Commonwealth v Yarmirr

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

Matter No D7/2000

THE COMMONWEALTH OF AUSTRALIA   APPELLANT

AND

MARY YARMIRR & ORS   RESPONDENTS

Matter No D9/2000

MARY YARMIRR & ORS   APPELLANTS

AND

THE NORTHERN TERRITORY OF AUSTRALIA
& ORS  RESPONDENTS

The Commonwealth v Yarmirr

Yarmirr v Northern Territory
[2001] HCA 56
11 October 2001
D7/2000 and D9/2000

ORDER

Appeals dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

Matter No D7/2000

D M J Bennett QC, Solicitor-General of the Commonwealth and M A Perry and S B Lloyd with J S Stellios for the appellant (instructed by Australian Government Solicitor)

J Basten QC with K R Howie SC and S A Glacken for the first and ninth respondents (instructed by Northern Land Council)

T I Pauling QC, Solicitor-General for the Northern Territory with R J Webb for the second respondent (instructed by Solicitor for the Northern Territory)

G E Hiley QC with N J Henwood for the third, fourth, fifth, sixth and seventh respondents (instructed by Cridlands Lawyers)

No appearance for the eighth respondent

Interveners

R J Meadows QC, Solicitor-General for the State of Western Australia with K M Pettit intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)

B M Selway QC, Solicitor-General for the State of South Australia with S E Carlton intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)

B A Keon-Cohen QC with C F Thomson intervening on behalf of the Mirimbiak Nations Aboriginal Corporation (instructed by Mirimbiak Nations Aboriginal Corporation)

G M G McIntyre with G M Irving and D L Ritter intervening on behalf of the Yamatji Barna Baba Maaja Aboriginal Corporation (instructed by Yamatji Barna Baba Maaja Aboriginal Corporation)

G M G McIntyre intervening on behalf of the Kimberley Land Council (instructed by Kimberley Land Council)

D F Jackson QC with S J Gageler SC intervening on behalf of the Lardil, Kaiadilt Yangkaal and Gangalidda Peoples (instructed by Chalk & Fitzgerald)

Matter No D9/2000

J Basten QC with K R Howie SC and S A Glacken for the appellants (instructed by Northern Land Council)

T I Pauling QC, Solicitor-General for the Northern Territory with R J Webb for the first respondent (instructed by Solicitor for the Northern Territory)

D M J Bennett QC, Solicitor-General of the Commonwealth and M A Perry and S B Lloyd with J S Stellios for the second respondent (instructed by Australian Government Solicitor)

G E Hiley QC with N J Henwood for the third, fourth, fifth, sixth and seventh respondents (instructed by Cridlands Lawyers)

No appearance for the eighth and ninth respondents

Interveners

R J Meadows QC, Solicitor-General for the State of Western Australia with K M Pettit intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)

B M Selway QC, Solicitor-General for the State of South Australia with S E Carlton intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)

H B Fraser QC with P J Flanagan intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor for the State of Queensland)

G M G McIntyre with G M Irving and D L Ritter intervening on behalf of the Yamatji Barna Baba Maaja Aboriginal Corporation (instructed by Yamatji Barna Baba Maaja Aboriginal Corporation)

G M G McIntyre intervening on behalf of the Kimberley Land Council (instructed by Kimberley Land Council)

D F Jackson QC with S J Gageler SC intervening on behalf of the Lardil, Kaiadilt Yangkaal and Gangalidda Peoples (instructed by Chalk & Fitzgerald)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Commonwealth v Yarmirr
Yarmirr v Northern Territory

Aboriginals – Native title in relation to waters – Application for determination of native title to seas, sea-bed and sub-soil – Territorial application of Native Title Act 1993 (Cth) – Whether common law applies to territorial sea beyond low‑water mark – Whether common law recognises native title in territorial sea beyond low-water mark – Whether recognition by common law influenced by legislative purpose of Native Title Act 1993 (Cth) – Relevance of concept of radical title – Effect of successive acquisitions of sovereignty over the territorial sea and sea-bed by the Crown in right of the United Kingdom in 1824 and the Crown in right of the Commonwealth by the Seas and Submerged Lands Act 1973 (Cth) – Nature and effect of right and title to the territorial sea and sea-bed vested in the Northern Territory by the Coastal Waters (Northern Territory Title) Act 1980 (Cth).

Aboriginals – Native title in relation to waters – Whether evidence demonstrated rights under traditional law and custom to possession, occupation, use and enjoyment of the territorial sea and sea-bed within the claimed area to the exclusion of all others – Whether evidence demonstrated right under traditional law and custom to exclusive fishery – Whether right of exclusive possession asserted effectively – Whether public rights to fish and to navigate and international right of innocent passage in territorial sea inconsistent with exclusive native title rights.

Acts Interpretation Act 1901 (Cth), s 15B.
Coastal Waters (Northern Territory Powers) Act 1980 (Cth), s 5.
Coastal Waters (Northern Territory Title) Act 1980 (Cth), s 4.
Native Title Act 1993 (Cth), ss 6, 11, 223, 225 and 253.
Off-shore Waters (Application of Territory Laws) Act 1985 (NT), ss 2 and 3.
Seas and Submerged Lands Act 1973 (Cth), ss 6, 7 and 11.

1. GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ.   Croker Island lies to the north of Cobourg Peninsula, a promontory of land at the north‑western tip of Arnhem Land in the Northern Territory.  Mary Yarmirr and others, on behalf of a number of clan groups[1], applied under the Native Title Act 1993 (Cth) ("the Act") for determination of native title in respect of an area which the application said "may generally be described as the seas in the Croker Island region of the Northern Territory". (It is convenient to refer to the applicants and those whom they represented as "the claimants".) The area the subject of the application was set out on maps attached to the application for determination. The area included the seas and sea‑beds contained within the area and extended to "any land or reefs contained within the boundary other than land or reefs which has been granted for the benefit of Aboriginal people pursuant to the [Commonwealth] Aboriginal Land Rights (Northern Territory) Act 1976". Several islands, including Croker Island, lie within the claimed area. In 1980, pursuant to the last‑mentioned Act, all of those islands were granted to the Arnhem Land Aboriginal Land Trust for the benefit of Aboriginal people. The islands were, therefore, excluded from the claim.

   [1]Described in the amended Native Title Determination Application as the Mandilarri‑Ildugij, Mangalarra, Muran, Gadurra, Minaga, Ngayndjagar and Mayorram peoples.

   Proceedings at first instance

2. The application was heard and determined in the Federal Court of Australia[2].  The primary judge (Olney J) determined that native title exists in relation to the sea and sea‑bed within an area described in the determination, an area which, for present purposes, may be taken to be generally similar to the area claimed.  It was determined that, where the area abuts the coast of an island or the mainland, the sea‑bed in relation to which native title exists ends at the mean low‑water mark, and the seas in relation to which those rights exist are the waters above that sea‑bed and the waters above the inter‑tidal zone adjacent to that sea‑bed (being an area ending at the mean high‑water mark).  It was determined that the native title rights and interests "do not confer possession, occupation, use and enjoyment of the sea and sea‑bed within the claimed area to the exclusion of all others".  The determination further provided that:

   [2]Yarmirr v Northern Territory [No 2] (1998) 82 FCR 533.

   "5.The native title rights and interests that the Court considers to be of importance are the rights and interests of the common law holders, in accordance with and subject to their traditional laws and customs to -

   (a)fish, hunt and gather within the claimed area for the purpose of satisfying their personal, domestic or non‑commercial communal needs including for the purpose of observing traditional, cultural, ritual and spiritual laws and customs;

   (b)have access to the sea and sea‑bed within the claimed area for all or any of the following purposes:

   (i)to exercise all or any of the rights and interests referred to in subparagraph 5(a);

   (ii)to travel through or within the claimed area;

   (iii)to visit and protect places within the claimed area which are of cultural or spiritual importance;

   (iv)to safeguard the cultural and spiritual knowledge of the common law holders."

   (In the course of argument of the present appeals there was no discussion about what was meant by pars 5(b)(iii) and (iv) or how effect might be given to a right of access to "protect" places or "safeguard" knowledge.  We say nothing about such issues.)

3. The determination provided that the native title is held by the Aboriginal peoples who are the yuwurrumu[3] members of the Mandilarri‑Ildugij, the Mangalara, the Murran, the Gadura‑Minaga and the Ngaynjaharr clans.  Nothing was said to turn on the disconformity between this description of the native title holders and the description given in the application for determination.  It may therefore be put aside.

   [3]A group of people who trace or claim descent through the male line.

   Appeals to the Full Court

4. From this determination both the claimants and the Commonwealth appealed to the Full Court of the Federal Court.  The Commonwealth contended that, because the claimed area was the sea and the sea‑bed, no native title exists within that claimed area.  The claimants contended that the native title rights and interests they hold confer possession, occupation, use and enjoyment of the sea and sea‑bed within the claimed area to the exclusion of all others.  Both the Commonwealth and the claimants made a number of other contentions but for the moment they need not be noticed.  By majority, the Full Court of the Federal Court (Beaumont and von Doussa JJ; Merkel J dissenting) dismissed both appeals[4].  Merkel J was of the opinion that the Commonwealth's appeal failed but considered that the claimants' appeal should be allowed and the proceeding remitted for further hearing by the primary judge.  By special leave the Commonwealth and the claimants now each appeal to this Court.

   [4]Commonwealth of Australia v Yarmirr (1999) 101 FCR 171.

   The Act

5. The application for determination of native title was made under the Act as it stood before the amendments made by the Native Title Amendment Act 1998 (Cth) came into force. It was common ground that the amendments have no application in the present matter. There are several provisions of the Act to which reference should be made at this point.

6. First, it is necessary to notice the territorial application of the Act. Section 6 provides that the Act extends to each external Territory of the Commonwealth and "to the coastal sea of Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973". "Coastal sea" has the meaning it is given by s 15B(4) of the Acts Interpretation Act 1901 (Cth)[5] and thus, in relation to Australia, means the territorial sea of Australia and the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory. By s 6 of the Seas and Submerged Lands Act 1973 (Cth) it was declared and enacted that sovereignty in respect of the "territorial sea of Australia"[6] and "in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth". Section 7 of the Seas and Submerged Lands Act, as originally enacted, empowered the Governor‑General from time to time, by Proclamation, to declare, not inconsistently with Section II of Part I of the Convention on the Territorial Sea and the Contiguous Zone done at Geneva on 29 April 1958, the limits of the whole or any part of the territorial sea.  (In 1994 the Seas and Submerged Lands Act was amended to take account of, and refer to, the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982[7].)  By s 11, it was declared and enacted that the sovereign rights of Australia as a coastal state in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth.

