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The Crown's radical and native title: lessons from the sea:.

[This two part article examines the legal nature of the Crown's title to the sea (including the intertidal zone and the territorial sea as well as the continental shelf and the Exclusive Economic Zone beyond the territorial sea) to determine whether any analogy can be drawn between such title and the Crown's title to land Part One considered the position before the High Court's decision in Commonwealth v Yarmirr and this Part examines the Yarmirr High Court decision and beyond, including the Federal Court decisions in Lardil Peoples v Queensland, Gumana v Northern Territory and Akiba v Queensland [No 2]. The decisions considered in this Part are significant from a native title perspective because they have consistently denied recognition of exclusive native title rights to the sea on the basis that they are inconsistent with the public rights of fishing and navigation. It will be seen that both authority and sound legal principle support two propositions. First, the Crown's title derived from sovereignty, whether to land or sea, is analogous and should operate equally in relation to native title. Secondly, and contributing to a paradigm shift in the conventional understanding of native title, it may be possible to recognise exclusive native title rights to the sea.]
CONTENTS
I   Introduction
II  Yarmirr: The High Court
       A   Principal Majority Judgment
               1   Territorial Reach of the Common Law
               2   Radical Title versus Common Law Sovereign Rights
                      (a) Introduction of a 'Double' Inconsistency of
                          Incidents Test to Deny Exclusive Native
                          Title to the Sea
                      (b) Two Objections to Non-Recognition of
                          Exclusive Native Title Rights to the Sea
                            (i)  Pre-Magna Carta Grants of Exclusive
                                 Fisheries
                            (ii) Inconsistency with Mabo's Presumptive
                                 Recognition of Native Title
               3   Statutory Extension of Radical Title to the
                   Territorial Sea?
               4   Kirby J, the Other Majority Judge: Common Law
                   Extension of Radical Title to the Territorial Sea
                   Revisited
III Post-Yarmirr Developments
       A   The Intertidal Zone: Lardil and Gumana
               1   Lardil: Judicial Confusion of Sovereignty and
                   Property
               2   Gumana: Further Support for Common Law Extension of
                   Radical Title to the Sea
               3   Gumana [No 2]: Implicit Acceptance of Common Law
                   Extension of Radical Title to the Sea
               4   Gumana FCAFC: Two Further Objections to
                   Non-Recognition of Exclusive Native Title Rights to
                   the Sea
                      (a) Public Rights to Fish and Navigate as
                          Restrictions on the Crown's Prerogative
                      (b) Not Possible to Precisely Determine Content
                          of Public Rights to Fish and Navigate
       B   Beyond the Territorial Sea Revisited--The Exclusive Economic
           Zone and the Continental Shelf: Akiba
IV  Conclusion


I INTRODUCTION

It was seen in Part One of this article (1) that, before the High Court's decision in Commonwealth v Yarmirr ('Yarmirr'), (2) the courts had drawn a distinction between the Crown's title to land, (3) the Crown's title to the territorial sea and solum, and the Crown's title to the continental shelf beyond the territorial sea. However, while it was clear that the Crown acquired a radical title to land and 'statutory sovereign rights' to the continental shelf, the description of the Crown's title to the territorial sea was not so clear. Indeed, pre-Yarmirr, three different classifications of the Crown's title to the territorial sea had emerged: a statutory radical title, (4) common law sovereign rights, (5) and a common law radical title. (6)

It was also seen in Part One that, pre-Yarmirr, there was considerable authority for the proposition that the legal nature of the Crown's title to the territorial sea was the same irrespective of the classification of the Crown's title. In this Part it will be seen that uncertainty about the Crown's title to the territorial sea was finally resolved by the High Court in Yarmirr. While the Yarmirr High Court did not address the intertidal zone, (7) it was seen in Part One that the Full Federal Court in Commonwealth of Australia v Yarmirr ('Yarmirr FCAFC') (8) attributed a statutory extension of radical title in respect of the whole area to which the Native Title Act 1993 (Cth) ('NTA') applies, including the intertidal zone. Furthermore, since the Full Federal Court acknowledged that the common law operated to low-water mark, the Crown acquired a radical title to the intertidal zone at common law. In this Part, it will also be seen that in Lardil Peoples v Queensland ('Lardil') (9) and Gumana v Northern Territory ('Gumana') (10) the Federal Court made some important observations regarding the common law status of the Crown's title to the intertidal zone. Crucially, the developments in Gumana further support the proposition that the legal nature of the Crown's title to the sea is analogous to the Crown's title to land. Further support for this proposition is also provided by the Federal Court's most recent decision relating to native title to the sea, Akiba v Queensland [No 2] ('Akiba'), (11) in the context of the Crown's acquisition of sovereignty to the Exclusive Economic Zone ('EEZ') beyond the territorial sea.

Both authority and sound legal principle support the proposition that the Crown's title derived from sovereignty, whether to land or sea, is analogous and should operate equally in relation to native title. It will be seen, however, that different tests have developed for initial recognition of native title vis-a-vis land and sea because of the perceived distinction between the legal nature of the Crown's title to land and to sea. Accordingly, while the decisions considered in this second Part of the article all support the non-recognition of exclusive native title rights to the sea on the basis that they are inconsistent with public rights of fishing and navigation, there are four grounds for rejecting non-recognition of exclusive native title rights to the sea, whether relating to the territorial sea, intertidal zone or beyond the territorial sea.

II YARMIRR: THE HIGH COURT

It was seen in Part One that the majority in Yarmirr FCAFC upheld the trial judge's finding that native title did exist in relation to the territorial sea. (12) In Yarmirr, the Commonwealth contended that the Full Court 'erred in that it wrongly construed the [NTA] so as to provide the basis for recognition of native title beyond the limits of the Northern Territory.' (13) By a majority of 5 to 2, the High Court dismissed the Commonwealth's appeal. (14) A joint judgment by Gleeson CJ, Gaudron, Gummow and Hayne JJ constituted the principal majority judgment, while the other member of the majority, Kirby J, delivered a separate judgment. (15)

A Principal Majority Judgment

1 Territorial Reach of the Common Law

The principal majority made it clear that the common law can extend to the territorial sea. In this context, the common law's classification of actions as either local or transitory (16) was crucial in two respects. This distinction underpinned, first, the common law's attitude to crimes committed outside the jurisdiction and, secondly, the often-criticised decision of the House of Lords in British South Africa Co v Companhia de Mocambique ('Mocambique'), (17) where it was held that an action to recover damages for trespass to foreign land could not be brought in an English court. The majority explained that R v Keyn ('Keyn') (18) 'established that, absent statutory authority, a criminal court cannot punish as criminal, conduct which happens beyond the low-water mark on vessels flying the flag of a foreign state.' (19) The majority also explained that Mocambique, rather than having broader reach, merely 'established that the civil courts will not entertain (at least some) actions in respect of immovables in a foreign country or "a dispute involving the title to foreign land".' (20)

Crucially, for the majority, the Mocambique principle demonstrated that the common law does not have a limited territorial operation. (21) Rather, the principle showed that local actions of the kind embraced by the principle were designed to resolve problems resulting from the intersection of two competing systems of law. It had no relevance where, in relation to events occurring and places lying beyond low-water mark, there were two systems of law that can and do operate together. Thus, the majority explained that Keyn and Mocambique merely provided examples of actions, about status and rein respectively, in which the common law did not extend beyond low-water mark because of the particular questions intruding in those cases:
   the fact ... that the events occurred outside Australia does not of
   itself, and without more, bar relief. Questions may intrude in
   actions about status or in actions in rem of a kind which do not
   arise in personal actions. As Keyn demonstrates, other questions do
   intrude in criminal matters. But, importantly, the Mocambique
   principle demonstrates that the common law does not have only a
   limited territorial operation. (22)


The majority did not, therefore, go as far as Merkel J in Yarmirr FCAFC, who held that the common law applies in respect of the territorial sea. Rather, the majority adopted an incremental approach: although the common law does not necessarily end at low-water mark, whether the common law extends to the territorial sea must be determined on a case-by-case basis.

Accordingly, the majority had to determine if the common law applied to the territorial sea in the factual situation before them. Since the Court was dealing with rights in relation to both the sea and seabed beyond low-water mark, the principle in Mocambique was distinguished:
   It is inappropriate to see the present issues as engaging the
   common law rules of choice of laws because the [NTA] requires no
   resolution of any conflict or competition between two systems of
   law. The [NTA] presupposes that, so far as concerns native title
   rights and interests, the two systems--the traditional law
   acknowledged and traditional customs observed by the relevant
   peoples, and the common law--can and will operate together. (23)


There was nothing, therefore, in the facts of the present case to deny that the common law applied beyond low-water mark. (24) Thus, the majority only had to consider the narrower question: 'whether the common law will "recognise" native title rights and interests in respect of areas beyond the low-water mark.' (25)

Noting that the central issue for debate in Mabo v Queensland [No 2] ('Mabo') (26) was whether there was inconsistency between the common law and the relevant native title rights and interests, the majority stated:
   If the two are inconsistent, it was accepted in [Mabo] that the
   common law would prevail.... If, as was held in [Mabo] in relation
   to rights of the kind then in issue, there is no inconsistency, the
   common law will 'recognise' those rights. (27)


Thus, it appears that the High Court has established a two-stage test for determining whether the common law applies in relation to rights beyond low-water mark: first, (in order to distinguish Mocambique) there must be some law which is derived from a system of law which does not compete with the common law system; (28) and secondly, such law must be capable of recognition by the common law--that is, the common law must be consistent with such law. (29)

2 Radical Title versus Common Law Sovereign Rights

The majority considered the role of radical title in the process of examining one of the fundamental principles underlying the Commonwealth's submissions: that native title could not exist without the Crown having radical title to the area in respect of which the native title was claimed. For the Commonwealth, the legal concept of radical title had a 'controlling role'. (30) Such a role was, however, rejected by the majority. Instead, the majority drew a distinction, not unlike that drawn by Merkel J, between 'radical title to land' and 'sovereign rights to the territorial sea'. The majority explained that since native title is neither created by nor derived from the common law, radical title is not a necessary prerequisite to the conclusion that native title exits. Rather, the concept of radical title provides an explanation in legal theory of how the two concepts of sovereignty over land and native title coexist. (31) The concept of radical title is, therefore,
   a tool of legal analysis which is important in identifying that the
   Crown's rights and interests in relation to land can co-exist with
   native title rights and interests. But it is no more than a tool of
   analysis which reveals the nature of the rights and interests which
   the Crown obtained on its assertion of sovereignty over land. (32)


For the majority, it did not follow that it was 'essential, or even appropriate, to use the same tool in analysing the altogether different rights and interests which arose from the assertion of sovereignty over the territorial sea.' (33) Rather,
   [t]he inquiry must begin by examining what are the sovereign rights
   and interests which were and are asserted over the territorial sea.
   Only then can it be seen whether those rights and interests are
   inconsistent with the native title rights and interests which ...
   are claimed. (34)


Thus, although radical title is a concomitant of sovereignty over land, the High Court majority identified 'sovereign rights and interests' as a concomitant of sovereignty over the territorial sea: 'sovereign rights and interests' is a common law concept which, it will be seen, is not dissimilar to the concept of common law sovereign rights identified by Merkel J. Nevertheless, the majority found it unnecessary to attempt a comprehensive definition of the powers, rights and interests which Australia claims, or the Imperial authorities claimed, in respect of

the territorial sea. (35) Although inquiries about those powers, rights and interests are usually expressed in terms of 'sovereignty', the majority noted that 'sovereignty' is a 'notoriously difficult concept which is applied in many, very different contexts'. (36)

Nonetheless, and despite it distinguishing Keyn to hold that the common law does not necessarily end at low-water mark, the majority relied on Keyn to deny 'that the sovereignty claimed amounted to a claim that the area was "owned" by the Crown.' (37) There was, however, no doubt that, as a matter of municipal law, the Imperial authorities claimed the right to legislate in respect of the territorial sea of both Britain and its colonies. (38) The majority accepted
   that the claimed authority over the area extended, if thought
   appropriate, to a power to legislate for the grant of ownership or
   lesser rights in respect of the area, but no such legislation was
   enacted and no grants of ownership were made. (39)


In order to support their conclusion that sovereignty over the territorial sea does not confer beneficial title, the majority considered aspects of both international and municipal law. The acquisition of sovereignty over the territorial sea occurred by international law because Britain was the internationally recognised nation holding sovereignty over the adjoining land mass. (40) 'As a matter of international law', stated the majority, 'the right of innocent passage is inconsistent with any international recognition of a right of ownership by the coastal state of territorial waters.' (41) It was clear, therefore, 'that at no time before federation did the Imperial authorities assert any claim of ownership to the territorial sea or sea-bed'. (42)

