possessed" under those laws and customs, or whether there was a relevant "connection". Nevertheless, the factual inquiry is not into the rules and principles of traditional law and custom as such, but into the specific questions of fact identified in s 223(1) of the NTA.

149 Where, as in this case, there are no significant factual disputes in relation to the relevant questions, it may not be necessary for the Court to inquire into the rules and principles of traditional law and custom beyond the extent necessary for the Court to answer those questions and to make any appropriate determinations.

150 An understanding of the nature of the inquiry being undertaken by the Court is also important in understanding what evidence can be received and for what purpose. As the Court is not purporting to administer traditional Aboriginal law and custom, but is inquiring into the specific questions identified in the NTA, it is not prevented from receiving evidence as to Aboriginal laws and customs from a person who has appropriate knowledge of those laws and customs, even if that person was not authorised to give such evidence in accordance with Aboriginal law and custom. In this case, for example, some of the witnesses called by the applicants gave evidence on behalf of Aboriginal groups of which they were not members. They claimed in their evidence that they were properly authorised in accordance with relevant Aboriginal traditions and customs to give such evidence and I accept that they were. However, the question for me is not whether they were so authorised, but whether they had the relevant knowledge to give the evidence. I am satisfied that they did. (This is not to suggest, of course, that a witness should be required to answer questions where the witness is not permitted to answer them by Aboriginal tradition and custom. That issue raises very different considerations).

151 Finally, as the High Court pointed out in Yorta at [78]-[81], the factual inquiry is "rooted in pre-sovereignty traditional laws and customs" and that this "may very well present difficult problems of proof". However, the Court left open the question of whether the solutions adopted to the problems of proof in previous cases, including Milirrpum were right. The High Court noted that "Were [those problems] to arise again, in proceedings before the Federal Court, it would be necessary to consider them by reference to the Evidence Act 1995 (Cth)". It is now necessary to consider those problems.

ADMISSIBILITY OF ANTHROPOLOGICAL EVIDENCE

152 It is convenient to discuss first the evidence given in this case by the anthropological witnesses if only because it provides a useful means of summarising all of the evidence and of highlighting the limited extent of any evidentiary dispute between the parties.

153 The claimants called Professor Morphy as a witness; the Northern Territory tendered the report of Dr Cane and the Commonwealth called Professor Sansom. The claimants also tendered a report prepared by Mr Barber, a PhD student in anthropology who has worked with the claimants in relatively recent times.

154 Professor Morphy described the field of anthropology as follows:

‘MR KEELY: Now, Professor Morphy, can I ask you, would you tell us what is understood by the discipline of anthropology?

PROFESSOR MORPHY: ’ll be very brief. Anthropology is a holistic study of human societies and cultures. It’s based on a method of, as a rule, long-term fieldwork, involving participant observation. One of the key aspects of anthropological method is actually to avoid, as much as possible, getting your information through questioning, questionnaires and so on, in particular - - -

MR KEELY: So how do you - how do you get it?

PROFESSOR MORPHY: - - - at the initial stage. Through participant observation, through observing what people are doing, how they’re behaving, by recording events that you witness, such as ceremonial events, disputes, and so on and so forth. It involves analysing and getting data on systems of social organisation, which in the case of indigenous Australian societies means a detailed analysis of kinship systems, and then analysing that material in relation to the body of literature that exists for that particular topic.

MR KEELY: Is that a standard part of the methodology, to analyse and compare and draw upon published literature within the field?

PROFESSOR MORPHY: It’s - it’s an essential requirement.

MR KEELY: And to what extent does the discipline involve determining people’s rights and interests in a customary sense?

PROFESSOR MORPHY: It’s central. I mean, the central topic of my own fieldwork when I started was actually looking at the distribution of rights in madayin, in paintings, the way that they were controlled and the way that they related to aspects of social organisation and social control more generally. So in my particular case, the issue of customary law and rights has been central to my work from the beginning.’

155 The evidence of the anthropologists was put forward as "expert evidence". That description, however, has the potential to mislead. "Expert" evidence is simply evidence given by someone who has a particular expertise. To the extent that "expert evidence" describes any more limited category (see, for example, in the Practice Direction "Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia" made on 19 March, 2004) it would seem to be a reference to what is sometimes called "forensic expert evidence" meaning evidence given by an expert called solely for that purpose: see, for example, the use of that term by Freckeltyon, Reddy & Selby in Australia - Judicial Perspectives on Expert Evidence: An Empirical Study (1999) at 15.

156 Much of the discussion about "expert" evidence would seem to assume that it is primarily or only "opinion" evidence. However, that will depend upon the nature of the expert and the nature of the evidence. For example, where the evidence of an anthropologist is the direct consequence of significant field work over a lengthy period, it may not be evidence of opinion at all. Rather, it may be the direct evidence of the observations that the anthropologist has made. Similar evidence might be given by others who have made similar observations: see Ritz Hotel v Charles of the Ritz (No 7) (1987) 14 NSWLR 104 at 105. This would include the claimants themselves, of course, but might also include missionaries, teachers, or those who have lived or worked with the claimants over a long period and are in a position to give useful evidence of what they have observed. Those observations, in so far as they consist of what the relevant person had observed are admissible to the extent that they are relevant.

157 However, where the evidence of the anthropologist (or anyone else) is derived from what that person has been told the issue is more complicated. This evidence may be subject to the hearsay restriction contained in s 59 of the Evidence Act 1995 (Cth) (Evidence Act). It restricts the admissibility of evidence "of a previous representation made by a person" where that representation is sought to be used to "prove the existence of a fact that the person intended to assert by the representation". The hearsay restriction is subject to a number of exceptions. First, where the evidence is of a fact, rather than what is said about the fact, then it is not hearsay. This is reflected in s 74 of the Evidence Act which provides that evidence can be given in relation to "evidence of reputation concerning the existence, nature or extent of a public or general right." In my view evidence of a "custom" or tradition including evidence of what is believed about a custom or tradition is evidence of a fact and is not hearsay. It can be treated as evidence of "reputation" for this purpose. In my view there is no prohibition under the Evidence Act of the admissibility of that evidence. Evidence can be given pursuant to s 74 of the Evidence Act of the "reputation" of the existence, nature and extent of Aboriginal custom by those subject to Aboriginal custom and by those who have studied it over a long period: see Milirrpum at 161-162; De Rose v State of South Australia [2002] FCA 1342 at [265]- [271].

158 I note that there is some discussion in the Canadian cases which would seem to suggest that the evidence of indigenous custom is admissible on the basis that it is a specific exemption from the general rules of evidence: see, for example, Delgamuukw v British Columbia (1997) 153 DLR (4^th) 193 at 231-233 [84]-[87]. Similarly, Blackburn J in Milirrpum at 158-159 may have treated evidence of customary law in British Africa as admissible as a specific exemption from the general rules of evidence. See also the discussion by the Australian Law Reform Commission in The Recognition of Aboriginal Customary Laws – Report No 31 (1986) at 453 ff. However, it does not seem to me that the evidence of Aboriginal custom and tradition needs to be considered as a special exception to the usual rules of evidence, even assuming that it were possible to do so in the context of the Evidence Act. It is direct evidence of a fact in issue – the existence of tradition or custom and of rights pursuant to it. As will be discussed further below, evidence of custom and tradition is well known to the common law.

159 On the other hand, in my view it is at least doubtful whether evidence of "reputation" can be given by an anthropologist (or by any one else) who only carries out an investigation for the purpose of giving evidence in particular litigation. In such a case the evidence may not properly be characterised as evidence of "reputation", but only as evidence of what that person has been told. If so characterised it is hearsay. To the extent that any opinion is said to be based upon such information, the information needs to be independently proved: see Yarmirr TJ 562-563. To the extent that the evidence consists of what the anthropologist sees and observes otherwise than being told, if it does not involve a reasonable period of observation, it may only be evidence of a specific event or events, not of custom or reputation.

160 It follows that much of the evidence (or at least some of it) given by anthropologists, if based upon long term field work with a claimant group, may not be opinion evidence at all. Rather, it may be evidence of their observations of "reputation" or custom or, at least, it may include such evidence. To that extent, it is direct evidence of facts and is admissible on that basis.

161 In the ordinary course it might be expected that greater weight as to what the relevant customs or traditions are, how long they have persisted and what rights and interests are enjoyed under them would be accorded to the evidence of the Aboriginal persons who are subject to the customs or traditions, rather than to the evidence of an observer who has observed (and been told) about them. On the other hand, it may be that some of the observations of anthropologists will have significant weight by reason of their training on how to observe human societies and what significance should be attached to what they observe.

162 The fact that some of the evidence of anthropologists may not be opinion evidence does not mean that all of it is not. Evidence relating to the anthropological literature and of what conclusions can be drawn from it is clearly opinion evidence requiring relevant expertise. So too are expressions of opinion as to how the relevant facts (whether based upon the anthropologist’s observations or independently proven) can be viewed within the broader framework of Aboriginal custom and tradition, or the customs and traditions applicable to a particular area. The basic principle that evidence of an opinion is not admissible to prove the existence of a fact, is expressed in s 76 of the Evidence Act. That basic principle is also subject to exceptions, most particularly the admissibility of expert evidence: see s 79 of the Evidence Act.

163 Notwithstanding that anthropological evidence may be admissible either as direct evidence of observations (including as to tradition and custom), or as opinion evidence, concerns have been expressed in a number of cases about evidence given by anthropologists. There are at least two specific problems which seem to recur with such evidence in litigation concerning aboriginal rights. The first is the perceived problem of partiality. To paraphrase Mahoney J of the Canadian Federal Court in Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3d) 513 at 538 on occasions "the evidence [has] more the ring of a convinced advocate than a dispassionate professional. There [is] a lot of prognosis." There is an obvious risk that the involvement of the "expert" in the preparation of a case will at least affect the weight to be accorded by the court to the evidence given: see, for example, the submissions referred to in Lardil at [89]-[90]. It may even affect its admissibility: see, for example, the "pleading" referred to in AG (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; see also Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at 737-739 and see Yarmirr HC at 62, although that will depend upon whether it is ultimately "evidence" rather than argument. Evidence of opinion is not inadmissible merely because the person giving the evidence is not "independent". In this case at least one significant paragraph of the report of Professor Morphy was treated by me as forming part of the applicants’ submissions pursuant to O 10 r 1(2)(j) of the Federal Court Rules, rather than as an expression of an expert opinion.

164 On the other hand, issues of evidence are not to be treated as if they were directed to giving all parties a "sporting chance" of success. In this case, for example, the Commonwealth submitted that the evidence of the Dr Morphy should be discounted given that no other anthropologist had the opportunity to have the same extensive access to the claimants as he had had. The Commonwealth submitted that as his evidence could not be adequately tested, reliance should be placed instead on the evidence of the Aboriginal witnesses. As discussed below, this would not have assisted the Commonwealth case even if it had been appropriate to adopt that course. More fundamentally, however, those submissions seem to me to misunderstand the role of the court in determining facts. Whether or not the respondents were in a position to "test" Dr Morphy’s evidence is not to the point. If the respondents are not in a position to challenge the evidence, then it may be appropriate for them to consider whether they can properly dispute the claims based on that evidence. But the fact that they cannot dispute it does not mean and does not even suggest that it is not admissible or that it should not be relied upon.

165 The other specific problem with some anthropological evidence relates to the form in which written anthropological reports often seem to be prepared. These often seem to be in the form of a book setting out various facts and conclusions in an interesting and informative way. Often there is no obvious link between the methodology adopted by the expert (be it observation, discussions, reference to the published literature or the expression of an opinion) and the apparently factual matters stated in the report. Presumably reports in that form are appropriate and accepted within the field of anthropology. Blackburn J in Milirrpum at 161-162 seems to have been prepared to overlook these problems by reason of analogies with other areas of expert evidence. For my part, I do not think that the analogies referred to by Blackburn J are exact, particularly as some anthropological evidence based upon long term field work is best considered evidence of fact, rather than opinion. Given the specific issues that must be addressed by a court in considering the admissibility and use of anthropological evidence, written reports which do not identify the links between methodology, matters of apparent fact, matters of apparent opinion and matters of apparent conclusion can cause significant difficulty for a court. As Sackville J commented in Jango v Northern Territory (No 2) [2004] FCA 1004 at [11], "it is often difficult to discern whether the authors are advancing factual propositions, assuming the existence of particular facts, or expressing their own opinions". (See also Yarmirr HC at 62).

166 Of course, it is the responsibility of the lawyers, not the expert, to ensure that any written report intended to be tendered into evidence is in an appropriate form for that purpose. Plainly enough if the evidence was led wholly by oral questioning it would be expected that counsel would organise those questions so as to ensure that the relevant and necessary links are properly identified. The same process is required in relation to written reports that are actually tendered to the Court. This may require close liaison between the lawyer and the anthropologist to ensure that the resulting report not only properly reflects the views of the expert (rather than the hopes of the lawyer’s clients), but that it is in a proper admissible form.

ANTHROPOLOGICAL EVIDENCE IN THIS CASE

167 In this case the applicants filed reports by Professor Morphy and he gave oral evidence. Professor Morphy is undoubtedly eminent in his field. He and his wife (who is a linguist) have worked closely with the claimant groups for over 30 years. As Dr Cane commented in his report:

‘It is hard to imagine a better-qualified person to speak with authority on the Yolngu and the people associated with the area under claim than Professor Morphy. His CV is more than impressive and he is thought of as a scholar of great eminence having made a significant contribution to Australian’s understanding and appreciation of Aboriginal people, custom, art and country.

Despite such commendation, there is a negative side. For example, Professor Morphy’s experience and eminence are such that it is hard at times for the reader to separate the scholar from the senior. One has a sense when reading his report that one is gaining a special insight into Professor Morphy’s storehouse of Aboriginal knowledge but, at the same time, one is never sure whether they are gaining an insight into his knowledge or that of the society he is describing. Is one reading the report of an expert in the context of native title, the report of an academic with an interest in and a learned understanding of classical Aboriginal law and custom, or an account of a knowledgeable and articulate non-Aboriginal ‘Yolngu elder’? Perhaps one is reading a report that is a combination of all three.’