   [5]s 253.

   [6]Seas and Submerged Lands Act 1973 (Cth), Pt II, Div 1.

   [7]Maritime Legislation Amendment Act 1994 (Cth).

7. It must next be noted that the objects of the Act include providing for "the recognition and protection of native title"[8]. In so far as the Act provides for protection of native title it can be seen as supplementing the rights and interests of native title holders under the common law of Australia and thus, in this way at least, giving effect to one of the purposes of the Act recorded in its preamble. Section 11(1) of the Act and its provision that native title is not able to be extinguished contrary to the Act is, perhaps, the most important of the Act's protection provisions[9]. It is of the first importance, however, to recognise that it is in the Act that the rights and interests which are claimed by the claimants must find reflection. The relevant starting point for determining the controversies in the present matters is the Act.

   [8]s 3(a).

   [9]Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 453, 468 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.

8. It is also necessary to notice some of what the Act refers to in the heading to Div 2 of Pt 15 as "Key concepts", especially those of "native title" and "native title rights and interests". Section 223 provides:

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

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

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

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

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

   (3)      Subject to subsection (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression 'native title' or 'native title rights and interests'.

   (4)      To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):

   (a)in a pastoral lease granted before 1 January 1994; or

   (b)in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994."

   "Native title holder" is defined[10] in relation to native title as:

   [10]s 224.

   "(a)if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust—the prescribed body corporate; or

   (b)in any other case—the person or persons who hold the native title."

   A "determination of native title" is defined[11] as a determination of:

   [11]s 225.

   "(a)whether native title exists in relation to a particular area of land or waters;

   (b)if it exists:

   (i)who holds it; and

   (ii)whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and

   (iii)those native title rights and interests that the maker of the determination considers to be of importance; and

   (iv)in any case—the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests."

   "Waters" is defined[12], unless the contrary intention appears, as including:

   "(a)sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters; or

   (b)the bed or subsoil under, or airspace over, any waters (including waters mentioned in paragraph (a))."

   The reference to "sea" in this definition, taken both with the other elements of the definition of "waters" and with the provisions of s 6 of the Act, indicates clearly that the Act is drafted on the basis that native title rights and interests may extend to rights and interests in respect of the sea‑bed and subsoil beyond low‑water mark and the waters above that sea‑bed.

   [12]s 253.

   Native title rights and interests

9. The rights and interests with which the Act deals may be communal, group or individual rights and interests. They are described as rights and interests in relation to land or waters.  They are rights and interests which must have three characteristics[13].  First, they are possessed under the traditional laws acknowledged, and the traditional customs observed, by the peoples concerned.  Secondly, those peoples, by those laws and customs, must have a "connection" with the land or waters.  Thirdly, the rights and interests must be recognised by the common law of Australia.

   [13]s 223.

10. Disputes of the present type require examination of the way in which two radically different social and legal systems intersect.  As was pointed out in the joint judgment in Fejo v Northern Territory[14]:

    "Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title[15].  Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law[16].  There is, therefore, an intersection of traditional laws and customs with the common law.  The underlying existence of the traditional laws and customs is a necessary pre‑requisite for native title but their existence is not a sufficient basis for recognising native title."

    [14](1998) 195 CLR 96 at 128 [46] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

    [15]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 58 per Brennan J.

    [16]Mabo [No 2] (1992) 175 CLR 1 at 59‑61 per Brennan J.

11. Because native title has its origin in traditional laws and customs, and is neither an institution of the common law nor a form of common law tenure, it is necessary to curb the tendency (perhaps inevitable and natural) to conduct an inquiry about the existence of native title rights and interests in the language of the common law property lawyer.  As Viscount Haldane said[17] in relation to a claim to native title in Southern Nigeria:

    "There is a tendency, operating at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law.  But this tendency has to be held in check closely.  As a rule, in the various systems of native jurisprudence throughout the Empire, there is no such full division between property and possession as English lawyers are familiar with.  A very usual form of native title is that of a usufructuary right, which is a mere qualification of or burden on the radical or final title of the Sovereign where that exists.  In such cases the title of the Sovereign is a pure legal estate, to which beneficial rights may or may not be attached.  But this estate is qualified by a right of beneficial user which may not assume definite forms analogous to estates, or may, where it has assumed these, have derived them from the intrusion of the mere analogy of English jurisprudence."

    As his Lordship rightly noted[18], "[a]bstract principles fashioned a priori are of but little assistance, and are as often as not misleading."

    [17]Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 at 403.

    [18][1921] 2 AC 399 at 404.

12. It is, of course, important to notice that the native title rights and interests with which the Act deals are rights and interests in relation to land or water.  Those rights and interests may have some or all of the features which a common lawyer might recognise as a species of property.  Neither the use of the word "title" nor the fact that the rights and interests include some rights and interests in relation to land should, however, be seen as necessarily requiring identification of the rights and interests as what the common law traditionally recognised as items of "real property".  Still less do those facts necessarily require analysis of the content of those rights and interests according to those features which the common law would traditionally identify as necessary or sufficient to constitute "property".

13. Exactly how the common law uses the word "property" is not without its own difficulties[19].  As was pointed out in Yanner v Eaton[20], property can be used as a description of a legal relationship with a thing, referring "to a degree of power that is recognised in law as power permissibly exercised over the thing".  It can also be seen as consisting primarily in control over access to something[21].  But as was also pointed out in Yanner[22], there are limits to the use of "property" as an analytical tool.

    [19]Gray and Gray, Elements of Land Law, 3rd ed (2001) at 93‑99; Rotherham, "Conceptions of property in common law discourse", (1998) 18 Legal Studies 41 at 43-45, 57-58.

    [20](1999) 201 CLR 351 at 366 [17] per Gleeson CJ, Gaudron, Kirby and Hayne JJ.

    [21]Yanner v Eaton (1999) 201 CLR 351 at 366 [18], quoting Gray, "Property in Thin Air", (1991) Cambridge Law Journal 252 at 299.

    [22]Yanner (1999) 201 CLR 351 at 366 [17].

14. Even if difficulties about the meaning of the word "property" were resolved, it would be wrong to start consideration of a claim under the Act for determination of native title from an a priori assumption that the only rights and interests with which the Act is concerned are rights and interests of a kind which the common law would traditionally classify as rights of property or interests in property. That is not to say, however, that native title rights and interests may not have such characteristics. The question is where to begin the inquiry.

15. The relevant starting point is the question of fact posed by the Act: what are the rights and interests in relation to land or waters which are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples? It is not necessary, at least at that point of the inquiry, to ask whether each claimed right and interest has qualities of the kind described by Lord Wilberforce in National Provincial Bank Ltd v Ainsworth[23], namely, being "definable, identifiable by third parties, capable in its nature of assumption by third parties, and hav[ing] some degree of permanence or stability".

    [23][1965] AC 1175 at 1247‑1248; cf R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 342‑343 per Mason J.

16. Nor is it necessary to identify a claimed right or interest as one which carries with it, or is supported by, some enforceable means of excluding from its enjoyment those who are not its holders.  The reference to rights and interests enjoyed under traditional laws and customs invites attention to how (presumably as a matter of traditional law) breach of the right and interest might be dealt with, but it also invites attention to how (as a matter of custom) the right and interest is observed. The latter element of the inquiry seems directed more to identifying practices that are regarded as socially acceptable, rather than looking to whether the practices were supported or enforced through a system for the organised imposition of sanctions by the relevant community. Again, therefore, no a priori assumption can or should be made that the only kinds of rights and interests referred to in par (a) of s 223(1) are rights and interests that were supported by some communally organised and enforced system of sanctions.

17. The primary judge determined that the landward boundary of the sea which was subject to the identified native title rights and interests was, in relation to the sea, the mean high‑water mark (and therefore includes the sea in the inter‑tidal zone) but in relation to the sea‑bed was the mean low‑water mark (and therefore does not include the sea‑bed in the inter‑tidal zone).

18. These areas straddle a number of different, and in some cases overlapping, maritime zones although the whole area is embraced by what are now the seaward limits of the 12 nautical mile territorial sea. The whole of the area is, therefore, within the area to which the Act's operation is extended by s 6.

19. Detailed consideration of the legal status of the seas and sea‑bed in the claimed area would require reference to many different steps taken first by Imperial, then later colonial, and still later State and federal executive and legislative authorities.  Not all of these matters need, however, be noticed and their consideration can be deferred.

20. Against this background it is convenient to turn to consider first the appeal by the Commonwealth.

    The Commonwealth's appeal

21. The Commonwealth's submissions focused upon the third of the elements identified earlier:  whether the claimed rights and interests are recognised by the common law of Australia.  It was said to be necessary to trace the history of the ambit of the territorial sea in the area claimed by the claimants because, so the argument went, native title could not be "recognised" by the common law if the common law did not "extend" to the area in question.  This in turn was said to invite attention to when exactly the common law could be said to have "extended" to the area.

22. The territorial sea now extends from low‑water mark to 12 nautical miles to sea.  That was not always so.  Until 1990 it extended from the low‑water mark to three nautical miles to sea.  The Commonwealth submitted that native title rights exist only by virtue of the presence of the common law and that the absence of the common law is fatal to the claim.  It submitted that the common law does not apply of its own force to the area between three to 12 nautical miles and has not been applied to that area by statute.  The Commonwealth further submitted that, in the area from low‑water mark to three nautical miles, the provisions of the Coastal Waters (Northern Territory Title) Act 1980 (Cth) ("the NT Title Act") vesting title in the Northern Territory do not allow for the imposition of a native title upon that title. It was further submitted that the statutory application of the common law which occurred pursuant to the Off‑shore Waters (Application of Territory Laws) Act 1985 (NT) took place after the vesting of a title in the Northern Territory which was unqualified by native title.

23. There are two premises underlying these submissions which must be examined.  First, they attribute a territorial reach or operation to the common law.  Secondly, they assert a central and essential role to the concept of radical title in the relationship between native title and the common law.