By municipal law, the acquisition of sovereignty was a claim made in exercise of the prerogative. 43 The majority observed, however, that the Crown's prerogative rights in relation to the territorial sea were limited in some important respects:

The most relevant of those limitations were the public rights of fishing in the sea and in tidal waters and the public right of navigation.... Whatever may be the origins of those rights, no party or intervener disputed their existence and no party or intervener submitted that the sovereign rights asserted in 1824 [(when Britain acquired sovereignty over the Northern Territory)] did not acknowledge the continuation of those rights. (44)

Accordingly, the majority concluded that the nature of sovereignty asserted in 1824 was such as 'to show that at that time (subject to [the] important qualification [of public rights of navigation and fishing]) there was no necessary inconsistency between the rights and interests asserted by Imperial authorities and the continued recognition of native title rights and interests.' (45) The majority explained that the qualification was required because
   the rights and interests asserted at sovereignty carried with them
   the recognition of public rights of navigation and fishing and,
   perhaps, the concession of an international right of innocent
   passage. Those rights were necessarily inconsistent with the
   continued existence of any right under Aboriginal law or custom to
   preclude the exercise of those rights. (46)


In all other respects, however, the majority found that there was no necessary inconsistency and, importantly, there was no need to 'resort to notions of radical title to explain why that [was] so.' (47) Before examining the Yarmirr High Court's treatment of 'radical title', it is important to note that the qualification on the recognition of native title rights in Yarmirr was crucial: it presented a 'fundamental difficulty standing in the way of the claimants' assertion of entitlement to exclusive rights of the kind claimed.' (48)

(a) Introduction of a 'Double' Inconsistency of Incidents Test to Deny Exclusive Native Title to the Sea

The High Court's analysis proceeded on the assumption that common law public rights to fish/navigate and the international right of innocent passage are rights which cannot coexist with any rights to exclude all others. (49) Although accepting that neither the public right to navigate nor the right of innocent passage require free access to every part of the territorial sea, (50) the High Court nevertheless observed that
   the tension between, on the one hand, the rights to 'occupy, use
   and enjoy the waters of the determination area to the exclusion of
   all others' and 'to possess' those waters to the exclusion of all
   others ... and, on the other, the rights of fishing, navigation and
   free passage is self-evident. (51)


By focusing on the nature and extent of the inconsistency between the asserted native title rights and the relevant common law principles, (52) the High Court concluded that '[t]he two sets of rights cannot stand together and it is not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests is to be subject to the other public and international rights.' (53) With respect, however, this conclusion fails to appreciate the pre-Magna Carta position in relation to Crown grants of exclusive fisheries which were made subject to public rights of fishing/navigation.

(b) Two Objections to Non-Recognition of Exclusive Native Title Rights to the Sea

(i) Pre-Magna Carta Grants of Exclusive Fisheries

Public rights of fishing/navigation evolved before Magna Carta and are, therefore, distinct in origin from the right of innocent passage in international law. (54) Nevertheless, before the grant of several or exclusive fisheries was prohibited by Magna Carta it was clear that the bed of the sea, 'and afortiori the beds of tidal navigable rivers, [could] be granted by the Crown to the subject.' (55) In such a case, however, the grantee's rights had to be reconciled with the public rights:
   no grant by the Crown of part of the bed of the sea or the bed of a
   tidal navigable river can or ever could operate to extinguish or
   curtail the public right of navigation ... It is also true that no
   such grant can, since Magna Charta [sic], operate to the detriment
   of the public right of fishing. (56)


This is because public rights of fishing/navigation 'qualify the Crown's rights in respect of the seabed and the space above it'. (57) Crucially, however, there was no objection to the Crown granting exclusive rights to the sea provided they were made subject to the public rights:

Anterior to Magna Charm [sic], by which such grants [(of several or exclusive fishery)] were prohibited, a several fishery in an arm of the sea or navigable river, might have been granted by the Crown to a subject.... And the grant might include a portion of the soil for the purpose of the fishery. But this, like every other grant, whenever made must have been subject to the public right of navigation ... (58)

In the context of the territorial sea, therefore, since the Crown's title is subject to public rights of fishing/navigation as well as native title the rights of native title holders would appear to be stronger than those of a mere Crown grantee. That is, if the public rights are consistent with a Crown grant of exclusive rights, afortiori, they are consistent with pre-existing exclusive native title rights. Thus, although pre-existing native title rights cannot curtail the public rights, they can exist subject to them; any inconsistency is not such that the two sets of rights cannot stand together. (59)

(ii) Inconsistency with Mabo's Presumptive Recognition of Native Title

The Yarmirr principal majority conceded that the inconsistency between native title and public rights of fishing/navigation 'does not arise as a result of the exercise of sovereign power (as is the case where a grant in fee simple extinguishes native title)'. (60) This is because
   [t]he successive assertions of sovereignty over what now are
   territorial waters, without any further or other act of the
   executive or legislature, brought with them, and gave to the
   public, the public rights that have been mentioned.... Assertion of
   sovereignty, on those terms, is not consistent with the
   continuation of a right in the holders of a native title to the
   area for those holders to say who may enter the area. (61)


Although the inconsistency does not arise as a result of the exercise of sovereign power, the majority held that it 'is of no different quality' (62) because
   [a]t its root, [it] lies not just in the competing claims to
   control who may enter the area but in the expression of that
   control by the sovereign authority in a way that is antithetical to
   the continued existence of the asserted exclusive rights. (63)


With respect, by focusing on inconsistency at sovereignty this analysis is the very antithesis of Brennan J's presumptive recognition of native title in Mabo. (64) Inconsistency at sovereignty is not relevant to initial recognition of native title rights; inconsistency is only relevant to the subsequent question of extinguishment of the presumptively recognised rights. The Yarmirr High Court has, therefore, effectively introduced a new inconsistency of incidents test for initial recognition of native title which is in addition to, and distinct from, the conventional inconsistency of incidents test for extinguishment of native title.

The scope of this double inconsistency of incidents test appears to be limited to the sea, because the long-recognised common law public rights of way and common in respect of land have not precluded initial recognition of exclusive native title rights to land. The test is nevertheless inconsistent with the Crown's undoubted power (pre-Magna Carta) to grant exclusive fisheries provided they were made subject to public rights of fishing/navigation. Indeed, does the distinction, based upon the legal nature of the Crown's title to 'land' and 'sea', support different tests for initial recognition of native title? Is a distinction based on whether the Crown has radical title or common law sovereign rights to an area supported by legal principle?

This is crucial: although the principal majority's treatment of 'sovereign rights' was essentially the same as Merkel J's in Yarmirr FCAFC, it is not clear whether they also equate such sovereign rights with 'radical title'. Significantly, however, since the majority emphasised that 'radical title' is not relevant for analysing the rights which the Crown obtained upon acquisition of sovereignty over the territorial sea, (65) those aspects of the majority's judgment which discuss the role of radical title at common law are mere obiter. Nevertheless, such obiter purport, on the one hand, to simply accept the analysis of radical title as exemplified in existing authorities, suggesting that radical title amounts to a full unfettered proprietary right except to the extent of native title. On the other hand, the majority's obiter comments on the effect of legislative vesting of title to the territorial sea/seabed suggest that radical title is a bare legal title.

In the context of the definition of radical title, the majority referred to the Privy Council decisions in St Catherine's Milling & Lumber Co v The Queen, (66) Amodu Tijani v Secretary (Southern Nigeria) (67) and Attorney-General (Quebec) v Attorney-General (Canada) (68) and the High Court decision in Mabo, (69) observing that a similar analysis of radical title was applied in all of these cases. (70) For the majority, this analysis demonstrated how native title survived the Crown's acquisition of sovereignty over land, by
   revealing that when the Crown acquired sovereignty over land it did
   not acquire beneficial ownership of that land in the same way as a
   subject may, by grant from the Crown, acquire beneficial ownership.
   What the Crown acquired was a 'radical title' to land, a
   'substantial and paramount estate, underlying the [native] title'.
   (71)


Thus, the majority of the High Court appeared to accept that, as a legal concept, radical title amounts not to a bare legal title, but rather to a full unfettered proprietary right except to the extent of native title. (72) The majority did not, however, refer to the most authoritative decision on the juridical nature of radical title, Wik Peoples v Queensland ('Wik'). (73) Both Kirby J and Gummow J's examinations of the concept of radical title in Wik (74) support the interpretation of radical title as a bare legal title which creates no beneficial entitlement to land. Although the judgments of both Toohey J and Gaudron J, as the other members of the majority in Wik, also support this interpretation, (75) Kirby J and Gummow J's approach not only represents the majority of the majority in Wik (76)--Gummow J is also the only member of the Wik High Court who remains a member of the currently constituted Court.

Significantly, although the Yarmirr High Court did not address Wik, other aspects of the Yarmirr High Court's analysis are consistent with the Wik interpretation of radical title. In discussing the effect of legislative vesting of title to the seas and seabed in the Northern Territory, the majority identified s 4 of the Coastal Waters' (Northern Territory Title) Act 1980 (Cth) as critical. That section relevantly provided:
   (1) By force of this Act, ... there are vested in the Territory ...
   the same right and title to the property in the sea-bed beneath the
   coastal waters of the Territory ... and the same rights in respect
   of the space (including space occupied by water) above that
   sea-bed, as would belong to the Territory if that sea-bed were the
   sea-bed beneath waters of the sea within the limits of the
   Territory. (77)


Although the majority stated that it was unnecessary to decide what was the right and title that vested in the Territory as a result of s 4(1) of the Act, they observed:
   If it is appropriate to speak of that right and title in the
   language of the real property lawyer, the right and title thus
   vested in the Territory was no more than a radical title; it was
   not full ownership of the sea-bed or space above it. (78)


Furthermore, the majority noted that, although the Act identified the title which was vested in the Territory as 'the same right and title the Territory had over the sea-bed beneath waters of the sea within the limits of the Territory', (79) '[i]t was not submitted that the right and title to areas of the latter kind was any greater than radical title to land.' (80) The majority emphasised, however, that they did not need to decide whether it was appropriate to adopt such terms as 'radical title' in this context. (81)

Two critical points emerge from the majority's reasoning: first, since the legislation containing the relevant vesting provision related to the entire territorial sea, rather than simply the area encompassing the native title claim, the majority's failure to distinguish between the Crown's title to the area generally and to such of the area as was subject to native title indicates they considered that the title did not, irrespective of the presence of native title, equate with full beneficial ownership. Secondly, by suggesting that the title to the seabed beneath inland waters may be 'greater than radical title to land', (82) the majority indicated the possible direction the future development of radical title will take. That is, by drawing a distinction between title to 'land within Australia' and title to 'land beneath inland waters', the majority suggested that although the Crown does not acquire full beneficial title to land by operation of law, it may do so in respect of the seabed beneath inland waters.

In any event, the majority made it clear that the common law is, prima facie, coextensive with sovereignty, such that the common law may extend to the territorial sea. Indeed, on the facts of Yarmirr, the common law did extend to the territorial sea. Although there is no doubt that radical title is a concomitant of sovereignty, the new element introduced by the Yarmirr majority was the qualification that radical title is only a concomitant of sovereignty over land, the concept of 'sovereign rights' being concomitant of sovereignty over the territorial sea. Accepting the High Court's distinction between the Crown's title upon acquisition of sovereignty over land and over the territorial sea, it is, nevertheless, difficult to discern any legal principle to explain why the nature of the two titles is different. That is, if the Crown's sovereign rights do not automatically confer beneficial ownership of the territorial sea/seabed, why would the Crown's radical title to land have this effect?

