Science and Research
John Voumard, Inquiry Chair
© Commonwealth of Australia, 2000
ISBN 0642547157
4.1 Debate about methods of regulating access to biological resources has been complicated by a lack of understanding about who owns the resources in question. The issues of ownership, sovereignty and control of biological resources were addressed in the Commonwealth State Working Group discussion paper Managing Access to Australia's Biological Resources: Developing a Nationally Consistent Approach. Many submissions to the Inquiry also raised the issue, commenting on the importance of clarifying the ownership of biological resources in Commonwealth areas.
4.2 I believe stakeholders need to understand the law regarding ownership of biological resources and have therefore included in this report excerpts from the legal advice which the Inquiry sought on the issue.5 However, I do not propose to make any recommendations which would affect the existing ownership arrangements.
4.3 The advice explains the legal status of the elements of the terrestrial and marine biota affected by differing forms land tenures and sovereignty in Commonwealth areas. The effect of the advice is that in all Commonwealth areas, it is possible to determine either a legal owner of biological resources or a holder of the sovereign authority to control access and derive benefits from the biological resources.
4.4 The Commonwealth is the owner of biological resources in the land which it owns in accordance with the common law principles discussed below. The Commonwealth has not legislated to vest property in itself in the biological resources in these areas.
4.5 Ownership of biological resources in land leased by the Commonwealth will be determined in accordance with the common law principles discussed below and, in relation to leased land in the States and self-governing territories, in accordance with any relevant law of the State or Territory.
4.6 At common law, ownership of land includes all the substrata below the surface. Natural things attached to land (or its substrata) or growing on (or in) it, whether cultivated or not, form part of the land and will be the property of the owner of the land. It would seem to follow that biological resources generally that are attached to or growing on or in land would be regarded as the property of the landowner. The common law rule would be subject to valid legislation or to any agreement (lease, licence, contract) to the contrary into which the landowner had entered.
4.7 The common law recognises two distinct classes of animals: domestic animals and wild animals.
4.8 At common law, there is no absolute property in wild animals while they are alive. A person may gain only a qualified property that is defeasible (ie it may be terminated or annulled). This qualified property may be gained in three circumstances:
4.9 In these circumstances title is retained only while the animal is in the person's keeping or actual possession. If the animal regains its natural liberty, with no 'mind to return' and not under pursuit, its former owner's property ceases and may be taken by another person.
4.10 The limited property rights in relation to wild animals would be subject to any valid legislation (eg restricting the right to possess wild animals) or any agreement under which a person may have parted with possession.
4.11 At common law, when a wild animal is killed or dies, absolute property vests in the owner or occupier of the land upon which the animal dies, or in the grantee or licensee of the shooting or sporting rights.
4.12 It would seem likely that biological resources generally that are not attached to or do not form part of land would likely be regarded in the same way as wild animals at common law.
4.13 Generally speaking no-one may own (have exclusive proprietary rights in) free swimming fish and other biological resources in the water column of the sea, the foreshore, and tidal, navigable (and possibly all navigable) internal waters. On the other hand, biological resources that are attached to, or that are usually in contact with, the beds and banks of internal waters will be owned by the owner of the beds and banks (generally the Crown).
4.14 The common law has long recognised the existence of public (non-proprietary) rights to fish and navigate which exist independently of and are not subject to the existence of any proprietary rights. It has also long been recognised that these public rights exist in the area of the foreshore (ie between high and low water marks) and in respect of tidal, navigable waters which lie inland, where property has usually been held by the courts to be vested in the Crown.
4.15 The public right to fish applies without doubt to free-swimming fish and, by extension, it would seem to other biological resources in the water column. However, unlike offshore areas (where the Crown did not historically have title to the seabed), the public right to fish in internal waters does not extend to marine wildlife which normally remains in contact with the beds and banks of internal waters.
4.16 Being a public not a proprietary right, the right to fish is freely amenable to abrogation or regulation by a competent legislature.6
4.17 The Commonwealth has constitutional power to enact laws in relation to the coastal sea, continental shelf and Exclusive Economic Zone on the basis of the physically external aspect of the external affairs power (s51(xxix) of the Constitution) and on the basis of other Commonwealth powers such as the fisheries power (s51(x)).7
4.18 The common law has not allowed private rights to interfere with the right of the public to freely navigate the seas below the low-water mark and to exploit its resources. Rather, the common law has consistently given priority to the greater public interest in maintaining the seas as public highways open to all and in the common sharing of its resources as against all private interests and even as against the Crown. In these waters, it has been held that the public share a right in common with the people of all nations to fish and to navigate, subject to the Parliament reserving fisheries in waters adjacent to its coast to its own nationals and otherwise subject to statutory regulation and restriction.
