Academic journal article Melbourne University Law Review

The Crown's Radical Title and Native Title: Lessons from the Sea

Academic journal article Melbourne University Law Review

The Crown's Radical Title and Native Title: Lessons from the Sea

Article excerpt

[The High Court's decision in Commonwealth v Yarmirr raised the important question of whether the Crown's acquisition of sovereignty over the territorial sea was accompanied by the vesting of radical title which could thus be burdened by native title. Prior to this decision, the High Court in Commonwealth v WMC Resources Ltd had considered the Crown 'S title to the continental shelf beyond the territorial sea and, in doing so, declared that the Crown's radical title does not exist below low-water mark. Consequently, in Yarmirr, the majority of the High Court drew a distinction between the Crown's radical title to land and the Crown's 'sovereign rights and interests' to the territorial sea. Nevertheless, the Yarmirr High Court indicated, without deciding, that as a result of legislation effecting the offshore constitutional settlement, radical title may now be the appropriate 'tool' with which to analyse the Crown's rights to the territorial sea. Indeed, as a member of the Full Federal Court in Yarmirr, Merkel J specifically referred to Brennan Cd's key reference to radical title in WMC, and suggested that the two concepts, radical title and 'sovereign rights and interests', are analogous. This two part article, therefore, examines the legal nature of the Crown's title to the sea (including the intertidal zone and the territorial sea as well as the continental shelf and the Exclusive Economic Zone beyond the territorial sea) to determine whether any analogy can be drawn between such title and the Crown's title to land. Part One considers the position before the High Court 's decision in Yarmirr and Part Two examines the Yarmirr High Court decision and beyond, including the Federal Court decisions in Lardil Peoples v Queensland, Gumana v Northern Territory and Akiba v Queensland [No 2]. The decisions considered in Part Two are significant from a native title perspective because they have consistently denied recognition of exclusive native title rights to the sea on the basis that these rights are inconsistent with the public rights of fishing and navigation. It will be seen, however, that both authority and sound legal principle support recognition of exclusive native title rights to the sea, including the intertidal zone and Exclusive Economic Zone.]

CONTENTS

  I Introduction
 II The Concept of Radical Title
III The Crown's Title to the Territorial Seabed and Beyond: The
    Position before Mabo
 IV The Crown's Title to the Territorial Seabed and Beyond
    Post-Mabo: WMC and Yarmirr FCAFC
    A WMC: Brennan CYs Judgment--Radical Title versus Statutory
      Sovereign Rights
    B Yarmirr FCAFC
      1 The Majority: Statutory Extension of Radical Title and
        Selective Operation of the Common Law
      2 Merkel J: Common Law Sovereign Rights Equivalent to
        Radical Title
    C WMC: The Other High Court Judges--Common Law Extension of
      Radical Title to the Territorial Sea
  V Summary

I INTRODUCTION

This article examines the legal nature of the Crown's title to the sea, including the intertidal zone, (1) the territorial sea and both the Exclusive Economic Zone and continental shelf beyond the territorial sea, (2) to determine whether any analogy can be drawn between such title and the Crown's radical title to land. The principal question sought to be answered is: does the juridical nature of the title acquired by the Crown upon acquisition of sovereignty beyond high and low-water mark, and its concomitant effect on native title, assist in elaborating the nature of the title acquired by the Crown upon acquisition of sovereignty over land? Two fundamental propositions emerge. First, the Crown's title derived from sovereignty, whether to land or to the sea, is analogous and should therefore operate equally in relation to native title. Secondly, and contributing to a paradigm shift in the conventional understanding of native title, it may be possible to recognise exclusive native title rights to the sea. …

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