Commonwealth v Akiba
[2012] FCAFC 25
•14 March 2012
FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25
Citation: Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25 Appeal from: Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643 Parties: COMMONWEALTH OF AUSTRALIA v LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP AND OTHERS; LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP; COMMONWEALTH OF AUSTRALIA AND OTHERS File number(s): QUD 387 of 2010 Judges: KEANE CJ, MANSFIELD, DOWSETT JJ Date of judgment: 14 March 2012 Corrigendum: 26 April 2012 Catchwords: NATIVE TITLE – extinguishment – right to take marine resources for commercial purposes – 130 years of legislation controlling commercial fishing – whether simply regulatory in character or prohibitory.
STATUTORY INTERPRETATION – construction of legislation claimed to abrogate native title rights – requirement of a clear and plain intention so to do.
NATIVE TITLE – rights and interests – reciprocity based rights founded on a relationship to a person – whether content of rights include a right or interest “in relation to land or waters”: s 223(1), NT Act.
NATIVE TITLE – extent of determination area – criteria for determining “boundaries” of several marine estates – whether gaps between, or unused areas – “connection” to waters.
NATIVE TITLE – extent of determination area – definition of outer boundaries of the claim area – whether native title proved in whole area – whether connection to all of marine estate established.
Legislation: Continental Shelf (Living Natural Resources) Act 1968 (Cth)
Fauna Conservation Act 1974 (Qld)
Fish and Oyster Act 1914 (Qld)
Fish and Oyster Acts Amendment Act 1955 (Qld)
Fisheries Act 1887 (Qld)
Fisheries Act 1952 (Cth)
Fisheries Act 1957 (Qld)
Fisheries Act 1976 (Qld)
Fisheries Act 1994 (Qld)
Fisheries Amendment Act 1981 (Qld)
Fisheries Legislation Amendment Act 1985 (Cth)
Fisheries Management Act 1991 (Cth)
Fisheries Regulations 2008 (Qld)
Native Title Act 1993 (Cth)
Oyster Act 1886 (Qld)
Pearl Fisheries Act 1952 (Cth)
Pearl-shell and Beche-de-mer Fishery Act 1881 (Qld)
Queensland Fisheries Act 1887 (Qld)
Racial Discrimination Act 1975 (Cth)
Torres Strait Fisheries Act 1984 (Cth)
Torres Strait Islanders Act 1939 (Qld)Cases cited: Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) (2010) 270 ALR 564 referred to
Akiba v Queensland (unreported, FCA, 23 August 2010, Finn J) referred to
Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 cited
Branir Pty Ltd v Owston Nominees (No 2)Pty Ltd (2001) 117 FCR 424 cited
Commonwealth of Australia v Yarmirr and Others (2001) 208 CLR 1 discussed
Commonwealth v Yarmirr (1999) 101 FCR 171 discussed
Fejo v Northern Territory (1998) 195 CLR 96 applied
Gumana v Northern Territory (2005) 141 FCR 457 cited
Harper v Minister for Sea Fisheries (1989) 168 CLR 314 appliedLord Advocate v Wemyss (1899) 2 F (H.L.) 1 cited
Mabo v Queensland (No 1) (1998) 166 CLR 186 cited
Mabo v Queensland (No 2) (1992) 175 CLR 1 cited
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher and Others (1992) 35 FCR 359 cited
Neowarra v State of Western Australia [2003] FCA 1402 cited
Original Hartlepool Collieries Company v Gibb (1877) 5 Ch D 713 cited
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 cited
R v Lord (1864) 1 P.E.I. 245 cited
R v Sparrow (1990) 70 CLR (4th) 385 cited
Sampi v Western Australia [2005] FCA 777 cited
Western Australia v Commonwealth (1995) 183 CLR 374 cited
Western Australia v Ward (2002) 213 CLR 1 followed
Wik Peoples v The State of Queensland and others (1996) 187 CLR 1 followed
Yanner v Eaton (1999) 201 CLR 351 followed
Yarmirr v Northern Territory (1998) 82 FCR 533 discussedDate of hearing: 16-18 May 2011 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 237 Counsel for the Appellant: Ms R Webb QC Solicitor for the Appellant: Australian Government Solicitor Counsel for the State of Queensland Mr G Hiley QC, Mr J Waters and Ms H Bowskill Solicitor for the State of Queensland Crown Law Counsel for the Respondent: Mr R Blowes SC and Mr T Keeley Solicitor for the Respondent: Torres Strait Regional Authority Solicitor for the Respondent Fishing Parties Mr P Gore FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25
CORRIGENDUM
1.On the cover page of the Judgment, Orders and Reasons for Judgment, in the column next to “Parties”, the words “Commonwealth of Australia v Leo Akiba and George Mye on behalf of the Torres Strait Regional Seas Claim Group and others; Leo Akiba and George Mye on behalf of the Torres Strait Regional Seas Claim Group; Commonwealth of Australia and others” should read “Commonwealth of Australia v Leo Akiba and George Mye on behalf of the Torres Strait Regional Seas Claim Group and others named in the schedule; Leo Akiba and George Mye on behalf of the Torres Strait Regional Seas Claim Group; Commonwealth of Australia and others named in the schedule”.