4.19 Application of the public rights to fish and to navigate is not dependent upon the vesting of any proprietary rights in the Crown. They apply irrespective of whether the Crown has a proprietary interest although, where the two coincide, the public rights operate to limit the extent of the Crown's title. Accordingly, these rights have been regarded as applying in the waters below the low-water mark, in the territorial sea and generally in the high seas and irrespective of whether the Crown was regarded as having a title to those areas.
4.20 The public right to fish in the sea without doubt applies to free-swimming fish (with the exception of 'royal fish' which are part of the prerogatives of the Crown). Further, the law in Australia is that the right, at least as it applies to sea areas, includes the right to freely take shell-fish and other marine life attached to the seabed, as well as free-swimming fish.8 As noted in relation to internal waters, the public right to fish in the sea is subject to abrogation or regulation by a competent legislature.
4.21 The Coastal Sea is the inner three nautical mile strip of the Territorial Sea measured from the Territorial Sea baseline. Power to legislate and title to the seabed within this area is vested in the adjacent State or Northern Territory by specific Commonwealth legislation. The Coastal Sea is excluded from the scope of Commonwealth areas for the purposes of s301 of the EPBC Act. See Chapter 8 for a more detailed discussion.
4.22 The Territorial Sea is a 12-nautical-mile-wide strip of sea offshore from the Territorial Sea baseline. Section 6 of the Seas and Submerged Lands Act 1973 ('SSL Act') declares that 'sovereignty' in respect of the Territorial Sea, the airspace over it and its bed and subsoil is vested in and exercisable by the Crown in the right of the Commonwealth. This reflects the position under Article 2 of the United Nations Convention on the Law of the Sea. Sovereignty signifies independence. That is, a right to exercise in that area, to the exclusion of any other State, the functions of a State. However the proclamation of a territorial sea and the acquisition of sovereignty over that zone, did not of itself result in the Commonwealth acquiring proprietary rights. In particular, the Commonwealth did not declare in the 1990 proclamation of the territorial sea, nor has it done so subsequently, that it claimed proprietary rights to the resources located within the waters and seabed of the Territorial Sea. Consequently, the Crown has no proprietary rights over the biological resources of the waters and seabed until, by legislative or executive act, ownership of property is vested in the Crown.
4.23 Accordingly (subject to the operation of s246 of the EPBC Act) no-one presently owns the biological resources of the Territorial Sea, and the public right to fish (including the right to take shell-fish and other marine life attached to the seabed) applies, in the Territorial Sea, subject to competent legislation.
4.24 The United Nations Convention on the Law of the Sea provides that the coastal State exercises, over the continental shelf, sovereign rights for the purpose of exploring it and exploiting its natural resources. It also provides that these rights are exclusive in the sense that, if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State. The 'natural resources' consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species (ie organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil).
4.25 Under s11 of the SSL Act it is declared 'that the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purpose of exploring and exploiting its natural resources, are vested in and exercisable by the Crown in the right of the Commonwealth'. This section does not however purport to vest ownership of the resources in the Commonwealth but it is intended to indicate both to the international community and the Australian States and Territories that the control over exploration and exploitation of the natural resources of the continental shelf lies with the Commonwealth.
4.26 The United Nations Convention on the Law of the Sea provides that, in the exclusive economic zone, the coastal State has sovereign rights for exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the water column, and seabed with regard to other activities for the economic exploitation and exploration of the zone, such as production of energy from the water, currents and winds. Unlike the continental shelf, these rights are not expressed to be 'exclusive', in the sense that they do not arise until a coastal State asserts its rights over the resources. Also unlike the continental shelf, the Convention does not define what the 'natural resources' are for the purposes of the exclusive economic zone. Presumably, however, biological resources, as defined in the EPBC Act, would be natural resources for the purposes of the Convention.
4.27 Australia has asserted its sovereign rights in the exclusive economic zone. Section 10A of the SSL Act declares and enacts that the rights and jurisdiction of Australia in its declared exclusive economic zone are vested in and exercisable by the Crown in right of the Commonwealth. As with the continental shelf, this section does not, however purport to vest ownership of the resources on the seabed or in the water column of the exclusive economic zone in the Commonwealth.
4.28 The 'sovereign rights' which Australia has in relation to the continental shelf and the exclusive economic zone are specific rights accorded to the coastal State under international law and are to be distinguished from the more comprehensive rights inherent in the concept of 'sovereignty' discussed above in relation to the territorial sea of Australia. Therefore any legislation, be it State or Commonwealth, which purported to grant title to areas of the sea or of the seabed beyond 12 nautical miles would be inconsistent with international law.