168 For the reasons given above notwithstanding the close relationship of Professor Morphy with the claimants over many years his evidence is admissible. Indeed, that close relationship and its duration means that much of his evidence is likely to be admissible as evidence of primary fact, and not just as evidence of opinion.

169 On the other hand, Dr Cane was correct in identifying potential problems with partiality. It is clear that Professor Morphy was actively involved in the preparation of the applicants’ case, including preparing witness statements, taking and giving instructions and so on.

170 Dr Cane may also have been correct in identifying potential problems arising from the failure of Professor Morphy’s report to distinguish clearly between the methodology used and the "facts" stated. This is notwithstanding that Professor Morphy stated in his report that factual matters were based upon his "own observations". It also would appear that some of the "facts" within his report involve matters of opinion, albeit expert opinion.

171 In this case those potential problems do not lead me to have any concern about accepting Professor Morphy’s evidence. There are several reasons for this:

(a) His conclusions are entirely supported by the Aboriginal evidence. To the extent that any of the conclusions in his report involve matters of opinion which might be said to be based upon hearsay (distinguished from "reputation"), I am satisfied that the evidence of the Aboriginal witnesses provides a sound basis for the relevant opinion;
(b) As both Professor Sansom and Dr Cane accepted, the anthropological literature generally supported the conclusions drawn by Professor Morphy. In this regard it is worth noting that the Yolngu people have been the subject of reasonably intense anthropological study by a number of eminent anthropologists in addition to Professor Morphy. These include Donald Thomson, Ronald and Catherine Berndt, Nancy Williams and others. As discussed below, Professor Sansom qualified his agreement with Professor Morphy’s evidence in relation to native title rights over the sea because in his view that proposition had not been established in the research literature.
(c) As discussed below, to the extent that Professor Morphy’s evidence involved matters of opinion, those opinions were confirmed by the other anthropologists.

172 Subject to the qualifications referred to below, it is unnecessary in this case to make clear distinctions in relation to Professor Morphy’s evidence between matters of fact, matters of opinion based upon observation, matters of opinion based upon literature or matters of opinion based upon hearsay. However his evidence (or any part of it) is characterised, in my view it is admissible, relevant and reliable, at least to the extent necessary to establish the facts relevant to the resolution of these proceedings.

173 I have already referred to the agreement reached between the senior anthropologists. That agreement significantly reduced the extent of the factual disputes between the parties and the time involved in hearing the witnesses. Before any pleadings were filed in these proceedings procedural orders were made for the exchange by the parties of draft anthropological reports. Orders were then made for a "hot tub" involving each senior anthropologist for each party under the supervision of the Deputy Registrar. The purpose of the "hot tub" was to enable the experts to identify the issues and principles about which they agreed or disagreed. Legal advisers were not present. The result of those discussions between the anthropologists was an agreement between them as to certain propositions. The agreement was provided to the legal advisers. That agreement was not put before me until it was referred to and adopted by Professor Morphy as part of his evidence. The propositions agreed by the anthropologists and adopted by Professor Morphy as part of his evidence are set out in Appendix 1 to these reasons.

174 Only two significant issues divided the senior anthropologists. One has already been referred to – Professor Sansom was not satisfied that the existing literature supported Professor Morphy’s conclusions as to rights in the sea. However, after hearing the evidence of the Yolngu witnesses, Professor Sansom accepted that Professor Morphy’s conclusions in that regard were correct:

‘I have now heard the evidence of the Aboriginal witnesses in the case. I’m of the opinion that the information on the Yolngu sea tenure within the claim area, as presented by Professor Morphy in his report, and in paragraph 38 of his supplementary report has been amply corroborated by those witnesses.’

175 The only other significant difference between the expert anthropologists was whether a right of "innocent navigation" is recognised by Yolngu law in relation to the sea. Professor Sansom’s opinion was that such a right of "innocent navigation" would be recognised, apparently on the basis of presumed necessity. Professor Morphy took a different view of such a right, viewing it as related to certain groups only and even then limited to the "outer waters" which were outside of the claim area. In cross examination by the Northern Territory, Professor Sansom would appear to accept that any right of innocent navigation did not apply within the claim area and, at least to this extent, he no longer disagreed with Professor Morphy. Given the concessions made by the applicants that any native title rights in relation to the sea are subject to the right of navigation it is unnecessary to resolve this dispute, assuming that there is one.

176 Finally I should make mention of the evidence of other archaeologists. A report by Patrick Faulkner and Dr Anne Clarke on "The Archaeology of the Blane Peninsula, Blue Mud Bay, Eastern Arnhem Land" was tendered by consent. By reference to archaeological sites on or adjacent to the claim area the authors concluded that there had been continuous Aboriginal occupation of the claim area for a period of around 3,200 years. I am happy to accept the report for that purpose. However, I do not think that the report establishes that there is continuity between the claimants and those that were in occupation of the claim area as at 1788. It is necessary to rely upon other evidence to establish that fact.

177 A report by Mr Barber entitled "Report of Observation: Yilpara Community and Blue Mud Bay" (although with some deletions) was also tendered by consent. Mr Barber is currently working with the claimants as part of his candidature for a PhD from the Australian National University. The report consists of Mr Barber’s observations of the practices of the Yolngu people over a period of some 17 months during 2000-2001. The report does not make clear whether the observations consists only of what he saw, or whether it includes what he had been told, but it would seem likely that at least some of it was hearsay. Nor could it be said that it was evidence of "reputation" or "custom" given its relatively recent provenance. In any event, there is evidence from the Yolngu witnesses as to those matters. I do not suggest that Mr Barber’s report is other than sound anthropology. However, it is unnecessary for me to rely upon the report as evidence and I do not propose to do so.

178 Otherwise, I accept the evidence of the anthropologists. In particular, and subject to the qualifications expressed in these reasons, I accept and rely upon the evidence of Professor Morphy.

THE EVIDENCE OF THE YOLNGU WITNESSES

179 The applicants called six Yolngu witnesses. They were all experienced senior Yolngu men. By virtue of their seniority and their status most, if not all, of them were well known to the respondents. None of the respondents challenged the credit of any of the Yolngu witnesses. They were right not to do so. Individually and collectively they were impressive witnesses.

180 Evidence is normally given orally by a process whereby counsel asks the witness specific questions and the witness answers those questions. Initially in this case the applicants expressed a preference that the Yolngu witnesses give their evidence entirely orally, although it was not entirely clear (at least to me) why they had that preference. In any event orders were made that written statements be taken and provided to the respondents prior to trial. The applicants then proposed to seek to tender those statements through the witnesses. There were initially some objections by the respondents that the tender of written statements signed by the witnesses and adopted by them in evidence involved either the receipt of hearsay evidence and/or asking leading questions. In my view the adoption by a witness of a written statement prepared by that witness for the purpose of giving evidence is not hearsay for that reason. It may be objectionable for being in narrative form (but see LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 688; (2001) 53 NSWLR 31 at 32-33, but evidence can be given in narrative form with leave of the Court: see s 29 of the Evidence Act. It may also be objectionable for involving a leading question, but leading questions are also permissible with the leave of the Court: see s 37 of the Evidence Act. In my view the Court can grant leave for a party to lead evidence in chief by putting to a witness a written statement or affidavit prepared for that purpose and asking the witness if the witness made that statement and agrees that it is true and then tendering that statement or affidavit: see Donaghy v Wentworth Area Health Service [2003] NSWSC 533 at [18] ff.

181 In the result most of the evidence of the Yolngu witnesses took the form of written statements or affidavits which were adopted by the relevant witness. Most of the relevant written statement or affidavit was then tendered by consent. Some issues were then explored in evidence in chief and the witness was then cross examined.

182 Obviously there may be circumstances where it is inappropriate to permit a witness to give evidence merely by adopting a written statement previously made by or for the witness for that purpose. This may particularly be the case where credibility is in issue and the statement was not prepared by the witness personally. However, in many cases it is convenient to have evidence in chief given wholly or largely by means of a prepared statement. This not only reduces the time involved in the hearing – it also assists in ensuring that the applicant’s case is prepared well in advance of trial and that the respondent(s) is not taken by surprise. For these reasons expert evidence is often given in this way. There is no reason in principle why other evidence should not also be given in the same manner in an appropriate case. Indeed, it is common practice in commercial cases heard in this Court and in other Australian courts.

183 I accept that this may need to be qualified in relation to some witnesses who may be disadvantaged by this course, which may include some Aboriginal witnesses. An affidavit prepared by Mrs Morphy on behalf of the applicants was tendered by the third respondent. In that affidavit Mrs Morphy deposed to the potential disadvantage to Aboriginal witnesses of giving evidence in written form, including problems in understanding, and in translation. She also deposed to the potential disadvantage to the witness in not having more time to accustom him or herself to the process of giving evidence during evidence in chief, before facing the rigours of cross examination. Whether or not the matters deposed to by Mrs Morphy were appropriate matters for evidence does not need to concern me: contrast Jango v Northern Territory (No 4) [2004] FCA 1539 at [36]- [42]. I accept that the potential disadvantages may well exist in some cases: see Lardil at [86]-[87]. However, I do not think that those disadvantages arose in this case. The Yolngu witnesses were all obviously intelligent. Most of them seemed relatively sophisticated as to the ways of European society. A number of them are artists not only of national, but of international repute. A number of them have been engaged in apparently successful negotiations with governments and commercial bodies over many years. All the witnesses were senior law men in relation to a legal system of considerable complexity. These are not simple and naïve people. Subject to potential issues arising from translation between Yolngu language and English I do not think that the Yolngu witnesses were disadvantaged by the procedure adopted.

184 In the circumstances I am satisfied that this was an appropriate case for the use of written statements. It had the effect of significantly reducing both the time necessary to hear the oral evidence and the issues in contention. It also had the considerable benefit of requiring the applicants to prepare their case well in advance. Whilst this undoubtedly imposed a significant burden upon their legal and other advisers (a burden referred to by Mrs Morphy in her affidavit), it considerably reduced the time that the witnesses were engaged in giving their evidence. The consent of the parties to the use of that procedure was sensible and appropriate.

185 Some mention should be made of the only clear example of a potential misunderstanding of the meaning of words within the written statements. In par 40 of his written statement Mr Gumana said "As the river crosses Dhalwangu country, the bed, banks, waters and resources of the river belong to the Dhalwangu." I would normally have understood the word "resources" to mean physical resources, such as fish. However, in his oral evidence Mr Gumana said that he had used the word, or at least understood it, to mean "stories". Given the evidence as to the spiritual and traditional significance of "stories" the use of the word "stories" in that context is understandable. It seems to me that this is an example of what is probably obvious – some care needs to be taken in ensuring that a witness’s evidence is not misunderstood by reason of a difference in understanding the meaning of words. In the event this misunderstanding did not have any effect in this case. It was identified during cross examination. It also did not matter. It was clear from Mr Gumana’s evidence that he did understand that physical resources, such as fish, within the river were "owned" by or "belong to" the clan over whose land the river (including the fish) was situated. It is also clear from other evidence of Mr Gumana and from the evidence of Mr Djambawa Marawili, Mr Wirrpanda, Mr Mununggurr and Mr Gumbaniya Marawili, that the words "own" or "belong to" in relation to objects such as free flowing water, birds and fish meant the right to capture or use the object whilst it was present on the clan’s country or waters, rather than a right of dominium over it: contrast Yanner v Eaton (1999) 201 CLR 351 (Yanner) at 365-368.

186 Each of the Yolngu witnesses gave evidence in relation to a number of Yolngu clans. The following persons gave evidence in relation to the following clans:

As to Yiritja Clans:

Witnesses Clans

As to Dhuwa Clans:

Witnesses Clans

187 As mentioned above, any limitation under Yolngu law on whether a person from a particular clan can "speak" for the country of another clan does not necessarily affect the question of whether that person can give admissible evidence of the traditions, customs or rights of that other clan under the Evidence Act. For example, during his evidence Mr Djambawa Marawili marked on a map the "sacred sites" of all of the clans in the sea waters within the claim area. He also gave evidence of the boundaries of such sites. His evidence was consistent with the other evidence given in relation to those sites, but was more specific and detailed. Whether or not Mr Marawili had authority to "speak" in relation to those sites was not a relevant question for me to determine. For the purpose of these proceedings it was sufficient that Mr Marawili knew of the custom of the relevant clans pursuant to which access to the relevant sites was limited. I am satisfied that he did have that knowledge.

188 I am satisfied that each of the Yolngu witnesses was honest and truthful. I am satisfied that each of them had a detailed understanding of the laws, traditions and customs of the clans about which they gave evidence. Subject to the matters discussed in more detail below, I accept their evidence.

CONTINUITY OF TRADITION

189 Against this background I come to consider the first question identified in s 223(1) of the NTA - are there rights and interests "possessed under the traditional laws acknowledged, and the traditional customs observed", by the relevant peoples? This involves a factual inquiry into the rights and interests said to be possessed under Aboriginal tradition. The relevant interests are not limited to those proprietary interests that might be recognised at common law: see Yarmirr HC at 37-39.

190 In order to establish that there are "traditional laws" it is necessary to prove the existence since the date of sovereignty of an indigenous societal structure capable of maintaining traditions and customs: see Yorta at 444-446. The relevant rights or interests must, as a matter of fact, be created by those traditions and customs: Yorta at 445. Consequently, what needs to be established is that:

(a) the relevant custom (or traditional law) existed as at 1788 and
(b) it has continued to exist since that date, albeit that it may have evolved. The acknowledgement and observance of the traditional laws and customs must have continued "substantially uninterrupted" since the date of settlement: Yorta at 456 [89]; De Rose at 378-381 and
(c) the claimed rights and interests are currently possessed by the claimants under the relevant custom or tradition.