2.The notice of appeal contained several parties who had ceased to be parties pursuant to the Orders of Finn J dated 23 August 2010. These have not been included in the schedule.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Keane CJ, Mansfield and Dowsett JJ. Associate:
Dated: 26 April 2012
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 387 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: COMMONWEALTH OF AUSTRALIA
AppellantLEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP
Cross-AppellantAND: LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP AND OTHERS
RespondentCOMMONWEALTH OF AUSTRALIA AND OTHERS
Cross-Respondent
JUDGES:
KEANE CJ, MANSFIELD, DOWSETT JJ
DATE OF ORDER:
14 March 2012
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.the appeal be allowed, and that the determination of native title made on 23 August 2010 be varied by adding after clause 5(b): “This right does not, however, extend to taking fish and other aquatic life for sale or trade”; and
2.the cross-appeal be dismissed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 387 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: COMMONWEALTH OF AUSTRALIA
AppellantLEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP
Cross-AppellantAND: LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP AND OTHERS
RespondentCOMMONWEALTH OF AUSTRALIA AND OTHERS
Cross-Respondent
JUDGES:
KEANE CJ, MANSFIELD, DOWSETT JJ
DATE:
14 March 2012
PLACE:
BRISBANE
REASONS FOR JUDGMENT
KEANE CJ AND DOWSETT J
The Torres Strait Regional Seas Claim was filed on 23 November 2001. The original application, as we will refer to it, purported to be made on behalf of the Torres Strait Regional Seas Claim Group (the Seas Claim Group), who are descendants of a number of identified Torres Strait Islanders. It appears that the requisite authority under the Native Title Act 1994 (Cth) (the NT Act) had not been obtained to make the original application, but all parties to this litigation agreed that this irregularity did not stand in the way of the determination by the learned primary judge.
In 2008 the Kaurareg and Gudang peoples filed native title claims, each of which overlapped with the area specified in the original application. The primary judge ordered that the original application be split into Parts A and B, with Part B consisting of the area of the overlap. The decision the subject of the present appeal relates only to Part A.
The original application sought a determination of native title rights and interests in a large part of the sea area of the Torres Strait. The occupation of the region by them and their ancestors was of an essentially maritime character. The sea is an integral presence in the lives and livelihood of the Islander communities which comprise the Seas Claim Group. Permanent human occupancy of the Torres Strait can be traced back 4,000 to 2,600 years. The continued presence of the Islanders in the Strait is self evident, as is their knowledge and exploitation of the marine resources of the Strait. The primary judge found that the assertion of sovereignty over the islands of the Strait by the British Crown “did not lead to the Islanders being dispossessed of their land or sea domains, or deprived of their traditional means of livelihood”: Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v Queensland (No 2) (2010) 270 ALR 564; [2010] FCA 643 at [6] (the Reasons).
At trial the Seas Claim Group contended that at sovereignty the members of the Seas Claim Group and their ancestors were members of one “society” for the purposes of the NT Act. This contention was disputed by the Commonwealth and the State of Queensland. The primary judge concluded that there is indeed a single Torres Strait Islander society and that it is the only relevant society. His Honour rejected the State of Queensland’s contention that there were thirteen societies and the Commonwealth’s contention that there were four societies made up of regional cluster groups of islands. His Honour held that the group rights are held by each of the thirteen island communities in respect of the marine estate associated with each island (at [492]).
The Seas Claim Group contended that their native title rights included the taking of fish and other marine resources for sale or trade and that this right had not been extinguished by legislation of the State of Queensland or the Commonwealth of Australia. The primary judge accepted this contention, holding that the Seas Claim Group members enjoyed a non-exclusive right “…to access, to remain in and to use their own marine territories or territories shared with another, or other communities…[and] to access resources and to take for any purpose resources in those territories”: (at [11]).
The primary judge delivered his reasons on 2 July 2010. Final orders were made by his Honour on 23 August 2010 (Akiba v Queensland (unreported, FCA, 23 August, 2010, Finn J) (the Determination).
The learned primary judge determined that native title subsists in those parts of the determination area described in Schedule 4 of his Honour’s order of 23 August 2010. Paragraph 4 of the order is in the following terms:
4.(1) The group rights comprising the native title are held by the members of each of the following island communities in respect of the native title areas described in Schedule 4:
(a)Meriam (Mer);
(b)Erubam Le (Erub);
(c)Ugarem Ler (Ugar);
(d)Masigalgal (Masig);
(e)Porumalgal (Poruma);
(f)Warraberalgal (Warraber);
(g)Iamalgal (Iama);
(h)Mualgal (Mua);
(i)Badulgal (Badu);
(j)Gumulgal (Mabuiag);
(k)Saibailgal (Saibai);
(l)Boigulgal (Boigu);
(m)Dauanalgal (Dauan).
(2)The native title holders are, in aggregate, the persons identified in Schedule 5(1).
The relevant native title interests are described in paragraph 5 of the order as:
(a)the rights to access, to remain in and to use the native title areas; and
(b)subject to [presently immaterial exceptions], the right to access resources and to take for any purpose resources in the native title areas.
Paragraphs 7 and 8 of the order of 23 August 2010 are in the following terms:
7.The native title rights and interests do not confer:
(a)possession, occupation, use and enjoyment of the native title areas or any parts thereof on the native title holders to the exclusion of all others; or
(b) any right to control the conduct of others.
8. The native title rights are subject to and exercisable in accordance with the:
(a) traditional laws and customs of the native title holders; and
(b)laws of the State of Queensland and the Commonwealth of Australia including the common law.
Schedule 6 of the order of 23 August 2010 described “[t]he nature and extent of the other interests” in relation to the native title areas. Those interests included relevantly for the purposes of the cross-appeal:
(1) The international right of innocent passage through the territorial sea.
