Case: Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1
Outcome: discussed
In Commonwealth v Yarmirr [2001] HCA 56 ; (2001) 208 CLR 1 at [7] (" Yarmirr "), in Ward HC at [16] and [25], and in Yorta Yorta at [32], the High Court held that, when determining a native title claim, attention must focus upon the statutory definition of "native title" and "native title rights and interests", in ss 223(1)(a) and (b) rather than the language used by Brennan J in Mabo (No 2) . That is so notwithstanding the fact that those paragraphs were plainly based upon his Honour's judgment. 509 In Yarmirr , s 223(1) was broken up into its component parts, and was said to require the rights and interests claimed under the NT Act to meet three requirements. It is worth repeating those requirements: &#8226; they must be possessed under the traditional laws acknowledged and traditional customs observed by the people concerned; &#8226; the people, by those laws and customs, must have a "connection" with the land or waters; and &#8226; the rights and interests must be recognised by the common law of Australia. 510 In Ward HC, the High Court observed that s 223(1)(b) required consideration of whether, by the traditional laws acknowledged, and the traditional customs observed, by the peoples concerned, they had a "connection" with the land or waters. In other words, there had to be first an identification of the traditional laws and customs, and next a characterisation of the effect of those laws and customs as constituting a "connection" of the peoples with the land or waters in question. 511 In Alyawarr the Full Court referred to Ward HC at some length. The Full Court said (at [73]): "It also emerges from their Honours' judgment that while the use to which land or waters are put may indicate the kind of connection that exists under traditional law or custom between Aboriginal peoples and the land or waters concerned, the absence of evidence of recent use does not lead necessarily to the conclusion that there can be no relevant connection. That depends upon the content of the traditional law and custom and what is meant by "connection" by those laws and customs. As to that, their Honours expressed no view on the nature of the connection that must be shown to exist or when a "spiritual connection" would suffice." 514 As the Full Court observed, a number of native title claims have focussed attention upon the rights and interests of members of different groups, sometimes in competition with each other. On occasion, as in Yarmirr these are described as "estate groups", though it is recognised that they are linked by ancestral connection. At other times they are described as "language groups". See for example Wandarang People v Northern Territory [2000] FCA 923 ; (2000) 104 FCR 380, and Neowarra v State of Western Australia [2003] FCA 1402 (" Neowarra "). 553 Dawson J characterised native title as "a permissive occupancy" in Mabo (No 2) , while in Wik, Kirby J observed (at 215): "... Aboriginal rights are sui generis, difficult if not impossible to describe in the terminology of traditional property law, being communal, personal and usufructuary." See also Yarmirr (at [12]) and Ward HC (at [14]). 646 In Yarmirr , the High Court made it clear (at [16]) that it is not necessary that the laws and customs by which the connection occurs themselves contain mechanisms for enforcing that connection, or that they contain sanctions for breach. That is important, so far as this case is concerned, because there is a paucity of evidence before me regarding such matters. 647 In Alyawarr the Full Court observed (at [93]) that although "connection" is a prerequisite to the recognition of native title rights and interests, it does not limit or qualify the content of any rights and interests arising under traditional laws and customs. Rather, the content of those rights and interests is marked out by the requirement that they be rights or interests "in relation to land or waters". 648 Nonetheless, evidence led to demonstrate the existence of a traditional system of laws and customs may also be relevant when determining whether the requisite "connection" has been established. As Professor Butt notes in his text (at 949): "... evidence of site-specific activities such as holding ceremonies, transmitting sacred or secular knowledge, seasonal occupation of places, and use of land to obtain traditional food, may be given in the context of the rules that establish or maintain kinship or totemic relationships between people and land. In this sense, although certain rights in traditional law (such as purely spiritual rights) cannot be recognised as native title rights, evidence of those rights may go to prove the existence of continuing traditional laws, or connection to the land or waters." 654 In Yarmirr , the High Court held that a claim to native title (over the coastal seas and offshore areas) need not have been capable of recognition by the common law at the time that sovereignty was acquired, provided that the common law would recognise the rights in question now. In other words, s 223(1)(c) operates contemporaneously, and does not look to the past. 655 In summary, I am satisfied that some, but not all, of the native title rights and interests claimed in these proceedings are, relevantly, "recognised" by Australian common law. Any native title rights and interests that are not so recognised will, of course, be excluded from any native title determination that the Court ultimately makes. 656 The tenure history of the claim area, and in particular the fact that it was all previously subject to pastoral leases, makes it plain that, subject to the possible operation of s 47B of the NT Act , native title has been extinguished. If s 47B has the effect for which the claimants contend, it is unnecessary to resolve the question whether such extinguishment would otherwise be total, or only partial. The reason is that, pursuant to s 47B , extinguishment will simply be disregarded. 736 Senior counsel reminded me that at the point at which we had crossed the Creek heading from west to east during the course of the onsite hearings the water could be seen to be flowing. However, at other points, the water had been still. He acknowledged that at the confluence of the Victoria River and the Creek, the waters were tidal, and that Yarmirr had determined that there could be no native title right to exclusive possession over tidal waters. 