(I acknowledge the research and assistance of Dr Melissa Perry, of the South Australian Bar who appears with me as counsel in the Croker Island case.)

Having established the new parameters for on-shore title in the trilogy of High Court decision in Mabo, Western Australia and Wik, the enquiry now moves offshore as we turn to deal with offshore claims to native title rights. The middens found along Australia's shores bear testament to the Aboriginal peoples' relationship with the sea and their dependency on its resources, With the emergence of claims to the offshore waters, we are now concerned with this history, and its conflict with ancient rights and customs in the sea, such as the common law rights of the public to fish and to navigate freely in tidal waters and in the territorial sea, and the right of the ships of all nations under international law to navigate the oceans and to innocent passage through territorial waters.

The question whether native title can exist offshore is of special significance to an island nation such as Australia with some 12,000 miles of coastline and with rights to exploit the marine resources of the sea out to 200 nautical miles and the mineral resources of our vast continental shelf. To date some forty-one off-shore native title claims have been commenced under the Native Title Act 1993 with at least that number again pending acceptance under that Act. Most claims are offshore Western Australia, but they also have been made off the coasts of the other States and the Northern Territory. And although the ACT includes Jervis Bay, its offshore waters remain part of NSW, so it is not possible for there to be a claim made offshore the ACT.¹ It is with respect to a claim off the coast of the Northern Territory that these issues will first be tested in Australia in the Croker Island Case, where final submissions are to be made in Darwin in December.

In broad terms, current claims range from areas exclusively within Australia's territorial sea (as in Croker) to the outer limits of the continental shelf and even beyond. These claims also raise for the first time the question whether indigenous rights offshore may extend to the exclusive possession of the seas and the sea-bed. The current claims plead native title rights to close off or control access to areas of the sea. These are ambit claims unique in both national and international jurisprudence.

And it seems, the capacity to claim offshore native title is not limited to Australian nationals. The captains and crews of two Indonesian ships have claimed that they were exercising native title rights to fish in the Australian Fishing Zone and on that basis, are not liable for prosecution for certain fisheries offences. In principle there seems no reason why Australian citizenship should be a requirement for a native title claim, on or offshore.

Claims to exclusive possession of sea areas directly raise a conflict with ancient common law rights and with rights of foreign ships in our waters from which a number of different themes or strands can be separated:

Overlaying these themes is the further complication of the federal system which operates so as to divide jurisdiction over offshore areas between the Commonwealth and the States.²

In the literal (and littoral) sense, we here venture into uncharted waters. Native title rights have not been recognised in Australia by treaty as they have in other jurisdictions such as New Zealand, and there is no constitutional protection of such rights as in Canada.³ In the two cases in Australia where the question of native title rights offshore has been considered, the rights asserted were not found to have been established on the evidence and the question remains an open one.⁴

Before one can turn to look at the special issues which arise offshore and how they have been dealt with in other jurisdictions, it is helpful first to look briefly to the principles which govern recognition of native title to Australian land. This may provide a raft to move offshore to examine native title from the perspective of the common law and its recognition of the freedom of the seas and then to consider how native title rights offshore might fare in the open waters of international law.

The question whether native title can survive offshore arises in the wake of Mabo (No. 2). To some extent Mabo was a conservative decision. Its critical step was to reject the fiction that on settlement Australia was an empty continent devoid of inhabitants. The failure, until 1992. to recognise native title rights was based upon a false assumption. Principles which had been long established in other common law countries were applied to support the finding that native title rights survived the acquisition of imperial sovereignty in Australia. The High Court shifted the responsibility for the termination of native title from the common law to the executive and the legislators. It remains that it is only native title rights existing before the acquisition of sovereignty by the Crown which can be recognised by the common law. And the common law only recognises native title riots, it does not create them. Native title rights are not rights or estates created by the common law such as freehold or leasehold estates or an easement over land. Hence, the common law principles governing native title are concerned to define the circumstances in which the common law will recognise and enforce native title rights. The mere fact that indigenous rights in relation to land can be proved to have existed under customary laws before settlement does not guarantee their recognition by the common law. The limits of common law recognition are most clearly when considering claims to native title offshore.

Native title rights are vulnerable to extinguishment where the executive acting within power or legislation exhibits a clear and plain intention to do so. The enquiry is not for an express or deliberate intention to terminate something which was not recognised to exist before the Mabo decision. Instead we look at the extent to which an inconsistency arises between legislation or acts of the Crown and the native title rights which are established. The Mabo principles were reworked in Wik, and we now know that rights under Crown grants and native title rights may co-exist.