    Territorial reach of the common law

24. The Commonwealth submitted that "[i]t has long been a principle of English common law that the limits of each county and of the realm lie at low‑water mark".  This principle, it was submitted, was recognised in R v Keyn[24], accepted and applied by this Court in New South Wales v The Commonwealth ("the Seas and Submerged Lands Case")[25] and accepted and applied by the Supreme Court of Canada in Re Offshore Mineral Rights of British Columbia[26].

    [24](1876) 2 Ex D 63.

    [25](1975) 135 CLR 337. See also Bonser v La Macchia (1969) 122 CLR 177 at 184 per Barwick CJ, 218‑219 per Windeyer J; R v Bull (1974) 131 CLR 203 at 219 per Barwick CJ.

    [26][1967] SCR 792 at 804‑805. See also Re Newfoundland Continental Shelf [1984] 1 SCR 86.

25. It is convenient to begin examination of the asserted principle with the decision in Keyn if only because of the prominence given to it in the argument of the present matters and in the Seas and Submerged Lands Case and the Canadian cases to which reference has been made.  The question reserved in Keyn, for consideration of the Court for Crown Cases Reserved, was whether the Central Criminal Court had jurisdiction to try a charge of manslaughter against the Master of the German vessel Franconia.  The Franconia had collided with the British vessel Strathclyde at a point within three miles of the shore of England.  The Strathclyde sank.  The victim of the alleged manslaughter was a passenger on the Strathclyde who had drowned.  Seven members of the Court (Cockburn CJ, Kelly CB, Bramwell JA, Lush and Field JJ, Sir R Phillimore and Pollock B) held that the Central Criminal Court had no jurisdiction to try the prisoner for the offence charged; six members of the Court (Lord Coleridge CJ, Brett and Amphlett JJA, Grove, Denman and Lindley JJ) concluded, contrary to the views of the majority, that the sea within three miles of the coast of England was part of the territory of England, that the English criminal law extended over those limits, and that the Admiral formerly had, and the Central Criminal Court then had, jurisdiction to try offences committed there although on board a foreign ship.

26. The question in Keyn was, therefore, a question about the jurisdiction of a criminal court.  The word "jurisdiction" was used as identifying whether the subject‑matter of the proceeding could be entertained by the particular court, not as describing the amenability of the defendant to the court's authority[27].  The amenability of the defendant to the court's authority was asserted, or assumed, when he was required to enter a plea to the charge, the challenge to "jurisdiction" not being mounted until after the close of the prosecution case[28].  As was said in Lipohar v The Queen[29]:

    "What has been identified as the refusal of common law courts to entertain prosecutions save at and by the law of the place where the offence had been committed appears to have grown out of the classification of criminal trials as local actions …  Conditions respecting venue thereby arose[30].  Further, it was significant that, at common law, the grand jury was sworn to inquire of acts done within their vicinage, so that if a person were wounded in one vicinage but died in another, the offender was indictable in neither[31].  These considerations appear also to have provided the source of the rule attributed to British South Africa Co v Companhia de Moçambique[32] whereby the common law courts refused to try issues respecting title to immovables located outside the forum[33].  However, venue is concerned with the place of trial whilst 'jurisdiction' is aptly used here to identify the existence of authority to adjudicate a particular dispute."

    [27]cf Lipohar v The Queen (1999) 200 CLR 485 at 517 [79] per Gaudron, Gummow and Hayne JJ; Marston, "Crimes on Board Foreign Merchant Ships at Sea: Some Aspects of English Practice", (1972) 88 Law Quarterly Review 357 at 360.

    [28](1876) 2 Ex D 63 at 64.

    [29](1999) 200 CLR 485 at 517‑518 [81] per Gaudron, Gummow and Hayne JJ.

    [30]Leflar, "Extrastate Enforcement of Penal and Governmental Claims", (1932) 46 Harvard Law Review 193 at 198.

    [31]Blackstone, The Laws of England, vol 4, §303.

    [32][1893] AC 602.

    [33]Dagi v Broken Hill Proprietary Co Ltd [No 2] [1997] 1 VR 428 at 438‑439.

27. As a matter of history, the administration of the criminal law of England had been divided between the courts of oyer and terminer, which took cognisance of offences committed within the relevant county, and the Court of the Lord High Admiral, which asserted jurisdiction over offences committed at sea[34].  In the 14th century, statutes were passed to confine the jurisdiction of the Admiral[35] to things done upon the sea and in the main streams of great rivers beneath the bridges.  This arrangement continued until 1536 with the passing of the statute 28 Hen 8 c 15[36].  This provided in respect of offences committed in or upon the sea for trial pursuant to commissions issued by the Crown.  By the statute 7 & 8 Vict c 2 (1844) the need for special Commissioners was removed and authority was conferred upon all judges holding commissions of oyer and terminer or general gaol delivery.  The accused in Keyn was indicted at the Central Criminal Court; this had been established in 1834 by 4 & 5 Will 4 c 36.

    [34]R v Keyn (1876) 2 Ex D 63 at 66 per Sir R Phillimore.

    [35]13 Rich 2 st 1 c 5 and 15 Rich 2 c 3.

    [36]Keyn (1876) 2 Ex D 63 at 66-67 per Sir R Phillimore.

28. What is to be noted, however, is the early intervention of statute.  As Lush J said in Keyn[37]:

    "They [the adjacent waters] are, therefore, in the language of diplomacy and of international law, termed by a convenient metaphor the territorial waters of Great Britain, and the same or equivalent phrases are used in some of our statutes denoting that this belt of sea is under the exclusive dominion of the State.  But the dominion is the dominion of Parliament, not the dominion of the common law.  That extends no further than the limits of the realm.  In the reign of Richard II the realm consisted of the land within the body of the counties.  All beyond low‑water mark was part of the high seas.  At that period the three‑mile radius had not been thought of.  International law, which, upon this subject at least, has grown up since that period, cannot enlarge the area of our municipal law, nor could treaties with all the nations of the world have that effect.  That can only be done by Act of Parliament.  As no such Act has been passed, it follows that what was out of the realm then is out of the realm now, and what was part of the high seas then is part of the high seas now; and upon the high seas the Admiralty jurisdiction was confined to British ships.  Therefore, although, as between nation and nation, these waters are British territory, as being under the exclusive dominion of Great Britain, in judicial language they are out of the realm, and any exercise of criminal jurisdiction over a foreign ship in these waters must in my judgment be authorized by an Act of Parliament."  (emphasis added)

    [37](1876) 2 Ex D 63 at 239.

29. The decision in Keyn must also be understood bearing in mind that much of the argument in that case was founded on the rules of international law which had evolved about two subjects concerning the territorial sea:  the authority of the coastal state over that area, and the use which that state and the ships and nationals of other states might make of it.  First, it was recognised that, by international law, every vessel has a right of innocent passage through the territorial sea[38].  Secondly, it was acknowledged that, by international law, merchant vessels at sea are, generally, subject only to the law of the state to which they belong[39].

    [38]Keyn (1876) 2 Ex D 63 at 70 per Sir R Phillimore. See also The "Twee Gebroeders" (1801) 3 C Rob 336 at 352 [165 ER 485 at 491]; Gann v Free Fishers of Whitstable (1865) 11 HLC 192 [11 ER 1305]; Foreman v Free Fishers and Dredgers of Whitstable (1869) LR 4 HL 266.

    [39]Keyn (1876) 2 Ex D 63 at 70‑71 per Sir R Phillimore.

30. The Commonwealth contention that the common law does not apply beyond the low‑water mark sometimes appeared, in the course of argument, to go so far as contending that the courts could give no remedies in respect of transactions or events which occurred in that area.  Keyn does not warrant such a general or absolute proposition.  Keyn 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.  The same proposition, with respect to the Colonial Courts of Admiralty, previously had been established in New Zealand by R v Dodd[40].  That conclusion owed much to the history of the criminal law and trial by jury and is a conclusion about the reach of the criminal law.  As it happens, legislative action to reverse the effect of the decision in Keyn was soon taken[41] but this may be put aside as irrelevant to the Commonwealth's contention about the common law.

    [40](1874) 2 NZCA 598.

    [41]Territorial Waters Jurisdiction Act 1878 (Imp).

31. In a civil action brought by the legal personal representative of another victim of the collision against the owners of the Franconia for damages under Lord Campbell's Act, Harris v Owners of Franconia[42], it was held that the rules of court did not authorise service of the proceedings out of the jurisdiction where the cause of action arose outside the jurisdiction.  Lord Coleridge CJ said[43]:

    "The ratio decidendi of that judgment [Keyn] is, that, for the purpose of jurisdiction (except where under special circumstances and in special Acts parliament has thought fit to extend it), the territory of England and the sovereignty of the Queen stops at low‑water mark."

    Yet, as the argument in Harris and the judgments of Lord Coleridge CJ and Grove J acknowledged, there was no doubt that Admiralty jurisdiction (for example, under the Merchant Shipping Act 1854 (Imp), s 527) extended so far. It being clear in Harris that the action which had been brought was not a claim in rem against the ship under that provision of the Merchant Shipping Act, the only question was whether there was some relevant statutory basis for service of the originating process out of the jurisdiction.  There is no reason to think that, had the originating process been served on the defendant within the jurisdiction, the action could not have proceeded in the ordinary way, notwithstanding that the events which gave rise to it had occurred in the territorial waters[44].

    [42](1877) 2 CPD 173.

    [43](1877) 2 CPD 173 at 177. See also Blackpool Pier Co v Fylde Union (1877) 36 LT (NS) 251.

    [44]cf Fennings v Lord Grenville (1808) 1 Taunt 241 [127 ER 825], an action for trover for a whale caught off the Galapagos islands which was held to fail on the merits, not for want of any applicable law.

32. It was noted in Lipohar[45] that the distinction between local and transitory proceedings, which can be seen as lying behind the attitude of the common law courts to crimes committed outside the jurisdiction, underpinned the (often criticised) decision of the House of Lords in British South Africa Co v Companhia de Moçambique[46].  It was there held that the Supreme Court of Judicature of England and Wales had no jurisdiction to entertain an action to recover damages for trespass to foreign land[47].

    [45](1999) 200 CLR 485 at 517 [81] per Gaudron, Gummow and Hayne JJ.

    [46][1893] AC 602.