4.29 The nature of Australia's sovereign rights is not entirely clear as a matter of international law. However, the view on which the Commonwealth has acted is that they are not proprietary rights. Therefore, in the absence of legislation, the Commonwealth does not have a proprietary right in the fish and other marine living resources that occupy the exclusive economic zone or the sedentary species that occupy the continental shelf, nor does any other person. The Commonwealth could, through legislation, declare its ownership of those resources but has not done so. In considering any legislation, account would have to be taken of Australia's rights and entitlements under the United Nations Convention on the Law of the Sea, and the rights of other States to have access to certain biological resources. It is considered doubtful whether a claim of ownership would be consistent with the position under the Convention, particularly were a claim to ownership to prejudice the position of other States in relation to exploitation of biological resources. Until the present time, however, the Commonwealth has not found it necessary to claim ownership of biological resources in any of the marine areas under its jurisdiction and control.
4.30 The ownership of biological resources will not be affected by the EPBC Act (other than by s246 in relation to cetaceans). The exercise of rights by the owner of biological resources may however be subject to particular provisions of the Act. For example, in so far as biological resources are members of a listed species under Part 13 of the Act, the taking etc in a Commonwealth area is subject to Part 13. Listed threatened and migratory species are also matters of national environmental significance, and action that has, will have or is likely to have a significant impact on a matter of national environmental significance are referred to as 'controlled actions' and prohibited, unless certain conditions relating to approval are met.
4.31 Where biological resources are in a Commonwealth reserve that is not Commonwealth owned land, such as at Uluru-Kata Tjuta and Booderee National Parks and parts of Kakadu National Park, the rights of the land owner as owner of biological resources may be regulated by the EPBC Act or regulations made under the Act in relation to Commonwealth reserves. For example s354(1)(a) of the Act requires that a member of a native species be taken etc in accordance with a management plan for the reserve, although the Act would not affect the exercise of 'traditional' rights to use Aboriginal land in accordance with the Aboriginal Land Rights (Northern Territory) Act 1976 (s71) or native title rights in accordance with the Native Title Act 1993. Subsection 8(2) of the EPBC Act provides that the operation of those Acts is not affected by the EPBC Act.9
4.32 People with an interest in land which gave them a right of exclusive possession may exclude other people from that land, and thereby prevent them accessing biological resources on that land. For example, if the Commonwealth has a right of exclusive possession in relation to land (whether because it is the owner of the land, or a lessee) it would have the right, subject to any applicable law abrogating that right, to exclude or control access by others to the land, and thus control access to biological resources on the land.
4.33 However, within the limits of their respective constitutional powers, the States and the Commonwealth would have power to enact laws permitting people to enter onto land for the purpose of accessing biological resources on that land.
4.34 The Commonwealth has exclusive power, under s52(i) of the Constitution, to make laws with respect to places acquired by the Commonwealth for public purposes (ie purposes for which the Commonwealth has power to legislate). This power would permit it to regulate access to biological resources in relation to those 'Commonwealth areas' which are 'Commonwealth places' for the purposes of s52(i).
4.35 It also has power, under s122 of the Constitution, to make laws for the government of any territory surrendered by any State, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth. This power would permit it to make laws regulating access to biological resources in any Territory.
4.36 Section 301 itself is a law controlling access to biological resources in 'Commonwealth areas'. The definition of 'Commonwealth areas' appears to be based on the Commonwealth's constitutional powers discussed above, as well as the external affairs power.10
4.37 It is not possible to make any definitive, general statement as to the ownership of all ex situ collections of biological resources. Each collection would have to be considered on its own merits having regard to a range of factors, including the ownership, if any, of the material when it was in situ and the circumstances under which the material passed into the possession of the ex situ holder, including the terms and conditions of any relevant agreement, or any relevant legislation. I have considered this issue and have made recommendations suggesting a way forward at Chapter 8.
4.38 Prima facie, the intellectual property rights in any processes or products (ie patent rights) derived from or developed from ex situ collections of biological resources held by Commonwealth agencies will belong to the person responsible for developing those processes or products (the inventor).11 This is regardless of the ownership of any resources from which those processes or products are derived, or where those resources may be held.
4.39 However, it would be open to a Commonwealth agency to permit access only on the condition that intellectual property rights in any products derived from these resources are vested in a certain way, eg jointly in the inventor, the Commonwealth and a representative of the traditional owners.
4.40 From the advice above it is clear that where an authority is able to control access to areas containing biological resources and to control activities within those areas, it is able to derive the same benefits and exercise the same control as if it owned the resources in the conventional sense. This clarification has informed the Inquiry's considerations in developing a flexible and practical scheme which contributes to development of a nationally consistent approach.