The Crown's acquisition of title derived from sovereignty, whether to land or the territorial sea/seabed, should operate equally in relation to native title. Thus, since recognition of sovereign rights, as a concomitant of sovereignty over the territorial sea, does not confer property rights on the Crown even in the absence of native title, neither should recognition of radical title, as a concomitant of sovereignty over land. Indeed, although the majority cautioned that care must be exercised when identifying the Crown's sovereign rights in respect of the territorial sea because 'the earliest understandings of sovereign authority over the sea grew out of the then state of legal development, and the absence of any clear distinction between sovereignty and ownership', (83) this concern is equally applicable to the understanding of sovereign authority over land before Mabo. (84)

The suggestion by the majority in Yarmirr that public rights of fishing/navigation and the international right of innocent passage were necessarily inconsistent with any recognition of a right of ownership by the coastal state of territorial waters (85) fails to appreciate the fact that, before the practice was prohibited by Magna Carta, there was no objection to the grant of exclusive rights to the sea provided they were made subject to public rights of fishing/navigation. (86) Moreover, since the common law has long recognised public rights of way and common in respect of land, (87) it would be incongruous for public rights of fishing/navigation to operate so as to distinguish the nature of the Crown's title to the territorial sea from the nature of the Crown's title to land. (88) Indeed, as Kirby J has noted, '[a] recognition of a public right of access would be unsurprising in relation to certain (exclusive) common law land tenures.' (89) Furthermore, even on the pre-Mabo assumption that the Crown originally owned all land, including unalienated land, rights of common existed over waste lands; (90) any conveyance of the lands to which such rights belonged comprised such rights of common. (91) It is suggested, therefore, that Merkel J's approach in Yarmirr FCAFC is preferable to that of the High Court majority: the concept of radical title is a tool of legal analysis which identifies the rights the Crown acquires upon assertion of sovereignty over land, and the concept of sovereign rights is the tool for analysing the rights which arise from the Crown's assertion of sovereignty over the territorial sea. 'Whilst [sovereign rights] do not constitute radical title they are equivalent to the ultimate and paramount rights and powers gained over land by the sovereign upon gaining sovereignty.' (92)

3 Statutory Extension of Radical Title to the Territorial Sea?

Whether or not the content of the two concepts, radical title and sovereign rights, is the same, it is clear that the Yarmirr majority treated the two concepts as having distinct spheres of operation at common law: the former restricted to land, the latter restricted to the territorial sea. Nevertheless, the majority suggested that subsequent legislative vesting of title to the territorial sea has conferred a 'radical title-like' title on the Crown: in other words, that there was a statutory extension of radical title to the territorial sea. (93) The crucial point is, however, that whether the Crown's title to the territorial sea was regarded as amounting to sovereign rights or radical title, the same result was achieved. (94) For present purposes, the significance of equating radical title with sovereign rights is that such equation necessarily rejects the proposition that, in the absence of native title, radical title confers beneficial ownership. (95) Although the principal majority in Yarmirr found it unnecessary to decide whether it was appropriate to adopt such terms as radical title in the context of the legislative vesting of title to the territorial sea/seabed, (96) Kirby J, as the other member of the majority, adhered to his views in WMC: not only is radical title relevant to defining the Crown's title to the territorial sea but the basis for such extension of radical title can be found in the common law. (97)

4 Kirby J, the Other Majority Judge: Common Law Extension of Radical Title to the Territorial Sea Revisited

Although Kirby J agreed with the principal majority that the common law could recognise native title rights below low-water mark, he disagreed with them on the question of whether the claimants' native title rights over the territorial sea were exclusive in nature, and attributed a 'qualified exclusive' nature to the rights. (98) It has been seen that the principal majority held that common law public rights to fish/navigate in tidal waters and the right of innocent passage under international law precluded recognition of exclusive native title rights to the sea. (99) Nevertheless, in line with the pre-Magna Carta authorities on Crown grants of exclusive fisheries subject to public rights of fishing/navigation, Kirby J was prepared to acknowledge that exclusive native title rights, subject to the public rights, could exist in relation to the territorial sea: there was an exception to exclusive native title rights in favour of public rights of fishing/navigation. More importantly for present purposes, however, his analysis of the role of radical title vis-a-vis the territorial sea departs from that of the principal majority.

Kirby J's analysis focused on the NTA. (100) He observed that s 223 expressly provided for the recognition of native title rights in respect of the sea country of the claimants (101) and that s 6 expressly extended the Act's application to the territorial sea. (102) Although it appears that Kirby J indicated that the NTA has extended the reach of the common law, he clarified his position by explaining:
   recognition of native title 'by the common law' is shaped, and, if
   necessary, extended, by the [NTA's] application to sea waters....
   Thus, s 223(1)(c) cannot, in its context, be read as implying a
   geographical restriction on the recognition of native title. If the
   reach of the common law is so limited (which may be doubted ...) it
   must nevertheless give way to the application of the [NTA] to such
   areas of the seas. (103)


Two crucial points emerge: first, Kirby J doubted that there was a territorial restriction on the reach of the common law. Secondly, even if the common law's reach was subject to a geographical restriction, the NTA extended the common law's application to the territorial sea. Thus, Kirby J considered it unnecessary to examine the additional analysis offered by the principal majority to demonstrate that the proposition that the common law does not extend beyond low-water mark was unacceptably wide. (104) Although Kirby J reserved his opinion on that analysis in Yarmirr, it is clear that his Honour's analysis in WMC assumed that, upon acquisition of sovereignty, the Crown acquired a common law radical title in respect of the territorial sea/seabed. (105) Kirby J's analysis in WMC also made it clear that the Crown acquired common law 'sovereign rights' to the sea/seabed beyond the territorial sea. (106) Furthermore, like Merkel J in Yarmirr FCAFC, Kirby J considered that while 'sovereign rights' do not constitute radical title, the two concepts are equivalent. (107) Since these principles are not inconsistent with Kirby J's reasoning in Yarmirr, his judgment in Yarmirr implicitly incorporates the proposition that the Crown's acquisition of sovereignty over the territorial sea was accompanied by the vesting of a common law radical title.

While the Yarmirr High Court did not address the intertidal zone, (108) it has been seen that the Full Federal Court in Yarmirr FCAFC attributed a statutory extension of radical title in respect of the whole area to which the NTA applies, including the intertidal zone. (109) Indeed, by acknowledging that the common law operated to low-water mark, it appears the Full Court's approach entails the consequence that the Crown also acquired a radical title to the intertidal zone at common law. It will be seen in the next section that, although Cooper J's decision in Lardil denied this result (purporting to apply the principal majority's decision in Yarmirr), in Gumana, Selway J expressly embraced it, holding that the Crown acquired a radical title to the intertidal zone sea.

III POST-YARMIRR DEVELOPMENTS

A The Intertidal Zone: Lardil and Gumana

1 Lardil: Judicial Confusion of Sovereignty and Property

The Lardil, Kaiadilt, Yangkaal and Gangalidda peoples sought a determination of native title in respect of the land and waters below high-water mark in an area of sea adjacent to the Wellesley Islands and adjacent to the coast of Queensland between Massacre Inlet and the Leichhardt River in the Gulf of Carpentaria. (110)

Delivering the judgment of the Federal Court, Cooper J recognised that, although the applicants held native title to the claim area, these rights were limited to rights of access for the purposes allowed by their traditional laws/customs: inter alia, rights to fish, hunt and gather living and plant resources, and the right to access the land and waters below high-water mark 'for the purposes allowed under their traditional laws and customs for religious or spiritual purposes'. (111)

Cooper J relied on the decision in Yarmirr to hold that exclusive native title rights were fundamentally inconsistent with the Crown's sovereignty over the territorial sea, which included public rights of fishing/navigation and the right of innocent passage. (112) It has been seen, however, that both authority and legal principle support the recognition of exclusive native title rights subject to the public rights ('qualified exclusive rights').

Moreover, there is a fundamental contradiction in Cooper J's treatment of the Gangalidda peoples' claim to control access to, and conduct in, the Albert River, a navigable tidal river. The area of the river claimed fell within the boundaries of a reserve for public purposes. In this context, Cooper J accepted the submission, based on Western Australia v Ward ('Ward'), (113) that the reservation for public purposes extinguished any exclusive rights in respect of the waters, bed and banks of the river, including rights to control use and access. (114) Nevertheless, Cooper J also found that
   the same outcome was produced by the operation of the common law
   with respect to the Crown prerogative in relation to the foreshore
   and the banks and beds of navigable rivers ... [and] by the
   operation of the Harbour Boards Act 1892 (Qld) and the Harbours Act
   1955 (Qld). (115)


With respect to the Crown prerogative basis, Cooper J emphasised that
   [t]he common law recognised, in respect of the foreshores and beds
   of tidal rivers, a full beneficial title in the Crown in such lands
   by virtue of the Crown prerogative. The title of the Crown was
   presumed and any person claiming title to the foreshores or to the
   beds of tidal rivers had to prove a prior grant from the Crown...
   The Crown title to the foreshore and the beds of tidal rivers was
   not a radical title but an absolute one. (116)


It is clear, however, that the Yarmirr High Court did not attribute to the Crown an absolute beneficial title to any land or waters: with respect to land, the Crown acquired a radical title; with respect to the territorial sea, the Crown acquired common law sovereign rights. Although the High Court did not expressly decide whether the concepts of radical title and common law sovereign rights were equivalent, it is clear that neither concept confers a beneficial title upon the Crown where the relevant land/water is subject to pre-existing native title. The Yarmirr majority also indicated that there may be a statutory extension of radical title to the territorial sea. Furthermore, while Yarmirr did not consider the legal regime applying in the intertidal zone, not only does the approach in Yarmirr FCAFC support both a statutory and common law extension of radical title to the intertidal zone, since Ward, the position with respect to inconsistency between public rights to fish/navigate and native title in the intertidal zone is no different from that with respect to the territorial sea. (117) The nature of the Crown's title does not, therefore, automatically confer beneficial ownership to any land/water subject to pre-existing title.

Indeed, if the Crown did automatically acquire absolute ownership of the foreshore/beds of tidal rivers upon assumption of sovereignty, such title would extinguish all native title rights, not just those rights exclusive in nature. Consequently, there would be no need for an independent test of non-recognition based upon inconsistency between public rights of fishing/navigation and native title. Cooper J's decision is, therefore, an example of judicial confusion of sovereignty and property: although the Crown's prerogative confers power to deal with land/water, it does not confer proprietary rights to land/water.

With respect to the statutory basis of his decision, Cooper J observed:
   The underlying common law position as to the Crown's title to the
   foreshore and the beds of tidal rivers was given statutory
   expression in Is 77 of the Harbours Act 1955 (Qld)]. It had been
   assumed in the [Harbour Boards Act 1892 (Qld)] which provided that
   nothing in the Act was to affect any right or prerogative of the
   Crown: s 6. (118)


For Cooper J, therefore, s 77 of the Harbours Act had the effect of extinguishing any native title right, if it had not been extinguished at sovereignty, which was inconsistent with the Crown's title and right 'in the land in the foreshore (inter-tidal zone) or land lying under the sea within Queensland waters or lying under any harbour of (including any tidal river in) Queensland.' (119)

The statutory basis of Cooper J's decision is, therefore, subject to the same criticism as the prerogative basis: the Crown's acquisition of a beneficial title to the foreshore/beds of tidal rivers would necessarily extinguish all (not just exclusive) native title rights, irrespective of whether public rights of fishing/navigation are otherwise inconsistent with those rights. Although this is the very antithesis of the decision in Yarmirr, Cooper J clearly thought that, notwithstanding the prerogative and statutory bases of his decision, the case was also governed by the principles in Yarmirr:
   Further, as a navigable river, [the area is one] where the public
   retains the common law public right to fish and navigate. It thus
   falls within the reasoning in Yarmirr and Ward which denies the
   continued existence of a right to control access or use within such
   an area after sovereignty. (120)


Cooper J thus contradicts his own reasoning: the Crown cannot acquire beneficial title, on the one hand, and 'common law sovereign rights' as defined in Yarmirr, on the other. It will be seen in the next section that, in Gumana, Selway J recognised the inchoate nature of the Crown's property rights upon acquisition of sovereignty over the intertidal zone and sea; indeed, like Kirby J in WMC and Yarmirr, he attributed to the Crown a radical title in this context.

2 Gumana: Further Support for Common Law Extension of Radical Title to the Sea

The applicants were members of the Yolngu people and the claim area consisted of land and waters in Blue Mud Bay in north-east Arnhem Land. In 1980, pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ('Land Rights Act'), a grant of fee simple was made to the Arnhem Land Aboriginal Trust over land which included the 'land' area of Blue Mud Bay. The seaward boundary of the relevant land was defined as low-water mark. (121) In the mid 1990s, members of the Yolngu people became aware of fishing activities in the water of Blue Mud Bay and brought two Federal Court proceedings to control such fishing. The first, commenced in 1997, sought declarations that the Director of Fisheries did not have power to grant fishing licences in the tidal waters within the land grant. (122) The second, initiated in 1998, involved an appeal regarding a determination of native title in the waters of Blue Mud Bay and adjacent land. (123)

In Gumana, two further proceedings were heard together before Selway J, both initiated by the applicants to refine the issues in dispute.