    [47]See also Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479 at 496‑497 per Griffith CJ; Norbert Steinhardt and Son Ltd v Meth (1961) 105 CLR 440; Potter v Broken Hill Proprietary Co Ltd [1905] VLR 612 at 640 per Hodges J; Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30; Corvisy v Corvisy [1982] 2 NSWLR 557; Dagi v Broken Hill Proprietary Co Ltd [No 2] [1997] 1 VR 428; St Pierre v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 382; Tyburn Productions Ltd v Conan Doyle [1991] Ch 75.

33. Moçambique established that the civil courts will not entertain (at least some) actions in respect of immovables in a foreign country[48] or "a dispute involving the title to foreign land"[49].  That principle can be seen to derive from the fact that the rights with which actions of the kind embraced by the principle are concerned, are rights which arise under the law of the place where the land, or other immovable property, is situated.  It is a principle which, whatever its merits may be, represents a resolution of the problems thought to result from the intersection between what can be seen as two competing systems of law – the law of the place in which the land is situated and the law of the forum.  In Moçambique, Lord Herschell LC pointed to what he saw to be great inconveniences that might follow if the courts of England and Wales were to exercise jurisdiction in claims concerning the title to foreign land[50].  These arguments may or may not be thought to warrant the conclusion reached in that and later cases.  For present purposes, however, the critical point to recognise is that the rule grew out of difficulties which it was thought would follow if one system of law (the law of the forum) did not leave a dispute about title to foreign land to be resolved entirely by another, competing system (the law of the place).

    [48]In re Trepca Mines Ltd [1960] 1 WLR 1273 at 1277 per Hodson LJ; [1960] 3 All ER 304 at 306.

    [49]Rediffusion (Hong Kong) Ltd v Attorney‑General of Hong Kong [1970] AC 1136 at 1151.

    [50][1893] AC 602 at 625‑626.

34. If the contention that the common law does not "extend", "apply", or "operate" beyond low‑water mark is intended to mean, or imply, that, absent statute, no rights deriving from or relating to events occurring or places lying beyond low‑water mark can be enforced in Australian courts, it is altogether too large a proposition and it is wrong.  The territorial sea is not and never has been a lawless province[51].  The courts of England and Wales and the courts of Australia have long since given effect to rights and duties which derive from transactions and events which have occurred in that area.  The very existence of the body of Admiralty law denies the generality of a proposition understood in the way we have identified.  It suggests at least that the reference to "common law", in the proposition about its reach, is to be understood as restricted to that part of the unwritten law which was administered in the common law courts.  Reference to the history of the jurisdictional conflicts between the courts of Admiralty and the common law courts[52] reinforces that view, especially when it is recalled that from 1536[53] the criminal jurisdiction of the Admiralty in relation to crimes at sea was exercised by the judges of the common law courts as commissioners of oyer and terminer[54].

    [51]Post Office v Estuary Radio Ltd [1968] 2 QB 740 at 754 per Diplock LJ.

    [52]Mears, "The History of the Admiralty Jurisdiction", in Select Essays in Anglo‑American Legal History, (1908), vol 2 at 312‑364; Prichard and Yale, Hale and Fleetwood on Admiralty Jurisdiction, Selden Society, (1992), vol 108 at xlvii‑lviii.

    [53]28 Hen 8 c 15.

    [54]Holdsworth, A History of English Law, 7th ed (1956), vol 1 at 550-552.

35. Even the more limited proposition, that so much of the unwritten law as was administered in the common law courts does not extend beyond low‑water mark, may well be too broad[55].  In personal actions, the first question for the court is whether it has jurisdiction over the defendant.  If it does, the question which then must be addressed is what are the rights and duties of the parties.  If there are factors which connect parties or events to some other legal system, there may be questions of choice of law which fall to be answered by application of the rules and principles of conflict of laws.  But the fact (if it be 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 Moçambique principle demonstrates that the common law does not have only a limited territorial operation.  If the common law was limited in its operation to events occurring and places lying within the area bounded by the low‑water mark, there would be no occasion to distinguish between local and transitory actions.

    [55]cf De Lovio v Boit 7 Fed Cas 418 (1815).

36. The Commonwealth's argument about the limited territorial operation of the common law was directed in aid of the proposition that the existence of rights in relation to land is sustained by the law of the place where the land is located (the lex situs).  It was said that, because the common law did not apply beyond the low‑water mark, there was no lex situs and there was, therefore, no law which could "recognise" native title rights and interests.

37. There is no doubt, as s 223 of the Act makes clear, that the native title rights and interests with which the Act deals, exist "in relation to" land or waters. It by no means follows, however, that it is necessary or appropriate to apply the taxonomy of the common law rules of choice of laws in deciding whether the rights and interests in issue are "recognised" by the common law or, if it is, that even according to that taxonomy, the rights and interests which now are in issue are properly to be classed, in every case, as immovables[56]. It is inappropriate to see the present issues as engaging the common law rules of choice of laws because the Act requires no resolution of any conflict or competition between two systems of law[57]. The Act presupposes that, so far as concerns native title rights and interests, the two systems – the traditional law acknowledged and traditional customs observed by the relevant peoples, and the common law – can and will operate together. Indeed, not only does it presuppose that this will happen, it requires that result.

    [56]Lewis v Balshaw (1935) 54 CLR 188; Livingston v Commissioner of Stamp Duties (Q) (1960) 107 CLR 411; Haque v Haque [No 2] (1965) 114 CLR 98; In re Hoyles; Row v Jagg [1911] 1 Ch 179; In re Berchtold; Berchtold v Capron [1923] 1 Ch 192; Macdonald v Macdonald [1932] SC (HL) 79.

    [57]John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109 at 1118 [43] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; 172 ALR 625 at 638.

38. No less importantly, it is always necessary to recall that the rights and interests to which the Act gives effect are not rights and interests that are derived from the common law.  If it were relevant to examine the present issues by reference to principles of choice of laws, it would not be right to conclude that there is not, or was not at whatever may be the relevant time, any law of the place which is the subject of the claimants' claim.  Even if it is right to say that the common law has, or had, no application in that area, that says nothing about whether traditional law and custom has or had application.  It must be remembered that the unchallenged finding of fact is that traditional laws and customs were and are observed in relation to the claimed area.  If it is necessary to identify the lex situs, there is no basis for ignoring this finding.  The question would then become whether the common law will give some effect (some "recognition") to that traditional law and custom.  That question is not answered by the bare assertion that there is no lex situs or that the only possible candidate for consideration is the common law.

39. It is unnecessary to explore further what is meant by the proposition that the common law does not extend beyond the low‑water mark.  For the reasons given earlier, a proposition in those general and unqualified terms cannot be accepted.  For present purposes, however, it is necessary to consider only a narrower question – whether the common law will "recognise" native title rights and interests in respect of areas beyond the low‑water mark.  In examining that narrower question, it will be necessary to consider three issues:  what is meant by "recognition" of native title; what is meant by the assertion of sovereignty over areas beyond the low‑water mark; and how, if at all, the concept of the radical title to land intrudes into the debate.  It is convenient to deal first with the question of "recognition", then with the role of radical title, and only then turn to what is meant by the assertion of sovereignty.

    "Recognition" of native title rights and interests

40. The requirement in s 223(1)(c), that the native title rights and interests which are claimed are "recognised by the common law of Australia", is not elucidated elsewhere in the Act. It is useful to approach the requirement from two opposite poles: the negative, when will the common law not recognise such rights and interests; and the positive, when will the common law recognise them?  At the risk of some over‑simplification, the fundamental question which lies behind both of these approaches is a question about inconsistency between the asserted rights and the common law.

41. In Mabo v Queensland [No 2], the Court examined the consequences of the acts of State which established the colonies in Australia.  (We need not examine what constituted each of the relevant acts of State[58].)  All members of the Court accepted that on settlement of an Australian colony the settlers brought the common law with them[59].  The members of the Court differed in some respects about how the common law and the claimed native title rights and interests interacted.  Central to the consideration of that issue by a majority of the members of the Court, however, was the conclusion that at common law the native title rights and interests survived acquisition of sovereignty and that an express act of recognition by the new Sovereign was not necessary to their being recognised[60].  The members of the majority may be thought to have differed in some respects about how the native title rights and interests could be extinguished and, if they were, what would be the consequences of extinguishment[61] but those differences can now be put aside.  What is important to notice is that the common law which the settlers brought with them was, as Deane and Gaudron JJ said[62], "only so much of it … as was 'reasonably applicable to the circumstances of the Colony'[63]".  That rule was itself a common law rule[64] and the Crown had no prerogative right to override the common law by executive act[65].  As was said in the joint judgment in Western Australia v The Commonwealth (Native Title Act Case)[66]:

    "At common law, a mere change in sovereignty over a territory does not extinguish pre‑existing rights and interests in land in that territory[67].  Although an acquiring Sovereign can extinguish such rights and interests in the course of the act of State acquiring the territory[68], the presumption in the case of the Crown is that no extinguishment is intended[69].  That presumption is applicable by the municipal courts of this country in determining whether the acquisition of the several parts of Australia by the British Crown extinguished the antecedent title of the Aboriginal inhabitants[70]."

    [58](1992) 175 CLR 1 at 95‑96 per Deane and Gaudron JJ.

    [59](1992) 175 CLR 1 at 34‑38 per Brennan J (with whom Mason CJ and McHugh J agreed), 79‑80 per Deane and Gaudron JJ, 122 per Dawson J, 206 per Toohey J.

    [60](1992) 175 CLR 1 at 55‑57 per Brennan J (Mason CJ and McHugh J agreeing), 97‑99 per Deane and Gaudron JJ, 182‑183 per Toohey J; Native Title Act Case (1995) 183 CLR 373 at 422 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.

    [61](1992) 175 CLR 1 at 111‑112 per Deane and Gaudron JJ, 204 per Toohey J.

    [62](1992) 175 CLR 1 at 79.

    [63]Cooper v Stuart (1889) 14 App Cas 286 at 291; see also State Government Insurance Commission v Trigwell (1979) 142 CLR 617 esp at 634; Blackstone, Commentaries, 17th ed (1830), vol 1, par 107.

    [64]Mabo [No 2] (1992) 175 CLR 1 at 79 per Deane and Gaudron JJ; Sammut v Strickland [1938] AC 678 at 701; Blackstone, Commentaries, 17th ed (1830), vol 1, par 107.

    [65]Mabo [No 2] (1992) 175 CLR 1 at 80 per Deane and Gaudron JJ; Sammut v Strickland [1938] AC 678 at 701.