191 I am satisfied that the claimants observe "traditional laws". The evidence in relation to that issue is overwhelming and largely undisputed. As Professor Sansom put it:

‘MR KEELY: ... So that, if you’d expect a group anywhere in Australia to have maintained actively its laws and customs, it would be in just this sort of circumstance. Is that right?

PROF SANSOM: Well, I think they have.

MR KEELY: And can I put this to you, that you’ve got wide experience across Aboriginal Australia, is that right?

PROF SANSOM: That’s a difficult one to answer because I’ve had an awful lot of experience in land claims across Australia, but my intensive field work belongs to two sites, Darwin and its hinterland and Perth and its environs.

MR KEELY: Well, you’ve done land claims and Native Title claims in the Northern Territory, in Western Australia, in other states as well?

PROF SANSOM: Western Australia and the Territory, and New South Wales and Queensland.

MR KEELY: Well, I just want to put this proposition to you, that it’s difficult to imagine a group of people closer to their traditions than the group of claimants in this claim?

PROF SANSOM: Yes.’

192 The evidence tendered by the applicants of genealogies and of linguistics is sufficient to establish at least that some of the ancestors of persons who are currently claimants were members of Yolngu society in 1788 and, indeed, well before then.

193 The evidence of Professor Morphy was that there was some documentary evidence relating to contact between Yolngu people and Macassans in around 1803 which could be related back to at least some of the clans in the claim area. Professor Sansom was not prepared to go so far. And Professor Morphy accepted that it was not possible to extrapolate back on the basis of "external evidence" in relation to the current traditional rights of all of the clans:

‘That’s indeed what I’m saying, that the balance of - well, I’m saying that the balance of probabilities are that some of the clans that are there today were there at [1788]. I - you couldn’t possibly go beyond that.’

194 Ultimately the evidence of the existence of the relevant Aboriginal tradition and custom as at 1788, and of the rights held by the particular clans in 1788 and thereafter pursuant to that tradition and custom, is based upon evidence derived from what the Yolngu claimants currently do and from what they have observed their parents and elders do and from what they were told by their parents and elders. Mr Gumana, who was perhaps the eldest of the Yolngu witnesses who gave evidence, described it this way:

‘MR KEELY: Where does - so as I understand the answer given through the interpreter, "rom" is your word for law. And where does that law come from?

GAWIRRIN GUMANA: Rom is come from land, and also from the sea. That’s what we call rom.

MR KEELY: And is that something that you know about?

GAWIRRIN GUMANA: Yes, because my father told me - or not only my father, but people, old people - about land and sea and the water.

MR KEELY: So, your father and other old people told you about land and sea and water?

GAWIRRIN GUMANA: Yes.’

195 As already discussed, there is nothing peculiar or unique about this sort of evidence. It is oral evidence of a custom. It is evidence of fact, not opinion. To the extent that it consists of what Mr Gumana was told by his father and by other old people it constitutes a recognised exception to the rule against hearsay.

196 However, there is still a problem with it. On its face the evidence of what Mr Gumana and the other Yolngu witnesses were told by their fathers and other elders is not able, by itself, to establish what the facts actually were as at 1788. On its face all that it may be able to establish is that the witnesses and the relevant elders believed that there was a long standing custom that pre-dated them.

197 This problem is one that is well known to the common law. There are a number of circumstances where it was necessary at common law to establish proof of custom dating back not just to the 18^th century, but to "time immemorial". Proof of copyhold was one example: "if the tenant could show that he held land which was anciently copyhold, the lord was compelled to comply with the terms of the tenure as laid down by the custom of the manor" see Holdsworth An Historical Introduction to the Land Law (1927) at 44. Another, already referred to above, was the proof of ancient custom as a means of establishing either prescription or ancient lost grant "from time immemorial". (For present purposes it is unnecessary to consider the common law distinction between custom and tradition: see 2 Bl Com * 263. For present purposes both can be treated as "custom"). There were others: see Plucknett A Concise History of the Common Law (5^th ed, 1956) at 307-314.

198 Like the evidence called to prove Aboriginal custom, the evidence called to prove the existence of a custom from "time immemorial" for the purposes of the common law was often oral evidence and it was subject to the same difficulties in relating that evidence back – although not just to the 18^th century, but to the 12^th and 13^th centuries. In practice those difficulties were ameliorated by the readiness of the common law courts to infer from proof of the existence of a current custom that that custom had continued from time immemorial: see, for example, Hill v Smith [1809] EngR 51; (1809) 10 East 475; 103 ER 856; Chad v Tilsed [1821] EngR 8; (1821) 2 Brod & B 403; 129 ER 1022; Halsbury’s Laws of England (4th edn – re-issue) Vol 12(1) at pars 607-608 and the cases there cited. The inference was a strong one: see Jessell MR in Hammerton v Honey (1876) 24 WR 603 at 604:

‘It is impossible to prove the actual usage in all time by living testimony. The usual course taken is this: Persons of middle or old age are called, who state that, in their time, usually at least half a century, the usage has always prevailed. That is considered, in the absence of countervailing evidence, to show that usage has prevailed from all time.’

199 Indeed, some of the more ancient commentators express the relevant rule in the negative. Coke, for example, defines "time out of mind" as "time whereof there is no memory of man to the contrary" (Co Litt 114b. See also 1 Bl Com *76-77).

200 It is to be noted that in the case of prescription in particular, the evidentiary inference applies not just to the prescription but to the rights created pursuant to it.

201 There is no obvious reason why the same evidentiary inference is not applicable for the purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of settlement and, indeed, the existence of rights and interests arising under that tradition or custom: see Lester G "Aboriginal Land Rights: the territorial rights of the Inuit of the Canadian Northwest Territories; a legal argument (Repub 1985) Vol 2 at 884-906. Although no such inference would seem to have been relied upon in Millirrpum (see at 184 and 197-198) Australian cases thereafter would seem to have relied upon such inferences, although without expressly acknowledging the common law authorities which plainly supported doing so: see, for example, Mason v Tritton (1994) 34 NSWLR 572 at 588; Yarmirr (FC) at 194 [66]; De Rose at 402 [259]; Lardil at [116] ff. This does not mean that mere assertion is sufficient to establish the continuity of the tradition back to the date of settlement: contrast Yorta. However, in my view where there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement supported by creditable evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had "always" been observed then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement. That was not the case in Yorta. It is the case here.

202 In my view it is appropriate to rely upon such evidentiary inferences in this case to the extent it is necessary to do so. Subject to the issue of succession discussed below, I find that the relevant claimant clans had the same system of traditions, laws and customs as at 1788 as they have today. They have observed those traditions and customs continuously since that date. If necessary to do so, I also find that the rights and interests that the clans enjoy today pursuant to those traditional laws and customs are the same rights and interests that they enjoyed in 1788 and that they have enjoyed those rights and interests continuously since then.

RIGHTS POSSESSED IN ACCORDANCE WITH TRADITION

203 The rights possessed by the claimants are described in the evidence of the Yolngu witnesses and in the reports of the anthropologists. It is sufficient to set out in Appendix 2 the relevant evidence contained in the written statement of Mr Gawirrin Gumana. It is consistent with his oral evidence, with the evidence given by each of the Yolngu witnesses in relation to the clans for which they spoke and is confirmed by the anthropological evidence.

204 Save for the query raised by Professor Sansom referred to above, all of the witnesses confirmed that in accordance with Aboriginal tradition and custom there was no relevant distinction between the rights in relation to solid land and those to water.

205 It is necessary to say something about the clans right to "exclusive possession" of their land. In Milirrpum Blackburn J found that no such right existed under Yolngu law (see at 181-182). His Honour found that members of an adjoining clan could enter the land "owned" by another. His Honour found that whilst permission might be sought, it was not required.

206 This issue would seem to have been explored in more detail by anthropologists and others since it was considered by Blackburn J. Professor Sansom remarked that the whole dispute was now "water under the bridge". The evidence of the Yolngu witnesses was clear – permission is required as a matter of Yolngu law. The anthropologists also agreed that permission is required as a matter of traditional law. It was acknowledged by all witnesses that such permission will usually be assumed and that the withdrawal of it would be viewed as a significant break in friendly relations. Nevertheless, the evidence was clear that permission could be withdrawn.

207 There were some important exceptions:

(a) There would seem to be some "public rights", such as the right to use roads and (perhaps) the open sea for travel. Permission was not required for this purpose. However, the right was limited. It did not include a right to hunt or to camp on land adjoining the road.
(b) A potentially large number of people who are not members of the relevant clan(s) could have various rights in the land arising generally from kinship and other ties to it. Persons have rights in their "mother’s clan" country and in their "mother’s mother’s clan" country. Spouses, although not the "owner’s" of the land owned by their spouse’s clan, can use it. However described, these entitlements would seem to be rights to use some parts of the land for specific purposes. In some instances it would seem more appropriate to characterise these "rights" as obligations (e.g. obligations to care for the land or the obligation to conduct or assist in particular ceremonies), some of which might be quite onerous. It would seem to be clear that the relevant persons who could have these entitlements can not exercise all (and, perhaps, any) of them unless they have been taught the relevant traditional laws in relation to that country. They need to know the "names" of the country. They need to know the secret places. It was not clear on the evidence whether such persons have a "right" to be taught these things.

208 The Northern Territory submitted that the evidence of "permission" was that there seemed to be many cases where persons actually entered the land without expressly obtaining permission. On that basis the Northern Territory submitted that the rights conferred by Aboriginal tradition were not rights of exclusive possession, but were lesser rights which were subject to general rights of entry. It seems to me that this submissions misunderstands the issue. The question is one of fact – is there a relevant tradition and what is it? Undoubtedly there was some uncertainty in the evidence as to whether, in certain circumstances, permission was not required because the relevant person had a right to enter, or whether permission was assumed and could be withdrawn. But on the ultimate question was whether there was a right of exclusive possession, there was no dispute that the clans had a right of exclusive possession to their country which right was subject to various rights in others - all witnesses were relevantly in agreement as to that fact. Undoubtedly it is possible for a court to reject all of the evidence before it on the basis that none of it is creditable. But in this case there has not been any submission that the witnesses were not telling the truth. If the persons who know the relevant Aboriginal tradition give evidence to the Court that it consists of a right to exclude, then save for issues of credit or misunderstanding I can think of no reason why I should not accept their evidence.

209 Undoubtedly it is true that Mr Gawirrin Gumana would expect to be permitted access over all of the claim area, whether or not it was his country. His seniority and status undoubtedly justified that expectation. The same is true of the other Yolngu witnesses I have heard. Undoubtedly, a refusal of a particular claim group to permit Mr Gumana or any of them to have that access might be seen as a serious breach of etiquette. But none of that denies the essential point that the evidence clearly established that the relevant clans have a right to exclude others, whether Aboriginal or not, from their land.

210 As it was put by Professor Morphy:

‘I think that in all cases clans have the right to exclude. If you exclude someone who is a close relative who has an expectation of being granted permission, then that is almost a hostile act, it’s a break of relations. But those breaks of relationship do occur and the underlying basis of the system is your exclusive rights that derive from your madayin that are fundamentally unique. And in the context of the most restricted men’s ceremonies, those patterns, those madayins that refer to the uniqueness are shown to be absolutely the property of those particular groups. So, underlying it is this possibility of saying no, of excluding even those people who have standing permission ... the legal system allows you to say no.’

211 The evidence given by the Yolngu witnesses and the anthropologists in this regard is not inherently unlikely. It is not inherently unlikely that a person may have a legal right to exclude, but that others are entitled to assume that they have permission to enter and use the land in the absence of any express exclusion. For example, a person holding the fee simple title and in occupation of land undoubtedly has the right to exclude others from it: see Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 647. However, in the ordinary course most entrants onto that land have an implied licence to do so at least for the purpose of seeking permission to stay on it or otherwise to engage in their lawful business. Even if it were established that the land owner had never actually refused access to anyone seeking it, this still would not deny the existence of the landowner’s legal right to refuse access. Even if evidence was given that neighbours regularly entered onto the land without seeking express permission (e.g. in order to recover tennis balls etc) that plainly would not have the consequence that the landowner did not have the right to exclude. It would not occur to anyone to argue that the failure to exercise the right to exclude meant that it did not exist. I can think of no reason why the same should not apply in respect of land held under Aboriginal tradition. The evidence in this case shows that it does, at least in relation to the claim area.

212 In relation to the requirement for permission, the Northern Territory pointed to the evidence from a number of Yolngu witnesses that it was not the practice to seek permission to enter onto the country of another clan when there was no-one physically present on the land to give permission. This had occurred during the "mission" period (discussed in more detail below) when most clan members were living at the missions at Roper River, Yirrkala and Numbulwar. The Northern Territory submitted that this showed that the clans did not have a continuing right to exclusive occupation. It does not seem to me, however, that the fact that persons may have entered onto country without seeking permission in contexts where it was impossible to obtain it, is evidence that there was no traditional norm that such permission needed to be obtained, any more than the fact that people break the law by speeding proves that there is no law against doing so.

213 The Northern Territory also submitted that relevant permission was only required from Yolngu or at least Aboriginal visitors and that permission was not required from external visitors, whether of Macassan or European ancestry. There is no direct evidence as to whether the Macassans obtained permission to enter Yolngu country or not. However, it seems to me that the actual practice of the claimants and their ancestors in relation to European visitors is consistent with a right of exclusive possession. Up until at least the 1930s the Yolngu people asserted their rights to land by the exercise of force. Thereafter they used what means were available to them to assert their rights. They made their paintings and sent them to the federal Parliament. They took the political and subsequently legal steps available to them to enforce those rights. Until the decision of the High Court in Mabo they could obtain little in the way of assistance from the courts. Nevertheless, in Milirrpum they attempted to do so. This case is merely the latest aspect of a more protracted campaign. For my part it is difficult to imagine what more the Yolngu people, including the claim groups, could or should have done lawfully to enforce their rights.