1 A determination of native title under the NTA was sought in respect of a reduced area: nine spiritually significant sites ('djalkiri') located in the tidal foreshore and waters (the 'native title proceedings'). (124) This involved a claim of a right of exclusive occupation over the whole claim area including land and sea. (125)

2 The applicants also sought a declaration under the Judiciary Act 1903 (Cth) of their rights under the land grant, and orders restraining the Director of Fisheries from issuing fishing licences in relation to the intertidal zone and sea around the djalkiri sites (the 'land rights proceedings'). (126) This involved a claimed right to exclude from the whole area, including a right to exclude persons fishing/navigating in the intertidal zone, tidal rivers and estuaries. (127)

Although the applicants conceded that following Yarmirr they could not succeed in their claim to exclusive possession of all the area seaward of low-water mark, this concession was qualified in relation to 'two or maybe three areas' of spiritual significance. (128) Thus, the key issue was whether the applicants had a native title right of exclusive possession of the intertidal zone and sea. (129) It will be seen that, although Selway J held that the applicants had non-exclusive rights to the sea and intertidal zone similar to those identified in Yarmirr and Lardil, (130) his treatment of the nature of the Crown's property rights to the intertidal zone (which includes the 'foreshore' and the 'arms of the sea') (131) does not align with the analysis in either Lardil or the principal majority judgment in Yarmirr. (132) Indeed, Selway J's analysis most closely resembles that of Kirby J in both WMC and Yarmirr and Merkel J in Yarmirr FCAFC.

For Selway J, although the Crown had property in the soil of the foreshore between high and low-water marks pursuant to the prerogative, (133)
   [t]he Crown's prerogative rights in the soil of the foreshore did
   not confer full rights of dominion 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 ... (134)


Selway J expressly contrasted his characterisation of the Crown's rights to the foreshore--as analogous to a radical title--with the positions adopted by the Yarmirr principal majority and Cooper J in Lardil. (135) It has been seen that although the Yarmirr principal majority attributed to the Crown common law sovereign rights in respect of the territorial sea, such rights are nevertheless analogous to the Crown's radical title in respect of land. The Yarmirr principal majority also attributed a statutory extension of radical title to the territorial sea. Yarmirr did not, however, consider the legal regime applying in the intertidal zone. Nevertheless, purporting to rely on Yarmirr and Ward, Cooper J, in Lardil, attributed to the Crown an absolute, rather than radical, title in respect of both the intertidal zone and the territorial sea. Since the decision in Ward followed Yarmirr in this regard, (136) Cooper J's decision is inconsistent with both High Court authorities. With respect to the common law position relating to the intertidal zone, therefore, Selway J's decision has the most precedential value: at common law, the Crown's title to the intertidal zone, including the foreshore and the arms of the sea, is analogous to a radical title.

Indeed, although the majority in Yarmirr FCAFC did not deal with tidal waters in the arms of the sea, by acknowledging the common law's operation to low-water mark its approach appears to entail the consequence that the Crown also acquired a radical title to the intertidal zone at common law. In any event, the Yarmirr FCAFC majority made it clear that this is the result of the statutory position: the enactment of the NTA gave recognition to the Crown's acquisition of sovereignty and radical title over the whole area to which the NTA applied, including the intertidal zone. (137)

With respect to the territorial sea, Kirby J in WMC and Yarmirr expressly and implicitly, respectively, attributed to the Crown a radical title at common law. While the Yarmirr principal majority attributed to the Crown common law sovereign rights in this context, in Yarmirr FCAFC, Merkel J had made it clear that the sovereign rights acquired by the Crown over the sea upon acquisition of sovereignty 'are equivalent to the ultimate and paramount rights and powers gained over land by the sovereign upon gaining sovereignty.' (138) Thus, the two concepts, 'common law sovereign rights' and 'radical title', are analogous.

It appears, therefore, that just as Selway J was 'unable to discern any sustainable distinction' between the application of public rights to fish/navigate in the foreshore or in respect of other tidal waters, whether such waters are in estuaries, in rivers or elsewhere, (139) there is also no distinction between the nature of the Crown's title to these areas: whatever its categorisation (radical title/common law sovereign rights), the Crown does not thereby acquire beneficial ownership. (140)

Because Selway J felt bound by the decision in Yarmirr FCAFC, he found that the applicants' exclusive rights to occupy the area seaward of low-water mark were not recognised by the common law as at (1788) because they were inconsistent with public rights to fish/navigate. (141) Nonetheless, Selway J acknowledged that the Crown could grant land within the foreshore subject to public rights to fish/navigate. (142) Indeed, Selway J was of the view that 'those public rights are best understood as restrictions on the Crown's prerogative powers.' (143) Moreover, his Honour recognised 'at least four qualifications to the rule that the Crown's prerogative rights in the soil in the foreshore ... were subject to the public rights to fish and to navigate'. (144) In particular, 'an exclusive right to fish in a class of the public could be established by proof of custom from "time immemorial"' (145) and 'exclusive private rights to take fish could be established by prescription.' (146)

This is crucial: if the Crown could grant exclusive rights to the foreshore subject to public rights of fishing/navigation, and customary or prescriptive exclusive rights to the foreshore can override the public rights, why are exclusive native title rights inconsistent with the public rights? Indeed, it is arguable that, if the matter were free from authority, Selway J would have reached the same conclusion as Kirby J in Yarmirr in this regard: that 'qualified exclusive' native title rights could exist notwithstanding the public rights. (147)

Although Selway J found that the applicants had non-exclusive native title rights similar to those identified in Yarmirr and Lardil, before final orders were made, his Honour died. Accordingly, Mansfield J completed the hearing for the purpose of making final orders, in both the land rights and native title proceedings, to reflect the reasons for judgment of Selway J. There were a number of matters upon which the parties made further submissions, including 'whether the public right to fish extended to non-navigable sections of the inter-tidal zone, so that non-exclusive native title rights only could be exercised in those areas'. (148) In Gumana v Northern Territory [No 2] ('Gumana [No 2]'), (149) Mansfield J considered this matter, and it is to that analysis that this article now turns.

3 Gumana [No 2]." Implicit Acceptance of Common Law Extension of Radical Title to the Sea

The applicants accepted Selway J's findings that they had non-exclusive native title rights in respect of the intertidal zone (150) and the arms of the sea. (151) The question was whether the wider expression 'tidal waters', connoting any waters affected by tides, whether navigable or not, was used by Selway J to convey the full extent of the public right to fish, or whether that right was confined to the arms of the sea, tidal waters that are navigable. (152) Mansfield J concluded:

in my view [Selway J's] reasons for judgment indicate that the public right to fish ... was exercisable in the inter-tidal zone, including tidal waters, whether those waters are navigable or not. The public right to navigate is necessarily confined to tidal waters which are navigable. (153)

The public right to fish is not, therefore, confined to tidal navigable waters. (154) Although Mansfield J did not express any view on the legal nature of the Crown's title to the intertidal zone and sea, his decision implicitly adopted Selway J's view that it is analogous to a radical title, because it was common ground that Mansfield J should proceed from and give full effect to the judgment of Selway J. (155) The Full Federal Court in Gumana v Northern Territory ('Gumana FCAFC'), however, expressly refrained from considering the question of the Crown's title to the sea. (156)

4 Gumana FCAFC: Two Further Objections to Non-Recognition of Exclusive Native Title Rights to the Sea

In the context of considering the question whether a statutory grant of a fee simple estate to the intertidal zone would be sufficient to give the grantee the right to exclude persons who previously had a public right to fish/navigate in that zone, the Full Federal Court declared that it was unnecessary to enter upon the debate fanned by Selway J as to whether public rights to fish/navigate are, strictly, 'common law rights or "are best understood as restrictions on the Crown's prerogative"'. (157) They did, nevertheless, note that it is unsurprising 'that in different ages the rights have been ascribed differing provenances'. (158) Moreover, they emphasised that what needs to be said about public rights is that 'it is not possible to make, with any degree of confidence, a complete and exhaustive statement of the common law rights of the public in relation to tidal waters and the foreshore.' (159) The Full Court also quoted Bonyhady's observation that 'the legal basis of this right is unclear[,] and there are also significant limitations on the manner in which the right may be exercised.' (160)

The Court's obiter observations have two important implications.

(a) Public Rights to Fish and Navigate as Restrictions on the Crown's Prerogative

First, if public rights to fish/navigate are merely restrictions on the Crown's prerogative--a proposition also supported by Yarmirr (161) and the pre-Magna Carta authorities (162)--then these public rights have no significance for any title not derived from Crown grant. Native title holders would, therefore, be in a stronger position than previously identified. Rather than the suggestion that 'although pre-existing native title rights [including exclusive rights] cannot curtail public rights, they can exist subject to them', (163) any question of inconsistency between pre-existing native title rights (including exclusive rights) and public rights would only arise if the Crown exercised its prerogative power (subject to the public rights) to deal with the foreshore/sea. The existence of public rights as a restriction on the Crown's prerogative could not, of itself and without further executive act, preclude recognition of exclusive native title rights.

(b) Not Possible to Precisely Determine Content of Public Rights to Fish and Navigate

Secondly, since it is not possible to make a complete, exhaustive statement of public rights to fish/navigate, and since there are significant limitations on the manner in which these rights may be exercised, it is inherently impossible to conclude that the public rights are inconsistent with exclusive native title rights. Indeed, the courts have consistently held that it is not possible to decide the question of inconsistency between native title rights and the rights of Crown grantees until the rights constituting the native title are determined; (164) a fortiori, the precise content of public rights must be determined before any question of inconsistency with native title arises.

Although the Full Federal Court's decision was mostly upheld by the High Court in Northern Territory v Arnhem Land Aboriginal Land Trust, (165) the High Court majority there explained that the premise underlying the Federal Court's decision was wrong. Rather than proceeding from the premise that the question was whether there was any competition between the common law public right to fish and the rights conferred by grants under the Land Rights Act, (166) the joint majority judgment held that the common law right to fish had been abrogated by the Fisheries Act 1988 (NT) (167) and that the relevant question was whether there was any competition between rights derived from the Fisheries Act and the Land Rights Act. (168)

Crucially, the High Court's decision does not disturb the principle that native title existing before statutory abrogation of the public right to fish can include 'qualified exclusive' rights to the sea. Moreover, after statutory abrogation of the public right to fish, there is no impediment to recognising full exclusive native title rights to the sea. Since the joint majority confined their judgment to the statutory position under the Land Rights Act, (169) the decision also has no significance for the Crown's common law title to land/sea.

However, it will be seen in the next section that the Federal Court's decision in Akiba (170) provides further support for the proposition that the legal nature of the Crown's title upon acquisition of sovereign rights beyond the territorial sea is analogous to the Crown's radical title to land: it confers only legislative power and jurisdiction, not property rights. Akiba also supports the proposition that there are degrees of statutory sovereign rights, with the Crown's statutory sovereign rights to the territorial sea being stronger than the Crown's statutory sovereign rights beyond the territorial sea. Although the Federal Court did not decide in Akiba whether there had been any statutory abrogation of the public right to fish by the relevant Queensland and Commonwealth fisheries legislation, the decision perpetuates the erroneous assumption that the common law will only recognise non-exclusive native title rights to the sea.

B Beyond the Territorial Sea Revisited--The Exclusive Economic Zone and the Continental Shelf. Akiba

Akiba concerned an application for determination of native title in a major part of the sea area of Torres Strait beyond Australia's territorial seas (in its EEZ). This involved (inter alia) addressing two important questions: first, can native title be recognized in the EEZ? Secondly, had any commercial native title right to fish in the claim area that existed at sovereignty been extinguished by relevant Queensland and Commonwealth fisheries legislation?