(2) Any subsisting public right to fish.
(3) The public right to navigate.
(4)The rights and interests of holders of licences, permits, authorities, resource allocations or endorsements issued under the Fisheries Act 1994 (Qld), the Fisheries Regulation 2008 (Qld), Torres Strait Fisheries Act 1984 (Cth) and the Fisheries Management Act 1991 (Cth), or any other legislative scheme for the control, management and exploitation of the living resources within the determination area.
…
(10) Subject to the laws of Australia, a customary right, if any, that:
(a)is held by a person or persons who: live in the Protected Zone or the adjacent coastal areas of Papua New Guinea (as each is defined in the Treaty); is a citizen, or are citizens, of Papua New Guinea; and maintain traditional customary associations …
Paragraph 11 of the order of 23 August 2010 is in the following terms:
11.The relationship between the native title rights and interests and the other interests is as follows:
(a) the other interests co-exist with the native title rights and interests;
(b) the determination does not affect the validity of those other interests;
(c)to the extent of any inconsistency, the native title rights and interests yield to the other interests referred to in Schedule 6.
At trial, the primary judge was required to resolve many issues, most of which are no longer controversial. No purpose would be served by canvassing the many issues which have been satisfactorily resolved by his Honour’s judgment. The issues, which remain controversial, are as follows:
·whether the Commonwealth and State licensing regimes for commercial fishing extinguished the native title right to take fish or other marine life for commercial or trading purposes;
·the geographic boundaries to the area of sea in which any native title rights and interests subsist;
·the nature and extent of subsisting native title rights and interests.
The Commonwealth of Australia, the State of Queensland and a number of persons described as The Commercial Fishing Parties, appeal against the decision of the primary judge, contending that any native title right to fish for trade or exchange (commercial purposes) had long ago been extinguished by controls placed upon commercial fishing in the Torres Strait by State and Commonwealth legislation.
The Seas Claim Group cross-appeals against certain aspects of the primary judge’s decision. In this regard, the primary judge did not uphold the claim by the Seas Claim Group to the full geographical extent of their claim: his Honour held that the claim had not been established in respect of the waters at the geographical extremities of the claimed area. The parts of the determination area where his Honour held that native title does not exist are depicted hatched in red on the map that is Schedule 7 to the orders of 23 August 2011. That map is reproduced below.
The primary judge also rejected the Seas Claim Group’s contention that Torres Strait Islanders enjoyed reciprocity based rights and interests as between themselves which constituted a communal native title for the purposes of s 223(1) of the NT Act.
The Seas Claim Group also challenges paragraph 11 of the order of 23 August 2010 insofar as it requires native title rights and interests to yield to the other rights and interests there mentioned.
In brief summary, the Seas Claim Group contends in the cross-appeal that the primary judge erred in:
·failing to find that the Seas Claim Group had established the connection required by s 223(1)(b) of the NT Act to four areas in the north-eastern part of the claimed area consequently denying the existence of native title in these areas. The four areas can be seen hatched in red at the north-east of the claim area in the map referred to above; They are:
1.an area of sea to the north of the sea adjacent to the northern side of Pearce Cay (Guchen Sandbank) (Area 1);
2.an area of sea to the north of the sea adjacent to the northern part of Stephen Island (Ugar) (Area 2);
3.areas of sea to the north of the sea adjacent to the northern parts of Black Rocks (Rebes) and Bramble Cay (Maizab Kaur) (Area 3); and
4.an area of sea to the north of the northern side of Anchor Cay (Garboi) and East Cay (Misnare) (Area 4).
·failing to accept as native title rights under s 223(1) of the NT Act the “reciprocal rights” for which the Seas Claim Group contended or to accommodate them in the order appealed from;
·failing to set out a correct statement of law or fact in paragraph 11(c) of the order of 23 August 2010, in that his Honour proceeded on the footing that the native title rights must yield to the common law public rights to fish and to navigate, and to the customary rights described in Schedule 6(10) of the Determination, to the extent of any inconsistency.
GEOGRAPHY
It is convenient at this point to describe the geography of the claim area. That can best be done by reference to the primary judge’s reasons. His Honour said at [18]-[22]:
18 The wide, plateau-like, land bridge between Australia and PNG [Papua New Guinea] was almost entirely inundated by rising sea levels between 6,000 and 9,000 years ago. The rocky islands which characterise the western and eastern islands of the Strait once were hills on the bridge. The sea-bed after inundation was relatively flat and shallow ranging from about 30-50 metres in depth in the east and 10-15 metres in the west (now the eastern and western continental shelves) to about 10 metres across the centre. Seasonal and daily fluctuations in wind, rain, tide and current create, as the geographer Nietschmann observed (1985, 134-135), “a kaleidoscopic variety of environmental conditions”. For the Islanders, in consequence, “[s]ea knowledge and sea territory are reciprocals”. The conditions, moreover, are often treacherous. Matthew Flinders observed in A Voyage to Terra Australis, (1814): “[P]erhaps no space of 3½ degrees in length represents more dangers than Torres Strait.” To illustrate this by reference simply to the tides, Nietschmann observed (1989, 67-68):
Torres Strait is a 150-km wide vortex between the Indian and Pacific oceans. Strong tidal currents sweep through the Strait, causing the sea level to fluctuate daily and alternatingly exposing and covering island margins and shallow reefs. Tidal influence is accentuated due to the shallow shelf and the funneling effects of the bordering mainlands and the further constrictions of reef and island. Tidal currents are exceptionally strong due to the vortex-caused acceleration of moving tides. Current speed averages two to three knots, but during spring tides and in the reef channels the tidal current may exceed seven knots. The tidal current changes direction every six hours; twice daily the current is from the west, and twice daily it is from the east.