    [66](1995) 183 CLR 373 at 422‑423.

    [67]See Mabo [No 2] (1992) 175 CLR 1 at 54‑57 per Brennan J (Mason CJ and McHugh J agreeing), 82 per Deane and Gaudron JJ, 182 per Toohey J and authorities there cited.

    [68]Mabo [No 2] (1992) 175 CLR 1 at 95 per Deane and Gaudron JJ; cf at 193‑194 per Toohey J.

    [69]Adeyinka Oyekan v Musendiku Adele [1957] 1 WLR 876 at 880; [1957] 2 All ER 785 at 788.

    [70]Mabo [No 2] (1992) 175 CLR 1 at 57 per Brennan J (Mason CJ and McHugh J agreeing), 82‑83 per Deane and Gaudron JJ, 183‑184 per Toohey J.

42. Thus the question about continued recognition of native title rights requires consideration of whether and how the common law and the relevant native title rights and interests could co‑exist.  If the two are inconsistent, it was accepted in Mabo [No 2] that the common law would prevail.  (The central issue for debate in Mabo [No 2] was whether there was an inconsistency.)  If, as was held in Mabo [No 2] in relation to rights of the kind then in issue, there is no inconsistency, the common law will "recognise" those rights.  That is, it will, by the ordinary processes of law and equity, give remedies in support of the relevant rights and interests to those who hold them[71].  It will "recognise" the rights by giving effect to those rights and interests owing their origin to traditional laws and customs which can continue to co‑exist with the common law the settlers brought.

    [71](1992) 175 CLR 1 at 61 per Brennan J (Mason CJ and McHugh J agreeing). See also at 88-90 per Deane and Gaudron JJ.

43. With these considerations in mind, we turn to look at the role of "radical title" in the present debate.

    Radical title

44. We have already set out part of Viscount Haldane's advice, on behalf of the Privy Council, in Amodu Tijani v Secretary, Southern Nigeria[72].  There his Lordship spoke of a "very usual form of native title [being] that of a usufructuary right, which is a mere qualification of or burden on the radical or final title of the Sovereign where that exists" (emphasis added) and of the title of the Sovereign in such a case being "a pure legal estate, to which beneficial rights may or may not be attached".  As his Lordship pointed out, this analysis derived from earlier cases about Indian title in Canada, particularly St Catherine's Milling and Lumber Company v The Queen[73] and Attorney‑General for Quebec v Attorney‑General for Canada[74].

    [72][1921] 2 AC 399 at 403.

    [73](1888) 14 App Cas 46.

    [74][1921] 1 AC 401.

45. The St Catherine's Milling Case arose out of a treaty between commissioners appointed by the Government of the Dominion of Canada and representatives of a tribe of Ojibbeway Indians by which the tribe released and surrendered to the Government of the Dominion the whole right and title of the Indian inhabitants to certain land.  The treaty stipulated that the Indians were "to have right to pursue their avocations of hunting and fishing throughout the surrendered territory"[75] subject to some exceptions that do not now matter.  The Privy Council considered the nature of the rights which the Indians had held before the making of the treaty and concluded[76] that "the tenure of the Indians was a personal and usufructuary right, dependent upon the good will of the Sovereign".  Lord Watson, who gave the advice of the Judicial Committee, said that[77] "there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished".  A similar analysis was adopted in Attorney‑General for Quebec v Attorney‑General for Canada[78].

    [75](1888) 14 App Cas 46 at 51-52.

    [76](1888) 14 App Cas 46 at 54.

    [77](1888) 14 App Cas 46 at 55.

    [78][1921] 1 AC 401.

46. This method of analysis was applied in Mabo [No 2].  As Brennan J said[79]:

    "On acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part.  …  Native title to land survived the Crown's acquisition of sovereignty and radical title.  The rights and privileges conferred by native title were unaffected by the Crown's acquisition of radical title but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title."

    Other members of the majority of the Court made a similar analysis[80].

    [79](1992) 175 CLR 1 at 69 (Mason CJ and McHugh J agreeing).

    [80](1992) 175 CLR 1 at 80‑83 per Deane and Gaudron JJ, 180‑184 per Toohey J.

47. The analysis reveals how native title to land survived the Crown's acquisition of sovereignty over the land.  It does so 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"[81].  The native title rights and interests could co‑exist with that radical title and, although inherently fragile, could, so long as they existed, be seen as a burden on that radical title.

    [81]St Catherine's Milling and Lumber Company v The Queen (1888) 14 App Cas 46 at 55.

48. Again, however, it is of the very first importance to bear steadily in mind that native title rights and interests are not created by and do not derive from the common law.  The reference to radical title is, therefore, not a necessary pre‑requisite to the conclusion that native title rights and interests exist.  The concept of radical title provides an explanation in legal theory of how the two concepts of sovereignty over land and existing native title rights and interests co‑exist.  To adopt the words of Brennan J in Mabo [No 2][82], it explains how "[n]ative title to land survived the Crown's acquisition of sovereignty" over a particular part of Australia.

    [82](1992) 175 CLR 1 at 69; see also at 48, 50 and Wik Peoples v Queensland (1996) 187 CLR 1 at 186 per Gummow J, 234 per Kirby J.

49. It is, however, not right to say, as the Commonwealth contended, that native title rights and interests cannot exist without the Crown having radical title to the area in respect of which the rights and interests are claimed.  This contention gives the legal concept of radical title a controlling role.  The concept does not have such a role.  It is 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.

50. It by no means follows that it is 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.  In particular, 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.  Only then can it be seen whether those rights and interests are inconsistent with the native title rights and interests which now are claimed.

51. In identifying those sovereign rights and interests it is, of course, necessary to pay due regard to some matters of history.  Nevertheless, care must be exercised in looking at the very earliest development of the understanding of sovereign authority over the sea.  First, as Stephen points out in his History of the Criminal Law of England[83], the critical question for a municipal court is what reach the Sovereign claims for itself, not what reach other Sovereigns may concede to it.  Secondly, 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.  Those earliest understandings are rightly described by an American writer, writing at the start of the 20th century, who said[84]:

    "As stated by Pollock and Maitland there was no thought which could separate the lands of the nation from the lands of the King; in fact there were no lands belonging to the nation in such a sense that the subjects could assert a common right in it[85].  The distinction between private rights and governmental powers was faintly perceived, if perceived at all[86].  Even the most learned had the greatest difficulty in distinguishing between property rights and political power, between personal relationships and the magistracy to which the land was subject[87].  Since the governmental power was in the King, he assumed, without objection, the right to do as he pleased with the land to which his governmental power extended. …  In process of time the representative character of the Crown was perceived, and it was regarded as holding its representative or governmental rights as something pertaining to it solely for the benefit of all its subjects. …  This principle, however, did not become established until the titles throughout the Kingdom had for the most part been in private possession for many years."

    [83](1883), vol 2 at 36-37.

    [84]Farnham, The Law of Waters and Water Rights, (1904), vol 1 at 166-167.

    [85]Pollock and Maitland, The History of English Law, (1895), vol 1 at 502, 505; Woolrych, A Treatise on the Law of Waters, and of Sewers, (1830) at 448.

    [86]Maitland, Domesday Book and Beyond, (1897) at 170.

    [87]Maitland, Domesday Book and Beyond, (1897) at 101, 240.

    Sovereignty and the territorial sea

52. It is neither necessary nor appropriate to attempt some comprehensive description, or definition, of the powers, rights and interests which Australia claims, or the Imperial authorities claimed, in respect of the territorial sea.  Inquiries about those powers, rights and interests are usually expressed in terms of "sovereignty" but, as long has been recognised, that is a notoriously difficult concept which is applied in many, very different contexts[88].  In the present context it is necessary to distinguish between external or international sovereignty and internal sovereignty.  As Jacobs J said in the Seas and Submerged Lands Case[89]:

    "[S]overeignty under the law of nations is a power and right, recognized or effectively asserted in respect of a defined part of the globe, to govern in respect of that part to the exclusion of nations or states or peoples occupying other parts of the globe.  External sovereignty, so called, is not mere recognition by other powers but is a reflection, a response to, the sovereignty exercised within the part of the globe.  Looked at from the outside, the sovereignty within that part of the globe, assuming it to be full sovereignty and not the limited sovereignty which may exist in the case of protectorates and the like, is indivisible because foreign sovereigns are not concerned with the manner in which a sovereign state may under the laws of that sovereign state be required to exercise its powers or with the fact that the right to exercise those powers which constitute sovereignty may be divided vertically or horizontally in constitutional structure within the State.  Therefore, although a sovereignty among nations may thus be indivisible, the internal sovereignty may be divided under the form of government which exists.  However, that does not mean that external sovereignty and internal sovereignty are in kind different.  Sovereignty in each case has the same content, the right and power to govern that part of the globe."

    [88]New South Wales v The Commonwealth ("the Seas and Submerged Lands Case") (1975) 135 CLR 337 at 479 per Jacobs J; H W R Wade, "The Basis of Legal Sovereignty", (1955) Cambridge Law Journal 172.

    [89](1975) 135 CLR 337 at 479‑480.

53. Before federation the boundaries of the colonies ended at low‑water mark[90].  Any assertion of sovereignty, before federation, over the area beyond low‑water mark was made, therefore, by the Imperial Crown, not the colonies[91].

    [90]Seas and Submerged Lands Case (1975) 135 CLR 337 at 371 per Barwick CJ, 378 per McTiernan J, 467‑468 per Mason J, 484 per Jacobs J.

    [91]It may be noted, however, that the Federal Council of Australasia passed two Acts dealing with fishing for pearl shell or beche-de-mer in waters beyond the territorial jurisdiction of the colonies of Queensland and Western Australia.  See The Queensland Pearl Shell and Beche-de-mer Fisheries (Extra‑territorial) Act of 1888 and The Western Australian Pearl Shell and Beche-de-mer Fisheries (Extra‑Territorial) Act of 1889 which were continued in force by covering cl 7 of the Constitution until their repeal by the Pearl Fisheries Act 1952 (Cth). The Queensland Act applied to boats and ships of any nationality; the Western Australian Act applied only to British ships and boats attached to British ships.