It is worth noting at this juncture that it was in Mabo (171) that native title was first accepted and recognised in relation to the Murray Islands in Torres Strait. As a result of Mabo and 22 subsequent consent determinations made under the NTA, native title has been recognised in all of the inhabited islands and most of the uninhabited islands of interest in Akiba. (172) Although the issue for determination in Akiba related to seawater areas of Torres Strait, Finn J, delivering the judgment of the Federal Court, noted that the 'land Determinations are of some contextual importance in this proceeding' and emphasised that, 'to the Islanders, land and sea are seamlessly and culturally associated: there is no "sea-land dichotomy"'. (173)

In answering the question whether native title can be recognized in the EEZ of the claim area, Finn J noted the history of the steps taken by which British and then Australian sovereignty 'was acquired over distinct areas of territorial seas, the airspace over them and their respective seabeds and subsoil.' (174) This history spanned over 130 years and involved five separate dates, from 1872 to 2006. (175) In addition to the 'progressive extension' of Australia's territorial seas, in 1994 a proclamation under the Seas and Submerged Lands Act 1973 (Cth) ('Seas and Submerged Lands Act') set the outer limits of the EEZ beyond the territorial sea in Torres Strait. (176) Thus, Australia's sovereignty over its territorial seas and its 'sovereign rights and rights of control' beyond the territorial sea are recognised and regulated by the Seas and Submerged Lands Act and by the 1982 United Nations Convention on the Law of the Sea ('UNCLOS'), (177) articles of which are implemented or otherwise given effect in the Seas and Submerged Lands Act. (178)

The Seas and Submerged Lands Act declares and enacts Australia's sovereignty in respect of the territorial sea (which extends up to 12 nautical miles from the baselines from which the breadth of the territorial sea is measured). (179) As Finn J explained:

Beyond the limits of the territorial sea, the [Seas and Submerged Lands Act] recognizes that new zones of functional and resource jurisdiction can be declared or exist consistently with the provisions of the [UNCLOS]. These, as they radiate outwards, are the Contiguous Zone, the EEZ and the Continental Shelf. .. (180)

Australia's contiguous zone is adjacent to its territorial sea, extending up to 24 nautical miles from its territorial sea baseline. (181) Australia's EEZ extends from the outer edge of the territorial sea up to 200 nautical miles from the territorial sea baseline. (182) By s 10A of the Seas and Submerged Lands Act, 'the rights and jurisdiction of Australia in its exclusive economic zone are vested in and exercisable by the Crown in right of the Commonwealth'. These 'rights and jurisdictions' are provided in art 56 of the UNCLOS and relevantly include:

sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to some areas, in accordance with agreements with neighbouring countries. Although coastal states are not obliged to claim the EEZ, Australia has: Akiba (2010) 270 ALR 564, 725 [691] (Finn J). See also the authorities cited at 725 [691].
   other activities for the economic exploitation and exploration of
   the zone, such as the production of energy from the water, currents
   and winds ... (183)


Australia's continental shelf is the area of the seabed and subsoil extending beyond the territorial sea for up to 200 nautical miles from the territorial sea baseline and beyond that distance to the outer edge of the continental margin as defined in the UNCLOS. Thus, the continental shelf is largely coextensive with the EEZ within 200 nautical miles from the territorial sea baseline. (184) Indeed, art 56 provides that Australia's rights in relation to the seabed and subsoil in its EEZ are to be exercised in accordance with the continental shelf regime. Importantly, however, the EEZ is not limited to the seabed and subsoil beyond the territorial sea; it extends to the waters superjacent to the seabed.

Finn J referred to the joint majority's explanation in Yarmirr of 'how the concept of "radical title" could be deployed as a tool to explain how native title to land could survive the Crown's acquisition of sovereignty over land', (185) but noted that that judgment continued:
   it is wrong to argue from an absence of radical title in the sea or
   sea-bed to the conclusion that the sovereign rights and interests
   asserted over the territorial sea are necessarily inconsistent with
   the continued existence of native title rights and interests. The
   inquiry must begin by examining what are the sovereign rights and
   interests which were and are asserted over the territorial sea.
   (186)


Applying Yarmirr, Finn J held that

the sovereignty acquired over the territorial seas was the right and power to govern that part of the globe ... This acquisition occurred by operation of international law and was subject to such qualifications as were necessitated by evolving international law. (187)

Turning to the EEZ beyond the territorial sea, Finn J found that the provisions of the NTA contemplated that native title might be recognised in the EEZ by the common law. (188) This was reflected by, inter alia, s 6 of the NTA, which extended the provisions of the NTA 'to any waters over which Australia asserts sovereign rights under the [Seas and Submerged Lands Act]'. Such a statutory extension of the NTA to the EEZ is consistent with the approach adopted by the Yarmirr Full Federal Court to conclude that there was a statutory extension of radical title to the whole of the area to which the NTA applies rather than the incremental approach adopted by the Yarmirr High Court to determine whether the common law applies and will recognise native title below low-water mark. Finn J's approach, however, differs from that in Yarmirr FCAFC because rather than concluding that there was a statutory extension of radical title to the EEZ, his Honour relied on the Yarmirr High Court's explanation that the Crown acquired 'sovereign rights and interests' upon assertion of sovereignty over the territorial sea, (189) and on the fact that Australia's rights in the EEZ under s 10A of the Seas and Submerged Lands' Act are described in art 56 of the UNCLOS as 'sovereign rights', to conclude that the Crown has 'sovereign rights' in relation to the EEZ. (190)

Thus, Finn J's approach vis-a-vis the legal nature of the Crown's title to the EEZ beyond the territorial sea contains elements of both the Full Federal Court's approach in Yarmirr FCAFC and the High Court's approach in Yarmirr vis-a-vis the Crown's rights to the territorial sea. Notably, however, Finn J did not refer to the High Court's analysis in WMC of the Crown's rights to the continental shelf beyond the territorial sea. (191) Nevertheless, it will be seen that Finn J's observations on this point are consistent with the High Court's analysis in WMC.

Having found that non-exclusive traditional laws and customs to access, use and take marine resources were, and are, acknowledged and observed in areas of the EEZ, (192) the question for Finn J was whether the common law would recognise these native title rights in the EEZ. (193) Finn J noted that it is well-accepted that the EEZ regime is sui generis: it is neither an extension of the territorial sea nor a modified version of the high seas regime. (194) Rather, the EEZ is subject to the specific legal regime established in pt V of the UNCLOS.195 Crucially, Finn J emphasised that, in relation to the EEZ, '[f]ull sovereignty was not given to the coastal states.' (196) 'Sovereign rights--something less than "full" sovereignty--were to be afforded coastal States.' (197) Finn J had, however, noted that since art 56(3) of the UNCLOS required Australia's rights in relation to the seabed and subsoil in its EEZ to be exercised in accordance with the continental shelf regime, art 77 of the UNCLOS (especially para 2) was important as it made the right to exploit the natural resources of the continental shelf 'exclusive': (198)

1 The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.

2 The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State. (199)

Since this provision appeared to give an 'exclusive right' to the Commonwealth to take resources from the seabed and subsoil in the EEZ, Finn J's determination of whether the native title rights in the claim area were recognised by the common law had three elements. First, Finn J addressed native title rights of use, not involving taking, and found that they raised no issue because they 'are not inconsistent with Australia's sovereign rights'. (200) Secondly, Finn J addressed native title rights of taking marine resources from the superjacent waters in the EEZ and found that they too raised 'no issue of inconsistency for the common law.' (201) Thirdly, Finn J addressed the native title right of taking resources from the seabed or subsoil and noted that, because of art 77(2), it might be thought that an issue of inconsistency at common law would arise. (202) However, his Honour denied this result by drawing a distinction between the Crown's property in the seabed and subsoil in the EEZ, on the one hand, and the Crown's legislative power and jurisdiction over them, on the other:
   [Article 77(2)] gives an apparently 'exclusive right' to the
   Commonwealth. That provision, though, would seem, to be in the
   nature of an emphatic affirmation of the extent of a coastal
   state's rights of control over its continental shelf ... its
   function being to affirm the extent of its sovereign power. It does
   not address property rights as such. Hence it does not raise any
   issue of inconsistency of rights. (203)


Crucially, this is the same distinction Brennan CJ drew in relation to the Crown's rights to the continental shelf in his key majority judgment in WMC. (204)

Thus, Finn J's judgment confirms that the Crown's title to the EEZ and continental shelf, although statutory in origin, does not confer beneficial title on the Crown and is therefore analogous to the Crown's radical title to land. By distinguishing between the Crown's statutory sovereign rights to the territorial sea and to the EEZ/continental shelf beyond the territorial sea, Finn J's judgment also supports the proposition that there are degrees of statutory sovereign rights, the Crown's statutory sovereign rights to the territorial sea being stronger than the Crown's statutory sovereign rights beyond the territorial sea. (205) This is also consistent with Gummow J's conclusion in WMC that the sovereignty referred to in s 6 of the Seas and Submerged Lands Act regarding the territorial sea is a stronger term than the 'sovereign rights' used in s 11 of that Act regarding the continental shelf: (206) Finn J has made it clear that s 10A of the Seas and Submerged Lands Act, regarding the EEZ, confers the lesser rights.

Although Finn J suggests that the Crown's lesser title to the EEZ constitutes an impediment to recognising native title in the EEZ, (207) the reverse is true: there is greater scope for recognising native title because native title rights are potentially less likely to be inconsistent with the Crown's title in the EEZ. This is reinforced both by the High Court's emphasis in Members of the Yorta Yorta Aboriginal Community v Victoria ('Yorta Yorta') (208) that the rights and interests which can be recognised under s 223(1) of the NTA may not, and often will not, reflect Anglo-Australian conceptions of 'property' and 'belonging' (209) and by the High Court's emphasis in Yarmirr that neither the use of the word 'title' nor the fact that the rights and interests be 'in relation to' land and waters require identification of the rights and interests as items of 'real property'. (210)

In the context of determining whether native title can be recognised in the EEZ, the Commonwealth also argued that
   irrespective of the date when sovereignty was asserted by Australia
   in geographical parts of the waters of the sea claim area, the
   capacity of the Islander society to create new laws--and new rights
   and interests under those laws--ceased upon acquisition of
   sovereignty over the land. (211)


In considering whether new native title rights could be created in areas not yet subject to sovereignty but which subsequently came under sovereignty, Finn J referred to the established legal principle that new native title rights could not be recognised over areas where 'territorial sovereignty had previously been acquired.' (212) As explained by Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta, this principle applied to both land and water:
   Because there could be no parallel law-making system after
   assertion of sovereignty it also follows that the only rights or
   interests in relation to land or waters, originating otherwise than
   in the new sovereign order, which will be recognised after the
   assertion of that new sovereignty are those that find their origin
   in pre-sovereignty law and custom. (213)


Yorta Yorta did not, however, address the issue of progressive sovereignty and the creation of new native title rights. (214) This allowed Finn J to hold that it was possible for a system of laws and customs subsisting from before sovereignty to create new rights and interests in areas beyond the territorial sovereignty of Australia from time to time:
   It would be anomalous and unprincipled, in my view, for the common
   law to require an Aboriginal or Islander society to be faithful to
   their laws and customs from the time sovereignty was first acquired
   over some part of their territory if they are to be found today to
   have rights and interests under those laws and customs in that
   part, but to refuse to acknowledge a subsequent accretion to those
   rights and interests in an area not hitherto the subject of
   Australian territorial sovereignty (that is the emergence of new
   rights and interests under its traditional laws and customs). If
   the existence of native title in that later acquired area has to be
   determined at the time sovereignty is asserted over it, that
   determination should be made by reference to the situation existing
   at that time. (215)


Finn J's observations regarding the implications of the Crown's acquisition of sovereignty vis-a-vis native title in the EEZ support the proposition that the Crown's title to the EEZ/continental shelf beyond the territorial sea is a bare legal title which does not confer any beneficial entitlement. This position is further supported by Finn J's observations made in the context of answering the second question identified as important for present purposes: had any commercial native title right to fish in the claim area that existed at sovereignty been extinguished by the relevant Queensland and Commonwealth fisheries legislation?

It was argued that the legislative regimes of Queensland (since 1877) (216) and of the Commonwealth (since 1952) (217) concerning fishing evinced an intention to regulate and control all 'fishing' in Queensland and Commonwealth waters respectively (both domestic and commercial). It was also argued that, insofar as fishing for commercial purposes was concerned, the legislation did not merely regulate such activity but abrogated or extinguished any otherwise existing right (whether a native title right or a public right) to fish for commercial purposes, replacing such rights with private statutory rights to engage in commercial fishing activities. (218)

Finn J summarised the principles concerning extinguishment of native title, which included those established (and applied) in the context of native title land claims. (119) The last principle enumerated was that because the common law right

of fishing in the sea and in tidal navigable rivers is a public (rather than a proprietary) right, it is 'freely amenable to abrogation or regulation by a competent legislature'. (220) Finn J then conducted an extensive survey of the 'interlocking and complicated legislative regimes which apply in Torres Strait'. (221) While Finn J found that the native title right to access and take marine resources was 'not circumscribed by the use to be made of the resource taken', he accepted, for present purposes, 'that a right to take resources for trading or commercial purposes--whether exclusive or non-exclusive--is a discrete and severable characteristic of a general right to take resources.' (222) Accordingly, Finn J rejected the applicant's submission that it is impermissible to '"subdivide" this right', noting that
   [t]he distinction between engaging in an activity for commercial
   purposes or for non-commercial, private or other purposes is one
   commonly made. It was from the outset, and remains, a
   characteristic of the fisheries legislation considered in this
   matter ... [and is also] reflected in the differentiation of
   purposes in s 211 of the [NTA]. (223)


Finn J further observed that there were 'two very discernible and evolving features of the fisheries legislation over time' which were interrelated: first, 'the expansion of the particular public interests of which account is to be taken in the design and implementation of legislative schemes to regulate and control fisheries'; and secondly, 'the changing character of the discretions given in the grant (or refusal) of leases and licences under such legislation.' (224) Finn J's analysis of the legislation demonstrated that there existed 'increasingly comprehensive--and ... sophisticated--management regimes which had and have as a principal focus, the control and management of commercial fishing.' (225) Thus, the 'question of interpretation raised by these schemes' was 'whether they disclosed a clear and plain intent to extinguish native title' or whether they did 'no more than bring Islander fishing for commercial purposes into an aspect of the regulatory regime applied to commercial fishing'--in other words, 'was the legislative intent ... simply to extend the control of commercial fishing ... and not to define "underlining rights"?' (226)