19 The islands – over 120 in number – are dispersed, in the main, in a broad arc beginning immediately to the west of the tip of Cape York, running north to the PNG coastline and then south easterly to the northern end of the Barrier Reef. Coral reefs and sand cays abound, particularly to the north and more distantly, to the north-east of Cape York. To provide some appreciation of the dimensions of the Strait, the distance between Cape York and the southern PNG coastline is 165 kilometres; and that between the easternmost and westernmost inhabited islands (Mer and Badu) is 215 kilometres.
20 Of the islands themselves, there are four distinct geomorphological types. They have markedly different ecological conditions, hence potential for human habitation and utilisation. The western group of islands contains the largest islands in the Strait. They are constituted by granite and volcanic rock dating back 300 million years and are a geological extension of Cape York. Though relatively infertile, they could sustain limited gardening for food. Marine life – turtle, dugong, fish and shell fish – is abundant on the reefs which surround the islands or which are accessible by boats (previously canoes: see below). The second island group is opposite the PNG coastline. Two of the three islands, Boigu and Saibai, are formed of the accumulated sediments brought down from nearby PNG rivers. Both have large areas of swamps and extensive mangrove areas which contain significant marine life as also waterfowl. Boigu is prone to flooding by sea water and has little arable land. Seagrass beds, which provide the main food eaten by dugongs lie close to both of the mud islands. The third island of this group, Dauan, is a high, rocky, remnant of the landbridge. It has only a small arable area but a permanent fresh water supply which the people from its near neighbour, Saibai, used during dry seasons. Its permanent population has been characteristically small.
21 The third island group, the eastern islands, near the north of the Barrier Reef, are basaltic rocks which may have formed within the last two million years. The islands are relatively fertile and densely vegetated. Extensive horticulture has been practised on them. There is abundant shell fish in close proximity to them. The three now inhabited islands, Mer, Erub and Ugar, have stone fish traps on their fringing reefs. Mer and Erub sustain relatively large populations by Torres Strait standards.
22 The central region of Torres Strait contains some high rocky islets, but low sandy islets predominate. The sandy islands are infertile and provide little by way of land-based food resources. Water is scarce in the dry season. Four sandy islets remain inhabited: Iama, Masig, Poruma and Warraber. There is abundant marine life, especially around the numerous reefs which lie to the north, north-west, east and south of these islands.
It is also useful to refer to the map referred to by the primary judge at Reasons [60].
The white lines on this map delineate the external boundaries of the combined Part A and Part B Sea Claims. The Seabed Jurisdiction line between Australia and PNG intersects with the Western and Top Western Islands; but it should be noted that the “Treaty between Australia and the Independent State of Papua New Guinea concerning sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters” signed in Sydney on 18 December 1978 (the Treaty) established that Australia has sovereignty over some of the islands lying on the PNG side of the line. The long white line running north-east across the central area of the map represents the Seabed Jurisdiction line, with the exception of the bulbous extrusion on the line which marks an Australian island - Guchen Sandbank. The circular line around Guchen Sandbank’s northern side represents the island’s territorial (ie Australian) waters. Further, all of the encircled islands north of the PNG Seabed Jurisdiction Line are Australian. The circles surrounding the islands indicate their territorial seas and reflect Australia’s sovereignty over the seabed around the islands.
There is an area, enclosed by the two vertical lines in the top centre of the map, which runs from the Seabed Jurisdiction line up to the west side of Boigu and the east side of Saibai and then joins the northern side of the two islands just short of the PNG mainland over which Australia has fisheries jurisdiction. The sea bed is under the jurisdiction of PNG, save for the territorial seas around Boigu, Buru, Dauan and Saibai. This is the area referred to as the “Top Hat”. His Honour held that native title rights to the “Top Hat” area are qualified by the provisions of the Treaty. The Treaty settled the Seabed Jurisdiction line and provided for Australian fisheries jurisdiction in the area known as the “Top Hat”.
ISSUES IN THE APPEAL AND CROSS-APPEAL
The appeal raises a question of law relating to the extinguishment of native title rights in respect of fishing for commercial purposes. The appellants challenge the primary judge’s conclusions that:
·the licensing regimes of Queensland and the Commonwealth did not create new statutory rights to fish and take marine resources for commercial purposes (Reasons [765], [859]); and
·the licensing regimes were not inconsistent with, and accordingly did not extinguish, any native title right to take fish and other marine resources for commercial purposes (Reasons [861]).
It should be noted immediately that the appellants do not challenge the primary judge’s conclusion that native title subsists within the area of the Determination. The appellants’ challenge is confined to his Honour’s conclusion that one of the incidents of the native title which subsists is the right to take fish or other aquatic life for commercial purposes. Whether this conclusion, and the appellants’ challenge to it, is of any practical significance is not readily apparent given the concession made on behalf of the Seas Claim Group that its members may not lawfully exercise their right to take fish for commercial purposes without a licence under the applicable fisheries legislation. In these circumstances, it is understandable that the primary judge referred to this issue at [845] as “a narrow and seemingly barren question”.