54. In 1824, Great Britain acquired sovereignty over the land mass which now constitutes the Northern Territory.  When it did so, it acquired a territorial sea extending three nautical miles from the low‑water mark[92].  It may be accepted that, as the Commonwealth submitted, the assertion of sovereignty by Great Britain in 1824 over the part of the claimed area that then lay within the territorial sea did not amount to an assertion of ownership to or radical title in respect of the sea‑bed or superjacent sea in that area, whether as a matter of international law or of municipal law.

    [92]See, for example, "Twee Gebroeders" (1800) 3 C Rob 162 [165 ER 422]; The "Leda" (1856) Swab 40 [166 ER 1007]; Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 354.

55. The decision in Keyn, 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, denies that the sovereignty claimed amounted to a claim that the area was "owned" by the Crown.  As a matter of municipal law, there is no doubt that the Imperial authorities claimed the right to legislate in respect of the area of the territorial sea of both Britain and its colonies.  The Territorial Waters Jurisdiction Act 1878 (Imp) exemplifies that claim.  It may be accepted, therefore, 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.

56. At one time, and perhaps from time to time, the Crown of Great Britain claimed very extensive rights in respect of wide areas of sea.  Some of those claims were noted by Lord Cockburn CJ in his judgment in Keyn[93].  But as was also noted by his Lordship[94]:

    "[T]he claim to such sovereignty, at all times unfounded, has long since been abandoned.  No one would now dream of asserting that the sovereign of these realms has any greater right over the surrounding seas [that is, the three mile territorial seas] than the sovereigns on the opposite shores …"  (emphasis added)

    [93](1876) 2 Ex D 63 at 174‑176, 195‑196, 211.

    [94](1876) 2 Ex D 63 at 175.

57. As a matter of international law, the right of innocent passage is inconsistent with any international recognition of a right of ownership by the coastal state of territorial waters.  The nature and extent of the rights of the coastal state over its territorial sea was, as a matter of international law, regarded by Lord Cockburn CJ in Keyn[95] to be still then a matter of controversy and it was thought in 1913 to remain so[96].  Yet as early as 1801 Sir William Scott (later Lord Stowell) recognised in The "Twee Gebroeders"[97] that "the act of inoffensively passing over [territorial portions of the sea] … is not considered as any violation of territory belonging to a neutral state – permission is not usually required".

    [95](1876) 2 Ex D 63 at 191-193.

    [96]Attorney‑General for British Columbia v Attorney‑General for Canada [1914] AC 153 at 174-175.

    [97](1801) 3 C Rob 336 at 352 [165 ER 485 at 491].

58. There may, therefore, be some dispute about when the right of innocent passage came to be regarded as forming part of customary international law.  In particular, there may be some question about whether statements made by writers of the 17th and 18th centuries are to be taken as recognising the right, and the better view may be that in 1824 Great Britain may not have recognised such a right[98].  However this may be, what is important for present purposes is that it is not suggested by the Commonwealth, or for that matter by other parties or interveners, that the assertion in 1824 by Great Britain of sovereignty over that part of the area now in question which lies between low‑water mark and three nautical miles to sea was on terms inconsistent with what (if not then, at least later) was recognised as the right of innocent passage.  It may be, as Jacobs J said in the Seas and Submerged Lands Case[99], that the Imperial Crown, by virtue of its prerogative, could have sought in 1824, or at some later time, to deny innocent passage to foreign ships in the area and that, if it had done so, the legality of the assertion would not have been cognisable in any municipal court.  It was not suggested, however, that this had occurred and the possibility may be put to one side.

    [98]O'Connell, The International Law of the Sea, (1982), vol 1 at 260.

    [99](1975) 135 CLR 337 at 493.

59. What is clear, then, is that at no time before federation did the Imperial authorities assert any claim of ownership to the territorial seas or sea‑bed.  Great Britain contended that it had sovereignty over the area which the then understanding of international law identified as the territorial sea and that claim was generally conceded by the international community.  As was recognised in the Seas and Submerged Lands Case, the acquisition of sovereignty over the territorial sea can be understood as occurring by operation of international law because Great Britain was the internationally recognised nation holding sovereignty over the adjoining land mass[100].

    [100](1975) 135 CLR 337 at 361, 362‑363, 374 per Barwick CJ, 468 per Mason J, 487, 493, 494 per Jacobs J. See also Bonser v La Macchia (1969) 122 CLR 177 at 186‑187 per Barwick CJ, 221‑222 per Windeyer J.

60. The acquisition of sovereignty can also be understood, from the point of view of municipal law, as a claim made in exercise of the prerogative[101].  The prerogative rights of the Crown in relation to the territorial sea were limited, however, in some important respects.  The most relevant of those limitations were the public rights of fishing in the sea and in tidal waters[102] and the public right of navigation.  So far as the high seas beyond tidal waters are concerned, both rights might be seen as owing their origin to custom since time immemorial[103].  The public right to fish in tidal waters might be seen as having been preserved by the Magna Carta of John[104].  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 did not acknowledge the continuation of those rights.

    [101]Seas and Submerged Lands Case (1975) 135 CLR 337 at 487‑490 per Jacobs J.

    [102]Seas and Submerged Lands Case (1975) 135 CLR 337 at 489 per Jacobs J; Harper v Minister for Sea Fisheries (1989) 168 CLR 314 at 329‑330 per Brennan J; Malcomson v O'Dea (1863) 10 HLC 593 [11 ER 1155]; Neill v Duke of Devonshire (1882) 8 App Cas 135 at 177 per Lord Blackburn; Attorney‑General for British Columbia v Attorney‑General for Canada [1914] AC 153 at 170‑171.

    [103]Attorney‑General for British Columbia v Attorney‑General for Canada [1914] AC 153 at 170.

    [104]Seas and Submerged Lands Case (1975) 135 CLR 337 at 489 per Jacobs J.

61. Sufficient has been said about the nature of the sovereignty which was claimed in 1824 to show that at that time (subject to one important qualification) there was no necessary inconsistency between the rights and interests asserted by Imperial authorities and the continued recognition of native title rights and interests.  The qualification is 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.  It will be necessary to return to this subject in connection with the claimants' appeal.  Other than in this respect, however, there was no necessary inconsistency and there is no need to resort to notions of radical title to explain why that is so.  It is revealed by consideration of what is meant by the claim of sovereignty.

    The offshore legal regime

62. There have been many changes in the legal regime that has applied to the area the subject of the claim.  Of those changes, it is necessary to say little except in relation to the legislation effecting the offshore constitutional settlement.

63. At federation, the territorial sea off the coast of Australia, recognised by international law, extended three nautical miles from low‑water mark[105].  In international law, waters on the landward side of the baseline of the territorial sea form part of Australia's internal waters[106].  For much of the 20th century it was thought that the States had some sovereign or proprietary rights in respect of the territorial sea – the area from low‑water mark to three nautical miles out to sea.  In the Seas and Submerged Lands Case[107] it was held, however, that the boundaries of the former colonies ended at low‑water mark and that the colonies had no sovereign or proprietary rights in respect of the territorial sea.  Thereafter, the Commonwealth and States arrived at the offshore constitutional settlement that was reflected in, among other Acts, the Coastal Waters (Northern Territory Powers) Act 1980 (Cth) ("the NT Powers Act") and the NT Title Act.

    [105]Bonser v La Macchia (1969) 122 CLR 177 at 190‑192 per Barwick CJ, 201‑202 per Kitto J, 209 per Menzies J, 213 per Windeyer J.

    [106]Convention on the Territorial Sea and the Contiguous Zone, Art 8.

    [107](1975) 135 CLR 337.

64. By s 5(a) of the NT Powers Act the legislative powers of the Northern Territory Legislative Assembly were extended to the making of

    "all such laws of the Territory as could be made by virtue of those powers if the coastal waters of the Territory, as extending from time to time, were within the limits of the Territory".

    By s 4(1) of the NT Title Act (which commenced operation more than 12 months after the NT Powers Act[108]) it was provided that:

    "By force of this Act, but subject to this Act, there are vested in the Territory, upon the date of commencement of this Act, the same right and title to the property in the sea‑bed beneath the coastal waters of the Territory, as extending on that date, 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."  (emphasis added)

    Similar legislation was passed with respect to the States[109] and was "designed largely to return to the States the jurisdiction and proprietary rights and title which they had previously believed themselves to have over and in the territorial sea and underlying seabed"[110].  Although the Northern Territory stood in a position different from the States, the terms of the offshore constitutional settlement were extended to it.

    [108]The NT Powers Act commenced operation on 1 January 1982 and the NT Title Act commenced on 14 February 1983.

    [109]Coastal Waters (State Powers) Act 1980 (Cth) and Coastal Waters (State Title) Act 1980 (Cth).

    [110]Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 at 358.

65. In September 1985, the Off-shore Waters (Application of Territory Laws) Act came into operation.  That Act provided that "the laws of the Territory" (which included present and future laws in force in the Territory, whether written or unwritten and as in force from time to time[111]) "have effect in and in relation to the coastal waters of the Territory"[112].  Thereafter, Territory law has applied in the area of the coastal waters of the Territory.

    [111]Off-shore Waters (Application of Territory Laws) Act 1985 (NT), s 2(1).

    [112]s 3(1)(a).

66. In 1990, by Proclamation pursuant to s 7 of the Seas and Submerged Lands Act, Australia extended the limit of its territorial sea from three nautical miles to 12 nautical miles.  The baselines from which that territorial sea is drawn were proclaimed in February 1983 and included some straight baselines in the area the subject of the claimants' claim.  It follows that the area of territorial sea claimed by Australia has changed since Great Britain first acquired the territorial sea in the area in 1824.  First, there was the extension that followed from the adoption of straight baselines, then the extension from three nautical miles to 12 nautical miles.  As was pointed out earlier, however, all of the claimed area now lies within Australia's territorial sea.  Part of the area lies within the territorial limits of the Northern Territory, although on the evidence before him the primary judge was unable to define precisely the extent of the waters within those limits[113].

    [113]Yarmirr v Northern Territory [No 2] (1998) 82 FCR 533 at 558.

67. At or after federation, Australia came to take its place in international affairs and its links with the British Empire changed and dissolved[114].  Those changes did not affect the nature of the sovereignty that was exercised over the territorial sea.  From time to time, colonial parliaments, and later the federal Parliament, passed laws regulating various activities in that area.  It is not necessary to notice the content of those laws beyond noticing that some laws, like the Petroleum (Submerged Lands) Act 1967 (Cth), provide for the granting of very extensive rights in relation to areas of the sea or sea‑bed[115].  The enactment of laws regulating activities in the area constituted the assertion of the right to regulate what was done there but it was not submitted that these acts served to extinguish a native title that had existed until then.  As is apparent from what has been said, the submission was put at the higher level of contending that native title could not exist in the offshore area.