214 The Northern Territory also submitted that the evidence did not establish a right to exclusive occupation of the sea. In this regard the Northern Territory referred me to the factual findings of Olney J in Yarmirr TJ. In that case his Honour was not satisfied that the relevant Aboriginal tradition involved a right of exclusive possession. I can only assume that his Honour was faced with different evidence to that which is before me. This would not be surprising, given that that case did not involve Yolngu people. In any event, I am not bound by the factual findings of his Honour, any more than I am by the findings of Cooper J in Lardil or the findings in Risk (see at 414[67]) which would seem to be broadly the same as my own.

215 The areas over which the various clans have rights of exclusive possession are identified on the map A23 and are more particularly described in Professor Morphy’s report, A11. There are some limited areas, particularly in the sea, where two clans both have the right to exclude all but the members of the two clans. These areas were described in the evidence as areas of "co-joint ownership".

216 Subject to these areas of co-joint ownership, I think that the various rights in relation to the claim area, and the traditional mechanisms by which permission might be granted by the relevant clan in relation to its country, were appropriately described in the Commonwealth submissions, which in this respect I gratefully adopt:

‘135 The rights and interests in relation to land and waters of the claim area which are possessed under the traditional laws and customs are:

135.1 rights of access to, and use of resources on, clan estate areas; and

135.2 rights to control the access to, and use of resources on, clan estate areas.

136 Djalkiri areas aside, under the traditional laws and customs of the claimants the following classes of persons have rights and interests in any given estate in the claim area, including in relation to the inter-tidal zone and rivers:

136.1 clan members:

136.1.1 senior clan members have comprehensive rights of the kind referred to in paragraphs 135 and 0 in respect of their estates;

136.1.2 other (non-senior) clan members have comprehensive rights of the kind referred to in paragraph 135. They also have limited rights of the kind referred to in paragraph 0, being only a right to be consulted in relation to decisions about significant uses of their estates, and being obliged to defer to the decision of the senior clan members in any event;

136.2 non-clan members:

136.2.1 persons whose mother is (or was) a clan member:

136.2.1.1 senior ‘waku’ for an estate have rights of the type referred to in paragraph 135 but subject to a requirement of ‘permission’ from clan members which is rarely refused (but, in principle, may be refused). Djalkiri areas aside, they also have some rights of the kind referred to in paragraph 0 but subject to being given those rights by clan members;

136.2.1.2 other (less-senior) waku for an estate have rights of the type referred to in paragraph 135 but subject to a requirement of ‘permission’ from clan members which is rarely refused (but, in principle, may be refused). They have no rights of the kind referred to in paragraph 0 (unless, and until, they are given those rights as senior waku);

136.2.2 persons whose mother’s mother is (or was) a clan member:

136.2.2.1 rights in mari clan estate are of the type referred to in paragraph 135 but subject to a requirement of ‘permission’ from clan members which is rarely refused (but, in principle, may be refused). There are no rights of the type referred to in paragraph 0 unless and until those rights are acquired by succession of the ‘gutharra’ clan to the mari clan estate.

136.2.3 persons whose place of spirit conception was within the estate:

136.2.3.1 a person’s conception place is usually in his or her own clan estate or sometimes in his/her mari clan estate so that rights in relation to the estate of a person’s conception will be rights which he or she would have as a member of the clan estate or rights in respect of the mari clan estate, depending upon which particular relationship is applicable;

136.2.3.2 Professor Morphy was not aware of any examples in the claim area where a person’s conception spirit did not come from his or her own clan estate or mari clan estate; it was "inconceivable" that a person’s place of spirit conception would be in the clan estate of another moiety;

136.2.3.3 Gawirrin Gumana’s rights in Manatja, the place of his spirit conception, are of the type referred to in paragraphs 135 and 0 and are enhanced because there are no living clan members for Manatja and because of his knowledge. If there was anyone living clan member for Manatja, his rights would be subject to the permission of clan members;

136.2.4 spouses of clan members;

136.2.4.1 rights in the clan estate of a spouse are of the type referred to in paragraph 135 but subject to a requirement of "permission" from clan members which is rarely refused (but, in principle, may be refused). There are no rights of the type referred to in paragraph 0;

136.2.5 members of neighbouring clans;

136.2.5.1 a person will have rights in his or her neighbouring clan estate dependent upon the relationship they have with the estate through ngandi and waku links, or mari and gutharra links as well as through marriage;

136.2.5.2 Professor Morphy was not aware of any neighbouring clans in the claim area which did not have those links;

136.2.6 persons with interests in ringgitj areas within the estate:

136.2.6.1 there are limited rights of the type referred to in paragraph 135 in respect of very small areas within another clan’s estate for the purpose of ceremonies. There are no rights of the type referred to in paragraph 0.’ (footnotes omitted)

SUCCESSION

217 It is clear from the evidence that Yolngu law makes provision for the succession of rights (and obligations) between clans. This is particularly relevant in relation to two clans – the Manatja clan and the Dhupuditj. Mr Gawirrin Gumana gave evidence in relation to the Manatja clan:

‘I have a close relationship with Manatja country because it is the country where my spirit was found. Under Yolngu law I am entitled to speak for this country, although I am not the only person with a close relationship to it. For example, Datjirri ... is a gutharra for Manatja country - his actual märi was a member of the Manatja clan. He is entitled to speak for the country as well.
There are no living members of the Manatja clan. My father told me that the members of this clan were killed in the Gängan massacre, which took place before I was born. He showed me the place where the massacre took place and told me that the massacre occurred during the performance of a sacred Ngärra ceremony. Manatja is Yirritja country. Within the claim area, there is an area of Manatja country known as Dhurrwanmirriwuy (67). This country is to the east of the Gängan community and is associated with Birrkuda, the Yirritja honey ancestor. I know and look after songs, dances and patterns for Manatja country. My father taught me these.’

218 Mr Wuyal Wirrpanda gave evidence in relation to the Dhupuditj clan:

‘Yolngu people have a special responsibility for the country and for the ceremonies of their ngändi’s (mother’s) clan. Under Yolngu law I am entitled to speak for my ngandi country. My mother’s clan is Dhupuditj, for which I am a senior waku (woman’s child) or djunggayi. So too are my sister Mulkun ... and my brother Dhukal...... There is only one surviving member of the Dhupuditj clan. This is Bumiti Bukulatjpi ... . Bumiti is an old lady in very poor health. She lives in Yirrkala. I understand that she had a stroke. She is not able to actively look after her country. The waku are like care-takers and we can speak on behalf of Dhupuditj country.

There is an area of Dhupuditj country within the claim area. This area is known as Gaywaratja (138) and is on the west side of the big name area known as Dhuruputpji (151) and extends to the edge of the Garangarri (181) wetlands. This area is close to the Dhuruputjpi community. We hunt there. Dhupuditj country is looked after by Mulkun, Dhukal and myself and by the other waku for that country.’

219 The effect of this is that the Manatja clan still has rights to its traditional land, even though the clan no longer has any living members. Its rights are being exercised by Mr Gumana and others who are entitled to "speak" for that country. Although the Dhupuditj clan still has one member, its rights and obligations are being exercised by Mr Wirrpanda and others who can speak for the country.

220 The Djarrwark clan still has a few members, but does not have any senior men still living. The responsibility to speak for that country has fallen to the senior men of other clans who have a kinship relationship with the land, including Mr Gumana.

DJALKIRI SITES

221 Finally, in this context, it is necessary to say something about "Djalkiri" sites. These are specific sites associated with the mystical beings from which the Yolngu believe that the land, all that is on it and they themselves are derived. The stories of these mythical beings are "the stories" of the respective clans. The right to tell the stories is one of the distinguishing features of the clans – the right to tell or paint the story of a place being not only a consequence of the relationship of the clan to that place, but being, in effect, proof of that relationship. (Consequently the elders of the clans prepared the paintings contained in the Saltwater book and it was published in order to "prove" the claims of the respective clans).

222 For present purposes nine "djalkiri" sites were identified in the waters and tidal foreshore within the claim area. Mr Djambawa Marawili gave the most detailed evidence in relation to these sites. I accept his evidence, including the marks made by him on maps identifying where the sites were. Mr Marawili seemed to me to be an honest and intelligent man who knew what he was speaking about. In any event, his evidence was supported by that of the other Yolngu witnesses and by Professor Morphy. In relation to those specific areas I accept that under Yolngu tradition all access is denied to them, including to the applicants. Clan members have the right and the duty to control access to the relevant area, including access by clan members.

223 Surrounding the "djalkiri" sites were larger areas which were closed from time to time, usually in relation to a death or a ceremony. Again I accept Mr Marawilis’s evidence in relation to those areas. The areas were usually closed for periods of one or two months after the funeral of a person associated with the area or during the period of the ceremony. The association could be through the person being a member of the relevant clan, or through an association of names and so on. The decision to close the area would usually be made by the senior men of the clan or clans concerned after some discussion between them. The decision to open the area would also be made by the senior men after discussion. The opening of the area would be signalled by lighting fires. In relation to these larger closed areas persons were usually permitted to pass expeditiously through them during the period that they were closed, but could not hunt or camp.

224 Evidence was also given that other areas were closed as a result of a funeral or ceremony. Some of these were on land; some were personal to a particular individual. No claim for a determination is made in relation to these other areas.

CONNECTION BETWEEN NATIVE TITLE HOLDERS AND THE RELEVANT LAND AND WATER

225 The second question identified by s 223(1) of the NTA is whether the relevant people have a connection with the relevant land or water by those traditions and customs. In accordance with the jurisprudence in this Court such a connection does not need to be a continuous physical connection: see Ward FC at 383 [245] and De Rose at 378-383 (but see Ward HC at 85-86 [64] where the High Court left the question open). The connection must be "substantially" maintained from the date of sovereignty to the present day: see Branson and Katz JJ in Members of the Yorta Yorta Aboriginal Community v Victoria [2001] FCA 45; (1999) 110 FCR 244 at 288 [169]; De Rose at 381-382, 411-421.

226 The Commonwealth submitted the connection had to be a spiritual connection: see Ward HC at 85-86; Yanner at [37]. The Commonwealth submitted that some of the rights possessed in accordance with Aboriginal tradition were not relevantly spiritual and consequently those rights did not have a relevant "connection" with the land or water. In particular the Commonwealth argued that the rights of spouses were not based upon a spiritual connection, but rather upon their relationship to their spouse. In this regard I note that Professor Sansom was not prepared to describe that entitlement as a "right". However, given the breadth of the definition of "interest" in s 253 of the NTA (see Ward HC at 187), I am satisfied that it is a "right" or "interest" for the purpose of the NTA.

227 If this submission were correct then its effect would be that the right under Yolngu tradition and custom of spouses to enter onto the land of the relevant clan could not be reflected in a determination made under the NTA. Indeed, presumably the "native title holders" could rely upon the determination to seek damages from a spouse for trespass in seeking to exercise the rights that he or she possessed under Yolngu law. For my part I think it would be surprising if Parliament had legislated to achieve that result.

228 Of course it has not done so. The problem with the Commonwealth submission is that it treats comments in the cases about what is a factual inquiry as reflecting some legal test. It is probably true to say that the connection between the Aboriginal group and its country in accordance with Aboriginal tradition and custom is ordinarily a "spiritual" connection. It is also true that that connection is usually reflected in the physical occupation of the relevant land. This does not mean, however, that every right or interest enjoyed by every Aboriginal has to have a "spiritual" aspect to it. "Cultural" and "social" connections may also be sufficient: see Yanner at 373[38] where the majority comment that "an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land". Nor does it mean that every right must be reflected in the physical occupation and use of the land. In this case there is no doubt that the relevant spouses have a "connection" with the land – most of them live on it. Whether or not the right or interest is a "spiritual" one is not to the point. As the Commonwealth accepted, the right or interest is one enjoyed under the traditions and customs of the Yolngu people. That, combined with the physical and social connection that the spouses undoubtedly have, is sufficient to meet the requirements of the statutory test.

CONTINUITY OF CONNECTION

229 There was evidence that members of the Aboriginal clans left the claim area for relatively lengthy periods after a mission was established at Yirrkala in 1935. The claimants and their ancestors did not return to live permanently on the claim area until the early 1970s. This was discussed by a number of the Yolngu witnesses. Mr Djambawa Marawili in his affidavit referred to the matter as follows:

‘I was born at Numbulwar and am now about 51 years old. Numbulwar is on the Arnhem Land coast to the south of Blue Mud Bay. It is on the country of the Nunggubuyu people and is the place at which a mission was established, I believe shortly before I was born. As a young boy I spent most of my time at Numbulwar and went to school there on and off over a period of a few years ...I believe that my father and mother were some of the last bush people to go from northern Blue Mud Bay into the missions. They went into Numbulwar. My father had different jobs there like getting firewood, looking after the garden and helping to clear land and build the airstrip there by hand. At first there were hardly any buildings at Numbulwar and our families and others used to live in humpy-houses, which we made ourselves, but bit by bit, buildings were built at the mission During short breaks from school at Numbulwar, such as weekends, we used to go out into the bush around the mission. During longer breaks, we went to northern Blue Mud Bay in our family’s dugout canoe. We went to northern Blue Mud Bay because my father wanted to see his country and to show it and neighbouring countries to his children. Even when my father was at Numbulwar, his mind was on Madarrpa country. Sometimes I would miss school to go with him on trips to country ... I have been told by my parents that I was only a very small boy on my first trip to northern Blue Mud Bay. It was not just our family that visited these places. I remember other families being there too, including Birrikitji Gumana, the father of Gawirrin Gumana ... and other members of the Gumana Dhalwangu and Gupa Djapu clans ...