Because the relevant legislation did not 'of its own force seek directly to deny Islander fishing rights for commercial purposes' and one of its objectives was 'to acknowledge and protect, as a management priority, the traditional way of life and livelihood of traditional inhabitants, including their rights in relation to traditional fishing', (227) Finn J adopted a 'constructional choice' that was 'more favourable to the retention of the right to fish for commercial purpose[s]'. (228) This choice was reinforced by the 'distinctive setting' of the legislation which, assuming native title subsisted in Torres Strait at the time of its enactment, would need to contain 'particularly strong indications ... that existing rights were intended to be extinguished, given the markedly beneficial and protective intent' of it and the Tortes Strait Treaty. (229)

Consequently, Finn J concluded that the state and Commonwealth legislative regimes concerning fisheries 'did not, and do not, severally or together evince a clear and plain intention to extinguish native title rights to take fish for commercial purposes.' (230) Finn J did, however, find that

[t]o the extent that those legislative regimes regulate the manner in which, and the conditions subject to which, commercial fishing can be conducted in a fishery in the native title holders' marine estate, or prohibits qualifiedly or absolutely particular activities in relation to commercial fishing in the fishery in that estate ... the native title holders must, in enjoying their native title rights, observe the law of the land. This is their obligations [sic] as Australian citizens. But complying with those regimes provides them with the opportunity--qualified it may be--to exercise their native title rights. (231)

This produces an anomaly: although Finn J's reference to native title holders observing 'the law of the land' inherently encompasses statute, common law and custom, Finn J only allows native title to be 'qualified' in the statutory context. As a result, Finn J accepts the 'well established' principle 'that the common law will not recognise a native title right to occupy, use and enjoy waters seaward of the high water mark to the exclusion of all others, or a right to possess and control those waters to the exclusion of all others', because '[s]uch rights are inconsistent with the public's right to fish in, and to navigate over, those waters'. (232) It has been seen, however, that both authority and legal principle support exclusive native title rights subject to the public rights ('qualified exclusive rights') on a number of grounds and that, after statutory abrogation of the public right to fish, there is no impediment to recognising full exclusive native title rights to the sea. Although Finn J expressly observed that, unlike the High Court in Northern Territory v Arnhem Land Aboriginal Land Trust, (233) he did not have to determine whether or not the common law public right to fish had been abrogated by the relevant Queensland and Commonwealth fisheries legislation, (234) this does not disturb the principle that native title existing before any statutory abrogation of the public right to fish can include qualified exclusive rights to the sea. Because exclusive native title to the sea is not inconsistent with the public right to fish, this principle is distinct from the well-established principle that
   [a] native title right which will not be recognised because of
   inconsistency with a common law right, cannot be saved by the
   expedient of acknowledging the common law right and by qualifying
   the native title right by making it subject to the common law right
   ... (235)


Since Finn J made it clear that native title is subject to 'the law of the land', it is not possible to reconcile why it is only subject to statute law but not other aspects of 'the law of the land': the common law and custom. Indeed, in this context, Finn J's judgment provides further support for, at the very minimum, recognising qualified exclusive native title rights to the EEZ/continental shelf and, if there has been statutory abrogation of the public right to fish, recognising full exclusive native title rights to the EEZ/continental shelf.

IV CONCLUSION

As a result of the decision in Yarmirr, it is clear that the common law can extend to the territorial sea. Although the majority in Yarmirr do not go as far as Merkel J in Yarmirr FCAFC, who held that the common law applies in respect of the territorial sea, they adopt an incremental approach: while the common law does not necessarily end at low-water mark, whether it extends to the territorial sea must be determined on a case-by-case basis. Nevertheless, the majority also made it clear that although the common law applied, this did not mean the Crown had radical title in respect of the territorial sea.

Pre-Yarmirr, the High Court in WMC had drawn a distinction between the Crown's title to 'land' and the Crown's title to 'the continental shelf beyond the territorial sea', radical title and 'statutory sovereign rights' respectively. (236) The new element introduced by the High Court in Yarmirr was the distinction, not unlike that drawn by Merkel J, between the Crown's title to 'land' and to 'the territorial sea': although radical title is a concomitant of sovereignty over land, 'common law sovereign rights' are concomitant with sovereignty over the territorial sea. The new element introduced by Akiba is confirmation that, like the Crown's title to the continental shelf beyond the territorial sea, 'statutory sovereign rights' are concomitant with sovereignty over the EEZ beyond the territorial sea. Indeed, a fourfold distinction has emerged between the Crown's title to: land; the intertidal zone; the territorial sea/solum; and the EEZ and continental shelf beyond the territorial sea. In respect of land, the Crown has a radical title (Mabo, Wik); in respect of the intertidal zone, including the foreshore, there is a statutory extension of radical title (Yarmirr FCAFC) and the Crown also has a radical title at common law (Gumana, Yarmirr FCAFC); in respect of the territorial sea, the Crown has common law sovereign rights (Yarmirr); and in respect of the continental shelf and EEZ, the Crown has 'statutory sovereign rights' (WMC, Akiba). The Crown's title is, therefore, described in one of three ways depending on the area of land/sea: namely, 'radical title' or a statutory extension thereof; 'common law sovereign rights'; or 'statutory sovereign rights'.

Importantly, although the Crown's title to land, the intertidal zone and the territorial sea are derived from the Crown's sovereignty over Australia, the Crown's title to the continental shelf and EEZ beyond the territorial sea derives from 'statutory sovereign rights'. (237) The distinction between sovereignty and 'statutory sovereign rights' appears to correspond with the application and non-application of the common law respectively: where the Crown has acquired sovereignty over an area (land or sea), the common law applies (at least prima facie); where the Crown has merely acquired 'statutory sovereign rights', the common law does not apply. Thus, while a distinction between the Crown's title derived from sovereignty and 'statutory sovereign rights' might be maintained, there is no sustainable reason for distinguishing between the Crown's title, upon acquisition of sovereignty, to different areas of sea or land. Moreover, the weight of authority suggests that, notwithstanding the classification of the Crown's title to particular areas of sea/land, the legal nature of the title is the same: a bare legal title.

In Yarmirr FCAFC, Merkel J expressly declared this to be the legal position with respect to common law sovereign rights and radical title. The majority in Yarmirr did not, however, make it clear whether they regarded the concept of radical title as something different from, or equivalent to, the concept of common law sovereign rights. They simply accepted the analysis of radical title as declared by existing authorities. The state of the law pre-Yarmirr, therefore, remains relevant to elucidating the meaning of radical title. Indeed, three members of the majority in Yarmirr were also members of the majority in Wik, the most authoritative decision on radical title. Crucially, like the conception of radical title in Wik, both the High Court's and Merkel J's conceptions of 'common law sovereign rights' in Yarmirr and Yarmirr FCAFC respectively, and the High Court's conception of 'statutory sovereign rights' in WMC, confers no beneficial entitlement to the area to which the rights relate; they merely confer power to grant interests in that area. Thus, the implications of the Yarmirr majority's indication that there may be a statutory extension of radical title to the territorial sea may be more procedural than substantive.

It is suggested that a principled approach to identifying the Crown's title to sea/land is that where the Crown has acquired sovereignty (rather than 'statutory sovereign rights') over an area, whether land or sea, the common law, and thus radical title, applies. This approach is supported by Selway J's judgment in Gumana (vis-a-vis the Crown's radical title to the intertidal zone) and Kirby J's judgment in WMC (which is supported by the tenor of Toohey J, Gaudron J and Gummow J's judgments in WMC) and in Yarmirr (vis-a-vis the Crown's radical title to the territorial sea). Accordingly, the Crown would be attributed a radical title to land, the intertidal zone and territorial sea, not only in terms of legal nature but in name.

Indeed, the courts have consistently held that the effect upon native title of the Crown's acquisition of sovereignty over the territorial sea and intertidal zone is the same irrespective of the classification of the Crown's title to these areas; the common law will not recognise exclusive native title rights. It has been seen, however, that there are four distinct, yet interrelated, grounds for rejecting this conclusion. First, since there was no objection pre-Magna Carta to the Crown granting exclusive rights to the sea provided they were subject to public rights of fishing/navigation, (238) the exclusive rights of native title holders put those holders, at the very least, in the same position as that of a Crown grantee (if not in a stronger position). If the public rights are consistent with a Crown grant of exclusive rights, a fortiori, they are consistent with pre-existing exclusive native title rights.

Secondly, as conceded by the Yarmirr majority, the inconsistency between native title rights and public rights of fishing/navigation 'does not arise as a result of the exercise of sovereign power'; (239) it arises because of the 'successive assertions of sovereignty over what now are territorial waters, without any further act of the executive or legislature'. (240) Inconsistency at sovereignty is, however, the very antithesis of Brennan J's presumptive recognition of native title in Mabo. (241) The High Court has, therefore, effectively introduced a new inconsistency of incidents test for initial recognition of native title which is in addition to the conventional inconsistency of incidents test for extinguishment of native title. Although this double inconsistency of incidents test appears to be limited to the sea, legal principle and authority does not support a distinction based upon the Crown's rights acquired upon acquisition of sovereignty over land and sea.

Thirdly, if, as suggested by Selway J in Gumana, (242) public rights are in fact restrictions on the Crown's title, the public rights have no significance for any title not derived from Crown grant. Native title holders would, therefore, be in a stronger position than holders of Crown-derived title. Native title, as a non-Crown-derived title, would not be affected by public rights unless and until the Crown exercised its sovereign power to deal with the intertidal zone or sea. In addition to the fact that public rights could not of themselves without further executive act preclude recognition of exclusive native title rights--because it is not possible to make a complete statement of public rights to fish/navigate and there are significant limitations on the manner in which the rights may be exercised--it follows that the fourth ground for rejecting non-recognition of exclusive native title is that it is impossible to conclude that public rights are, in fact, inconsistent with exclusive native title rights. A fortiori, statutory abrogation of such public rights removes any impediment to recognising exclusive native title rights.

Importantly, it has been shown that the concepts of 'sovereign rights' (whether relating to the territorial sea or beyond) and 'radical title' (whether common law or a statutory extension thereof) support the proposition that the Crown's acquisition of title, whether derived from sovereignty or sovereign rights, does not confer a plenary title, irrespective of the original presence of Aboriginal inhabitants. Thus, notwithstanding any suggested analogy between 'sovereign rights' and 'radical title', the analysis in this article supports the proposition that radical title, whether relating to land or sea, is merely a power of alienation rather than a property right; it is a bare legal title which does not automatically confer beneficial ownership to the land/sea to which it relates. Importantly, in the case of land this arguably means that--contrary to previous assumptions (243)--the Crown has to take further steps to become the owner of land even if it is not subject to native title.

(1) Ulla Secher, 'The Crown's Radical Title and Native Title: Lessons from the Sea--Part One--The Position before Yarmirr' (2011) 35 Melbourne University Law Review 523.

(2) (2001) 208 CLR 1.

(3) Although this appeared to include the Crown's title to land up to low-water mark, it will be seen that, post-Yarmirr, the Federal Court distinguished between title to land and to the 'intertidal zone': see text accompanying below nn 131-134, 150. See also the definition of 'intertidal zone' in Part One of this article, Secher, 'Lessons from the Sea--Part One, above n 1,524 n 1:
   The 'intertidal zone' refers to the area of the shore between high
   and low-water marks and that part of rivers and estuaries that is
   affected by the tides: Gumana v Northern Territory (2005) 141 FCR
   457, 462 [3], 469 [31] (Selway J). It includes 'the foreshore' (the
   shore between high and low-water marks: at 469 [31], 476 [61]) and
   the 'arms of the sea' ('estuaries and rivers capable of navigation
   and subject to the ebb and flow of the tide': at 477 [66]).


(4) While the majority of the Full Federal Court in Commonwealth v Yarmirr (2000) 101 FCR 171 ('Yarmirr FCAFC') agreed with Brennan CJ in Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 ('WMC') that the common law (and thus radical title) does not extend below low-water mark, they nevertheless held that there was a statutory extension of radical title to the territorial sea: see Secher, 'Lessons from the Sea--Part One', above n 1,534-5.

(5) Although Merkel J, dissenting in Yarmirr FCAFC (2000) 101 FCR 171, also followed Brennan CJ's decision in WMC (1998) 194 CLR 1 to deny the Crown a radical title below low-water mark, in contradistinction to the Yarmirr FCAFC majority, he applied the concept of common law sovereign rights to describe the Crown's title to the territorial sea: see Secher, 'Lessons from the Sea--Part One', above n 1,537-8.

