The Federal Court has determined that native title rights exist over waters in the Gulf of Carpentaria, off the North West Queensland coast. However, in its judgment delivered 23 March 2004, the court ruled that the native title rights are non-exclusive, meaning the impact of the determination on third parties is minimal. Senior Associate Ben Zillmann and Lawyer Rochelle Spedding report.
The native title applicants in this case1 consisted of four groups: the Lardil, Kaiadilt, Yangkal and Gangalidda people. Their native title claim related to lands and waters in areas of the sea adjacent to the Wellesley Islands in the Gulf of Carpentaria, as well as to some parts of rivers.
The court determined that some native title rights still exist over the area, including:
- the right to access lands and waters seaward of the high-water mark, in accordance with traditional laws and customs and/or religious and spiritual purposes;
- the right to fish, hunt and gather living and plant resources (including the right to hunt turtle and dugong) for non-commercial purposes; and
- the right to take and consume fresh drinking water from springs.
However, importantly, the court held that the only native title rights remaining in the area were non-exclusive rights. That is, the native title claimants had no right to exclude others from also using the area (eg for commercial fishing and shipping).
In the same way that the High Court ruled in 2001 in Yarmirr 2 (where non-exclusive native title rights were held to exist over an area of the sea off the Northern Territory), the Federal Court determined that any native title right to control access to the waters in question was totally inconsistent with the beneficial title of the Crown; the common law public rights to fish and navigate; and the international right to freedom-of-passage.
While the case was really just an application of decisions handed down in the past couple of years in Yarmirr, Ward 3 and Yorta Yorta 4, the Federal Court did make several observations of interest, including:
- acknowledging that European contact had, to a greater or lesser extent, brought about the physical dislocation of the applicant group from their traditional territories and that the majority of the group no longer lived on the country to which they belonged and did not have a traditional lifestyle anywhere near approaching that which existed at the time of sovereignty. However, despite this, the court was satisfied that the groups had not lost their identity or existence as a society (which distinguished it from the Yorta Yorta case, where the High Court found that native title had been extinguished).
- exploring the concept of 'ownership' of land and waters in the context of native title and concluding that the traditional owners' concept of ownership was, in essence, a right to be asked permission to enter onto claim land and waters. It is also a concept born out of the connection of peoples to the sea through their spirituality.
- being satisfied that succession of the lands occurred under traditional rules and customs acknowledged at the time of sovereignty by two groups and, therefore, that the interest in the land claimed by the Gangalidda was recognised and protected under the Native Title Act. Native title rights over the traditional lands of the Gangalidda people were claimed by succession (the land once being part of the country of another group).
- determining that the Native Title Act does not recognise any agreement made post-sovereignty by the four groups to treat the determination area as a single communal area held by them jointly, with four internal areas that they each held separately. This is because no traditional law was acknowledged or custom observed over the land and waters in the claim area by the four claimant groups as a whole.
It would seem that, following the decision in Lardil and the earlier High Court decision in Yarmirr, it is unlikely that native title interests will ever extend to exclusive rights over an area of the sea. The result is that the non-exclusive native title rights that may be found to continue to exist are unlikely to have any significant impact on the use of the sea by other parties, including for commercial interests.References
1.The Lardil Peoples v State of Queensland  FCA 298
2.Commonwealth of Australia v Yarmirr  208 CLR 1
3.Western Australia v Ward  191 ALR 1
4.Yorta Yorta Aboriginal Community v Victoria  194 ALR 538