When I was a young boy aged about ten, I was with my father when he and others built by hand an airstrip near the Koolatong River downstream from the present-day community called Baykurrtji. This was at a place called Garmbiki. My father, Gandalal (who is the father of Bandipandi and some old Dhalwangu and Ritharrngu people had decided to live in the bush there. The airstrip was built so that Harold Shepherdson, the missionary from Elcho Island, could visit. In the same general area, Mr. Shepherdson also used to land his plane at airstrips at Gängan (6), Garrthalala and Gurrumuru. He usually made day trips to these places, but sometimes stayed overnight. He conducted services and brought people supplies such as flour, tea, sugar, clothes and sometimes lollies. Yolngu people traded crocodile skins and turtle shell with him for the things he brought. I believe that he later sold these to pay for his trips. Mr. Shepherdson was quite happy for people to be living in the bush and did not try to get people to move to the missions. He could communicate with people in Yolngu and got on well with people. The place on the Koolatong River was only a dry season place to live – people did not stay there during the wet season because the area generally became water-logged. The people living there left the area after a young girl was killed by a crocodile, but later returned ... . When I was growing up, I made many trips in canoes. I travelled many times from Numbulwar to places in and around northern Blue Mud Bay .... In the late 1950 or early 1960s the missionaries helped us to return to our country and to establish ourselves there ... . At this time, there were also people living at Gängan (6). They came over to Garrapara (92) to visit us. They included Birrikitji [Gumana D. 1 & 3] and other members of the Gumana Dhalwangu clan ... . In the early 1970s, my father decided that it was time that we had a more permanent place to live on our own country, like Djeriny Mununggurr [Gupa D. 1, 11 & 12] and other Gupa Djapu people were doing at Garrthalala and like what the Dhalwangu people were doing at the Gurrumuru outstation.’

230 Although the Northern Territory referred to the "mission period" in relation to whether there was a right to exclusive possession (discussed above) it was not submitted by any party that this break in the physical connection between the clans and the land and water of Blue Mud Bay during the "mission period" involved a relevant break in the connection between the claimants and the area of the claim for the purposes of the NTA. In my view it did not. Throughout the "mission period" it would seem clear that the clans retained their connection with the land under their traditions and customs. The evidence was clear that they continued to visit the area during that period and that they still treated the land as their country. It is also clear that no-one else moved onto the country or sought to exercise any rights in relation to it.

RECOGNITION BY THE COMMON LAW – THE INTER-TIDAL ZONE

231 The final question under s 223(1) of the NTA is whether the relevant traditional rights and interests would be recognised by the common law. The common law will not recognise indigenous rights and interests that are antithetical to the fundamental tenets of the common law or to rights and interests conferred by the common law. An example can be seen in Yarmirr where claimed native title rights to the exclusive possession of the sea could not be recognised as they were inconsistent with the public rights at common law to fish and navigate. This question directs attention to the date of sovereignty, being the date on which "recognition" initially occurred: see Yorta at 453-454 [77].

232 As already noted, the only aspect of the applicants’ traditional rights which was said not to be recognised by the common law in 1788 was the claimed exclusive right of the clans to occupy the waters (including the inter-tidal zone) of the claim area.

233 Given the concessions made by the parties (and subject to the question of djalkiri areas) I am satisfied that the applicants’ exclusive rights to occupy the area to the seaward of the low water mark was not recognised by the common law as at 1788 because that right was inconsistent with the public rights to fish and to navigate.

234 Although not subject to agreement, the same conclusion necessarily follows in relation to the tidal waters to the landward of the low water mark: see Lardil at [166]-[167]. As already discussed, those waters were also subject to the common law public rights.

235 Given the concessions made by the parties it is unnecessary for me to inquire into the difficult question of the effect of inconsistent common law rights upon a traditional right of exclusive occupation.

236 That question raises the issue of whether the right of exclusive possession should be considered as one general right, or as a "bundle" of separate rights, or whether its correct characterisation is a question of fact. The issue is best explained by example. In Yamirr it was accepted that the Croker Island people had occupied their island to the exclusion of all others from time immemorial. As a necessary consequence or incident of that right of exclusive possession the Croker Island people had the exclusive right to hunt any and all animals on that island. This would include animals that had no spiritual or traditional significance to them. Evidence was given in that case, for example, that crocodiles were of no traditional significance to the Croker Island people, at least as a source of food. Nevertheless, as "owners" of the land they had the right to hunt any crocodile on it and to exclude others from doing so. On the evidence given in that case it may be doubted whether the right to hunt crocodile (or indeed the right to hunt at all) was a separate right from the more general right of exclusive possession of the Island. This is to be contrasted with the evidence in Yanner. In that case there was clear evidence that the hunting of crocodile was of totemic significance to the relevant Aboriginal community. On that basis the right to hunt crocodile was an Aboriginal right separate from any right they may have had to occupy the land.

237 The High Court in Yarmirr may have decided that where part of a native title interest was inconsistent with a common law right then the whole of the interest would not be recognised: see Ward HC at 187 [388]. However, in Yarmirr the primary Judge had found as a fact that the traditional rights of the claimants did not include a right to exclusive possession. Rather, in that case Olney J found that the claimants in that case had a "bundle of rights" in relation to the relevant waters, some of which were consistent with the public rights to fish and navigate. The proposed determination made by the primary Judge in that case reflected that factual finding: see Yarmirr TJ at 602-603, although it is not clear on the reasons of his Honour what evidence he relied upon to make the necessary factual findings.

238 In Lardil Cooper J found that the traditional right of the claimants in that case was a right of exclusive possession to the land and adjacent waters and that that right was not recognised by the common law. His Honour would seem to have assumed that the effect of non-recognition was that the none of the broad rights of exclusive possession were recognised: see at [187]-[190] although this needs to be contrasted with his Honour’s approach in relation to sites of spiritual significance (discussed below). However, his Honour also found that there were other specific rights recognised by traditional laws and customs which were not inconsistent with the common law rights to fish and navigate: see at [187] and [194]-[197].

239 In this case, apart from the evidence in relation to djalkiri sites, and some evidence in relation to the entitlement of the traditional owners to a "share" in the catch of dujong or turtle, there is either no evidence that the claimants had any rights separate and distinct from the right of exclusive possession or there is insufficient evidence to satisfy me that such separate rights existed. Of course, the lack of such evidence may well have been the direct result of the parties relying upon the concessions that each had made. It does not mean that a "bundle of rights" could not have been separately established, if the issue had been contested.

240 As I say, given the concessions that have been made it is unnecessary to consider this issue further in this case.

RECOGNITION BY THE COMMON LAW – THE DJALKIRI SITES

241 As already discussed, in accordance with their traditions and culture the applicants have a traditional right to exclude all others from nine "permanent" djalkiri sites each about the size of an Australian Rules football oval. There were other "temporary" sites where there were more limited rights of exclusion. Notwithstanding the concessions, the applicants argued that they still had a right to exclude over the sites.

242 The determination in Yarmirr did include a right to protect places of cultural and spiritual significance. It would seem that Olney J accepted that such a right meant that there would need to be a capacity to exclude from such places: see Yarmirr TJ at 589 [125]. His Honour did not expressly discuss how that capacity was consistent with the public rights to fish and navigate (contrast Yarmirr TJ at 593-594 [136]). The majority of the High Court in Yarmirr HC at 33[2] noted that the Court had received no submissions in relation to the question of what the right meant or how it could be given effect to and they said nothing about such issues. In Lardil Cooper J found that rights to access, maintain, and "protect" sites of spiritual significance were recognised by the common law, but that such rights did not include a right to exclude because such a right would be inconsistent with the public right to fish and navigate (see at [171] and [185]). In this respect his Honour would appear to have "read down" the relevant native title right.

243 In my view a traditional right to exclude from an area of the sea or from the inter-tidal zone is inconsistent with the common law public right to fish and navigate. This is so even though the areas involved are not great (the Commonwealth estimated the total area of the nine djalkiri sites to be between 50,000 to 200,000 square metres). It may be that it would not be inconsistent with the public right to navigate to limit access to the djalkiri areas, particularly as many of them involved or included rocks, reefs and other hazards to navigation. However, statute aside, it would not appear that the public right to fish could be limited to particular areas. In my view a right to exclude from djalkiri areas would be inconsistent with the common law right to fish. Consequently, the traditional right of the claimants to exclude from sites to the seaward of the high water mark (which area would include rivers and estuaries affected by the tides) was not recognised as a native title right by the common law at the date of settlement. On the basis of existing authority it is my view that the applicants’ native title rights in relation to those areas are the same as those identified by Cooper J in Lardil. See also – Attorney-General (NT) v Ward at 24-25 [24]-[27]

244 This does not mean, of course, that persons can access those sites. It merely means that the applicants do not have a native title right for the purposes of s 223 of the NTA which would authorise the applicants to prevent persons from doing so. On the evidence in this case it is clear that the nine sites where access is permanently limited answer the description of "sacred sites" under the Northern Territory Aboriginal Sacred Sites Act (NT) (Sacred Sites Act). Notwithstanding that they are not listed in the register maintained under that Act they are each "site[s] that are sacred to Aboriginals or [are] otherwise of significance according to Aboriginal tradition" (see definition in s 3 of the Land Rights Act which is "picked up" in s 3 of the Sacred Sites Act): see also Sakurai v Northern Territory [2004] FCA 971; (2004) 208 ALR 483. Subject to the defence in s 36 of the Sacred Sites Act (which is dependent, in part at least, on whether the relevant act occurred on "Aboriginal land" or not) and to the right of access of Aboriginals in accordance with Aboriginal tradition (s 46 of the Sacred Sites Act) it is an offence under the Sacred Sites Act for a person to enter or remain on a sacred site (s 33), carry out work on a sacred site (s 34) or desecrate a sacred site (s 35). In the absence of the land being on the register established under that Act it would appear to be necessary in each instance to prove that the relevant site was a sacred site. On the evidence that has been led in this case it would seem to be clear that access to a permanent djalkiri site is unlawful. In my view this would include entry by persons seeking to exercise rights to fish whether pursuant to the Fisheries Act or pursuant to any common law right, or persons seeking to exercise a public right of navigation.

EXTINCTION

245 Native title rights and interests may be extinguished by the making of an inconsistent grant pursuant to the prerogative (to the extent that such a power exists) or pursuant to a statute that has that consequence, including by authorising a statutory grant having that effect. These principles are incorporated into s 223(1)(c) of the NTA: see Ward HC at 67 [21], but the principles must be read in light of Divisions 2 ("past acts") and 2B ("confirmation") of Part 2 of the NTA^: see Wilson v Anderson (2002) 213 CLR 401 at 429-435; Ward HC at 110-111, 164.

246 The issue of extinguishment did not need to be addressed in any detail in the submissions. Given the admissions and concessions made by the respondents it has not been necessary to consider the question of the extinguishing effects (if any) of the pastoral leases that were granted over the claim area in the 19^th century: but see Ward HC at 196 [417]. Similarly, the extinguishing effects (if any) of s 12(2) of the Land Rights Act and s 3(1) of the Control of Waters Act (NT) (or more correctly, the legislation that preceded it) in relation to rights over water courses does not need to be considered: but see Lardil at [153]ff .

247 In light of the admissions and concessions made by the parties in relation to the sea and to the inter-tidal zone, the question of whether any of the relevant traditional rights in relation to the sea area of the claim had been extinguished probably also does not need detailed consideration. However, for the sake of completeness it should be mentioned that there were a number of legislative and other acts which may have extinguished at least some incidents of native title. In particular:

(a) In Ward HC at 183-186 it was held that the statutory vesting of minerals and petroleum in the Crown extinguished any native title rights in minerals or petroleum;

(b) To the extent that the claimants or their ancestors possessed any exclusive or commercial right to fish, that right was extinguished in part by the various statutes dealing with fisheries which were applicable from time to time in the Northern Territory. Subject to the "bundle of rights" issue discussed above, what remained to the claimants was a non-exclusive right to take fish for non-commercial purposes: see Yarmirr TJ at 594-600 [137-157] and see Land Trust Case TJ at 15-18 [54]-[71].

SECTION 47A NTA

248 Section 47A of the NTA provides:

‘When section applies

(1) This section applies if:

(a) a claimant application is made in relation to an area; and

(b) when the application is made:

(i) a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

(ii) the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and

(c) when the application is made, one or more members of the native title claim group occupy the area.

Prior extinguishment to be disregarded

(2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded:

(a) the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii);

(b) the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate for the provision of services (such as health and welfare services).

Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

Effect of determination

(3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed:

(a) the determination does not affect:

(i) the validity of the grant or vesting or of the creation of the trust or reservation; or

(ii) the validity of the creation of any other prior interest in relation to the area; or

(iii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and

(b) the non-extinguishment principle applies to the grant or vesting or the creation of the trust or reservation or any other prior interest.

Exclusion of Crown ownership of natural resources

(4) For the purposes of this section, a reference to the creation of an interest in relation to an area does not include a reference to the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity.’

249 The applicants’ submitted that s 47A of the NTA applies to the area of the land grant, including the inter-tidal zone and the waters above it. The extent to which that grant includes "the water" of the inter-tidal zone has been discussed above. For the reasons given there it is my view that even if the grant is to be read down by reason of the public right to fish and navigate, the grant still extends to the water and air above the land and to the soil beneath it. Subject to the question of the validity of s 47A (discussed below) I accept the applicant’s submission as to the applicability of s 47A.

250 The Commonwealth argued that the applicants did not "occupy" the inter-tidal zone, or at least tidal waters that covered the inter-tidal zone. The Commonwealth argued that the word "occupy" should be understood as meaning de facto control including a power to exclude. Whether or not the word "occupy" in s 47A of the NTA should be understood in that technical sense, in my view the evidence in this case is clear that the applicants "occupy" the whole area of the land grant, including the inter-tidal zone. To the extent that they can reasonably do so they have sought to exclude others from the inter-tidal zone. These proceedings form part of a larger long term programe to achieve that result.

251 It follows that the extinguishing effects of any statutes (other than a statute conferring ownership of natural resources, such as minerals or water, on the Crown) can be disregarded in relation to the area of the land grant. This would include the extinguishing effects (if any) of the pastoral leases and the fisheries legislation. Such extinguishing effects are to be disregarded over the whole area of the grant including the inter-tidal zone.

