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35 Melb. U. L. Rev. 1099 (2011)
The Crown's Radical and Native Title: Lessons from the Sea - Part Two - Yarmirr and beyond

handle is hein.journals/mulr35 and id is 1115 raw text is: THE CROWN'S RADICAL AND NATIVE TITLE:
LESSONS FROM THE SEA
PART TWO - YARMIRR AND BEYOND
ULLA SECHER*
[This two part article examines the legal nature of the Crown s title to the sea (including the inter-
tidal 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 considered the position before the High Court's decision in Com-
monwealth v Yarmirr and this Part examines the Yarmirr High Court decision and beyond, including
the Federal Court decisions in Lardil Peoples v Queensland, Gumana v Northern Territory and
Akibav Queensland [No 2]. The decisions considered in this Part 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 they are inconsistent with the public rights offishing and navigation. It will be
seen that both authority and sound legal principle support two propositions. First, the Crown's title
derivedfrom sovereignty, whether to land or sea, is analogous and should 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.]
CONTENTS
I     Introduction  ..........................................................................................................  1100
II    Yarm irr:  The  H igh  C ourt  ..................................................................................... 1101
A   Principal M ajority  Judgm ent  ................................................................... 1102
1   Territorial Reach of the Common Law......................   1102
2   Radical Title versus Common Law Sovereign Rights........... 1104
(a) Introduction of a 'Double' Inconsistency of Incidents
Test to Deny Exclusive Native Title to the Sea .............. 1106
(b) Two Objections to Non-Recognition of Exclusive
Native  Title  Rights to  the  Sea  ........................................ 1107
(i) Pre-Magna Carta Grants of Exclusive
Fisheries  ............................................................  1107
(ii) Inconsistency with Mabo's Presumptive
Recognition of Native Title.................. 1108
3   Statutory Extension of Radical Title to the Territorial Sea?....... 1112
4 Kirby J, the Other Majority Judge: Common Law Extension
of Radical Title to the Territorial Sea Revisited................ 1113
III   Post-Yarm irr  D evelopm ents  ................................................................................ 1115
LLB (Hons) (JCU), PhD (UNSW); Visiting Fellow, School of Law, The University of New
South Wales. The author would like to acknowledge the important contributions of the anony-
mous referees and the Melbourne University Law Review Editorial Board: their perceptive sug-
gestions and unremitting attention to detail were invaluable in the production of the article.
David Foster in particular provided extremely helpful comments for which the author is most
grateful. Responsibility for any errors remains the author's.

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