Extinguishment presupposes recognition in the first place. However, a failure to recognise a particular right will have a similar effect to extinguishment. In other words, if the common law does first recognise native title rights, those rights will not be enforceable by the common law, even if they continue to exist as a matter of Aboriginal customary law.

Native title rights do not have a fixed and definite content. They comprise instead a bundle of rights which is defined by the Aboriginal customary laws of a particular community.⁵ The content of that bundle of rights may vary from a right to hunt or to hold ceremonies on the one hand, to rights of the kind established in Mabo (No. 2) where the Court declared that the Meriam people were "entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands".⁶ It does seem clear that rights to fish may be included in that bundle of rights.⁷ However, as we will see, that does not determine whether they can exist in Australia's territorial sea and beyond.

The Native Title Act is built upon these common law principles. Its concern is with creating procedures and mechanisms to facilitate the recognition of those rights and giving those rights a greater measure of protection from extinguishment than that given to them by the common law.

It is for the common law to determine whether native title rights may be recognised offshore and to determine the extent to which they may be recognised. As this is a matter for the common law, absent some new legislative prescription, recognition of any such rights is a matter for articulation by the High Court. Until it speaks with certainty on the offshore issues, we will have only a rough chart as our reference points, as was the case for the pastoral lease issue between Mabo in 1992, and Wik, in 1996.

The freedom of the seas finds reflection in the common law in the existence of the public rights to fish and to navigate in tidal waters and the high seas. These rights are well established in Australia and in other common law countries.⁸

In 1821 at a time when bathing became fashionable in England, it was suggested that there might also be a public right to bathe and, incidental to that, to cross the seashore with horse and carriage, and with bathing machines to ensure public decency. The majority in Blundell v. Catterall⁹ were unpersuaded, but in a delightful dissenting judgement, Justice Best argued most vigorously for the benefits of bathing in promoting health and in teaching those who live near the sea their "first duty.... to assist mariners in distress."¹⁰

The origins of the public rights to fish and to navigate are now obscure. It may be that they derive from the Roman law which characterised the sea as res communis, meaning that it was beyond appropriation by private persons. Lord Haldane has suggested it was an common practice from time immemorial which, "[f]inding its subjects exercising this right as from immemorial antiquity the Crown as parens patriae ... regarded itself as bound to protect the subject in exercising it".¹¹

At the end of the day, however, whatever the origins of the public rights, it seems clear that they are ultimately based upon a broad public policy which ensures that all have access to the sea, all are able to move freely about upon the sea and that its resources , are available to all, subject only to Parliamentary regulation. Underlying these policy considerations is a recognition of a necessary distinction between laws which govern rights and interests on land and those which govern rights offshore. This in turn reflects the different physical character of the sea and the incapacity of people to walk on, to occupy, and fence it in.

The Magna Carta enjoined the Crown from granting exclusive fisheries. In this way, the public right to fish was protected for future generations.¹² An American judge explained from across the Atlantic that the effect of the Charter was to restore again the ancient public rights and prevent them from ever again being wrongfully appropriate by "powerful barons" to themselves, or granted by kings "to their courtiers and favourites".¹³ After Magna Carta grants of exclusive fisheries could only be made with Parliamentary sanction. Indeed, even where such ancient grants were proved, they have been held to be subject to the public right of navigation and primacy was therefore given to that public right over any which might be granted on the whim of the King.¹⁴

Following the Great Charter, rights of exclusive fishery could still be acquired by prescription, on the basis that such rights were presumed to originate in a grant pre-dating Magna Carta. But in Australia it would make no sense to speak of rights granted or presumed to have been granted before Magna Carta.¹⁵ It is unlikely that an Australian court could find that any rights of exclusive fishery may be acquired by prescription in Australia.

How then has the tension between public rights and indigenous rights offshore been dealt with by the Courts? Although our way is still to be chartered, this question has been considered in other common law jurisdictions.

