...The seas and reefs...
The sea and reefs which surround the Murray Islands are central to the economic and social life of the Murray Islanders.
The plaintiffs claimed that:
* Since time immemorial, the laws, customs and traditions of Meriam people have included rights to land on the Islands and rights to the sea and sea beds extending to the fringing reefs surrounding the Islands and to the Great Barrier reef
* There are numerous areas of seas, sea beds and reefs which are severally owned and vested collectively in a particular family group
* Each family group had rights and duties in relation to their respective family group areas
* The head of each family had the right and duty of allocating portions of areas to be used by individual members of the respective family groups
* The plaintiffs continue to own particular parts of the surrounding seas, sea beds and reefs and to have questions decided concerning the same in accordance with the laws, customs, traditions and practices of the Meriam people.
The evidence from the Meriam plaintiffs explained clan and family relationships to the lagoons, fish traps and reefs which adjoined or lay offshore from their areas of land. However, Justice Moynihan was not satisfied that the evidence established any form of exclusive rights to these areas, or at least no active enforcement of these rights.
Nonie Sharp contends that 'Justice Moynihan made the assumption that rights must be exercised in order to keep them alive, a position not (necessarily) held by the Meriam.' Prompted by Upendra Baxi's article on the Milirrpum decision, Sharp goes on to make an interesting comparison between the judgments of Justice Blackburn in Milirrpum and Justice Moynihan in Mabo:
'The notion that "failure to exercise a right is assumed to extinguish it" is, as Baxi points out in the context of Justice Blackburn's finding, a matter of considerable variation between legal systems. He makes a distinction of importance to the Meriam case: "To have a right is to nurse a potential jural relation; to exercise it is to bring forth an actual relation..." Failure to consider the possibility of analytic separation between having and exercising a right, Baxi concludes, constitutes one of Milirrpum's "principal vulnerabilities". The same vulnerability, it would seem, is exhibited in this case with respect to the sea rights of the Murray Islanders-The Meriam plaintiffs - explained how they allowed other Meriam to use their foreshore, reef flats and seas, giving reasons for the change; it was unthinkable to them that anyone would take this to mean the relinquishment of those rights. Yet this is precisely what Justice Moynihan thought. Earlier he had concluded "that there was a system providing for access to the produce of the reef flat areas", "that boundaries played a role in this", that the system seems "to have been lost and replaced by a more pragmatic approach" and that he therefore rejected the plaintiffs' claims to areas of reef and reef flats.'
McIntyre has commented that, given the reasoning of the High Court in Mabo No 2, Justice Moynihan's refusal to recognise the plaintiffs rights to the claimed sea areas may not constitute a significant barrier to future native title claims to sea areas:
'[In the proceedings before Justice Moynihan] there was heavy emphasis upon the rights of one individual islander as against the other. -Ultimately however, the High Court in the declarations it made did not distinguish between individual islander's rights -[but] dealt with the right on a communal basis and the exclusivity upon which they focused was that between the Meriam people and the rest of the World. That declaration, whilst it was confined to land because of the way in which the matter proceeded to the court, could equally be applied to those areas of the sea which could be claimed by a communal people. Consequently the conclusion of Moynihan J as to individual rights inter se among Islanders may be of no significance at all.'
The plaintiffs claimed that:
* Since time immemorial, the laws, customs and traditions of Meriam people have included rights to land on the Islands and rights to the sea and sea beds extending to the fringing reefs surrounding the Islands and to the Great Barrier reef
* There are numerous areas of seas, sea beds and reefs which are severally owned and vested collectively in a particular family group
* Each family group had rights and duties in relation to their respective family group areas
* The head of each family had the right and duty of allocating portions of areas to be used by individual members of the respective family groups
* The plaintiffs continue to own particular parts of the surrounding seas, sea beds and reefs and to have questions decided concerning the same in accordance with the laws, customs, traditions and practices of the Meriam people.
The evidence from the Meriam plaintiffs explained clan and family relationships to the lagoons, fish traps and reefs which adjoined or lay offshore from their areas of land. However, Justice Moynihan was not satisfied that the evidence established any form of exclusive rights to these areas, or at least no active enforcement of these rights.
Nonie Sharp contends that 'Justice Moynihan made the assumption that rights must be exercised in order to keep them alive, a position not (necessarily) held by the Meriam.' Prompted by Upendra Baxi's article on the Milirrpum decision, Sharp goes on to make an interesting comparison between the judgments of Justice Blackburn in Milirrpum and Justice Moynihan in Mabo:
'The notion that "failure to exercise a right is assumed to extinguish it" is, as Baxi points out in the context of Justice Blackburn's finding, a matter of considerable variation between legal systems. He makes a distinction of importance to the Meriam case: "To have a right is to nurse a potential jural relation; to exercise it is to bring forth an actual relation..." Failure to consider the possibility of analytic separation between having and exercising a right, Baxi concludes, constitutes one of Milirrpum's "principal vulnerabilities". The same vulnerability, it would seem, is exhibited in this case with respect to the sea rights of the Murray Islanders-The Meriam plaintiffs - explained how they allowed other Meriam to use their foreshore, reef flats and seas, giving reasons for the change; it was unthinkable to them that anyone would take this to mean the relinquishment of those rights. Yet this is precisely what Justice Moynihan thought. Earlier he had concluded "that there was a system providing for access to the produce of the reef flat areas", "that boundaries played a role in this", that the system seems "to have been lost and replaced by a more pragmatic approach" and that he therefore rejected the plaintiffs' claims to areas of reef and reef flats.'
McIntyre has commented that, given the reasoning of the High Court in Mabo No 2, Justice Moynihan's refusal to recognise the plaintiffs rights to the claimed sea areas may not constitute a significant barrier to future native title claims to sea areas:
'[In the proceedings before Justice Moynihan] there was heavy emphasis upon the rights of one individual islander as against the other. -Ultimately however, the High Court in the declarations it made did not distinguish between individual islander's rights -[but] dealt with the right on a communal basis and the exclusivity upon which they focused was that between the Meriam people and the rest of the World. That declaration, whilst it was confined to land because of the way in which the matter proceeded to the court, could equally be applied to those areas of the sea which could be claimed by a communal people. Consequently the conclusion of Moynihan J as to individual rights inter se among Islanders may be of no significance at all.'
Keywords: aboriginal law, Australian Court Case, Blackburn, Justice, Great Barrier Reef, indigenous law, McIntyre, Greg, Meriam culture, Milirrpum v Nabalco Pty Ltd, 1971 , Moynihan, Justice Martin, Murray Island, No Ordinary Judgement, plaintiffs, reef, sea, sea rights, Sharp, Dr. Nonie
Sources: McIntyre, Greg 'Mabo and Sea Rights: Public Rights, Property Rights or Pragmatism?', in 'Turning the Tide: Conference on Indigenous People and Sea Rights', Northern Territory University, 1993 at p 108 ; Sharp, Nonie, 1996, 'No Ordinary Judgment', Aboriginal Studies Press, pp 194-95.
Author: Kenna, Jonathan
Author: Kenna, Jonathan