    [114]Sue v Hill (1999) 199 CLR 462.

    [115]cf Commonwealth v WMC Resources Ltd (1998) 194 CLR 1.

68. The Seas and Submerged Lands Act asserted sovereignty over the territorial sea and the bed and subsoil of the territorial sea[116] and sovereign rights in respect of the continental shelf for the purpose of exploring it and exploiting its natural resources[117].  The former of these assertions was not different in any presently material respect from the sovereignty which was asserted in 1824.  The fact that it reflected settled principles of international law found in the Convention on the Territorial Sea and the Contiguous Zone neither adds to nor detracts from that proposition.

    [116]s 6.

    [117]s 11.

69. Some more detailed attention, however, must be paid to the NT Title and NT Powers Acts. As has already been noted, by the NT Powers Act the Territory Legislative Assembly was given power to make all such laws as could be made if the territorial waters were within the limits of the Territory[118].  It was empowered, therefore, to enact the Off‑shore Waters (Application of Territory Laws) Act 1985. The consequence of the enactment of the Off‑shore Waters (Application of Territory Laws) Act was no more than to apply Territory laws, including unwritten laws, in the area. It was not submitted that this extinguished, or in any way precluded recognition of, native title rights and interests. Chief emphasis was given to the NT Title Act which came into force after the NT Powers Act. Again, as has been noted, by that Act "the same right and title to the property in the sea‑bed beneath the coastal waters … and the same rights in respect of the space (including space occupied by water) above that sea‑bed" was vested in the Territory "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"[119].

    [118]s 5(a).

    [119]s 4(1).

70. It is unnecessary to decide what was the right and title that was vested in the Territory.  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.  (We need not and do not decide whether it is appropriate to adopt such terms as radical title in this context.)  There are several reasons why the right and title that was vested does not amount to full ownership.  First, the right and title was vested by an Act of the Parliament which was itself an exercise of the sovereignty which had been asserted by the Seas and Submerged Lands Act and earlier by Acts of the Imperial and later the federal executive.  It would be inconsistent with the public rights to fish and to navigate that were recognised as qualifying those sovereign rights, for purposes of municipal law, to treat the right and title vested as absolute and unqualified ownership.  Further, it would be inconsistent with the international obligations which Australia had undertaken in the Convention on the Territorial Sea and the Contiguous Zone[120] to afford innocent passage to ships of all States through the territorial sea to vest absolute and unqualified ownership in the area in the Territory.

    [120]Section III (Arts 14‑17).

365. I have briefly pointed out that because the Act refers to the coastal sea of Australia (which, by definition in s 15B(4) of the Interpretation Act, means the territorial sea) and by implication therefore to the possibility of native title rights to or in respect of it, does not mean that native title rights or interests do exist there. Nor do, for example, the references in s 4(1) of the NT Title Act to "right and title to the property in the sea-bed beneath the coastal waters of the Territory", or the conferring by s 5 of the NT Powers Act upon the Territory of legislative power with respect to various maritime matters within a distance of three nautical miles from the low water mark, have that meaning or produce that result. It is a result that can only be derived by satisfaction of the criteria set out in s 223 of the Act. Legislatures and legislators are certainly not unknown to have made assumptions and to have held misconceptions about the meaning of provisions in enactments and their application, although by reason of the matter referred to by McHugh J in his reasons that does not seem to be the case with respect to the possibility of native title over the sea[509]. The Act itself, in its original form, is a case in point. The Prime Minister, Mr P J Keating, in his second reading speech of 16 November 1993[510] in respect of the Bill for the Act, said that "leasehold grants extinguish native title. There is therefore no obstacle or hindrance to renewal of pastoral leases in the future, whether validated or already valid", yet this Court held in Wik Peoples v Queensland[511] that the grant of pastoral leases in Queensland did not necessarily extinguish native title.  Another example is provided by the advice of the Privy Council (Lord Keith of Kinkel, Lord Roskill, Lord Brandon of Oakbrook, Lord Brightman and Lord Mackay of Clashfern) in Abel Lemon & Co Pty Ltd v Baylin Pty Ltd[512], in which their Lordships advised that an Act, the Sydney Building Act 1837 (NSW), which was expressly repealed by another Act, the New South Wales Acts (Termination of Application) Act 1973 (Q) relevantly had no operation because, despite the Queensland legislature's view to the contrary, the former Act had never applied in Queensland[513].

     [509]See reasons of McHugh J at [132]-[141].

     [510]Australia, House of Representatives, Parliamentary Debates (Hansard), 16 November 1993 at 2879-2880.

     [511](1996) 187 CLR 1.

     [512](1985) 60 ALJR 190; 63 ALR 161.

     [513](1985) 60 ALJR 190 at 192-193, 194 per Lord Keith of Kinkel; 63 ALR 161 at 166, 168-169.

     North American authorities

366. In North America, not only has a clear distinction been drawn between ownership and sovereignty, but also, claims to rights and powers by anyone other than the sovereign nation have been rejected.

367. Both the Canadian and American courts have accordingly refused to recognise claims to native title rights (or their equivalent) in the sea, sub-soil and sea-bed, notwithstanding the formal treaties, different constitutional relationships between the various North American indigenous peoples and the national governments of Canada and the United States, and the different histories of those countries.

     Canada

368. In Re Offshore Mineral Rights of British Columbia[514], the Supreme Court of Canada was asked to provide an advisory opinion whether British Columbia or Canada had ownership over the sea-bed and sub-soil from the low water mark of British Columbia to the limit of the territorial sea.  The Court was also asked to advise whether British Columbia or Canada had the right to explore and exploit the resources of the continental shelf adjacent to British Columbia.  The Court found for the national government on each issue.  Central to its reasoning was the proposition in Keyn that (in the absence of legislation) the jurisdiction of the common law had never extended beyond the low water mark.  The Court concluded that the territorial sea and all the land that lay beneath it (including the continental shelf) were, at common law, part of the high seas and not part of British Columbia[515].  The Court accepted that after the Dominion of Canada had become a sovereign state, it could acquire sea territory and assert jurisdictional rights over it and that this had been done by legislation[516].

     [514][1967] SCR 792.

     [515][1967] SCR 792 at 814.

     [516][1967] SCR 792 at 815-816.

     The United States of America

369. In the United States, a similar conclusion has been reached by the adoption of a doctrine of paramountcy by the Supreme Court of the United States.

370. From 1947 to 1975, cases were heard in the Supreme Court between various American coastal states and the Federal Government:  United States v California[517], United States v Louisiana[518], United States v Texas[519] and United States v Maine[520].  In these cases, these coastal states claimed to possess rights over the resources of the adjacent territorial sea, the sea-bed underneath it and the sub-soil. 

     [517]332 US 19 (1947).

     [518]339 US 699 (1950).

     [519]339 US 707 (1950).

     [520]420 US 515 (1975).

371. In every case, the Court found both for the national government, and against the theory that any state or similar subordinate claimant had jurisdiction or rights below the low water mark.  The basis for these findings was threefold: historically, (as with the Australian colonies) there was no legitimate tradition of colonial rights to the sea and sea-bed[521]; secondly, rights to the geographic areas contested, inevitably or, at least potentially, involved or concerned the external relations of the United States, as well as its treaty and commercial obligations or arrangements, with the result that the existence of competing rights of a party which was subordinate to the nation would be irreconcilable with the position of the United States as the sole international personality; and thirdly, the distinction which the states as subordinate polities sought to draw between their putative rights of dominium (ownership or proprietary rights) and the national government's rights of imperium (powers of regulation and control), would have the effect of causing the piecemeal derogation of sovereignty from the national government and towards state governments[522].

     [521]See United States v California 332 US 19 at 31-33 (1947).

     [522]See United States v Texas 339 US 707 at 719 (1950).

372. Historically, the original thirteen colonies which united to form the United States of America had not made any claims to proprietary rights in or over the seas, or as to what lay beneath them.  Black J, delivering the opinion of the majority of the Supreme Court of the United States in United States v California[523], said this[524]:

     "At the time this country won its independence from England there was no settled international custom or understanding among nations that each nation owned a three-mile water belt along its borders.  Some countries, notably England, Spain, and Portugal, had, from time to time, made sweeping claims to a right of dominion over wide expanses of ocean.  And controversies had arisen among nations about rights to fish in prescribed areas.  But when this nation was formed, the idea of a three-mile belt over which a littoral nation could exercise rights of ownership was but a nebulous suggestion.  Neither the English charters granted to this nation's settlers, nor the treaty of peace with England, nor any other document to which we have been referred, showed a purpose to set apart a three-mile ocean belt for colonial or state ownership.  Those who settled this country were interested in lands upon which to live, and waters upon which to fish and sail.  There is no substantial support in history for the idea that they wanted or claimed a right to block off the ocean's bottom for private ownership and use in the extraction of its wealth."  (emphasis added)

     [523]332 US 19 (1947).

     [524]332 US 19 at 32-33 (1947) (footnotes omitted).

373. In United States v Texas, Douglas J said[525]:

     "[O]nce low-water mark is passed the international domain is reached.  Property rights must then be so subordinated to political rights as in substance to coalesce and unite in the national sovereign."

     This approach to the paramountcy doctrine was approved and adopted by Barwick CJ in the Seas and Submerged Lands Case[526].

     [525]339 US 707 at 719 (1950).

     [526](1975) 135 CLR 337 at 360, 373-374.

374. In United States v California[527], the opinion of the majority of the Supreme Court with respect to a dispute between California and the United States as to the ownership of, and rights and powers in and over minerals below the Pacific Ocean and beyond the low water mark off the coast of California, was this[528]:

     "The point of difference is as to who owns, or has paramount rights in and power over several thousand square miles of land under the ocean off the coast of California.  The difference involves the conflicting claims of federal and state officials as to which government, state or federal, has a superior right to take or authorize the taking of the vast quantities of oil and gas underneath that land, much of which has already been, and more of which is about to be, taken by or under authority of the state.  Such concrete conflicts as these constitute a controversy in the classic legal sense, and are the very kind of differences which can only be settled by agreement, arbitration, force, or judicial action."

