Australia: Rising tides - native title rights over the sea

Last week, the Federal Court made the first consent determination of native title over the sea in New South Wales. The determination recognises that the Yaegl People hold native title rights and interests over waters surrounding the coastline, that extend from the high water mark to an area 200 metres out to sea from the low water mark, and out to a 350 metre buffer zone around the area surrounding the sacred Dirrangun rocks.

The native title rights of the Yaegl People had previously been recognised in respect of their traditional lands up to the high water mark,1 and this determination (Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993) recognises that their native title rights and interests extend out into this area over the sea.

What does the recognition of native title rights over the sea mean?

  • No impact on existing interests

    The recognition of native title rights over the sea will not impact on existing fishing, pearling or other commercial interests and will not impact on public access to, or use of beaches or tidal waters.

  • Non-exclusive native title

    Native title over tidal and sea areas can only be non-exclusive, meaning that the native title holders cannot exclude others from accessing these areas.

    This was confirmed by the High Court in the Croker Island decision back in October 2001,2 as native title exclusive possession over the sea would be inconsistent with the recognition of public rights of navigation and fishing, and the international right of innocent passage.

  • The native title holders are able to take and use the resources in the determination area for non-commercial use, irrespective of other laws

    The Yaegl determination recognises the rights of the Yaegl People to access resources in the intertidal area and those areas extending 200 metres out to sea, and to take, use, share, offer and exchange resources, including traditional trade, in those areas for non-commercial purposes.

    By virtue of section 211 of the Native Title Act, the native title holders cannot be prohibited or restricted by any other laws from fishing or otherwise exercising their rights to take and use resources, where this is for the purpose of satisfying their personal, domestic or non-commercial communal needs.

  • If the native title rights and interests include rights to hunt and fish for commercial purposes, these rights are subject to the general law

    While the Yaegl determination only recognises rights to take and use the resources of the sea for non-commercial purposes, it is worth remembering that, at least since the High Court decision in Akiba v Commonwealth (the "Torres Straits Sea Claim"),3 the traditional native title rights and interests held by a native title group may include rights for fishing, hunting and taking resources for all purposes, including commercial purposes. Where the native title holders have commercial fishing rights, the protections in section 211 of the Native Title Act will not apply and these rights can only be exercised in accordance with any fisheries management or other relevant legislation.

Footnotes

1 Yaegl People #1 v Attorney General of New South Wales [2015] FCA 647

2 Commonwealth of Australia v Yarmirr; Yarmirr v Northern Territory [2001] HCA 56

3 Akiba v Commonwealth [2013] HCA 33

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