The appellants argue that the right to take fish for commercial purposes is a discrete and severable aspect of a general right to take marine resources and is capable of being extinguished independently of that general right.
The appellants rely upon Queensland legislation, commencing with the Queensland Fisheries Act 1887 (Qld), which prohibited fishing for commercial purposes save pursuant to licences granted under the legislation. They also rely upon the Commonwealth fisheries legislation, namely the Pearl Fisheries Act 1952 (Cth) (which was repealed by the Continental Shelf (Living Natural Resources) Act 1968 (Cth)), the Fisheries Act 1952 (Cth), the Fisheries Management Act 1991 (Cth) (which replaced both the 1952 Act and the Continental Shelf/Living Natural Resources Act 1968), and the Torres Strait Fisheries Act 1984 (Cth) (which introduced a regime to the same effect in respect of waters under the jurisdiction of the Commonwealth).
The appellants argue that these pieces of legislation, taken severally or together, evince a clear and plain intention to extinguish all rights, including native title rights, to take fish for commercial purposes. The appellants contend that a statutory prohibition on an activity that could otherwise be carried out pursuant to a native title right is sufficient to extinguish native title. The conclusion of the primary judge that the licensing regimes did not create “a new statutory fishing right” is said to be inconsistent with the reasoning in Harper v Minister for Sea Fisheries (1989) 168 CLR 314 (Harper) at [334]-[335].
On the cross-appeal the Seas Claim Group argues that the primary judge erred in failing to accord due weight to evidence of Islander use of Areas 1 to 4. It is submitted that the primary judge erred in failing to infer that the Erubam, Meriam and/or Ugarem people have used these Areas for the purposes of harvesting marine resources and travel to and from their marine estates. Further, it is argued that the primary judge erred in failing to consider that on the evidence a spiritual and/or cultural connection had been established to Areas 3 and 4.
The Seas Claim Group contends that the primary judge also fell into error in concluding that reciprocal rights were not native title rights and in failing to accommodate them in the order appealed from. In particular, it is said that his Honour erred in holding that reciprocal rights are not native title rights for the purposes of s 223(1) because they are not rights in relation to water. It is convenient to note here that the cross respondents assert, pursuant to a notice of contention, that the primary judge’s conclusion that the reciprocal rights are not native title rights should be affirmed on the basis that reciprocal rights are not the connection with the land and waters under traditional laws and customs required by s 223(1)(b) of the NT Act.
Thirdly, the Seas Claim Group argues that the native title rights found by his Honour are not subordinate or inferior to the other rights referred to in paragraph 11 of the order of 23 August and so should not be said to “yield” to them.
We will set out the primary judge’s reasons in relation to each of these issues and then consider the arguments advanced in this Court by way of challenge to his Honour’s decision on each issue. Before we proceed, however, it is convenient to note the relevant provisions of the NT Act.
THE NATIVE TITLE ACT
The jurisdiction of the Federal Court of Australia to hear and determine an application for a determination of native title is conferred by s 81 and s 213 of the NT Act.
In relation to the issue of extinguishment, s 211 of the NT Act provides, relevantly that:
Requirements for removal of prohibition etc on native title holders
(1) Subsection (2) applies if:
(a) the exercise or enjoyment of native title rights and interests in relation to ... waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and
(b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and
...
(c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.
Removal of prohibition etc on native title holders
(2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the ... waters for the purpose of carrying on the class of activity, where they do so:
(a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and
(b) in exercise or enjoyment of their native title rights and interests.
Definition of class of activity
(3) Each of the following is a separate class of activity:
(a) hunting;
(b) fishing;
(c) gathering.It may be noted that, by virtue of the terms of s 211(2)(a) of the NT Act, s 211(2) does not apply to preserve from extinguishment a native title right to fish for commercial purposes. Whether the legislation enacted by Queensland and the Commonwealth extinguished the right to fish for commercial purposes must be resolved independently of s 211(2) of the NT Act.
In relation to the cross-appeal, s 223 of the NT Act is relevantly as follows:
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
…
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
…
(3) Subject to subsection (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.
Section 94A of the NT Act requires the Court, when making a determination of native title, to determine the matters mentioned in s 225. Section 225 provides:
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
extinguishment
The primary judge’s reasons and conclusions
The learned primary judge’s general conclusion in relation to the subsistence of native title was expressed in paragraph [11] of his Honour’s reasons:
I have rejected the Applicant’s claim insofar as it asserted that what it called reciprocity based rights and interests constitute native title for the purposes of s 223(1) of the Act. Put inexactly, those are rights based upon reciprocal personal relationships with persons who have native title rights in their own land and marine territories. The native title rights I have found are the non-exclusive rights of the group members of the respective inhabited island communities first, to access, to remain in and to use their own marine territories or territories shared with another, or other, communities; and, secondly; to access resources and to take for any purpose resources in those territories. In exercising these rights the group members are expected to respect their marine territories and what is in them. Importantly, and this requires emphasis, none of these rights confer possession, occupation, or use of the waters to the exclusion of others. Nor do they confer any right to control the conduct of others.
In relation to the issue of extinguishment the question of current concern relates to his Honour’s conclusion that the native title rights he found included the right to take marine resources, which is for practical purposes, the right to fish for commercial purposes. The resolution of this issue depends upon the effect of successive licensing regimes whereby, in simple terms, fishing for commercial purposes without a licence issued by the government of Queensland or the Commonwealth was prohibited. These licensing regimes were in place long before the enactment of the Racial Discrimination Act 1975 (Cth) or the NT Act.