In 1913, a Maori woman by the name of Waipapakura was fishing with a net for whitebait in the Waitotara River in New Zealand. The net with which she fished was too wide and breached certain fisheries regulations. As a result, her nets were seized by a diligent fisheries officer and she was charged. In her defence, Waipapakura claimed that she was lawfully using the nets in exercise of an "existing Maori fishing-right" and this entitled her to rely upon a statutory exemption from prosecution. She said that those rights were granted to her by the Treaty of Waitangi of 1840 which expressly guaranteed to the Maori people their rights of fisheries.¹⁶

Her appeal was dismissed as it was held that her rights could not have been preserved by the Treaty alone but required statutory protection of which there was none.¹⁷ Her downfall seems to have lain in the assumption that the rights upon which she relied were exclusive and therefore brought in conflict with the public right to fish which was preserved by the Act under which she was charged, for Stout J held that:

"There is no attempt in the Fisheries Act, 1908, to give rights to non-Maoris not given to Maoris. All have the right to fish in the sea and in tidal rivers who obey the regulations and restrictions of the statute. This statute has not given, and no New Zealand statute gives, any communal or individual rights of fishery, territorial, or extra-territorial. in the sea or tidal rivers. All that the Fisheries Act does is to regulate all fisheries so as to preserve the fish for all. Now, in English law - and the law of fishery is the same in New Zealand ... there cannot be fisheries reserved for individuals in tidal waters or in the sea near the coast. In the sea beyond the three-mile limit all have a right to fish, and there is no limitation of such general right in the regulations dealing with such waters... In the tidal waters - and the fishing in this case was in this area - all can fish unless a specially defined right has been given to some of the king's subject which excludes others."

Many years later, Te Weehi visited Motunau Beach to gather shellfish with the permission of a Maori elder. Like Waipapakura, he had the misfortune to meet a diligent fisheries officer who found that the paua shells which he had collected were undersized. Accordingly, he was charged with breaching regulations made under the 1983 Fisheries Act. Williamson J of the High Court of New Zealand proved more sympathetic than his predecessor, Stout J, whose decision he declined to follow.¹⁸ Williamson J considered that the Treaty of Waitangi had preserved Maori fishing rights and in so doing, he followed Canadian decisions which had held that such treaties recognise obligations arising from such customary rights. He further held that the statutory defence relied upon by Te Weehi was intended to recognise those treaty obligations. However, for present purposes what is significant is that the conflict addressed in Waipapakura between public and private rights did not arise in Te Weehi because the Maori right claimed in that case was not said to be an exclusive one.

The importance of the non-exclusive nature of the rights recognised in Te Weehi also emerges in a decision of the New Zealand Court of Appeal expressing a tentative preference for the view that Maori fishing rights might exist in the sea. But at the same time the Court indicated that the Treaty was not intended to exclude non-Maori's from fishing.¹⁹

But we are unlikely now to have the benefit of the New Zealand Court's final view on this issue as the question whether Maori fishing rights might exist offshore has been overtaken by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1991. This dealt comprehensively with the rights of Maori peoples in respect of commercial and non-commercial fishing. Nonetheless, a similar issue arose in a case outside that Act where Maori rights were said to found a monopoly an commercial whale watching. The court rejected that assertion, observing that "it is obvious that commercial whalewatching is a very recent enterprise, founded on the modem tourist trade and distinct from anything envisaged in ... the treaty".²⁰ But in the course of their reasons, the Court also emphasised that, while a right of development of indigenous rights is becoming recognised in international jurisprudence, "any such right is not necessarily exclusive of other persons or other interests.²¹

Notes

1 The area of the Jervis Bay Territory described in the Agreement surrendering the Territory to the Commonwealth (Schedule 1 to the Jervis Bay Territory Acceptance Act 1975) is defined as ending at the high water mark. It would seem to follow that the Inter-tidal zone end any waters within the laws of the land remain part of NSW, and that the adjacent waters of the territorial sea are adjacent to NSW rather than the Territory. This understanding is reflected in the definition of 'adjacent areas' in the Petroleum (Submerged Lands) Act 1967 (s.5A and Schedule 2), which is in turn adopted as part of the definition of the 'coastal waters' of NSW under the Coastal Waters (State Powers) Act 1980 (see s.3). The same position is expresses enacted for the purposes of the Fisheries Management Act 1991 by s. 5(2) of that Act.

2 See eg Bonser v. La Macchia (1969) 122 CLR 177; New South Wales v. Commonwealth (Seas and Submerged Lands Act Case) (1975) 135 CLR 337; and s.51(x) of the Constitution in relation to the power to make laws with respect to fisheries beyond territorial limits.

