Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
A majority of the High Court (Gleeson CJ, Gaudron, Gummow and Hayne JJ) found that limited native title rights could be determined under the Native Title Act 1993 (NTA) in the offshore areas covered by the Croker Island native title claim. In doing so, it rejected the arguments of the Commonwealth that:
it was legally impossible for native title to exist offshore because the common law did not extend offshore and it is a requirement of the NTA that native title rights are recognised by the common law, or alternatively
because native title had been extinguished by the vesting of offshore waters and the seabed in the Northern Territory.
But it also rejected the claimants’ argument that it is possible to recognise exclusive native title rights even if those rights are subject to the international law right of innocent passage, the public right to navigate the seas and the rights of the holders of fishing licences. The majority decided that a native title right to exclude others would, as a matter of law, be inconsistent with other rights that are recognised as existing in offshore areas, particularly:
the common law public rights to navigate and to fish, and
the international right of innocent passage of ships through territorial waters.
Accordingly, it was reasoned, only non-exclusive native title rights can be determined offshore. In effect, the High Court confirmed the decision of the majority in the Full Federal Court, which in turn had confirmed the decision of the trial judge in the Federal Court, Justice Olney. Of the judges in the minority, only Justice Kirby supported the full extent of the claimants' argument. He adopted a similar position to Justice Merkel, the minority judge in the Full Federal Court decision. In effect, he agreed with the claimants' argument for qualified exclusive native title rights. But he also went further than Justice Merkel in stating that Justice Olney's original evaluation of the evidence of exclusivity was in error because it was an overly narrow approach. Justice McHugh and Justice Callinan had a more restrictive view than the majority. Justice McHugh felt bound by previous High Court precedent that, in his view, authoritatively established the proposition that the common law does not extend below the low water mark. In his view, the Native Title Act and the relevant parliamentary debates clearly show that the intention was to leave this question open and was definitely not to bring about a recognition that could not happen at common law. He concluded that the claimants could only achieve their objective by an amendment of the Native Title Act. Justice Callinan came to the same conclusion for broadly similar
reasons.
The result of the case is that the determination of native title rights will be in terms similar to those proposed originally by Justice Olney, namely:
the native title rights do not confer rights to the exclusion of all others;
the native title rights include free access to the sea and seabed within the claim area in accordance with traditional laws and customs for the purposes of:
travelling through or within the area;
fishing and hunting;
visiting and protecting places that are of cultural and spiritual importance; and
safeguarding cultural and spiritual knowledge.
Paul Burke, AIATSIS, Native Title Newsletter No 5/2001