The primary judge set out the parameters within which this issue fell to be resolved at [844]. In this regard:
1.it was not argued that the native title right to take marine resources has been generally extinguished;
2.it was not argued that, at any time since Queensland’s 1877 Fisheries Act, the native title holders have been legislatively precluded from applying for licences to fish for commercial purposes: the evidence from the nineteenth century onwards, such as it is, is to the contrary;
3.the primary judge was not asked to do otherwise than note that there are such proscriptions in Fisheries legislation; that they apply to native title holders; and that they are unaffected by s 211 of the NT Act;
4.it was not contended, and was not the subject of evidence, that native title has been extinguished in any particular parts of the sea claim area by leases or licences given under Queensland Statutes which attached exclusive rights to such grants;
5.the [appellants] did not argue that the right to fish a particular marine species, or number of species, for commercial purposes has been legislatively extinguished and replaced by, in effect, a statutory fishing right, by virtue of the manner in which specific, legislatively mandated management plans have been structured – as, for example, the Torres Strait Prawn Fishery Management Plan 2008 made under s 15A of the 1984 Act; see also The Western Tuna and Billfish Fishery Management Plan 2005 made under s 17 of the Fisheries Management Act 1991;
6.no submissions were made, and no evidence led, to support a case that Islander fishing for commercial purposes may be permissible under the 1984 Commonwealth Act to the extent that such fishing was “traditional fishing”, ie was “for use in the course of ... traditional activities”;
7.it was not disputed that, if Islanders wish to engage in fishing for commercial purposes, they must secure such licences as are required under the Act and that if they fish without such licences, they are liable to prosecution under s 45 of the Act.
The primary judge thus at [845] isolated for resolution the “narrow and seemingly barren question”, to which we have referred, whether:
Notwithstanding that the Islanders can, by seeking the necessary licences, avail of the present fisheries regime operative in the Pt A claim area to fish for commercial purposes, have they nonetheless lost a native title right to fish for commercial purposes because of the extent of the rights of regulation and control the Crown in its State and Commonwealth manifestations has progressively arrogated to itself over a more than 130 year period?
The primary judge held that the licensing regimes of the State and Commonwealth extinguished the common law right of any member of the public to take fish from its waters. Nevertheless, his Honour held that these legislative measures were not apt to extinguish the native title right to take fish for sale or trade. His Honour’s reasoning at [763]-[861] involves the following steps:
1.a clear and plain legislative intention is necessary to extinguish native title recognised at common law;
2.the common law right to take fish from tidal waters for commercial purposes is an aspect of a public right the extinguishment of which has been affected by the licensing regimes. The common law right of fishing in the sea and, in tidal navigable rivers, was viewed as a public rather than private right and so as “freely amenable to abrogation by regulation by a competent legislature”;
3.the differential effect of legislation on the common law right and the native title right results from regarding native title as a private right and, the common law right as a public right which is more readily amenable to extinguishment;
4.an intention to extinguish native title is not indicated by legislative measures which do no more than regulate the exercise of an incident of native title;
5.the licensing regimes do no more than regulate the exercise of the native title rights to take fish for commercial purposes.
The primary judge reviewed the extensive “interlocking and complicated legislative regimes which apply in the Torres Strait”, considering at [779] to [842]:
·Queensland’s legislation up until 1994, which consisted of the Queensland Fisheries Act 1887 (Qld); the Fish and Oyster Act 1914 (Qld); the Pearl-shell and Beche-de-mer Fishery Act 1881 (Qld) and the Oyster Act 1886 (Qld); the Fisheries Act 1957 (Qld); the Fisheries Act 1976 (Qld); the Fisheries Amendment Act 1981 (Qld) and the Fisheries Act 1994 (Qld) which is currently in force;
·the Commonwealth’s legislation from 1952 to 1991 which included the Fisheries Act 1952 (Cth); the Pearl Fisheries Act 1952 (Cth) repealed by the Continental Shelf (Living Natural Resources) Act 1968 (Cth) and the Fisheries Management Act 1991 (Cth) which replaced both the Fisheries Act 1952 (Cth) and the Continental Shelf (living Natural Resources) Act 1968 (Cth); and
·specifically, the Torres Strait Fisheries Acts 1984 (Cth).
His Honour summarised the Queensland legislation at [780] – [802]. We gratefully set out his Honour’s summary:
780 Queensland’s first Fisheries Act – that of 1877 – had manifest regulatory and conservation purposes. It prohibited using a boat for catching fish for sale (a formula later to be defined and used in such legislation thereafter) without a licence (s 11) and catching fish with a net for sale in certain areas without a licence (s 12). The licensing regime took the form of the payment of a standard fee in advance for the licence to engage in the activity in question. The conservation measures in the Act included controlling netting and the prescription of permissible net types and uses (s 2); regulating the size of fish that could be taken (s 4); and banning the use of explosives and poisons for taking (s 8).
781 The next significant marine products legislation was the Pearl-shell and Bêche-de-mer Fishery Act 1881 (Qld). It imposed stringent controls over the business of diving for, collecting, preparing, storing or carrying pearl oysters, pearl oyster shells, bêche-de-mer (s 1) and (from 1890) turtles, by requiring all ships or boats employed in such a business to be licensed (s 3), and making it an offence to employ a ship or boat in such activities without a licence (see ss 4, 5 and 6). Amendments made in 1891 extended the regime of regulation of the pearl-shell and bêche-de-mer fishery; introduced restrictions as to size and varieties (s 11); and enabled prohibitions to be imposed in respect of particular areas (s 13).