252 However, the applicants also submit that the effect of s 47A of the NTA is that the "non-recognition" by the common law of the traditional right of exclusive possession in relation to the inter-tidal zone should also be disregarded. For this purpose the applicant argues that the claim of the British Crown to sovereignty of the then colony of New South Wales in 1788 involved "the creation of any other prior interest in relation to the area", namely the common law public rights to fish and navigate over the inter-tidal zone.

253 There are various instances in various cases where Judges have used the words "non-recognition" and "extinction" interchangeably: see, for example, Ward HC at 187 [388]. This is not surprising – the effect of the two is broadly the same. In common parlance it is understandable that "non-recognition" of a right should be treated as "extinguishing" it. Similarly, the word "recognition" can be used to refer to either recognition as at the date of settlement (in which case only "non-recognition" is relevant) or recognition as at the date of judgment (in which case both non-recognition and extinction will be relevant: see, for example, s 223(1)(c) NTA). I have used the word "recognition" in this sense in these reasons. However, this does not mean that the words are not also used in a more precise sense to refer to different concepts. They were so used by Brennan J in Mabo: see at 61–63 and 63-65.

254 In this more precise sense "non-recognition" as at the date of settlement refers to the circumstance where the common law will not recognise a native title right because it is inconsistent with a common law right or because it is "repugnant to natural justice, equity and good conscience" (Mabo at 61). The non-recognition notionally occurs as at the date of settlement (although the common law operates retrospectively).

255 Extinction, on the other hand, involves an exercise of "sovereign" will: see Ward HC at 187 [388]. In determining whether or not native title has been extinguished it is necessary to "interpret" the relevant exercise of that will. As already noted, since at least 1842 (and earlier in some colonies, see Fejo at 144-145) this has involved the interpretation of legislation. The question whether native title has been "extinguished" by legislation, or by a grant made under it, is answered by determining the relevant Parliament’s intent. Where the legislation authorises the grant of title, the test for whether that grant has extinguished native title is whether the grant is "inconsistent" with subsisting native title rights. Such inconsistency is to be determined by contrasting the legal effect of the grant with the relevant native title rights: see Wik at 133, 166, 203 and 249. The use of the word "inconsistency" in this context does not mean that the test for extinguishment is the same as the test for non-recognition. As explained the concepts are different, and the nature of the inquiry is necessarily different.

256 Nevertheless, as the cases explain, extinguishment by or pursuant to legislation was generally inadvertent. The respective Parliaments, not being aware that native title existed, legislated to make grants that had the legal effect of extinguishing native title without knowing that that was what they were doing. The consequence was that native title was extinguished "parcel by parcel" over most of Australia (Mabo at 68-69). This is to be contrasted with non-recognition by the common law. As the common law operates, in effect, retrospectively, non-recognition always involves an informed judicial decision. This is particularly so when the non-recognition is the result of a judicial policy decision that the relevant custom or tradition should not be recognised because it is "repugnant to natural justice, equity and good conscience" (Mabo at 61).

257 The question then is whether Parliament has used the word "extinguishment" in s 47A NTA in a general sense where it might include "non-recognition" or in its more precise sense where it would not. It seems to me most unlikely that the Commonwealth Parliament would have intended that all "non-recognition" be disregarded. "Non-recognition" is not limited to inconsistency with common law rights. It includes non-recognition on the basis that the rights claimed, or the traditions on which they are based, are ones that the common law would not recognise for reasons of judicial policy.

258 So far as I am aware, no Australian case has had to deal with non recognition on this basis. However, it has been dealt with overseas. For example, acquisition of land by conquest was recognised by Maori tradition, but was not recognised by the common law in New Zealand after the date of sovereignty: see Gilling, "The Queen’s sovereignty must be vindicated: the 1840 Rule in the Maori Land Court" (1994) 16 New Zealand Universities Law Review 136. This is not to suggest that Aboriginal tradition would or could recognise acquisition of title by conquest. Nevertheless, the possibility clearly exists that a court may, in the future, determine that some particular native title right, or some tradition or custom which would support a native title right should not be recognised by the common law on the basis of judicial policy. Such non-recognition by the common law would mean that the claimed tradition right would not be a "native title right" for the purposes of s 223 of the NTA: see s 223(1)(c).

259 Given that possibility (albeit remote) it seems to me unlikely that Parliament would legislate generally to undo the effect of "non-recognition". Unlike inadvertent extinguishment "parcel by parcel" non-recognition is deliberate. It involves different policy issues and may require a different policy response.

260 The Second Reading Speech of the then Attorney General, Mr Williams QC in the House of Representatives on 9 March, 1998 (Parliamentary Debates at 783) would seem to confirm that s 47A was directed to extinguishment, rather than non-recognition as at settlement. The Attorney General said that the mischief to which s 47A was directed was the extinguishing effects of previous land grants, particularly "historic" pastoral leases:

‘Perhaps most significantly, so far as indigenous criticism was concerned, the government met the argument that the bill failed to take account of the issue of ‘historic’ pastoral leases. Proposed sections 47A and 47B ...will enable indigenous people who are in occupation of an area where there are no longer any competing third party rights to claim native title and have the court disregard the tenure history of the area in determining that claim.’

261 In my view the word "extinguishment" in s 47A(2) NTA means extinguishment by an act of sovereign will (usually legislation or an act done pursuant to legislation) of a right capable of recognition by the common law as at the date of settlement. That would seem to be the sense in which the word was understood by Olney J in Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 at [133]. In my view his Honour’s understanding was correct.

262 The same result seems to me to flow from the requirement in s 47(2)(b) of the NTA that the extinguishment arise from the "creation" of a right. From the perspective of the common law rights were not "created" by the exercise of sovereignty by the British Crown. Rather, the common law (including the powers and rights of the Crown and of the public) was "attracted" and "received". The act of "creation" is much more apposite to the exercise of a power of sovereign will, such as making a grant pursuant to the prerogative or statute.

263 Consequently, it seems to me that s 47A does not have the effect that the "non-recognition" of the traditional right of exclusive occupation of the tidal zone by reason of the public rights to fish and navigate is to be disregarded for the purpose of making a determination of native title.

THE VALIDITY OF S 47A NTA

264 The Northern Territory submitted that s 47A NTA was invalid. Given that s 47A NTA has the consequence, in this case, that the extinguishing effect (if any) of the fisheries legislation in the inter-tidal zone upon the native title rights of the applicants must be disregarded it is necessary to consider this submission. In any event there has been full argument on it and it is appropriate that I express a view.

265 Leaving aside the possibility that s 47A NTA in its operation in the Northern Territory might be supported by the "territories power" in s 122 of the Commonwealth Constitution, the legislative power to enact s 47A (in particular, the "race power" in s 51(xxvi): see Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 (WA v Cth) at 462) is subject to implied limitations arising from the text and structure of Chapter III of the Commonwealth Constitution. These include the limitations that the Parliament cannot exercise judicial power and that the judiciary cannot exercise legislative power: see WA v Cth at 485.

266 The Northern Territory argues that s 47A NTA does both. It says that the Parliament is exercising judicial power and that the courts are exercising legislative power.

267 It is argued that the provision involves an "impermissible intrusion" into the judicial power by directing the courts "as to the manner in which they are to exercise their jurisdiction" (see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 36-37). In my view s 47A NTA does not direct the court as to the manner in which it is to exercise its jurisdiction. Instead, it directs what law is to applied in the proceedings, subject to the ascertainment of various facts. It does not direct what findings should be made in that regard. The direction as to what law should be applied is a proper function of the Parliament: see, for example, Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173. And, as discussed below, legislation in similar form to s 47A NTA is relatively common. It is certainly not incompatible with the judicial function.

268 In the alternative the Northern Territory submits that s 47A confers on this Court the non-judicial function of creating rights. Again I do not think that it does so. There is no broad discretion conferred upon the Court. Accepting that the effect of extinguishment at common law is that the relevant rights cease to exist (see Fejo) then it may be accepted that s 47A NTA "creates" rights. However, the creation of those rights is merely the consequence of applying the legislation following the judicial finding that the statutory pre-conditions have been met: see The Queen v Joske Ex Parte Shop Distributive and Allied Employees’ Assoc [1976] HCA 48; (1976) 135 CLR 194 at 201. It is s 47A NTA, not this Court, that "creates" the relevant rights.

269 It may be that there are difficulties in some contexts with Commonwealth legislation that confers jurisdiction to create rights even where the jurisdiction does not confer a broad discretion. It may be that in some contexts such legislation has the effect that there is no "matter" to which federal jurisdiction can be attracted because at the time that the proceedings are commenced there is no legal dispute. However, there are at least two situations (which are not mutually exclusive) where this potential difficulty does not arise. One is where the legislation is treated as performing a "dual function" of both conferring jurisdiction and creating substantive rights: see Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1 at 22-23. Such a "dual function" has the consequence that there is a relevant "matter" even before proceedings are instituted: see Commonwealth v Evans Deakin Industries Ltd [1986] HCA 51; (1986) 161 CLR 254 at 265-266. The second is where the legislation deals with issues of status (divorce, bankruptcy, insolvency, winding up etc) or other rights in rem (particularly rights to land): see Queen v Davison [1954] HCA 46; (1954) 90 CLR 353 at 367-368. The jurisdiction, to conclusively determine that status or those rights and to make consequential orders (such as maintenance), has historically been treated as an appropriate exercise of the judicial function. Proceedings seeking the exercise of that jurisdiction have been treated as being in relation to a "matter". If it were necessary to do so in this case then in my view s 47A falls within the second of these situations and probably also the first.

270 In my view s 47A of the NTA is valid.

TELSTRA

271 The fifth respondent did not seek to appear during the hearing. Instead it relied upon a Record of Agreed Facts between it and the applicants which is contained in a letter dated 2 November, 2004 from the solicitors for the fifth respondent to the Court and on written submissions.

272 The letter of 2 November, 2004 records the respective parties’ agreement that the facilities of the fifth respondent within the claim area consist of the Warralwuy High Capacity Radio Concentrator Radio Site, the Durabudboi High Capacity Radio Concentrator Radio site and customer radio terminals. None of these would appear to be in the inter-tidal zone or in the sea.

273 Pursuant to the Telecommunications Act 1997 (Cth) and pursuant to a lease granted by the Land Trust (in relation to the Warralwuy facility) the fifth respondent is entitled to own and operate those facilities and its employees, agents and contractors are entitled to access them for the purpose of maintaining and operating them. The fifth respondent’s rights in this regard were not disputed by the applicants. The fifth respondent did not seek to argue that its rights had extinguished any native title rights of the applicants.

DETERMINATION

274 All parties are agreed that it is appropriate that they be given the opportunity to make further submissions as to the form of the final orders, including any determination under the NTA, after they have had the opportunity to consider these reasons. That seems to me to be a sensible course.

275 In that regard I make the following comments:

(a) As already pointed out, given the purpose of a determination it should be capable of being read and applied without further proof of tradition or custom. This is subject to qualification in relation to the identification of the native title holders and/or the rights inter se of the native title holders.
(b) In my view all of the groups having relevant traditional interests in the claim area pursuant to Aboriginal tradition should be identified as native title holders. Some of those persons are not "represented" by the individual applicants. It may be that the notice provisions of the NTA together with the representative nature of the Land Trust and the Northern Land Council mean that those persons do not need to be heard as to what orders should be made. Nevertheless, I would be assisted by submissions as to whether those persons should be given an opportunity to be heard before they are identified as native title holders.
(c) Given the role of the PBC I do not think it is necessary to define in detail what the respective rights of the native title holders are in respect of each other. Nor is it necessary to define the relevant group otherwise than in accordance with traditional law. It is, however, necessary to define in detail the totality of the rights of the all of the native title holders as against any third parties.
(d) In general terms the native title rights of the native title holders as against third parties is:

(i) As to the "land" other than the inter-tidal zone (meaning the area of the foreshore and the area of rivers and estuaries affected by the ebb and flow of the tides) – a right of exclusive possession:

(ii) As to the sea and the inter-tidal zone - rights similar to those identified in Yarmirr as further explained in Lardil.

(e) Given that the nature of a determination is to "translate" traditional rights into rights "in rem" under the NTA, it does not seem to me that there is any point in doing so unless the relevant rights "in rem" are either greater than such rights under the ordinary law as the applicants otherwise have or there is some other utility in doing so (e.g. the determination provides a foundation for a compensation claim). In this case no such utility has so far been identified in relation to the area within par (d) (i) above. Even if the "acknowledgement" of traditional rights was perceived as performing some socially useful function in vindicating the claimant’s rights, the relevant "acknowledgement" in this case is fully achieved in the Land Rights Act. The title and rights granted under that Act were in recognition of the applicants’ traditional rights. That title, being a statutory fee simple granted directly by a Commonwealth statute, is about as extensive and indefeasible a title as can be imagined. To inquire into the "native title" rights of the applicants in relation to the area of the title seems to me to be pointless. On the face of it a determination in relation to it is necessarily hypothetical and advisory.
Obviously it was necessary for the purposes of determining what traditional rights the applicants possessed in the inter-tidal zone and the adjacent sea to receive evidence in relation to their traditional rights to the remaining land. For tactical and forensic purposes it may have been sensible to include in the application an application for a native title determination in relation to that area. However, unless the utility of making such a determination in relation to that area can be shown, I am not currently satisfied that it is appropriate to do so.
(f) The rights of "third parties" in relation to the area would seem to be the rights of Telstra referred to above, the rights of persons exercising rights under the Fisheries Act, the rights of those exercising any rights of navigation (subject to any applicable statutes), and the rights of others validly conferred by the common law or by statute.

276 I would be pleased to receive any further submissions that the parties may wish to make in relation to the form of any final orders including the form of the determination.

Associate:

Dated: 7 February 2005

APPENDIX 1

Propositions Upon Which the Anthropologists Agreed

Explanatory Notes

The responses to the propositions set out below should be read with regard to the following:

The experts had regard throughout their consideration of the Propositions to the fact that some estate areas and their madayin# are subject to joint rights (see especially Claimants’ Proposition 8).

