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Sea Rights Claims - Land Rights Claims - Native Title

Claims - Native Title

The first native title claim to the seas under the Native Title Act to reach the High Court was the Croker Island Seas Claim, often dubbed the "Mabo of the Seas".

The Croker case was decided by Justice Olney of the Federal Court in July 1998. The Court found that native title exists over the entire area of sea and sea-bed which was claimed (2,000 square kms). This is a landmark decision because it was the first time that Australian Courts had recognised that native title exists over the sea.

However the decision was otherwise disappointing. It was a narrow and limited decision which means that Croker Island traditional owners will have little say regarding developments on their sea country.

This is because the Court characterised the native title as 'non-exclusive' and 'non-commercial'. In particular, the Court held that the Aboriginal law which provides that traditional rights are exclusive only applies to Aboriginal people, but not to non-Aboriginal people.

Traditional owner Charlie Warrdaja makes a point to Justice Howard Olney during a Croker Island native title hearing

In December 1999 the Full Bench of the Federal Court delivered its decision regarding appeals by the Commonwealth Government, and by the traditional owners. The Commonwealth had argued that, for technical legal reasons, native title cannot exist in offshore areas. The Court unanimously rejected the Commonwealth's argument.

The traditional owners argued that their native title is exclusive and means they have full control of their sea country. The majority of the Court rejected the traditional owners' argument although Justice Merkel dissented, holding that since English law has always recognised the concept of an 'exclusive fishery', offshore native title can also include an exclusive fishery.

Both the Commonwealth and the traditional owners lodged further appeals to the High Court. These were heard in February 2001, and a decision was delivered in September 2001. The High Court, by a six-to-one majority, upheld the Federal Court's decision.

However, as is often the case, the decision left open a number of legal issues, including whether native title can include an exclusive fishery. Further cases will inevitably test this proposition.