782 Importantly for present purposes the Amendment Act of 1891 created a leasing system for pearl shell and bêche-de-mer grounds. Section 16 permitted the Governor in Council to grant a lease of the whole or any part of an outlying reef or bank, or of the foreshore of an island, or of any Crown lands lying below high-water mark in any river, inlet, estuary, or creek, or any lands lying below tidal waters within the limits of the territorial jurisdiction of Queensland, for the collection, storage, cultivation, or propagation, of pearl oyster shell or of bêche-de-mer, or of sponges or other products of the sea. By an amendment made in 1913, a lease so granted would by virtue of s 16A and subject to the Regulations made under the Act:
(i) Confer on the lessee the right to take, collect, and gather within the demised area (to the exclusion of all other persons) pearls, pearl-shell, bêche-de-mer, sponges, and any other marine animal life or product of the sea;
(ii) Confer authority on the lessee to exclude persons from the demised area, and such authority shall be absolute unless by the terms of the lease it is made subject to any modification;
(iii) Enure for the benefit of and be binding on the lessee, his executors, administrators, and permitted assigns.The same amendment made it an offence for any person, other than the lessee or a person having the lessee’s authorisation, to take any of the things in the demised area given by the exclusive right. A lease so given would clearly extinguish any native title right to take marine resources in the area given by the lease. I should add that the 1881 Act was given extensive extra-territorial application by an Act of the Federal Council of Australasia, The Queensland Pearl Shell and Bêche-de-Mer Fisheries (Extra-territorial) Act of 1888.
783 I would also note in passing that, in 1927 in an Act to amend the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld), provision was made for the Governor in Council to establish reserves within the territorial waters of Queensland:
... solely for the use of Torres Strait islands natives and Queensland aboriginals for getting by swim-diving pearl-shell, bêche-de-mer or trochus shell from any port, bank, channel, reef, or cluster of reefs, or any part of the same within any such area.
784 A variant of the Pearl shell and Bêche-de-mer leasing arrangement was adopted in relation to oyster leases under The Oyster Act 1886 (Qld). Oyster leases were granted by the Governor in Council for the purposes of oyster culture and were to be put up to public auction. A lease was designated to be for fourteen years and entitled the lessee (s 5(4)) to:
... the exclusive right to fish, dredge for, and obtain, and to deposit or make beds or layings of, oysters within the limits of the land comprised in the lease.
The Act as well prohibited absolutely the taking of oysters for sale from any oyster ground not under lease or licence (s 11); imposed regulations as to the size of oysters which could be taken (s 12); and imposed a requirement for a licence to be held to take oysters (s 15), or to employ a boat or vessel in so doing (ss 18 and 19).
785 The regulatory patterns so established in the above Acts were replicated in the consolidating Fish and Oyster Act 1914 (Qld). This Act applied to “all salt, brackish and fresh waters within the territorial limits of Queensland”. Under the Act it was unlawful to take fish for sale without a licence (s 17); to employ a vessel in taking fish without a licence (s 16); and to take, sell or have in possession certain fish (s 8). The use of nets was again regulated (s 9). The one strikingly new provision (borrowed from Western Australian legislation: Act No 24 of 1911, s 2) was s 18. It allowed for the grant of an exclusive licence for a term not exceeding fourteen years to take any fish or “marine products” from any “specified part” of Queensland waters (s 18(1)). No licence could be for any length of coast exceeding 75 miles (s 18(2)). It was unlawful for a person unauthorised by the licensee to take any fish or marine product from within the licensed area subject to the proviso that (s 18(3)):
... nothing herein shall prevent any person from taking therein any fish or marine products for his personal use and consumption, but not for sale.
I would note in passing it was also made an offence to (inter alia) cut or remove any mangroves or timber growing upon any part of the foreshores of any Queensland waters: s 36. In 1945 an amendment to the Act introduced a licensing system for the removal of coral and shell grit: s 18(6). A 1955 amendment permitted such licences to be exclusive: Fish and Oyster Acts Amendment Act 1955, s 6.
786 Conservation measures were a more prominent feature of the Act and were enlarged over the ensuing decades.
...787 One presently notable exemption from the provisions of the 1914 Act as amended was contained in the 1955 amending Act; the Act was not to apply to the taking of fish by any Islander (within the meaning of the Torres Strait Islanders Act 1939 (Qld)) who usually lives on a reserve, for consumption by Islanders: s 4.
...789 In 1957 a further consolidating Fisheries Act was enacted. It brought the Whaling, Pearling, Oystering and Other Fisheries legislation into one Act. Under s 6(1) of the Act Queensland waters were defined to mean, inter alia, “[t]he sea within the territorial limits of Queensland”. The Fisheries Act 1957 (Qld) continued the absolute prohibition in respect of certain whales (s 15), and the prohibition on taking other types of whales without a licence (ss 16-20); continued the prohibitions in respect of the taking of pearls, pearl-shell, trochus, bêche-de-mer etc (including making it unlawful to use a vessel for pearling unless licensed) (Part III); continued the prohibitions in respect of oystering (Part IV); and continued the prohibitions in respect of other fisheries (Part V), including the general prohibition on taking fish for sale without a licence (s 80), and employing or using a vessel to take fish without a licence (s 79). This Act is significant in a number of respects. First, it continued the exemption from the Act of Torres Strait islands taking fish, and now oysters, for consumption by Islanders: s 3(1). Secondly, it defined “Sell” for the first time: s 6(1). Notably the definition included “barter, exchange, or supply for profit”. Thirdly, again for the first time, the legislation dealt explicitly with the issue of licences...
