Indigenous Law Bulletin
by Ron Levy.
Mary Yarmirr & Ors v The Northern Territory of Australia & Ors
Federal Court of Australia
6 July 1988
On 6 July 1998, Justice Olney of the Federal Court delivered a landmark decision which determined that native title exists over the 2,000 square kilometres of sea and sea-bed adjoining Croker Island. The case of Mary Yarmirr & Ors v The Northern Territory of Australia & Ors (‘the Croker Island Case’) provided the Court with an opportunity to clarify complex legal issues regarding offshore native title. The Court considered the relationship between native title and statutory fishing interests, the public right to navigate and fish in the sea, and the internationally acknowledged right of innocent passage.
The Croker Island native title application was lodged in November 1994 by the Mandilarri-Ildugij, Mangalarra, Muran, Gadurra, Minaga and Ngayndjagar estate groups (yuwurrumus). Croker Island is the largest of a group of islands located 200 kilometres north-east of Darwin in north-west Arnhem Land. The area subject of the claim is generally located within the three nautical mile limit (the limit of ‘coastal waters’), excepting small areas within the territorial sea (three to twelve nautical miles).
The applicants asserted exclusive rights of ownership, occupancy, possession, and use of the area claimed. The Northern Territory, Commonwealth of Australia, and Northern Territory Fishing Industry Council opposed the application.
The Federal Court commenced the hearing of traditional evidence in April 1997. The claimants gave evidence of their close relationship to the sea, including their spiritual association to their sea estates. Sites of significance and dreaming tracks extend into the sea and are part of the system of traditional laws and customs which connects the applicants to their ‘sea country’. Evidence of extensive use of the sea for fishing and its importance for sustenance was also adduced.
The Court held that native title exists regarding all of the area of sea and sea-bed claimed. The Court rejected arguments that native title cannot exist in offshore areas. The rationale for this argument is that native title can only exist when ‘recognised’ or enforced by the common law, and that since the common law has no operation beyond the low water mark, native title cannot exist in that area.
The Court did not find it necessary to resolve this argument, the reason being that native title may also be ‘recognised’ by operation of statute. In Wik Peoples v The State of Queensland, Justice Kirby states that ‘[t]he source of the enforceability of native title in this or any other Australian court is, and is only, as an applicable law or statute provides’. The Court accepted that section 6 of the Native Title Act 1993 (Cth) (‘the NTA’) indicated a specific intention by Parliament to recognise offshore native title rights.
The applicants’ native title was found to be non-exclusive of other interests, and to be limited to personal, domestic or non-commercial activities such as fishing for subsistence or cultural purposes, access to areas of sea, protecting places of cultural and spiritual knowledge, and safeguarding that knowledge. The native title does not include a right to trade in resources of the sea.
The Court’s approach may be contrasted with the recognition of Indigenous fishing rights to both onshore and offshore waters in overseas jurisdictions including Canada, the United States and New Zealand. In some instances, Indigenous people in these jurisdictions have negotiated a significant involvement in the fishing industry such as a share of the harvest of certain species and equity in commercial ventures beyond the right to take fish for subsistence purposes. The Canadian Supreme Court has, for instance, expanded Indigenous fishing rights to include ceremonial use and ‘a broader use to fish than mere day-to-day domestic consumption’. In New Zealand, Maori have successfully negotiated joint ownership of Sealords Products Ltd, which owns 22% of the New Zealand fishing quota.
The traditional evidence established that each clan is entitled, under traditional laws and customs, to exclude members of other clans, and Aboriginal people generally, from entering its sea-estate. However, the Court held that the traditional requirement that permission be obtained applied only to Aboriginal people, and that the applicants failed to establish that these traditional laws and customs applied to non-Aboriginal people.
The Court further held that any claim to exclusive possession and occupation of areas of sea cannot be recognised by the courts because it is inconsistent with both the internationally recognised right of innocent passage and with common law public rights to navigate and fish in areas of sea. These common law public rights have been recognised since the Magna Carta of 1215. It was held that native title is subject to them.
The Court held that the native title is, to the extent of inconsistency, subject to rights and interests which exist under valid laws of the Commonwealth or the Northern Territory (eg fishing and pearling legislation). Such legislation does not extinguish native title, its effect being purely regulatory.
The native title did not include rights to minerals, the reason being that there was no evidence of any traditional law or custom regarding the use of or trading in minerals which may exist in the sea-bed. The Court observed that any such native title rights could not have survived various legislative enactments since 1946 by which the Crown has appropriated interests in minerals which amount to beneficial ownership and thus extinguished native title.
It has been suggested that the native title rights recognised in the Croker Island Case, being ‘non-exclusive’, cannot have any effect on future grants of commercial interests under the Native Title Act 1993 (Cth) (‘the NTA’). This issue requires consideration of the interaction of the common law, the NTA as originally enacted in 1993, and the recent amendments to the NTA. General observations to the effect that this suggestion is incorrect are outlined below.
Offshore native title may not be ignored simply because it is ‘non-exclusive’. Fishing licences and mining exploration licences are non-exclusive. However, as a form of property, such licences are capable of being protected by the Courts when they are directly affected by legislative or executive action. Non-exclusive offshore native title rights are, it is submitted, a form of property which in certain (albeit limited) circumstances are capable of being similarly protected by the courts.
These circumstances may arise when the future grant of an offshore interest directly and significantly interferes with the exercise of a non-exclusive native title right. Ordinarily, the grant of a fishing licence will not have such an effect, because it will not conflict with the exercise of non-commercial native title rights.