737 Senior counsel then submitted that if a creek flowed through an area over which the claimants had exclusive rights, it would follow that they had exclusive rights to the bed and banks of that creek as well. He then indicated that he had arranged for his junior to conduct some urgent research in order to ascertain what the leading authorities dealing with native title had to say about "the notion of flowing water". 738 After a short break, senior counsel indicated that he could find no authority dealing specifically with this point. However, he did refer to several consent determinations in which there had been some reference to tidal waters in the context of native title. 746 The further written submissions argue that the respondents' case assumes the existence of riparian rights in others, as had been the case in Yarmirr . These riparian rights derive from common law, and encompass both rights to fish, and rights to navigate the sea freely. According to the respondents, such rights are inconsistent with any possible native title right to control access to the tidal waters of the Creek. 747 The further written submissions challenge this contention. They argue that, for the claimants' native title rights to be affected by the riparian rights of others, there first have to be riparian owners, whether upstream or downstream, in the claim area. They say, correctly, that there is no evidence of the existence of any such owners in the present case. For that reason, they contend that the Court can, and should, find that the claimants have exclusive rights to the waters of the Creek, both tidal and non-tidal. 748 The further written submissions then argue that any acts of extinguishment arising out of past pastoral leases should be disregarded in relation to the waters of the Creek by reason of the operation of s 47B. 749 They next deal with an argument put on behalf of the respondents that the public right to fish (and, it might be said, freely to navigate tidal waters) precludes recognition of a native title right to exclusive possession over at least that part of the Creek that is tidal. Indeed, they go further, and challenge the very existence of a public right to fish in tidal waters. 750 The further written submissions refer to Gumana (at [61]-[69]). In that case, the principal claim was for a determination of native title in respect of an area in and around Blue Mud Bay in northeast Arnhem Land. The second claim involved a challenge to the power of the Northern Territory to issue commercial fishing licences in relation to the inter-tidal zone, and the adjacent sea within two kilometres of the low water mark of land that had been granted to the applicants under the Land Rights Act . 751 As to these two claims, Selway J found that the applicants had a native title right of exclusive possession in relation to the "land" other than the inter-tidal zone (by which his Honour meant, in essence, tidal waters), and a "non-exclusive" native title right in relation to the sea and the inter-tidal zone. Selway J followed Yarmirr , as explained in The Lardil Peoples v State of Queensland [2004] FCA 298 per Cooper J. In Gawirrin Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 (" Gumana (No 2) "), Mansfield J, after the death of Selway J, gave effect to his Honour's judgment by making appropriate orders, and formulating the determination of native title consequent upon Selway J's reasons. 753 The further written submissions filed in these proceedings continue: "39. In answer to both questions, however, in Attorney-General (British Columbia) v Attorney-General (Canada) Viscount Haldane LC explained that the right to navigate and the right to fish both have their origin in common practice from time immemorial to navigate the seas and to use a navigable river as a highway. Thus, in Harper v Minister for Sea Fisheries Brennan J, after reviewing the authorities, spoke of "the right of fishing in the sea and in tidal navigable rivers". 40. Hence, it is not correct to assume, as the respondents do, that a public right to fish applies wherever waters are tidal. The better view is that the geographic reach of each of the right to fish and the right to navigate is one and the same, and if a body of water is not navigable, in the sense that it not the sea or an arm of the sea, it cannot be subject to a public right of fishing. 41. When the authorities speak of a public right to fish in tidal waters of a river, the right is said to operate so far up the river as the tide in the ordinary course of things flow and reflows, and it will be a question of fact whether there is a real perceptible and sufficient ebb and flow of the tide so as to render waters tidal. If, in the ordinary course, the tide flows and reflows, that gives rise to a rebuttable presumption that the waters are navigable, and as Bayley J explained in R v Montague : The strength of this prima facie evidence arising from the flux and reflux of the tide, must depend upon the situation and nature of the channel. If it is a broad and deep channel, calculated for the purposes of commerce, it would be natural to conclude that it has been a public navigation; but if it is a petty stream, navigable only at certain periods of the tide, and then only for a very short time, and by very small boats, it is difficult to suppose that it ever has been a public navigable channel. Again, the evidence may not be conclusive as to whether any part of Timber Creek is tidal and navigable in order to decide that the common law public rights have relevance. 42. If it is possible to conclude that the common law rights of the public to fish and navigate have application in relation to any part of Timber Creek, on the authority of Commonwealth v Yarmirr the existence of those rights is inconsistent with the continuation of a right in the holders of native title to say who may enter the area where those rights have applied. 43. On that basis, a question arises as to whether s 47B requires the consequence identified in Yarmirr to be disregarded." (footnotes omitted)