(6) In WMC (1998) 194 CLR l, Kirby J expressly, and Gummow J implicitly, attributed to the Crown a radical title to the territorial sea: see Secher, 'Lessons from the Sea--Part One', above n 1,539-42.

(7) Yarmirr (2001) 208 CLR 1, 60 [73] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See the definition of 'intertidal zone' in above n 3.

(8) (2000) 101 FCR 171.

(9) [2004] FCA 298 (23 March 2004).

(10) (2005) 141 FCR 457.

(11) (2010) 270 ALR 564.

(12) Secher, 'Lessons from the Sea--Part One', above n 1,533.

(13) (2001) 208 CLR 1,146 [331] (Callinan J).

(14) See text accompanying below nn 48-97.

(15) Although both McHugh J and Callinan J dissented, only McHugh J expressly held that the 'common law does not operate outside the realm': Yarmirr (2001) 208 CLR 1, 91 [179]. See also at 69 [104], 89 [174].

(16) Yarmirr (2001) 208 CLR 1, 44 [32] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). This distinction was explained at 92 [183] (McHugh J).

(17) [1893] AC 602. See Yarmirr (2001) 208 CLR l, 44 [32] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(18) (1876) 2 Ex D 63.

(19) Yarmirr (2001) 208 CLR 1,43 [30] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(20) Ibid 45 [33] (citations omitted).

(21) Ibid 46 [35].

(22) Ibid.

(23) Ibid 46-7 [37].

(24) The majority found it unnecessary to explore further the territorial reach of the common law: ibid 47 [39].

(25) Ibid.

(26) (1992) 175 CLR 1.

(27) Yarmirr (2001) 208 CLR 1, 49 [42] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(28) See below Part II(A)(2).

(29) The High Court's examination of the effect of the various assertions of sovereignty over the territorial sea revealed an inconsistency with the continued existence of any exclusive rights. See below Part II(A)(2).

(30) Yarmirr (2001) 208 CLR 1, 51 [49] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(31) Ibid 51 [48].

(32) Ibid 51 [49]. See also Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422,441 [38] (Gleeson CJ, Gummow and Hayne JJ).

(33) Yarmirr (2001) 208 CLR 1, 5 l [50] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(34) Ibid 51-2 [501] (emphasis added).

(35) Ibid 52 [52].

(36) Ibid 52-3 [52].

(37) Ibid 54 [55], also stating that Keyn (1876) 2 Ex D 63 had held that 'the sea within three nautical miles of the coast, although internationally recognised as territorial sea subject to British sovereignty, is not within the territory of England'.

(38) Yarmirr (2001) 208 CLR 1, 54 [55] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(39) Ibid.

(40) Ibid 55 [59].

(41) Ibid 54 [57].

(42) Ibid 55 [59].

(43) Ibid 55 [60].

(44) Ibid 55-6 [60] (citations omitted).

(45) Ibid 56 [61] (emphasis in original).

(46) Ibid. The common law recognises public rights of fishing/navigation: at 68 [98]-[100]; Western Australia v Ward (2002) 213 CLR 1, 187 [388] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Yarmirr v Northern Territory [No 2] (1998) 82 FCR 533,593 (Olney J).

(47) Yarmirr (2001) 208 CLR 1, 56 [61] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(48) Ibid 67 [94]. See also at 63-5 [86] [88], 66-7 [93].

(49) Ibid 67 [94].

(50) Ibid 67 [96].

(51) Ibid 67-8 [96]. See NTA s 225 for what is included in a determination of native title.

(52) Yarmirr (2001) 208 CLR 1, 68 [97] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(53) Ibid 68 [98].

(54) Yarmirr FCAFC (2000) 101 FCR 171,224-5 [217] (Beaumont and von Doussa JJ); Yarmirr v Northern Territory [No 2] (1998) 82 FCR 533,593 (Olney J).

(55) Lord Fitzhardinge v Purcell [1908] 2 Ch 139, 167 (Parker J).

(56) Ibid, cited in Yarmirr FCAFC (2000) 101 FCR 171,225 [218] (Beaumont and von Doussa JJ). See also the authorities cited in Gumana (2005) 141 FCR 457,476 [64] (Selway J).

(57) Risk v Northern Territory (2002) 210 CLR 392,436 [127] (Callinan J), summarising the content of the public fishing/navigation rights in Yarmirr.

(58) Gann v Free Fishers of Whitstable (1865) 11 HL Cas 192, 209; 11 ER 1305, 1312 (Lord Westbury LC).

(59) Indeed, this is the very conclusion reached by Kirby J in Yarmirr: see text accompanying below n 98.

(60) Yarmirr (2001) 208 CLR 1, 68 [100] Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(61) Ibid 68 [99] (emphasis in original).

(62) Ibid 68 [100].

(63) Ibid.

(64) See the effect of the doctrine of 'continuity pro-tempore' developed by the author and cited with approval by the Federal Court in Gumana (2005) 14l FCR 457, 493 [121] (Selway J), citing Ulla Secher, 'The Reception of Land Law into the Australian Colonies Post-Mabo: The Continuity and Recognition Doctrines Revisited and the Emergence of the Doctrine of Continuity Pro-Tempore' (2004) 27 University of New South Wales Law Journal 703, 720-3. For further criticism of the Yarmirr High Court's treatment of the inconsistency of incidents test, see Lisa Strelein, Compromised Jurisprudence: Native Title Cases since Mabo (Aboriginal Studies Press, 2nd ed, 2009) ch 5; Alexandra Grey, 'Offshore Native Title: Currents in Sea Claims Jurisprudence' (2007) 11(2) Australian Indigenous Law Review 55, especially at 66.

(65) Yarmirr (2001) 208 CLR 1, 51-2 [49]-[50] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(66) (1888) 14 App Cas 46.

(67) [1921] 2 AC 399.

(68) [1921] 1 AC 401.

(69) (1992) 175 CLR 1.

(70) Yarmirr (2001) 208 CLR 1, 49-51 [44]-[46] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(71) Ibid 51 [47] (citations omitted).

(72) The author has, however, shown that the pre-Mabo Privy Council decisions are not authority for the proposition that the Crown must have a present proprietary estate underlying any pre-existing title: Ulla Secher, 'The Meaning of Radical Title: The Pre-Mabo Authorities Explained--Part I' (2005) 11 Australian Property Law Journal 179; Ulla Secher, 'The Meaning of Radical Title: The Pre-Mabo Authorities Explained--Part 2' (2005) 11 Australian Property Law Journal 209.

(73) (1996) 187 CLR 1.

(74) See ibid 244-5 (Kirby J), 186-9 (Gummow J).

(75) See ibid 127-9 (Toohey J), 155-65 (Gaudron J).

(76) Kirby J and Gummow J's approach represents the majority of the majority because both justices held that no reversion was created by the relevant pastoral leases, and the rationale underlying their decisions was the same, based exclusively on the nature of the Crown's title to land. See ibid [244-5] (Kirby J), [189] (Gummow J). Cf the different rationales underlying Toohey J and Gaudron J's judgments, which held that although a reversion was created, it did not confer full beneficial ownership: see Ulla Secher, 'The Legal Nature of the Crown's Title on the Grant of a Common Law Lease Post-Mabo: Implications of the High Court's Treatment of the "Reversion Expectant" Argument--Part 1' (2006) 14 Australian Property Law Journal 1, 4-5.

(77) Cited in Yarmirr (2001) 208 CLR 1, 57 [64] (Gleeson CJ, Gaudron and Gummow JJ).

(78) Ibid 59 [70] (emphasis added).

(79) Ibid 59 [71].

(80) Ibid.

(81) Ibid 59 [70].

(82) Ibid 59 [71] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See above n 80.

(83) Ibid 52 [51].

(84) Moreover, the sovereign rights argument is consistent with the author's consideration of the pre-Mabo authorities on the nature of the Crown's title to land subject to pre-existing title: see above n 72.

(85) Yarmirr (2001) 208 CLR 1, 54 [57], 56 [61] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(86) See text accompanying above n 54.

(87) Joshua Williams, Principles of the Law of Real Property (Sweet & Maxwell, 23rd ed, 1920) 31; Sir Robert Megarry and H W R Wade, The Law of Real Property (Stevens & Sons, 5tn ed, 1984) 843-7.

(88) Rights of common include turbary, pasture and piscary: Williams, above n 87, 461.

(89) Yarmirr (2001) 208 CLR 1, 125 [281] (citations omitted).

(90) Williams, above n 87, 462.

(91) Deane and Gaudron JJ's observation in Mabo (1992) 175 CLR 1, 101 that, upon acquisition of sovereignty, it was 'conceivably' the whole of the lands of Australia that were affected by native title would also deny automatic beneficial ownership of any land in Australia.

(92) Yarmirr FCAFC (2000) 101 FCR 171, 285-6 [494] (Merkel J) (emphasis added). See also quote accompanying above n 80.

(93) Yarmirr (2001) 208 CLR 1, 56-61 [63]-[76] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(94) Ibid 60-1 [76].

(95) See paragraph accompanying above nn 83-84.

(96) Yarmirr (2001) 208 CLR 1, 59 [70] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(97) Ibid 116 [259]. See also Secher, 'Lessons from the Sea--Part One', above n 1, 539 (text accompanying n 108).

(98) Yarmirr (2001) 208 CLR 1, 121 [273]. For further discussion of the need to re-examine the concept of exclusivity in the context of native title to the sea, see Simon Young, The Trouble with Tradition: Native Title and Cultural Change (Federation Press, 2008), especially at 388-401. Young argues that the first step in correcting the restrictive interpretation of native title in Australian case law requires a re-examination of the concept of exclusivity and its logical implications. While this exercise began in Yarmirr, it remains incomplete.

(99) Regarding common law public rights to fish/navigate in tidal waters, see Yarmirr (2001) 208 CLR 1, 67 [94] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) See also at 124 [278] (Kirby J); text accompanying above nn 49-53. Regarding the right of innocent passage under international law, see Yarmirr (2001) 208 CLR 1, 67 [94] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See also at 121-2 [272]-[273] (Kirby J).

(100) Ibid 111-12 [249].

(101) Ibid 112 [250].

(102) Ibid 113 [252].

(103) Ibid 116 [259] (citations omitted).

(104) Ibid.

(105) See Secher, 'Lessons from the Sea--Part One', above n 1,539 (text accompanying n 108).

(106) Ibid.

(107) Ibid.

(108) Yarmirr (2001) 208 CLR 1, 60 [73] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(109) See Secher, 'Lessons from the Sea Part One', above n 1,533-5.

(110) Lardil [2004] FCA 298 (23 March 2004) [1] (Cooper J).

(111) Ibid [245].

(112) Ibid [164] [168], [171], [188]-[189].

(113) (2002) 213 CLR 1.

(114) Lardil [2004] FCA 198 (23 March 2004) [160], quoting ibid 138 [219] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(115) Lardil [2004] FCA 198 (23 March 2004) [161].

(116) Ibid [221] (citations omitted).

(117) Ward (2002) 213 CLR 1, 187 [388] (Gleeson CJ, Gaudron, Gummow and Hayne JJ), 251 [594] (Kirby J), 366 [880] (Callinan J), 213 [472] (McHugh J).

(118) Lardil [2004] FCA 198 (23 March 2004) [222].

(119) Ibid [224].

(120) Ibid [162].

(121) Gumana (2005) 141 FCR 457, 465-6 [19]-[20] (Selway J).

(122) Arnhemland Aboriginal Land Trust v Director of Fisheries (NT) (2000) 170 ALR 1.

(123) Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust (2001) 109 FCR 488.

(124) Gumana (2005) 141 FCR 457, 517 [221]-[222] (Selway J).

(125) Ibid 471 [4l].

(126) Ibid 469 [29].

(127) Ibid 469 [31].

(128) Ibid 470 [36].

(129) Ibid 471 [44].

(130) Ibid 462 [3].

(131) Ibid 475 [61], 477 [66]. For definitions of 'foreshore' and 'arms of the sea', see above n 3.

(132) Ibid 476 [62].

(133) Ibid 476 [61].

(134) Ibid 476 [62].

(135) Ibid.

(136) Ward (2002) 213 CLR 1, 187 [388] (Gleeson C J, Gaudron, Gummow and Hayne JJ). See also text accompanying above n 120.

(137) See Secher, 'Lessons from the Sea--Part One', above n 1, 534-5.

(138) Yarmirr FCAFC (2000) 101 FCR 171, 286 [494]. See also ibid 537 (text accompanying n 98).

(139) Gumana (2005) 141 FCR 457, 486 [87].

(140) Cf Lardil [2004] FCA 198 (23 March 2004) [221]. See text accompanying above n 116.