3 See s.35(1), Constitution Act 1982.

4 Mason v. Tritton (1994) 34 NSWLR 572; Dershaw v. Sutton (1995) 82 A Crim R 318 (first instance); unreported, Full Court of the Supreme Court of Western Australia (Franklyn, Wallwork and Murray JJ), 16 August 1996.

5 Mabo (No.2) (1992) 175 CLR 1, 58, 61 Brennan G, 110 Deane and Gaudron JJ, 195 Toohey J; Wik Peoples v. Queensland (1996) 141 ALR 129, 151 Brennan CJ, 185 Toohey J, 220 Gummow J, 256 Kirby J.

6 Mabo (No. 2) (1992) 175 CLR 1, 217.

7 See eg R v. Sparrow [1990] 1 SCR 1075; Mason v. Tritton (1994) 34 NSWLR 572; Dershaw v. Sutton unreported, Full Court of the Supreme Court of Western Australia (Franklyn, Wallwork and Murray JJ), 16 August 1996.

8 See eg Malcolmson v. O'Dea (1863) 10 HL Cas 593 [11 ER 1155]; Gammell v. Commissioners of Woods and Forests (91859) 3 Macq 419 (H L); Gann v. Free Fishers of Whitstable (1865) 11 HLC 192 [11 ER 1305]; Duchess of Sutherland v. Watson (1868) 6 SC 199; Lord Advocate v. Trustees of the Clyde Navigation (1891) 190 SC 174; Lord Fitzhardinge v. Purcell [1908] 2 Ch 139; Blundell v. Catterall (1821) 5 B & Ad 268 [106 ER 1190]; Attorney General (British Columbia) v. Attorney-General (Canada) [1914] AC 153 (PC); Attorney-General (Canada) v. Attorney-General (Quebec) [1902] 1 AC 413 (PC); Gladstone v. R (1996) 137 DLR (4th) 648 (SCt Can); Harper v. Minister for Sea Fisheries (1989) 168 CLR 314, 325 Mason CJ, Deane and Gaudron JJ, 329 Brennan J; New South Wales v. Commonwealth (Seas and Submerged Lands Act Case) (1975) 135 CLR 337, 419, 421, 423 Stephen J and 489 Jacobs J.

9 (1821) 5 B & Ald 268 [106 ER 1190]

10 Id, 1194.

11 Attorney-General (British Columbia) v. Attorney-General (Canada) [1914] AC 153, 169.

12 Malcolmson v. O'Dea (1863) 10 HL Cas 593 [11 ER 1155]; Gann v. Free Fishers of Whitstable (1865) 11 HLC 192, 209, 213-214, 221 [11 ER 1305]; Attorney-General (British Columbia) v. Attorney-General (Canada) [1914] AC 153 (PC]; Harper v. Minister for Sea Fisheries (1989) 168 CLR 314, 330 Brennan CJ. See also Halsbury's Laws of England (4th Ed), vol.18, 615.

13 Arnold v. Mundy 10 Am Dig 356,368.

14 Gann v. Free Fishers of Whitstable (1865) 11 HLC 192 [11 ER 1305]; Duchess of Sutherland v. Watson (1868) 6 SC 199; Lord Advocate v. Wemyss [1900] AC 48 (HL); Lord Fitzhardinge v. Purcell [1908] 2 Ch 139, 185, 166; Blundell v. Catterall (1821) 5 B & Ald 268 [106 ER 1190, 1200, 1203].

15 See eg Donnelly v. Vroom (1907) 40 NSR 585, 589-590 in relation to exclusive fisheries; and Caldwell v. McLaren (1984) 9 App Cas 392, 405 (PC) in relation to the public right to navigate a stream.

16 The second article of the English version of the Treaty of Waitangi guaranteed to the Maori people the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess.

17 Waipapakura v. Hempton (1914) 33 NZLR 1065.

18 [19881 1 NZLR 641. See generally Mylonas-Widdall, "Aboriginal Fishing Rights in New Zealand" (1988) 37 ICLQ 386.

19 Te Runanga o Muriwhenua Inc v. Attorney-General [1990] 641, 655-656.

20 Ngai Tahu Maori Trust Board v. Director-General of Conservation [1993] 3 NZLR 553, 559.

21 Ngai Tahu Maori Trust Board v. Director-General of Conservation [1993] 3 NZLR 553, 560. Nonetheless the Court held that those responsible for the grant of such permits were required to recognise the special interests of the Ngai Tahu in the use of the coastal waters by reason of the statutory incorporation of the principles of the Treaty.