However, significant interference may occur where the grant of future commercial fishing interests will:
Offshore sites may be registered under the Sacred Sites Act, and may be located many kilometres from the shore. It accords with general principle that native title holders could seek relief in the Courts to prevent, for example, the construction of a wharf on an offshore sacred site (leaving aside the effect of the NTA Amendments), and to obtain compensation should such a site be damaged. Yet claims to protect sacred sites under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) or the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) do not provide civil remedies or compensation to native title holders.
Generally, the NTA amendments endeavour to ensure that native title-holders are entitled to the same procedural protection as ordinary title-holders. This may include a right to be consulted and to object before a competent tribunal. However, the amendments to the NTA permit effective extinguishment of the rights which flow from native title by ensuring that the grant of future commercial and other interests regarding the use of waters or water resources always take precedence. The amendments distinguish between interests granted in respect of waters (Subdivision H) and in respect of submerged offshore land, or sea-bed (Subdivision N).
Subdivision H applies to any future act regarding the management or regulation of surface and subterranean water (including offshore), resources in water, or airspace (s 24HA(1)). This includes the grant of any lease, licence, permit or authority under legislation regarding the management or regulation of water, resources in water, or airspace (s 24HA(2)).
Section 24HA(3) provides that any such future acts prevail over any native title rights to the extent of any inconsistency. Native title-holders must be notified and provided with an opportunity to ‘comment’ but have no right to object (s 24HA(7)). The fact that compensation is available (s 24HA(5)), and that the native title (as distinct from the rights which flow from the title) is theoretically not extinguished (s 24HA(4)), may be of little comfort to native title holders who may, for example, wish to object to pearling in a fishing ground which provides subsistence to an adjacent community.
Subdivision N applies to any future act to the extent that it relates to an offshore place, other than those dealt with in subdivision H. This subdivision therefore applies to the grant of interests to submerged lands located offshore, such as mining and petroleum licences and permits. By contrast to subdivision H, native title-holders expressly have the same procedural rights as would ‘corresponding’ non-Indigenous interests (s 24NA(8)). It is not clear what, if anything, this term includes. Certainly, the non-extinguishment principle does not apply to an offshore future act constituting a compulsory acquisition of native title (s 24NA(3)), but subdivision N would otherwise apply (s 24NA(4)). Compensation may be claimed in both cases.
It is not open to native title-holders to argue that the minimal procedural protection specified in offshore areas is discriminatory. Section 7(2) expressly repeals the protection of the Racial Discrimination Act 1975 (Cth) (‘the RDA’) except in situations where the provisions of the NTA are ambiguous (s7(2)(b))), or regarding the performance of administrative functions which are ‘conferred’ or ‘authorised’ by the NTA (s7(2)(a)).
The primary purpose of this provision would appear to be to prevent Indigenous people from arguing that the blanket validation of past and intermediate period acts, without any observance of basic procedural requirements (such as the rights to be notified and to object), and without any entrenched benefit for native title holders (such as the ‘right to negotiate’ in the original NTA), is discriminatory. This fundamental repeal of the RDA, which occurred without the consent of Indigenous negotiating groups, makes a mockery of Australia’s commitment to International conventions prohibiting racial discrimination.
The Commonwealth has appealed to the Full Bench of the Federal Court, the main ground being that neither the common law (which ends at the low water mark), nor s 6 of the NTA are capable of recognising and enforcing offshore native title.
The applicants have cross-appealed on grounds including:
It is expected that these appeals will be determined during 1999.
Recognition of both onshore and offshore fishing rights has enabled Indigenous people in Canada, the United States and New Zealand to negotiate with governments and commercial interests to ensure that they are recognised as stakeholders in the resource management process. In these countries, Indigenous involvement in these processes has included ensuring that commercial fishing quotas do not detract from subsistence fishing, that proper mechanisms are in place to protect certain species, and that pollution and overfishing are prevented.
The Croker Island decision, in recognising the existence of offshore native title, follows overseas experience. The capacity of native title holders to influence offshore commercial activities and protect Indigenous interests will require further consideration in the light of the outcome of the appeals, and in light of the effect of the NTA amendments.
Ron Levy is a lawyer at the Northern Land Council
 771 FCA, 6 July 1998.
 (1996) 187 CLR 1 at 214.
 R v. Sparrow (1990) 3 CNLR 160.
 Neville Henwood, ‘The Croker Island case - a landmark decision in native title’, 3:10 Native Title News (1998).
 See Newcrest Mining v Commonwealth (1997) 71 ALJR 152.
 Which makes it an offence to: enter or remain on (s 33); carry out work on or use (s 34) or desecrate (s 35) a sacred site.
 Which makes it an offence to enter or remain on land which is a sacred site (s 69).
 By contrast, the repeal of the RDA in the original NTA, which applied only to the validation of past acts, occurred without objection from Indigenous groups, the rationale being that overall the Act was beneficial (and therefore non-discriminatory) since the ‘right to negotiate’ counter balanced the detriment arising from validation. The amendments to the NTA remove the ‘right to negotiate’ (inter alia) in towns (s 26(2)(f)), regarding private infrastructure developments (s 26(1)(c)(iii)(B)), and regarding alternative primary production activity (eg horticulture) on pastoral and other non-exclusive leases (subdivision G). Further, the amendments enable State and Territory legislation which remove the ‘right to negotiate’ regarding all land which is, or was, subject to freehold or leasehold interests (s 43A). In these circumstances, basic procedural protection replaces the right to negotiate. Precise figures are not available. However, the Northern Land Council estimates that the substantial majority of vacant crown land in Australia has historically been subject to pastoral or other interests, the effect being that the right to negotiate may be removed by State and Territory legislation under s 43A (see Northern Land Council’s submission to the Parliamentary Joint Committee on Native Title, 1997).