(141) Gumana (2005) 141 FCR 457, 520 [233] (Selway J).

(142) Ibid 476 [64].

(143) Ibid 480 [69].

(144) Ibid 476 [65].

(145) Ibid, citing Goodman v Saltash Borough Corporation (1882) 7 App Cas 633, 651-2, 654-5 (Lord Blackburn).

(146) Gumana (2005) 141 FCR 457, 476 [65] (Selway J).

(147) Indeed, Selway J suggested that, if the matter were free of authority, he would have reached a different conclusion when considering whether the grant of a fee simple estate in the foreshore pursuant to the Land Rights Act is qualified in that the rights conferred do not include rights to exclude those exercising public rights to fish or navigate: ibid 483-6 [73]-[85]. The Full Federal Court agreed with Selway J's analysis: Gumana v Northern Territory (2007) 158 FCR 349, 372 [90]-[91] (French, Finn and Sundberg JJ). Cf the High Court's position outlined below in Part III(A)(4)(b).

(148) Gumana v Northern Territory [No 2] [2005] FCA 1425 (11 October 2005) [6] (Mansfield J).

(149) Ibid.

(150) Gumana (2005) 141 FCR 457, 476 [61] (Selway J).

(151) Ibid 477 [66].

(152) Gumana [No 2] [2005] FCA 1425 (11 October 2005) [24] (Mansfield J).

(153) Ibid [31].

(154) See ibid [29].

(155) Gumana v Northern Territory (2007) 158 FLR 349, 354 [9] (French, Finn and Sundberg JJ).

(156) Ibid 372 [88]-[89].

(157) Ibid 372 [89], quoting Gumana (2005) 141 FCR 457, 478 [69] (Selway J).

(158) Gumana FCAFC (2007) 158 FLR 349, 372 [89] (French, Finn and Sundberg JJ).

(159) Ibid, quoting Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534, 557 [84] (Barrett J).

(160) Gumana FCAFC (2007) 158 FLR 349, 372 [89] (French, Finn and Sundberg JJ), quoting Tim Bonyhady, The Law of the Countryside: The Rights of the Public (Professional Books, 1987) 240.

(161) (2001) 208 CLR l. See above n 44 and accompanying text. See also Risk v Northern Territory (2002) 210 CLR 293, 436 [127] (Callinan J), summarising the content of the public fishing/navigation rights in Yarmirr.

(162) See text accompanying above nn 55-58.

(163) See the conclusion reached above in Part II(A)(2)(b)(i).

(164) See, eg, Wik (1996) 187 CLR 1, 212-13 (Kirby J).

(165) (2008) 236 CLR 24.

(166) Ibid 55 6 [19] (Gleeson C J, Gummow, Hayne and Crennan JJ).

(167) Ibid 58 [27].

(168) Ibid 58 [30].

(169) Cf ibid 68-70 [67]-[71] (Kirby J).

(170) (2010) 270 ALR 564.

(171) (1992) 175 CLR 1.

(172) Akiba (2010) 270 ALR 564, 574 [7] (Finn J).

(173) Ibid 574 [8]. This principle is consistent with the argument advanced regarding the legal nature of the Crown's title to land and sea.

(174) Ibid 724 [687].

(175) Ibid.

(176) Ibid 724 [689].

(177) Opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994).

(178) Akiba (2010) 270 ALR 564, 724-5 [690]-[691] (Finn J).

(179) Ibid 724 [690]. Due to the proximity of Papua New Guinea, the territorial sea around certain Torres Strait islands is only three nautical miles wide, in accordance with Treaty concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters, Australia-Papua New Guinea, signed 18 December 1978, 1429 UNTS 207 (entered into force 15 February 1985) art 3 ('Torres Strait Treaty').

(180) Akiba (2010) 270 ALR 564, 724 [691].

(181) UNCLOS art 33, reproduced in Seas and Submerged Lands Act 1973 (Cth) sch ('Parts II, V and VI of the United Nations Convention on the Law of the Sea'). In this zone, Australia may exercise the control necessary to prevent or punish infringements of its customs, fiscal, immigration or sanitary laws and regulations.

(182) Akiba (2010) 270 ALR 564, 725 [692] (Finn J). The outer limit is less than 200 nautical miles in

(183) Akiba (2010) 270 ALR 564, 725 [694] (Finn J) (emphasis in original), quoting UNCLOS art 56(1)(a).

(184) There are certain areas between Australia and Papua New Guinea and Australia and Indonesia where they are not coextensive.

(185) Akiba (2010) 270 ALR 564, 729 [713], citing Yarmirr (2001) 208 CLR 1, 50-1 [46]-[48] (Gleeson C J, Gaudron, Gummow and Hayne JJ).

(186) Akiba (2010) 270 ALR 564, 729-30 [713], quoting Yarmirr (2001) 208 CLR 1, 51 [50] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(187) Akiba (2010) 270 ALR 564, 730 [714].

(188) Ibid 730 [715].

(189) Ibid 729 [713], quoting Yarmirr (2001) 208 CLR 1, 51 [50] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(190) Akiba (2010) 270 ALR 564, 729-30 [713]-[716].

(191) See Secher, 'Lessons from the Sea--Part One', above n 1, 530-3.

(192) Akiba (2010) 270 ALR 564, 575 [11], 729 [712], 73l [721], 732 [725] (Finn J).

(193) Ibid 733 [727]. Prior to addressing this issue, Finn J noted that '[t]hese rights are acknowledged by the common law in the native title claim area in Australian territorial waters.'

(194) Ibid 730-1 [719].

(195) Ibid 731 [719].

(196) Ibid. According to David Joseph Attard, The Exclusive Economic Zone in International Law (Clarendon Press, 1987) 66, quoted in ibid at 731 [719], the EEZ regime attempts to remove the geographic notions inherent in the law of the sea:
   The applicable legal regime is no longer dependent on the
   geographic area in question; rather, it is the activity in question
   that will determine the operative regime.... Thus it is possible
   for different States to have jurisdiction over different activities
   in the same area; indeed, frequently there will be concurrent
   jurisdiction, usually for different purposes.


In this context, the native title rights to access and take resources found by Finn J fitted 'squarely within one of the forms of marine activity which are the subject of Australia's sovereign rights under Art 56(1)(a) of the [UNCLOS]': ibid at 731 [721].

(197) Akiba (2010) 270 ALR 564, 732 [723] (Finn J).

(198) Ibid 726-7 [699]-[700].

(199) Ibid 727 [700] (emphasis in original), quoting UNCLOS art 77.

(200) Akiba (2010) 270 ALR 564, 733 [728].

(201) Ibid 733 [729].

(202) Ibid.

(203) Ibid (emphasis added). See also at 733-4 [730]-[731].

(204) See Secher, 'Lessons from the Sea--Part One', above n 1, 531-3.

(205) Although the High Court in Yarmirr (2001) 208 CLR 1 held that the Crown's sovereignty over the territorial sea has a common law basis, Finn J only addressed the statutory basis.

(206) See Secher, 'Lessons from the Sea--Part One', above n 1, 541.

(207) Akiba (2010) 270 ALR 564, 732 [723].

(208) (2002) 214 CLR 422.

(209) Ibid 442 [40] (Gleeson C J, Gummow and Hayne JJ). See also Akiba (2010) 270 ALR 564, 680 [497] (Finn J).

(210) Yarmirr (2001) 208 CLR 1, 38 [12] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See also Akiba (2010) 270 ALR 564, 680 [497] (Finn J). See generally Bodney v Bennell (2008) 167 FCR 84, 118-20 [137]-[143] (Finn, Sundberg and Mansfield JJ).

(211) Akiba (2010) 270 ALR 564, 734 [733] (Finn J) (emphasis added).

(212) Ibid 734 [735].

(213) (2002) 214 CLR 422,444 [44] (emphasis added), quoted in ibid 734 [734].

(214) Akiba (2010) 270 ALR 564, 735 [737] (Finn J).

(215) Ibid 735 [738].

(216) Ibid 759-60 [844], citing Queensland Fisheries Act 1877 (Qld).

(217) Akiba (2010) 270 ALR 564, 751 [807] (Finn J), citing Fisheries Act 1952 (Cth).

(218) Akiba (2010) 270 ALR 564, 751 [803]-[804] (Finn J). These statutory rights are conferred only upon those who hold the necessary licenses provided for under the legislation.

(219) Ibid 740 745 [766] [778].

(220) Ibid 744 [777], quoting Harper v Minister for Sea Fisheries' (1989) 168 CLR 314, 330 (Brennan J).

(221) Akiba (2010) 270 ALR 564, 745 759 [779]-[842]. For ease of exposition, Finn J adopted a threefold approach to considering the relevant legislation, considering, first, Queensland's legislation up until 1994; secondly, Commonwealth legislation from 1952 to 1991 excluding the Torres Strait Fisheries" Act 1984 (Cth); and, thirdly, the Torres Strait Fisheries Act 1984 (Cth) and Torres Strait Fisheries Acts' 1984 (Qld). Finn J did, however, confine his attention in two respects:

(i) although the concept of "marine resources' relied upon by the applicant was more extensive that what is connoted by 'fish', because the almost exclusive focus in submissions was on fishing consideration was limited to legislation dealing with fishing. 'Fishing for commercial purposes is, on the evidence, the matter of present controversy': Akiba at 759 [843].

(ii) the primary focus was on the Fisheries Act 1952 (Cth) and Tortes Strait Fisheries Act 1984 (Cth) because, except for a narrow area of internal water which is subject to Queensland law and possibly the coastal waters around the islands to the north of the Seabed Jurisdiction Line as defined in the Torres Strait Treaty, the law in relation to fisheries that presently applies to the area in which native title was found to exist is the Torres Strait Fisheries Act 1984 (Cth): Akiba at 759 [843].

(222) Akiba (2010) 270 ALR 564, 761 [847].

(223) Ibid.

(224) Ibid 761 [848].

(225) Ibid.

(226) Ibid 762 [850].

(227) Ibid 762 [851] (emphasis in original).

(228) Ibid.

(229) Ibid.

(230) Ibid 764 [861].

(231) Ibid 764-5 [861] (emphasis added).

(232) Ibid 736 [745]. In this context, Finn J held at 575 [11]:
   [t]he native title rights I have found are the non-exclusive rights
   of the group members of the respective inhabited island communities
   first, to access, to remain in and to use their own marine
   territories or territories shared with another, or other,
   communities; and, secondly; to access resources and to take for any
   purpose resources in those territories. In exercising these rights
   the group members are expected to respect their marine territories
   and what is in them. Importantly, and this requires emphasis, none
   of these rights confer possession, occupation, or use of the waters
   to the exclusion of others. Nor do they confer any right to control
   the conduct of others.


(233) (2008) 236 CLR 24.

(234) Akiba (2010) 270 ALR 564, 737 [749], 781 [938].

(235) Ibid 736 [746], citing Yarmirr (2001) 208 CLR 1, 67-8 [95]-[96], 68 [100] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

(236) See Secher, 'Lessons from the Sea--Part One', above n 1, 530-1 nn 53-55.

(237) Seas and Submerged Lands Act s 11. See generally Secher, 'Lessons from the Sea--Part One', above n 1.

(238) Gann v Free Fishers of Whitstable (1865) 11 HL Cas 192, 209; 11 ER 1305, 1312 (Lord Westbury LC).

(239) Yarmirr (2001) 208 CLR 1, 68 [100] (Gleeson C J, Gaudron, Gummow and Hayne JJ).

(240) Ibid 68 [99].

(241) See above n 64.

(242) (2005) 141 FCR 457, 480 [69]. See also Yarmirr (2001) 208 CLR 1, 55-6 [60] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) (see above n 44); Risk v Northern Territory (2000) 210 CLR 392, 436 [127] (Callinan J) (see above n 57); the pre-Magna Carta authorities, discussed in above Part II(A)(2)(b)(i).

(243) R D Lumb, 'The Mabo Case--Public Law Aspects' in M A Stephenson and Suri Ratnapala (eds), Mabo: A Judicial Revolution--The Aboriginal Land Rights Decision and Its Impact on Australian Law (University of Queensland Press, 1993) 1, 11.

ULLA SECHER *

* LLB (Hons) (JCU), PhD (UNSW); Visiting Fellow, School of Law, The University of New South Wales. The author would like to acknowledge the important contributions of the anonymous referees and the Melbourne University Law Review Editorial Board: their perceptive suggestions and unremitting attention to detail were invaluable in the production of the article. David Foster in particular provided extremely helpful comments for which the author is most grateful. Responsibility for any errors remains the author's.
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Title Annotation:Yarmirr and Beyond, part 2
Author:Secher, Ulla
Publication:Melbourne University Law Review
Date:Dec 1, 2011
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