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

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

[The High Court's decision in Commonwealth v Yarmirr raised the important question of whether the Crown's acquisition of sovereignty over the territorial sea was accompanied by the vesting of radical title which could thus be burdened by native title. Prior to this decision, the High Court in Commonwealth v WMC Resources Ltd had considered the Crown 'S title to the continental shelf beyond the territorial sea and, in doing so, declared that the Crown's radical title does not exist below low-water mark. Consequently, in Yarmirr, the majority of the High Court drew a distinction between the Crown's radical title to land and the Crown's 'sovereign rights and interests' to the territorial sea. Nevertheless, the Yarmirr High Court indicated, without deciding, that as a result of legislation effecting the offshore constitutional settlement, radical title may now be the appropriate 'tool' with which to analyse the Crown's rights to the territorial sea. Indeed, as a member of the Full Federal Court in Yarmirr, Merkel J specifically referred to Brennan Cd's key reference to radical title in WMC, and suggested that the two concepts, radical title and 'sovereign rights and interests', are analogous. This two part article, therefore, 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 considers the position before the High Court 's decision in Yarmirr and Part Two 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 Part Two 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 these rights are inconsistent with the public rights of fishing and navigation. It will be seen, however, that both authority and sound legal principle support recognition of exclusive native title rights to the sea, including the intertidal zone and Exclusive Economic Zone.]

CONTENTS I Introduction II The Concept of Radical Title III The Crown's Title to the Territorial Seabed and Beyond: The Position before Mabo IV The Crown's Title to the Territorial Seabed and Beyond Post-Mabo: WMC and Yarmirr FCAFC A WMC: Brennan CYs Judgment--Radical Title versus Statutory Sovereign Rights B Yarmirr FCAFC 1 The Majority: Statutory Extension of Radical Title and Selective Operation of the Common Law 2 Merkel J: Common Law Sovereign Rights Equivalent to Radical Title C WMC: The Other High Court Judges--Common Law Extension of Radical Title to the Territorial Sea V Summary I INTRODUCTION

This article examines the legal nature of the Crown's title to the sea, including the intertidal zone, (1) the territorial sea and both the Exclusive Economic Zone and continental shelf beyond the territorial sea, (2) to determine whether any analogy can be drawn between such title and the Crown's radical title to land. The principal question sought to be answered is: does the juridical nature of the title acquired by the Crown upon acquisition of sovereignty beyond high and low-water mark, and its concomitant effect on native title, assist in elaborating the nature of the title acquired by the Crown upon acquisition of sovereignty over land? Two fundamental propositions emerge. First, the Crown's title derived from sovereignty, whether to land or to the sea, is analogous and should therefore 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.

The article is published in two parts: Part One considers the position before the High Court's decision in Commonwealth v Yarmirr ('Yarmirr'), (3) and Part Two examines the Yarmirr decision and beyond. (4) Although the Yarmirr High Court did not address the intertidal zone, it will be seen that the Full Federal Court in Commonwealth v Yarmirr (' Yarmirr FCAFC') (5) held that the enactment of the Native Title Act 1993 (Cth) ('NTA') gave recognition to the Crown's acquisition of sovereignty and radical title over the whole area to which the NTA applied, including the intertidal zone. (6) While this amounted to a statutory extension of radical title to the intertidal zone, the subsequent Federal Court decisions in Lardil Peoples v Queensland (7) and Gumana v Northern Territory (8) have contributed to the common law analysis of the Crown's title to the intertidal zone. Furthermore, in the most recent case recognising native title in respect of a major part of the sea area of Torres Strait, Akiba v Queensland [No 2], (9) the Federal Court made some important observations about the implications of the Crown's acquisition of sovereignty beyond the territorial sea in relation to the Exclusive Economic Zone and the continental shelf. These developments are considered in Part Two for their contribution to identifying the rights of the Crown upon acquisition of sovereignty.

From a native title perspective, the significance of the decisions considered in Part Two is that they have consistently denied recognition of exclusive native title rights to the sea, on the basis that such rights are inconsistent with public rights of fishing and navigation. (10) It will be seen that this is because different tests exist for initial recognition of native title vis-a-vis land and sea: the Yarmirr High Court introduced a 'double' inconsistency of incidents test for the purpose of the territorial sea which is incompatible with Brennan J's fundamental statement of recognition of native title in Mabo v Queensland [No 2] ('Mabo'). (11) It was possible for these different tests to develop because of the perceived distinction between the legal nature of the Crown's title to land and title to the territorial sea. Crucially, however, it will be seen that both authority and sound legal principle support a consistent approach to characterising the legal nature of the Crown's title to both land and sea: the rights and powers acquired over land and sea upon assumption of sovereignty are equivalent, conferring a bare legal title on the Crown. Not only does this approach raise important implications for the Crown's beneficial rights to unalienated land which is not subject to native title, it also highlights four distinct, yet interrelated, grounds for supporting recognition of exclusive native title rights to the sea (including to the intertidal zone and Exclusive Economic Zone).

II THE CONCEPT OF RADICAL TITLE

Although the notion of radical title had emerged in Mabo, its conceptual content remained unclear. (12) In particular, it was not unequivocally clear whether Brennan J, as author of the principal judgment in Mabo, (13) regarded radical title as a bare legal title or as conferring full and unfettered beneficial rights except to the extent of native title. (14) Indeed, three aspects of Brennan J's reasoning support the interpretation of radical title as a bare legal title to land, investiture of which creates no automatic beneficial entitlement to the land to which it relates. First, considering the 'royal prerogative' basis for the proposition of absolute Crown ownership, Brennan J observed that the passing of the management and control of the waste lands of the Crown to the colonial governments by imperial legislation was not a transfer of title, but rather a transfer of political power or governmental function. (15) Crucially, Brennan J expressly confirmed that the requirement that the Crown take further steps to become owner of land is not limited to land in respect of which native title exists:

if the Crown's title is merely a radical title--no more than a postulate to support the exercise of a sovereign power within the familiar feudal framework of the common law--the problem of the vesting of the absolute beneficial ownership of colonial land does not arise: absolute and beneficial Crown ownership can be acquired, if at all, by an exercise of the appropriate sovereign power. (16) Secondly, Brennan J's analysis of the 'patrimony of the nation' basis for absolute Crown ownership also indicates that radical title is merely in the nature of a governmental power--enabling the Crown to create interests in land in itself and others--rather than a proprietary right. (17) Although Brennan J agreed that 'it is fight to describe the powers which the Crown ... exercised with respect to colonial lands as powers conferred for the benefit of the nation as a whole', (18) he did not agree it followed that those powers were proprietary as distinct from political powers. (19) Furthermore, despite acknowledging that 'the nation obtained its patrimony by sales and dedications of land', (20) Brennan J observed that this did not mean 'the patrimony was realized by sales and dedications of land owned absolutely by the Crown.' (21) Brennan J clarified that what the Crown acquired was 'a radical title to land and a sovereign political power over land, the sum of which is not tantamount to absolute ownership of land.' (22)

The third aspect of Brennan J's decision which supports the proposition that radical title does not confer a plenary title on the Crown is the holding that

[t]he dispossession of the indigenous inhabitants of Australia was not worked by a transfer of beneficial ownership when sovereignty was acquired by the Crown, but by the recurrent exercise of a paramount power to exclude the indigenous inhabitants from their traditional lands as colonial settlement expanded and land was granted to the colonists. (23) Brennan J concluded that it was only the fallacy of equating sovereignty and...