Since Mabo, it is generally well understood that
Aboriginal people have pre-existing Native title rights and
interests over lands and waters that date back to the time of
European arrival in Australia.
The Native title rights and interests claimed by Aboriginal and
Torres Strait Islander people will vary from group to group, from
place to place, and will also depend on what other non Native title
rights exist or have existed in the same area. For example, in the
Mabo case, the Murray Islanders who claimed Native title
rights were able to prove that they held continuing exclusive
rights to possess, occupy, use and enjoy the land under their
traditional laws and customs.
However, what is generally not well understood is whether Native
title rights exist in Australia's territorial waters. This
issue was dealt with in the case of Yarmirr v Northern
Territory. That case involved a Native title claim over an
area of approximately 3,300 square kilometres around Croker Island,
200 kilometres north east of Darwin. The claim was seen as a test
case for Native title over the sea.
At first instance, Olney J held that Native title rights could
exist in relation to sea areas and seabeds, however they were
non-exclusive rights, and very limited in extent. In his view, the
Native title interests included free access in order to travel,
fish and for 'traditional' purposes, but not commercial
ones. The decision was appealed and on 11 October 2001, the
majority of the High Court of Australia confirmed that Native title
rights could exist up to 12 nautical miles from the Australian
shoreline (Territorial Waters).
The Nature Of Native Title Rights Over The Sea
In Yammir, the High Court made it clear that Native
title rights and interests relating to Territorial Waters are not
exclusive and were limited to non-commercial activities such as
fishing for subsistence or cultural purposes, access to areas of
sea, protecting places of cultural and spiritual knowledge and
safeguarding that knowledge. The Court also made it clear that
there was no Native title right to trade in the sea's
The effect of Native title rights and interests being
non-exclusive means that Native title holders cannot prevent others
from exercising their rights and interests over the same water and
its resources. Examples of other rights and interests include:
a right to take and use water
commercial fishers if they have a valid licence or permit
the public's right to fish
public access, and
innocent passage of vessels through Australia's maritime
Despite the High Court's finding that Native title could
exist in Australia's Territorial Waters, the Howard Government
took the view that Native title could not exist in the ocean in
areas that were not part of Australia at sovereignty (generally
past three nautical miles from the shoreline). The effect of this
was that negotiations over a large number of Native title claims in
Australia's Territorial Waters stalled.
However, in July 2008, the Rudd Government announced that,
consistent with the High Court's finding in Yammir,
the Commonwealth was now willing to recognise that non-exclusive
Native title rights could exist in Australia's Territorial
The Effect Of Non-Exclusive Native Title Rights On 'Future
Given the Rudd Government's recognition that non-exclusive
Native title rights can exist in Australia's Territorial
Waters, it is important to understand what this means for the grant
of 'future acts' such as mining tenements.
A future act is a proposed act in relation to land or waters
that will affect Native title. Granting a mining tenement may be a
future act, for example, when one is granted over an area in which
non-exclusive Native title rights and interests exist (such as
Australia's Territorial Waters).
If the proposed grant will affect non-exclusive Native title
rights and interests, the relevant government (usually state or
territory) must notify any Native title claimants, registered
Native title bodies corporate and relevant Native title
representative bodies giving them opportunity to comment on the
proposed grant. They cannot, however, stop the tenement from being
However, where a future act occurs that affects offshore Native
title, the Native title holders for the relevant area may be
entitled to compensation under the NTA. The amount of compensation
payable will depend on the type of Native title right, and the
degree to which it has been affected.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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