1. Where Prof Sansom and Dr Cane express agreement with a proposition pertaining to estate ownership of areas seaward of the low water mark, that agreement should be read as subject to the following qualification:

The material on sea tenure in the region of Blue Mud Bay is new ethnography. Relevant details have not previously been presented in the anthropological literature and so the detail in Professor Morphy’s findings on the Yolngu sea tenure cannot be directly checked against written sources. The expert’s agreement to the proposition is therefore based on the assumption that the information presented by Professor Morphy in his report will be confirmed by the evidence of the Aboriginal witnesses who may be called in the trial of this matter.

2. Prof Sansom’s views (and his agreement to the various propositions pertaining to estate ownership of areas seaward of the low water mark) are subject to the following qualification in relation to the sole issue of navigation as it is raised in Prof Morphy’s report and by the various propositions.

The laws and customs regarding Yolngu sea tenure as presented by Professor Morphy are Professor Morphy’s representations of laws and customs as defined by contemporary Yolngu claimants; they therefore pertain to contemporary conceptions of the provisions of customary law which conceptions may or may not reflect or be co-incident with observances in the past and, more particularly, may or may not resemble customary provisions that obtained in Blue Mud at the time of sovereignty.

Dr Cane took the view that the qualification applied to the issue of navigation by Prof Sansom warranted consideration in relation to the propositions pertaining to estate ownership of areas seaward of the low water mark generally. However, on balance, Dr Cane agreed with the analysis of Prof Morphy such that his agreement is not subject to any such qualification in relation to any issue.

3. Where an expression is marked with an asterisk "*" .... that expression has been considered by the experts as a term of anthropology and not a term of law. The opinions of the experts in relation to these expressions, and generally, do not purport to impute any conclusion of law.

4. Vernacular words in the propositions which are marked "#" .....are understood by the experts in the sense set out in the attached glossary:

Glossary of Yolngu Language Terms

.......

Dhuwa one of the two named Yolngu patrilineal moieties

garma open or public sacred knowledge

gutharra daughter’s child (woman speaking), sister’s daughter’s child (man speaking). The reciprocal term is mari. Clans (and sometimes lineages of the same clan ) may stand in a mari-gutharra relationship to one another. Purely as a kin term, it also applies to brother’s son’s child (woman speaking), son’s child (man speaking), replacing the term ‘marratja’ which is used in the western Yolngu-speaking area

madayin can be broadly glossed as ceremonial law, typically something given by the ancestral beings or symbolic of them; can be applied equally to ceremony, object, song etc

manikay song, music, ceremonial singing and song cycle

miny’tji design, ‘pattern’. In particular a design that was created by an ancestral being

mokuy a category of spirit being which is intermediary between human beings and wangarr ancestral beings

rangga sacred objects associated with wangarr ancestral beings

rom culture, ‘custom’, law, behaviour prescribed by the ancestral beings

wangarr ancestral creator being; the time when such beings travelled the land and sea

Yirritja one of the two named Yolngu patrilineal moieties

THE PROPOSITIONS

.....

Commonwealth and Northern Territory Proposition 1

In the present day there is, common to the claimants, a body of laws acknowledged and customs observed by them.

Claimants Proposition 1

In the present day there is, common to the claimants, a body of traditional* laws acknowledged and traditional* customs observed by them known as rom# that is generated by or founded on madayin# and garma#, in turn derived from the actions of the wangarr#.

Commonwealth and Northern Territory Proposition 2

This body of laws and customs is not unique to the claimants; it is also acknowledged and observed, with regional variations by people of the Yolngu ‘cultural bloc’.

Supplementary note: ‘if you agree with this proposition, please define ‘Yolngu cultural bloc’.

Commonwealth and Northern Territory Proposition 3

Under the body of laws and customs referred to in proposition 1, each of the claimants is a member of a particular clan, i.e. (inter alia) a group whose membership is determined by patrilineal descent.

Claimants Proposition 2

Under the traditional* laws acknowledged and traditional* customs observed by the claimants:

(a) each of the claimants is a member of one or other of the clans making up the claim group (‘the clans’);
(b) each of the clans is a group of persons the membership of which is determined by patrilineal descent;
(c) each of the clans belongs to one or other of the moieties, Dhuwa# and Yirritja#

Commonwealth and Northern Territory Proposition 4

[Omitted]

Claimants Proposition 3

Under the traditional* laws acknowledged and traditional* customs observed by the claimants each clan has a relationship to and rights in or ownership of a body of restricted ceremonial law known as madayin# and a body of public ceremonial law known as garma# that is associated with certain area or areas, which comes from the ancestral beings (Wangarr and Mokuy) associated with those areas, and with which area or areas the clan is therefore associated. (In some cases, estate areas and their madayin# are subject to joint rights - see especially Claimants Proposition 8.)

Claimants Proposition 4

Under the traditional* laws acknowledged and traditional* customs observed by the claimants the estate of a clan comprises the country or areas of land and waters (‘estate areas’) associated with the madayin# and garma# of the clan and the constituent properties of the madayin# and garma#.

Claimants Proposition 5

The basis of the rights possessed by the claimants under the traditional* laws acknowledged and traditional* customs observed by them lies in the relationship of a clan with and its rights in or ownership of the madayin#, with which the patrilifiliates of the clan are consubstantial, and the estate areas associated with that madayin#.

Claimants Proposition 6

Under the traditional* laws acknowledged and traditional* customs observed by the claimants madayin# comprises the sacred property associated with an area or areas of land and waters consisting of song cycles or lines (manikay#), paintings and designs (miny’tji#), sacred objects (rangga#), and other manifestations of the ancestral past (wangarr#).

Claimants Proposition 7

By the traditional* laws acknowledged and traditional* customs observed by them the claimants have rights, interests and responsibilities in relation to the whole of the land and waters of the claim area through the madayin# and garma# of the clans associated with the land and waters in the claim area.

Commonwealth and Northern Territory Proposition 5

In the vicinity of Blue Mud Bay, each individual clan’s estate includes an area of sea and seabed that is particular to that clan and no other clan.

Commonwealth and Northern Territory Proposition 6

In the vicinity of Blue Mud Bay, each clan’s individual estate includes an area of sea and seabed which is particular to that clan and no other clan and which:

(a) ordinarily extends at least one kilometre out to sea;

(b) ordinarily extends five kilometres or more out to sea;

(c) at least in some cases, extends ten or more kilometres out to sea.

Claimants Proposition 8

Under the traditional* laws acknowledged and traditional* customs observed by the claimants the estate areas of a clan may include areas of land and waters in which rights and interests are vested in that clan separately, and areas of land and waters in which rights and interests are vested in that clan and another clan or clans of the same moiety, and in the claim area the clan estate areas include:

(a)	areas of land and waters in which the rights possessed by the claimants under the traditional* laws acknowledged and traditional* customs observed by them are vested in an individual clan by virtue of its relationship to the wangarr#, madayin# and garma# associated with such areas being distinct from that of other clans (‘separate clan estate areas’);
(b)	areas of land and waters in which the rights possessed by the claimants under the traditional* laws acknowledged and traditional* customs observed by them are vested in more than one clan of the same moiety by virtue of the relevant clans’ relationship to wangarr#, madayin# and garma# associated with such areas being shared by or held in common with more than one clan of the same moiety

Claimants Proposition 9

The clans’ estate areas include, within the claim area, areas of land and waters that are:

(a) separate clan estate areas of one clan;

(b) clan estate areas shared by or held in common with more than one clan of the same moiety; and

in the case of off shore areas of sea and seabed, such areas include:

(i) areas contiguous with or adjacent to the onshore estate areas of a clan’s estate;
(ii) areas that are not contiguous with or adjacent to the onshore areas of a clan’s estate; and

these off shore areas are held by the clans, in some cases, separately, and in other cases, shared or held in common by more than one clan of the same moiety.

Claimants Proposition 10

The whole of the land and waters of the claim area is made up of the estate areas of the clans making up the claim group.

Claimants Proposition 11

Under the traditional* laws acknowledged and traditional* customs observed by the claimants, members of clans have rights and interests in the estate of their own clan and have reciprocal rights and interests in the estates of other clans to which they have close kinship relations, including:

(a) their mother’s clan
(b) their mother’s mother’s clan;
(c) their spouse’s clan;
AND SUCH RECIPROCAL RIGHTS AND INTERESTS EXTEND TO MEMBERS OF OTHER CLANS:

(D)	WITH NEIGHBOURING ESTATE AREAS;
(E)	WITH RELATED WANGARR# AFFILIATIONS AND RITUAL AUTHORITY;

and such reciprocal rights and interests in the estates of other clans are subject to the rights and interests of the members of those other clans.

Commonwealth and Northern Territory Proposition 7(a)

Under the body of laws and customs referred to in proposition 1 above:

each member of a clan ordinarily has the right to have free access to the clan’s estate and use of its natural resources (subject to certain restrictions, e.g. concerning the closing off of areas following the death of a clan member; or concerning particularly sacred or dangerous places which may not ordinarily be visited);

Claimants Proposition 12(a)

Under the traditional* laws acknowledged and traditional* customs observed by the claimants:

each member of a clan has the right to access the clan’s estate areas and to use the property and resources of the clan’s estate subject to certain restrictions that arise in accordance with those traditional* laws and customs;

Commonwealth and Northern Territory Proposition 7(b)

Under the body of laws and customs referred to in proposition 1 above:

a person who is not a member of the relevant clan must not enter that clan’s estate or use its natural resources without having the permission (express or tacit) of a senior clan member or, if such a person is absent, a person to whom the responsibility to look after the clan’s estate has fallen;

Claimants Proposition 12(b)

Under the traditional* laws acknowledged and traditional* customs observed by the claimants:

a person who is not a member of the relevant clan must not enter that clan’s estate areas or use the property and resources of the clan’s estate without having the permission (express or implied) of senior clan members or the persons to whom, in accordance with those traditional* laws and customs, the responsibility to look after the clan’s estate has fallen;

Commonwealth and Northern Territory Proposition 7(c)

Under the body of laws and customs referred to in proposition 1 above:

permission to enter a clan’s estate and use its natural resources will ordinarily be tacit (i.e. ordinarily may be assumed) in certain cases, specifically in the case of non-clan members who have a requisite kin relationship to members of the clan in question;

Claimants Proposition 12(c)

Under the traditional* laws acknowledged and traditional* customs observed by the claimants:

permission to enter another clan’s estate areas and to use the property and resources of another clan’s estate may be implied or expected in certain cases, especially in the case of non-clan members who have a close kinship relationship to members of the clan in question, but such permission is capable of being withdrawn in certain circumstances in accordance with those traditional* laws and customs;

Commonwealth and Northern Territory Proposition 7(d)

Under the body of laws and customs referred to in proposition 1 above:

the senior clan member (or, if the senior clan member is absent, the person to whom the responsibility to look after the clan’s estate has fallen) has the right to grant, refuse and withdraw permission to enter the clan’s estate or use its natural resources to people who are not members of that clan, thereby controlling the access of others to the clan’s estate;

Commonwealth and Northern Territory Proposition 7(e)

Under the body of laws and customs referred to in proposition 1 above:

only the senior clan member (or, if the senior clan member is absent, the person to whom the responsibility to look after the clan’s estate has fallen), and not any other person, has the right to grant, refuse and withdraw that permission;

Claimants Proposition 12(d)

Under the traditional* laws acknowledged and traditional* customs observed by the claimants:

senior clan members or the persons to whom, in accordance with those traditional* laws and customs, the responsibility to look after the clan’s estate has fallen, have the right to grant, refuse and withdraw permission to enter the clan’s estate areas and to use the property and resources of the clan’s estate to people who are not members of that clan, thereby controlling the access of others to the clan’s estate and estate areas;

Commonwealth and Northern Territory Proposition 7(f)

Under the body of laws and customs referred to in proposition 1 above:

clan members, together with other persons with rights and interests in the estate, have the right to make any and all decisions about the clan’s estate (including decisions to close off areas of the clan estate following the death of a clan member or someone closely connected to the clan, with the result that no person may enter the area so closed). The particular set of persons involved in decision making will depend on the nature of the decision to be made;

Claimants Proposition 12(e)

Under the traditional* laws acknowledged and traditional* customs observed by the claimants:

senior clan members, in association with other clan members and those other persons who, in accordance with those traditional* laws and customs, have rights and interests in the clan’s estate, have the right to make decisions about the clan’s estate;

Commonwealth and Northern Territory Proposition 7(fa)

Under the body of laws and customs referred to in proposition 1 above:

all members of the Yolngu cultural bloc have interests in important creation sites (whether or not such sites fall within a clan’s estate) and, as such, have the right to participate in the making of important decisions about those sites.

Claimants Proposition 15

In relation to the estates of clans other than their own and to which they have close kinship relations, the rights and interests that are possessed by the claimants under the traditional* laws acknowledged and traditional* customs observed by them include,

(a) the right to the legitimate expectation* of access to and use of the resources of the estate;
(b) the right to take designated roles and perform designated responsibilities in the ceremony relating to the estate;
(c) the right to take designated roles in the management of the estate and in the making of decisions that affect the estate;

in accordance with the traditional* laws acknowledged and traditional* customs observed by the claimants that govern the exercise of those rights.

Commonwealth and Northern Territory Proposition 7(g)

Under the body of laws and customs referred to in proposition 1 above:

in decisions making processes of the kind referred to at 7(f) above, people have to defer to the authority of senior clan members and those other senior persons who have rights and interests in the clan’s estate, which authority is only acquired over time.

Claimants Proposition 12(f)

Under the traditional* laws acknowledged and traditional* customs observed by the claimants:
in making decisions that affect the clan’s estate, less senior clan members ordinarily defer to the authority of senior clan members and those other senior persons who, in accordance with those traditional* laws and customs, have rights and interests in the clan’s estate.

