Australia: Native Title Rights Over The Sea

Last Updated: 20 April 2009
Article by Liz Allnutt and Natasha Vyrnwy-Jones

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 resources.

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 zones.

Government Policy

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 Waters.

The Effect Of Non-Exclusive Native Title Rights On 'Future Acts'

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 granted.

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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Liz Allnutt
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