     Later, the majority went on to say[529]:

     "The crucial question on the merits is not merely who owns the bare legal title to the lands under the marginal sea.  The United States here asserts rights in two capacities transcending those of a mere property owner.  In one capacity it asserts the right and responsibility to exercise whatever power and dominion are necessary to protect this country against dangers to the security and tranquility of its people incident to the fact that the United States is located immediately adjacent to the ocean.  The Government also appears in its capacity as a member of the family of nations.  In that capacity it is responsible for conducting United States relations with other nations.  It asserts that proper exercise of these constitutional responsibilities requires that it have power, unencumbered by state commitments, always to determine what agreements will be made concerning the control and use of the marginal sea and the land under it."

     [527]332 US 19 (1947).

     [528]332 US 19 at 24-25 (1947).

     [529]332 US 19 at 29 (1947).

375. In United States v Texas[530], Texas argued that its history entitled it to unique treatment by the Court, because, before its annexation by the United States, it had possessed both dominium and imperium over its adjacent seas.  Texas claimed that when it entered the Union in 1845, it had retained the dominium over the territorial sea that the Republic of Texas had previously acquired and that it transferred to the United States its powers of sovereignty – its imperium only – over the territorial sea.  The majority of the Supreme Court rejected Texas's argument and found for the United States, holding that to do otherwise would be to derogate from the sovereignty of the national government[531]:

     "Unless any claim or title which the Republic of Texas had to the marginal sea is subordinated to this full paramount power of the United States on admission, there is or may be in practical effect a subtraction in favor of Texas from the national sovereignty of the United States."

     The Court also said[532]:

     "In external affairs the United States became the sole and exclusive spokesman for the Nation.  We hold that as an incident to the transfer of that sovereignty any claim that Texas may have had to the marginal sea was relinquished to the United States."

     [530]339 US 707 (1950).

     [531]339 US 707 at 719 (1950).

     [532]339 US 707 at 718 (1950).

     The paramountcy of the national government over indigenous claims

376. There have been few cases in which indigenous North Americans have claimed native title rights over the seas.  When they have, federal courts in the United States have applied the doctrine of paramountcy developed in the litigation between the national government and the states to defeat those claims, most relevantly in Inupiat Community of the Arctic Slope v United States[533] ("Inupiat") and Native Village of Eyak v Trawler Diane Marie Inc[534] ("Eyak").

     [533]548 F Supp 182 (District of Alaska, 1982).

     [534]154 F 3d 1090 (9th Circuit, 1998).

377. In Inupiat, the Inupiat people of Alaska claimed, among other things, a declaration that they possessed sovereign rights and unextinguished aboriginal title to an area lying 3 to 65 miles offshore from Alaska, including the seas, the sea-bed and the minerals lying underneath the sea-bed.  The Inupiat people sought to distinguish their case from the cases in which the states had failed, by arguing that competition between the federal and state governments for sovereign rights was irrelevant to the resolution of a dispute between the national government and native Americans[535]. 

     [535]548 F Supp 182 at 185 (District of Alaska, 1982).

378. The Inupiat people's claim was rejected at first instance by Fitzgerald J (and the rejection affirmed by the Ninth Circuit Court of Appeals[536]; certiorari was denied by the Supreme Court[537]) on the ground that, to uphold the claim, "would be to ignore the underlying principle upon which the Supreme Court has placed reliance, that federal supremacy over the adjacent seas is an essential element of national sovereignty"[538].  Fitzgerald J said[539]:

     "If, as a matter of constitutional law, the federal government must be possessed of paramount rights in offshore waters, it makes no difference whether the competing domestic claimant is a state or a tribe of American natives. All are subordinate to the federal government, and neither can, under the Constitution, claim rights which are at odds with those which are of necessity entrusted to the one external sovereign recognized by the Constitution."

     [536]746 F 2d 570 (1984).

     [537]474 US 820 (1985).

     [538]548 F Supp 182 at 185 (District of Alaska, 1982).

     [539]548 F Supp 182 at 187 (District of Alaska, 1982).

379. In Eyak[540], various Native Villages in Alaska claimed to maintain a traditional way of life, which was heavily dependent on their freedom to hunt and to fish in their traditional waters.  Basing their claim upon unextinguished native title, the Native Villages argued that they were entitled to the exclusive use and occupancy of their various waters for hunting and fishing on the outer continental shelf of the United States[541].  They challenged fishing regulations promulgated by the federal Secretary of Commerce on the grounds that the regulations unlawfully permitted non-tribal people to fish within the Native Villages' exclusive aboriginal territories, and prohibited Native Village members from doing so without a permit.  The Native Villages sought an injunction against the Secretary and a declaration that the Native Villages held aboriginal title and exclusive rights to use, occupy, possess, hunt, fish and exploit the waters, and the mineral resources within their traditional use areas of the outer continental shelf of the United States.

     [540]154 F 3d 1090 (9th Circuit, 1998).

     [541]154 F 3d 1090 at 1091 (9th Circuit, 1998).

380. At first instance, the District Court (Holland J) held that the doctrine of federal paramountcy applied to deny the existence of any aboriginal title in or over the outer continental shelf of the United States[542]. 

     [542]154 F 3d 1090 at 1092 (9th Circuit, 1998).

381. An appeal from that decision to the Ninth Circuit Court of Appeals was rejected.  In delivering the unanimous opinion of the Court (Farris, O'Scannlain and Hawkins JJ), O'Scannlain J said that there was little difference between the assertion of exclusive rights to use, occupy, possess or exploit the waters or mineral resources by the Native Villages on the one hand, and the claims of the states which had unsuccessfully challenged the federal paramountcy doctrine on the other[543].  The Court held, citing Inupiat[544], that[545]:

     "[i]f, as a matter of constitutional law, the federal government must be possessed of paramount rights in offshore waters, it makes no difference whether the competing domestic claimant is a state or a tribe of American natives".

     In reaching its decision the Court did not overlook that, historically, the indigenous tribes of Alaska had hunted and fished in the area for thousands of years, just as the Supreme Court had been well aware of the different history of the former Republic of Texas[546] and its entry into the United States. 

     [543]154 F 3d 1090 at 1096 (9th Circuit, 1998).

     [544]548 F Supp 182 at 187 (District of Alaska, 1982).

     [545]154 F 3d 1090 at 1096 (9th Circuit, 1998).

     [546]154 F 3d 1090 at 1093, 1096 (9th Circuit, 1998).

382. Although the path to the conclusions of the North American courts is not identical with the one that I think should be followed here, the conclusion is the same, and each has these in common:  a recognition of the reality of the difference between the land mass and the seas; the over-arching importance, for a multiplicity of reasons, such as national defence, foreign relations, strategy, diplomacy and related treaty, trade and commercial considerations, of unrestricted control by the national sovereign of the territorial sea; and, an acknowledgment of the relevance and influence of international law and the history of international relations on the development of the concept of sovereignty over the territorial sea as part of the municipal law[547]. 

     [547]In United States v California 332 US 19 at 32-33 (1947), the majority, in describing the origins of the idea of a territorial sea, referred to the concern of the early statesmen of the American republic, such as President George Washington's Secretary of State, Thomas Jefferson, that there be established a sufficiently ample maritime zone for the protection of the neutrality of the United States during the French revolutionary wars.

     The determinations of native title

383. I turn now to the determination which was made by the primary judge and affirmed by the Full Court by reason of the dismissal of the appeals to that Court. It follows from what I have held that that determination by the primary judge and affirmed on appeal cannot stand. The question is whether any determination in favour of the claimants should have been made at all, that is to say, even with respect to the internal waters of the Northern Territory. Regardless whether the parties are in conflict over that matter, the terms of s 225 of the Act require, I think, that it be addressed.

384. The determination was that rights and interests, to travel through the areas, to fish and hunt in them for the various purposes stated, and to visit areas of cultural and spiritual importance, are all rights and interests which, pursuant to par 3 of the determination, did not confer on the holders possession, occupation, use and enjoyment to the exclusion of all others.  Non-exclusivity necessarily involves a number of different elements:  that anyone else might at any time and at any place within the relevant area do what the claimants non-exclusively did or do there.  If everyone can draw water from a well, absent effective regulation, no one can say that he or she has any proprietary, or indeed enforceable right or interest in respect of the well or any quantity of water in it.  If others have a right to occupy or use a particular area, and to exploit its resources, then it is always possible, indeed perhaps optimistic to believe other than, that someone will wish to, and indeed will, exploit those resources, unless restrained, to the point of depletion.  It seems to me that a non-exclusive right to do something may be of little or no value in the absence of enforceable, effective rules to regulate the use, access and exploitation by all users descending to the detail of all of, times, places, persons, numbers, means of access to the area, and other like essential matters.  There was certainly no evidence in this case as to any system of law with respect to, or regulation of these critical matters.  Its absence raises the question whether non-exclusive rights to be shared with the public in general and in no way otherwise defined, are rights to which the common law would accord recognition.  It may be, however, that such rights and interests do have a particular value to the claimants in that any law or regulation which restricted or denied their rights to do anything of the kind to which par 4 of the determination refers would give them a right to compensation, even though no other member of the public who ordinarily resorted to the determination area might be so entitled.  In that sense therefore, the rights the subject of the determination may have value to the claimants and hence are cognisable by the common law.

     The boundaries

385. The primary judge said that he had been obliged to fix arbitrarily the boundary of the claimed area, particularly the western and the northern boundaries.  It is easy to understand why his Honour had difficulty in this exercise, having regard to the imprecision of the evidence with respect to them.  Equally, it is easy to understand how a people whose lives have generationally been disrupted and whose ancestors have been relocated found it difficult to be precise.  When rights and interests in respect of an area have to be defined, it is important that the area in which they may be enjoyed also be defined.  The boundaries of a claimed area should, as in all civil litigation, be established on the balance of probabilities.  The Commonwealth has not shown that his Honour erred here in this regard.  I would reject the Commonwealth's ground of appeal that goes to this question.

     Orders

386. I would uphold the appeal of the Commonwealth and dismiss the claimants' appeal.  I would order that the determination be amended so as to be restricted to and apply to the internal waters of the Northern Territory as I have defined them earlier in my judgment, including the inter-tidal zone both of the mainland and of the islands within the claimed area.  The claimants should pay the costs of both the claimants' and the Commonwealth's appeals.