Commonwealth and Northern Territory Proposition 8

Insofar as a clan’s estate includes an area of sea and seabed which is particular to that clan and no other clan, each proposition in [Commonwealth and Northern Territory Proposition] 7 above is equally true of sea and seabed within a clan’s estate as it is of dry land within a clan’s estate.

Commonwealth and Northern Territory Proposition 8A

Insofar as there are areas of sea and seabed that are both:

(a) within the claim area but outside of the estate of any one particular clan; and

(b) the subject of rights and interests under the body of laws and customs referred to in proposition 1;

(hereafter called ‘sea country’) those rights and interests are not the same as rights in terrestrial estates but are sui generis, in that sea country cannot be divided into discrete blocks owing to the fact that multiple clans, or members of multiple clans, may have similar or the same rights and interests in any particular area of sea country.

Claimants Proposition 13

Each of the propositions referred to at 12 (a) – (f) apply to the seeking, granting, refusal, expectation and withdrawal of permission in respect of entering separate clan estate areas and conjoint estate areas and to using the property and resources of the clans’ estates, and in the case of joint clan estate areas, under the traditional* laws acknowledged and traditional* customs observed by the claimants:

(a) each member of each relevant clan has the right to access a joint clan estate area and to use the shared property and resources of the relevant clans’ estates relating to a joint clan estate area subject to certain restrictions that arise in accordance with those traditional* laws and customs;
(b) a person who is not a member of one of the relevant clans must not enter a joint clan estate area or use the shared property and resources of the relevant clans’ estates relating to a joint clan estate area without having the permission (express or implied) of senior members of the relevant clans or the persons to whom, in accordance with those traditional* laws and customs, the responsibility to look after the relevant clans’ estates has fallen;
(c) permission to enter a joint clan estate area and to use the shared property and resources of the relevant clans’ estates relating to a joint clan estate area may be implied or expected in certain cases, especially in the case of persons who are not members of one of the relevant clans but who have a close kinship relationship to members of one of the clans in question, but such permission is capable of being withdrawn in certain circumstances in accordance with those traditional* laws and customs ;
(d) senior members of the relevant clans or the persons to whom, in accordance with those traditional* laws and customs, the responsibility to look after the relevant clans’ estates has fallen, have the right to grant, refuse and withdraw permission to enter a joint clan estate area and use the shared property and resources of the relevant clans relating to a joint clan estate area to people who are not members of one of the relevant clans, thereby controlling the access of others to joint clan estate areas and to the shared property and resources of the relevant clans relating to joint clan estate areas;
(e) senior members of the relevant clans, in association with members of those clans and those other persons who, in accordance with those traditional* laws and customs, have rights and interests in the relevant clans’ estates, have the right to make decisions about a joint clan estate area and the shared property and resources of the relevant clans relating to a joint estate area;

(f)

in making decisions that affect a joint clan estate area and the shared property and resources of the relevant clans relating to a joint estate area, less senior clan members ordinarily defer to the authority of senior members of the relevant clans and those other senior persons who, in accordance with those traditional* laws and customs, have rights and interests in the relevant clans’ estates.

Commonwealth and Northern Territory Proposition 9

a)	The politics of succession are conducted with regard to rules that set limits to the possible outcomes in any instance;
b)	Unlike rules of inheritance which unambiguously identify heirs among the surviving kin of the deceased (if there be such surviving kin), rules of succession delimit a range of possible successors;
c)	The most restricting rule limits succession to same-moiety succession. This is because the madayin# of an estate (which are inherited and regarded as being consubstantiate with their inheritors) cannot change moiety or be owned by people of the opposite moiety.;
d)	The candidates for succession are members of same-moiety clans proximate to the estate of the extinct clan who, in addition, can claim knowledge of the deceased clan estate in all its aspects (i.e. land, sacra and immaterial properties). There is a preference for the extinct clan’s estate to be succeeded to by members of a clan in a gutharra relationship;
e)	Candidates for succession may be advantaged if they share in Dreamings with the extinct clan and are therefore located on a Dreaming track that links their own estate with the deceased estate of the extinct clan;
f)	Successors must always come to command relevant sacred knowledge concerning the clan estate;
g)	Following the extinction of a clan there follows an intervening period during which the outcome of the succession process remains uncertain; for the duration of this period, the deceased estate (together with its appurtenances) is looked after by trustees who should also be persons who hold the sacred knowledge in relation to the estate;
h)	Trustees must (inter alia) pass on relevant sacred knowledge to successors; at times, trustees may have to wait to pass on knowledge until potential successors become adults and pass through appropriate ceremonies;
i)	To be completed, succession requires regional consensus, an absence of dissenting voices in a relevant regional community where the extent of the relevant regional community is not pre-determined, its size and nature being a product of politics;
j)	Succession is complete when the succeeding clan is accepted as full owner of the clan estate, as in receipt of the madayin# of the clan estate from the trustee and has full rights to deploy the clan symbols, paint the clan designs etc.

Commonwealth and Northern Territory Proposition 10

The body of laws and customs referred to in proposition 1 above includes rules of succession that apply when a clan becomes extinct, specifically, rules that govern the succession, from the extinct clan to another clan, of the rights and obligations in relation to a clan estate.

Commonwealth and Northern Territory Proposition 10A

Rules and processes governing historical recall do not ordinarily promote the retention of memory of an event of fission or fusion of clans or of an event of succession to the estate of an extinct clan.

Commonwealth and Northern Territory Proposition 11

The claimants and their ancestors have physically resided in the vicinity of Blue Mud Bay without substantial interruption since 1788.

Commonwealth and Northern Territory Proposition 12

The body of laws and customs referred to in proposition 1 above is very similar in the present day to how it was at the beginning of intensive European settlement in Arnhem land in the 1920s and 1930s.

Commonwealth and Northern Territory Proposition 13

The body of laws and customs as they were in the 1920s and 1930s is more likely than not to have had a continuous existence since 1788, allowing for some change and adaptation to changing circumstances.

Commonwealth and Northern Territory Proposition 13A [13B – 14A omitted]

13A. The body of laws and customs relating to succession has been continuous since 1788.

Commonwealth and Northern Territory Proposition 15

Under the body of laws and customs referred to in proposition 1 above, are there rules that confer rights and interests in those parts of the sea and seabed of Grindall and Myaoola Bays that are outside the estates of individual clans?

Commonwealth and Northern Territory Proposition 16-18

If your answer to question 15 is ‘yes’, please answer the following additional questions.
16. Is all of that sea and seabed (i.e. that is outside the estates of individual clans) equally subject to exactly the same rights and interests throughout, or can that sea and seabed be divided into zones in respect of which there are different rights and interests?

17. If the answer to 16 above is yes, please describe the physical characteristics of each and every zone including, if possible, roughly how far out to sea the zone is.

18. If the answer to 16 is ‘yes’, in respect of each zone:

(a) who holds rights and interests there?

(b) what is the content of those rights and interests? e.g. are they usufructary? do they encompass the right to grant or refuse permission to access or use the sea and seabed?

(or alternatively say if reliable answers to these question cannot be given on the present state of anthropological knowledge of the claim area).

Claimants Proposition 14

The rights and interests that are possessed by the claimants under the traditional* laws acknowledged and traditional* customs observed by them include, in relation to estates of their own clan:

(a)	the right of clan members to possess, occupy, use and enjoy the clan’s estate to the exclusion of others;

(b) the right of clan members to be recognised as the traditional* Aboriginal owners of the clan’s estate;

(c)	the right of senior clan members, in association with other clan members, to speak for and make decisions about the clan’s estate;

(d)	the right of clan members to have access to the clan’s estate and to use its property and resources;

(e) the right of clan members to share, exchange and trade the property and resources of the clan’s estate, and the right of senior clan members to receive a portion of resources taken from the clan’s estate;

(f) the right of senior clan members, in association with other clan members, to grant, refuse and withdraw permission for people to enter the clan’s estate areas and to use the property and resources of the clan’s estate for any purpose, thereby controlling the clan’s estate;

(h) the right of clan members to control the use and enjoyment by others of the property and resources of the clan’s estate;

(i) the right of clan members to protect areas of importance, including sacred sites and areas of religious significance, and to exclude the access of others to such areas and sites;

(j) the right of senior members to conduct ceremony and to control access to ceremonial grounds and phases of ceremonial performance;

(k) the right of clan members to close off areas within a clan’s estate; for example, following the death of a clan member or someone with close kinship relationships to the clan;

(l) the right of clan members to receive, protect, transmit and use knowledge associated with the madayin# and garma# of the clan;

(m) the right of clan members to introduce non-clan members to the clan’s estate areas;

in accordance with the traditional* laws acknowledged and traditional* customs observed by the claimants that govern the exercise of those rights.
APPENDIX 2
Extracts from Witness Statement of Gawirrin Gumana (A 26)

Rights and interests in country under Yolngu law

39 Under Yolngu law, Dhalwangu people own all the places and things in Dhalwangu country – they do not just own the wangarr places. They own the sand, the soil, the rocks and stones, the ochre, the waters, the animals, the fish and other water creatures, the trees, the plants and the grasses. There are many billabongs on Dhalwangu country. Under Yolngu law, these billabongs and whatever is in them are owned by Dhalwangu people. There are many small creeks on Dhalwangu country, for example the creek that enters the sea at Yilili (101). Many of these creeks start and finish on Dhalwangu country. They flow in the wet season. During the dry season there are waterholes, but much of the creek bed is dry. Under Yolngu law, the creeks in Dhalwangu country, including their beds, the creek waters and the waterholes and whatever is in them are owned by Dhalwangu people. This also applies to each of the countries for which I am entitled to speak and generally to the countries within the claim area.
40 Some bigger creeks and rivers cross the country of different landholding groups before entering the sea. An example of this is the Baraltja River, which has already been referred to. This river starts inland and crosses the countries of different groups, including the Dhalwangu clan, in the vicinity of the Gängan community. As the river crosses Dhalwangu country, the bed, banks, waters and resources of the river belong to Dhalwangu. Downstream, the waters of this river flood into the countries of Yakutja (55) and Baraltja (63), where they mix with the salt water and become Widiyarr. In these countries, the land itself, the waters and whatever is in them belong to Dhalwangu and Madarrpa together. The flow of water out into Jalma Bay also belongs to these clans, as does the seabed beneath it. On either side of Jalma Bay, Widiyarr joins the Dhuwa Mumuthun waters, which are related to the travels of the Djan’kawu Sisters.
41 Under Yolngu law, the whole of the area between high tide and low tide is owned by the clan that owns the land. Some Dhalwangu land is on the coast of northern Blue Mud Bay. For the whole of this coastline, the area between high tide and low tide is owned by Dhalwangu people. We use this area to find shellfish and crabs and for fishing with a line or a wire spear. This also applies to those countries for which I am entitled to speak and generally to the countries within the claim area.
42 Under Yolngu law, the sea below low tide is almost always owned by the clan that owns the adjoining land. This is true of Dhalwangu country in northern Blue Mud Bay. The sea country below low water mark usually includes the nearby named reefs, rocks and sandbanks. For example, Dhalwangu country includes the offshore rocks at Bati’wuy (104) known as Yinidhamatji, {Yinitjuwa}, Guthitjpuy and Galkama. The last three of these are the names of three of my sisters. The deeper sea beyond the reefs is still Yolngu, but it belongs to several clans. In the Garrapara area, it is Mungurru, belonging to the Dhalwangu, Manggalili and Madarrpa clans. This also applies to those countries for which I am entitled to speak and generally to the countries within the claim area.
43 ........

Entry to and use of the claim area by strangers and others

44 I believe that it has always been part of Yolngu law that strangers must ask permission before they enter or use our land or sea country. When I was a young boy growing up in the bush, groups that were not close countrymen sometimes met up. An example of this is people from Groote Eylandt or Bickerton Island coming across to Blue Mud Bay or people from Blue Mud Bay going across there. I have seen this happen. Either way, the visiting group would light a signal fire on an island along the way to let the other group know that they were intending to come over. Today, people generally use the telephone, but it is the same thing. When I was growing up, groups would sometimes be invited to attend ceremonies. This was often done by letterstick, which was delivered by a messenger. The letterstick gave the other group permission.
45 The Yolngu rule is that people without close connections to country and knowledge of it must get permission from the landowners before entering the country or using its resources. The rule applies to both land and sea country. It applies to both Aboriginal and non-Aboriginal people. The same sort of rule would apply to me if I were visiting places such as Groote Eylandt, Bickerton Island or Numbulwar. If I were at any of these places, I would not go into the bush for hunting or some other reason without getting permission from the local land-owners. Nor would I go fishing without getting permission. If I owned a big boat and fishing nets (which I don’t) and took it across to Groote Eylandt or Bickerton Island or down to Numbulwar and started using the nets, it would be bound to get me into great trouble with the local people. It would be a breach of their law. It’s the same thing in Blue Mud Bay.
46 Before any person is permitted to use our country, they must be aware of where they are entitled to go and where they are not entitled to go. They must be aware of how they should behave, how they should respect the country. Strangers are not permitted to roam around our country unaccompanied. We want to know exactly what it is that a stranger has in mind before deciding whether or not to agree. The same is true for any Yolngu person who does not know and have close connections to the country.
47 When a stranger is taken out hunting for the first time, experienced hunters will often put their sweat on him or her or call out the names of old people. The country knows the sweat and the voices of experienced hunters. By doing this, the country is introduced to the new person, who should now be safe in the country. This does not just apply to non-Aboriginal people. It applies to young Yolngu people who are going to places for the first time.
48 Close relations who know the country are permitted to go hunting in our country, although often they will tell us before they go. If Djambawa Marawili or his brothers .....wished to go hunting or fishing at Garrapara (92) or even camping there overnight, I would have no objection. I would not expect to be asked in advance, although it might come up in conversation. However, if Djambawa or Baluka wished to take a group of schoolchildren or a group of tourists there, I would expect to be asked and have no doubt that I would be asked for permission.