Aboriginal Sea Rights Confirmed in Australia's High Court

By Bob Burton

CANBERRA, Australia, October 17, 2001 (ENS) - A landmark ruling handed down by the High Court of Australia late last week has confirmed the validity of limited Aboriginal rights over 2,000 square kilometres of the seas adjoining traditional lands off the north coast. The decision has been cautiously welcomed by Aboriginal and environmental groups.

The ruling ends a seven year long legal battle by Mary Yarmirr, representing six clans from the Croker Island, approximately 20 kilometres (12.5 miles) off the coast of the Northern Territory, to claim traditional rights of management and control over seas adjoining their lands.


Mary Yarmirr on a Croker Island beach (Photo courtesy Northern Land Council)
Addressing a conference earlier this year, Yarmirr explained that sea rights is more than just a legal term. "When I talk about sea country, I am not talking only about the waters of the sea. I am talking about the seabed and the reefs, and the fish and animals in the sea, and our fishing and hunting grounds, and the air and clouds above the sea, and about our sacred sites and ancestral beings who created all the country," she said.

The Croker Island claim was the first test of whether or not the Native Title Act extends to recognize indigenous rights over the seas.

The High Court upheld a 1998 Federal Court decision that Yarmirr and the six Croker Island clans do have rights over the seas but only to the extent that they do not impinge on the commercial rights of the fishing, oil, tourism and other industries.

"The [1998] decision was an important first step to recognition of our rights. It meant we could be involved in the use of our seas, and it would help us protect our hunting and fishing grounds, protect important animals such as dugong and turtles, and prevent pollution and overfishing," Yarmirr said.

In February this year, Yarmirr appealed the Federal Court decision to the High Court of Australia in the hope of confirming the existence of more extensive rights.

The Australian government also appealed, but against the decision, arguing that native title could not exist below the low tide mark. By a margin of six to one the High Court rejected the appeals by both Yarmirr and the Australian government.

Yarmirr responded to the High Court decision with caution. "The decision confirms what we have always known: our law and our rights extend out into the seas," she said.


Beach on Croker Island (Photo courtesy Northern Land Council)
"However we are disappointed that the High Court has not yet fully understood the extent of our rights to the seas. Australian law is still blind to the reality of our law, but we will use the decision as a platform to fight for greater and stronger recognition," she said.

With approximately 85 percent of the coastline of the Northern Territory owned by Aboriginal groups and another 190 native title claims including at least some areas of the seas, the decision has major implications.

A Northern Territory conservation group, the Marine and Coastal Community Network, sees the extension of Aboriginal rights as leading to better marine management than exists at the moment.

"Aboriginal people have a really strong stewardship ethic and a lot of cultural law and I think that strengthening that recognition of people's cultural responsibilities and rights would empower people to look after their area," says network coordinator Patrick O'Leary.

The Queensland coordinator for the Wilderness Society, Lyndon Schneiders, also welcomes the recognition of Aboriginal rights over the sea. "It has been the Aboriginal people on Cape York who have been the strongest critics of the trawling industry and overfishing," he said.

Anthony Esposito, the co-ordinator of the Native Title and Protected Areas Project, a network of environment groups in Queensland, believes the decision has the advantage of putting the traditional knowledge of indigenous people at the center of future management of much of northern Australia. "In general terms, there tends to be greater respect for the environment from their cultural perspective," he said.

"Most importantly their traditional knowledge and the set of relationships that governs the whole ecological cycle of their societies in relation to plants and animals, is a form of management best suited to the environment. Most of the problems we have come from the misuse of the environment and misunderstanding of the Australian native landscape," Esposito said.

In a dissenting opinion, High Court Justice Michael Kirby rejected the idea accepted by the majority of his colleagues that Aboriginal people are entitled to be consulted but not to have the power to make decisions over areas they had traditionally managed for thousands of years.


High Court Justice Michael Kirby (Photo courtesy High Court of Australia)
"A right to be 'consulted' would be empty without an underlying proprietary basis. Where one has no power to give or refuse permission based on actual control, it is difficult for consultation to be anything but a charade. If the claimants have demonstrated effective assertion of their rights, the Act requires such rights to be recognised and protected," Justice Kirby wrote in his dissenting judgement.

The view of the other six judges, he argued, was "unduly narrow. It should be reversed."

The Australian Attorney General, Daryl Williams, welcomed the court's finding that if native title rights over the sea exist they cannot be to the exclusion of other people who have been issued with various licences by the Commonwealth and Northern Territory governments for resource extraction from the seas.

The Australian Seafood Industry Council, which opposed the appeal by Yarmirr, was unavailable for comment.