5KIPGFD[#WUV.++ 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 4GVTKGXGFHTQO#WUV.++QP(GDTWCT[CV 8GTKH[XGTUKQP 5KIPGFD[#WUV.++ 2. 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) 4GVTKGXGFHTQO#WUV.++QP(GDTWCT[CV 8GTKH[XGTUKQP 5KIPGFD[#WUV.++ 3. 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. 4GVTKGXGFHTQO#WUV.++QP(GDTWCT[CV 8GTKH[XGTUKQP 5KIPGFD[#WUV.++ 4GVTKGXGFHTQO#WUV.++QP(GDTWCT[CV 8GTKH[XGTUKQP 5KIPGFD[#WUV.++ 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. 4GVTKGXGFHTQO#WUV.++QP(GDTWCT[CV 8GTKH[XGTUKQP 5KIPGFD[#WUV.++ 4GVTKGXGFHTQO#WUV.++QP(GDTWCT[CV 8GTKH[XGTUKQP 5KIPGFD[#WUV.++ 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. Proceedings at first instance 2 The application was heard and determined in the Federal Court of Australia2. 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: 1 Described in the amended Native Title Determination Application as the Mandilarri-Ildugij, Mangalarra, Muran, Gadurra, Minaga, Ngayndjagar and Mayorram peoples. 2 Yarmirr v Northern Territory [No 2] (1998) 82 FCR 533. 4GVTKGXGFHTQO#WUV.++QP(GDTWCT[CV 8GTKH[XGTUKQP 5KIPGFD[#WUV.++ Gleeson CJ Gaudron J Gummow J Hayne J 2. "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.