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

• Jurisdiction: Australia
• Author: Secher, Ulla
• Date: 01 December 2011

[This two part article examines the legal nature of the Crown's title to the sea (including the intertidal zone and the territorial sea as well as the continental shelf and the Exclusive Economic Zone beyond the territorial sea) to determine whether any analogy can be drawn between such title and the Crown's title to land Part One considered the position before the High Court's decision in Commonwealth v Yarmirr and this Part examines the Yarmirr High Court decision and beyond, including the Federal Court decisions in Lardil Peoples v Queensland, Gumana v Northern Territory and Akiba v Queensland [No 2]. The decisions considered in this Part are significant from a native title perspective because they have consistently denied recognition of exclusive native title rights to the sea on the basis that they are inconsistent with the public rights of fishing and navigation. It will be seen that both authority and sound legal principle support two propositions. First, the Crown's title derived from sovereignty, whether to land or sea, is analogous and should operate equally in relation to native title. Secondly, and contributing to a paradigm shift in the conventional understanding of native title, it may be possible to recognise exclusive native title rights to the sea.]

CONTENTS I Introduction II Yarmirr: The High Court A Principal Majority Judgment 1 Territorial Reach of the Common Law 2 Radical Title versus Common Law Sovereign Rights (a) Introduction of a 'Double' Inconsistency of Incidents Test to Deny Exclusive Native Title to the Sea (b) Two Objections to Non-Recognition of Exclusive Native Title Rights to the Sea (i) Pre-Magna Carta Grants of Exclusive Fisheries (ii) Inconsistency with Mabo's Presumptive Recognition of Native Title 3 Statutory Extension of Radical Title to the Territorial Sea? 4 Kirby J, the Other Majority Judge: Common Law Extension of Radical Title to the Territorial Sea Revisited III Post-Yarmirr Developments A The Intertidal Zone: Lardil and Gumana 1 Lardil: Judicial Confusion of Sovereignty and Property 2 Gumana: Further Support for Common Law Extension of Radical Title to the Sea 3 Gumana [No 2]: Implicit Acceptance of Common Law Extension of Radical Title to the Sea 4 Gumana FCAFC: Two Further Objections to Non-Recognition of Exclusive Native Title Rights to the Sea (a) Public Rights to Fish and Navigate as Restrictions on the Crown's Prerogative (b) Not Possible to Precisely Determine Content of Public Rights to Fish and Navigate B Beyond the Territorial Sea Revisited--The Exclusive Economic Zone and the Continental Shelf: Akiba IV Conclusion I INTRODUCTION

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

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

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

II YARMIRR: THE HIGH COURT

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

A Principal Majority Judgment

1 Territorial Reach of the Common Law

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

Crucially, for the majority, the Mocambique principle demonstrated that the common law does not have a limited territorial operation. (21) Rather, the principle showed that local actions of the kind embraced by the principle were designed to resolve problems resulting from the intersection of two competing systems of law. It had no relevance where, in relation to events occurring and places lying beyond low-water mark, there were two systems of law that can and do operate together. Thus, the majority explained that Keyn and Mocambique merely provided examples of actions, about status and rein respectively, in which the common law did not extend beyond low-water mark because of the particular questions intruding in those cases:

the fact ... that the events occurred outside Australia does not of itself, and without more, bar relief. Questions may intrude in actions about status or in actions in rem of a kind which do not arise in personal actions. As Keyn demonstrates, other questions do intrude in criminal matters. But, importantly, the Mocambique principle demonstrates that the common law does not have only a limited territorial operation. (22) The majority did not, therefore, go as far as Merkel J in Yarmirr FCAFC, who held that the common law applies in respect of the territorial sea. Rather, the majority adopted an incremental approach: although the common law does not necessarily end at low-water mark, whether the common law extends to the territorial sea must be determined on a case-by-case basis.

Accordingly, the majority had to determine if the common law applied to the territorial sea in the factual situation before them. Since the Court was dealing with rights in relation to both the sea and seabed beyond low-water mark, the principle in Mocambique was distinguished:

It is inappropriate to see the present issues as engaging the common law rules of choice of laws because the [NTA] requires no resolution of any conflict or competition between two systems of law. The [NTA] presupposes that, so far as concerns native title rights and interests, the two systems--the traditional law acknowledged and traditional customs observed by the relevant peoples, and the common law--can and will operate together. (23) There was...