Can native title cover sea country in Australia?

Can native title cover sea country in Australia?

Yes. Native title can be recognised over sea country, including the seabed and waters within the exclusive economic zone. Sea country claims are made under the same Native Title Act 1993 framework as land claims, and require demonstration of continued connection to the sea under traditional law and custom.

The recognition of sea country rights is particularly significant for Aboriginal and Torres Strait Islander communities along the Queensland coast, in the Torres Strait, and in other coastal regions across Australia. For these communities, the sea and its resources are integral to their identity, culture and livelihood.

What sea country rights have been recognised in Australia

Courts have recognised native title over the waters, seabed and intertidal zones of several areas in Australia. The content of those rights varies by determination, but has included:

• the right to access and be present on sea country
• the right to take fish, dugong, turtles and other marine resources for personal, domestic and non-commercial communal purposes
• the right to perform ceremonies and maintain spiritual relationships with sea country
• in some cases, the right to control access by others

The strength of sea country rights in a particular determination depends on the connection evidence and the terms of the orders.

What must be demonstrated for a sea country claim

The requirements for a sea country claim mirror those for a land claim. The claim group must demonstrate:

Continued connection. The group must show that it has maintained its traditional laws and customs in relation to the sea area from before British sovereignty to the present. The nature of that connection, the ceremonies, the knowledge of sea country, the practices of fishing and gathering, all form part of the evidence.

Unextinguished rights. Native title over sea country can be extinguished, just as it can over land. Grants of exclusive rights to others, such as commercial fishing rights, can affect the native title rights that can be recognised. The claim must identify what rights remain.

Identification of the claim group. The group asserting sea country rights must be properly identified and authorised, on the same basis as for a land claim.

The interaction with other laws and users

Sea country native title exists alongside other legal interests, including Commonwealth and State fisheries laws, maritime law, and the rights of other users such as commercial fishers and recreational boaters.

Non-exclusive sea country native title does not give holders the right to exclude all other users. It gives them the specific rights recognised in the determination. The interaction between those rights and other legal frameworks is an area where specific legal advice is essential.

Sea country and cultural significance

For many Traditional Owner groups, sea country is not merely a source of food. It is the domain of spiritual beings, the site of ceremonies, and the repository of cultural knowledge that has been maintained for generations. The recognition of sea country rights is, in this sense, a recognition of a relationship to Country that is as deep and long-standing as the relationship to land.

David Saylor has represented Traditional Owner groups in sea country claims and understands the cultural context that informs them.

Getting advice

If your group is considering a sea country claim, or if you have an existing claim and want to understand the sea country component, speak with David Saylor.

Call (07) 4431 0074 or 0474 244 447, or email david@saylorlegal.com.au.