A
The States and the Northern Territory would also have power to enact laws in relation to biological resources in this area:
Paragraph 5(c) of the Coastal Waters (State Powers) Act 1980 and Coastal Waters (Northern Territory Powers) Act 1980 provide that the legislative powers under the constitution of each State and the Northern Territory (Self-Government) Act 1976 extend to the making of laws with respect to fisheries in Australian waters beyond the outer limits of the coastal waters of the States and the Northern Territory. The laws must be laws applying to or in relation to those fisheries only to the extent to which those fisheries are to be managed in accordance with the laws of the relevant State or the Northern Territory, under an arrangement to which the Commonwealth and the State or the Northern Territory are parties.
More generally, each State and the Northern Territory has a general extra-territorial competence to legislate for the peace, order and good government of the State or the Northern Territory provided there is a sufficient connection between the enacting State or the Northern Territory and the extra-territorial persons, things and events on which a law operates. The test of a relevant connection is liberal '... any real connection -- even a remote or general connection -- between the subject matter of the legislation and the State' (Pearce v Florenca (1976) 135 CLR 507 at 518 per Gibbs J). Note that this general legislative competence is not affected by the Coastal Waters (State Powers) Act 1980 and Coastal Waters (Northern Territory Powers) Act 1980. Paragraph 7(b) of each Act provides that nothing in the Act should be taken to exclude any other powers which States or Northern Territory might have apart from the Act to make laws having extra-territorial effect.
Any inconsistency between legislation of the Commonwealth and legislation of a State or the Northern Territory would, as noted earlier, be resolved in favour of the Commonwealth legislation.
B
The States and self-governing Territories are able to enact laws that will apply to Commonwealth land. In the States, if Commonwealth land is not a 'Commonwealth place' for the purposes of s52(i) of the Constitution, a State law will apply of its own accord, subject to inconsistency with a Commonwealth law (in which case, s109 of the Constitution provides that when a State law is inconsistent with a Commonwealth law, the latter prevails, and the former is, to the extent of the inconsistency, invalid, ie inoperative), or if it is prevented from applying by virtue of any implied Commonwealth immunity. If Commonwealth land is a Commonwealth place for the purposes of s52(i) of the Constitution then a State law will apply to the extent permitted by s4 of the Commonwealth Places (Application of Laws) Act 1970. This section operates to apply the provisions of State law as Commonwealth law in and in relation to Commonwealth places, except to the extent that the State law would have been invalid or inoperative for a reason other than s52(i) of the Constitution, eg inconsistency with a Commonwealth law, or if it is prevented from applying by virtue of any implied Commonwealth immunity.
The Commonwealth Parliament has legislated under s122 of the Constitution to empower the Northern Territory and Australian Capital Territory legislatures to make laws for the peace, order and good government of their Territories. The Commonwealth places power in paragraph 52(i) does not prevent the legislative powers conferred by the Northern Territory (Self-Government) Act 1978 and the Australian Capital Territory (Self-Government) Act 1988 from operating in respect of Commonwealth places in those Territories. The application of Territory laws is however subject to the exceptions referred to earlier in relation to State laws ie inconsistency with a Commonwealth law (not because of s109 of the Constitution, which applies to State laws, but because of the general principle that Territory laws cannot be repugnant to Commonwealth laws) or if their application is prevented by virtue of any implied Commonwealth immunity.
Inconsistency between a law of the Commonwealth and the law of a State or Territory may arise when the State or Territory law would directly qualify or impair the operation of the Commonwealth law. It may also arise when although there is no 'direct inconsistency' the Commonwealth Parliament has indicated that it intends its law to 'cover the field' with respect to the relevant subject matter to the exclusion of any State or Territory law dealing with the same subject. I note in this regard that the EPBC Act is, prima facie, not intended to cover the field. Section 10 provides that the Act is not intended to exclude or limit the concurrent operation of any law of a State or Territory, except so far as the contrary intention appears.
In relation to Commonwealth land in Norfolk Island the position will be the same as in relation to the Northern Territory and Australian Capital Territory. The legislative power conferred on the Norfolk Island Legislative Assembly by the Norfolk Island Act 1979 to make laws for the peace, order and good government of the territory enable it to make laws that will apply to Commonwealth land, subject to any inconsistency with a Commonwealth law or any implied Commonwealth immunity.
I observe that in the territories of Christmas Island and Cocos (Keeling) Islands the laws of the State of Western Australia are in force generally in each territory under the Christmas Island Act 1958 and the Cocos (Keeling Islands) Act 1955 respectively. Those Acts also provide that a State law that is in force in the territory has no effect so far as it is inconsistent (not capable of operating concurrently) with a Commonwealth Act.