...790 In 1976 a further consolidating and amending Fisheries Act was passed (Fisheries Act 1976 (Qld)). Its orientation was reflected in its long title:
An Act to consolidate and amend the law relating to pearling, oystering and fisheries generally, to promote the good order, management, development and welfare of the fishing industry, to provide for the protection, conservation and management of the fisheries resources of the State and for incidental purposes.
The Act applied to Queensland waters which as a result of a declaration by Order in Council all waters extending for a distance of 3 nm to the seaward side of the baseline of the territorial sea bordering the coast of Queensland were declared to be Queensland waters: Queensland Government Gazette No 68, 10 December 1977. The Act continued and added to the range of licences that could be granted under predecessor legislation. It used a common and emphatic formula to describe the Minister’s licensing discretion – “The Minister shall consider each application and may grant or refuse it”: cf s 22(3)(b). It equally used relatively common formulae in its provisions relating to licences. These included that a licence:
... shall be subject to such terms, conditions or restrictions as are prescribed and such further terms, conditions or restrictions as the Minister in a particular case thinks fit, inserted therein or endorsed thereon.
And if it was a person, not a vessel, being licensed, the licence:
... shall ... authorize the holder to do such acts and things as are prescribed with respect thereto.
791 The Act dealt explicitly with “commercial fishing”. It defined a “commercial purpose” in relation to fish and marine products to mean:
... the purpose of sale, trade, processing or manufacture, pearl culture or other purpose of any kind directed to gain or reward.
It changed the form of the Islander exemption from the Act from that of the 1914 and 1957 Acts. The exemption now applied to takings “for purposes other than commercial purposes”: s 5(1)(d); but was enlarged to cover “fish or marine products”, the latter term including “oyster, pearl-oyster, trochus, green snail, coral, coral limestone, shell grit and star sand”: s 6(1). The requirement relating to Islander “consumption” was deleted: s 5(1)(d). Again significantly, the word “sell”, which is used in the “Commercial Fishing” part of the Act, was defined. As in the 1957 Act, it included “barter, exchange or supply for profit”.
792 I need note only the following aspects of the commercial fishing provisions. Section 22, insofar as presently relevant, provide:
...
Section 23 created offences relating, inter alia, to taking fish, selling fish or using a fishing vessel, for commercial purposes, if the person or the vessel was not licensed as stipulated.
...794 The Commonwealth has described the 1976 Act as establishing “a comprehensive scheme” for the regulation of fishing off coastal Queensland, and as having heralded “a more sophisticated approach to the industry generally”. I agree.
795 The Act was amended in 1981. The primary purpose of this was to enable arrangements with respect to the management of certain fisheries to be entered into between, and be given effect to by, the Commonwealth and the State. I will refer in passing to joint arrangements below. One aspect of the amendment related to fishing for commercial purposes by “community fishermen”, ie licensed Islanders. The apparent object of the provisions was to encourage the development of “cottage-industry-type fishing” in the Strait: Record of the Legislative Acts, First Session, 1981-82, at 223; Queensland, Parliamentary Debates, Legislative Assembly, 24 November 1981, 3875...
...797 For the sake of completeness, I would note that the Fisheries Act 1994 (Qld) is the legislation currently in force. The Act applies, inter alia, to the coastal waters of Queensland but does not apply to activities to which a Commonwealth law co-operative fishery applies, or exclusive Commonwealth matters for a State law co-operative fishery: s 11. Section 14 protects Aboriginal and Torres Strait Islanders rights to take fisheries resources and use fish habitats in accordance with tradition, though subject to the provisions of any regulation that “applies to acts done under ... Island custom”. The extensively defined main purpose of the Act (s 3), was to be achieved, inter alia, by providing for “the management of commercial, recreational and indigenous fishing”.
798 Part 4 of the Act established the Queensland Fisheries Management Authority to ensure the appropriate management, use, development and protection of fisheries resources. Management and regulation is largely left to be defined by management plans produced by fisheries agencies....
799 In addition to the imposition of a comprehensive and multi-tiered licensing system, the Act made it an offence to contravene closed season and closed water declarations: s 77; to take or sell regulated fish or to contravene quotas: ss 78 and 79. Part 6 reflects increasing concern to protect and preserve fisheries resources.
...801 The State relies as well upon “numerous examples” of acts done under the particularised legislation on which it relies which, it says, similarly evince a clear and plain intent to control the use of the sea, the seabed and its resources and to extinguish or abrogate any otherwise existing public right, native title right, or right to take the resources of the sea for any commercial purpose. Of this material I would make the following comments.
802 There are in evidence a relatively slight number of Orders in Council made under fisheries and fauna statutes which illustrate regulatory measures being taken which were of an essentially conservation and fisheries management variety. The primary preoccupations under fisheries legislation were with netting and mesh sizes, closing waters, catch size, and prohibiting taking certain species. There was little that relates directly to Torres Strait: but see the Order in Council of 16 November 1967 prohibiting the taking of Trumpet Shell “in all Queensland waters”; that of 20 April 1978 declaring much of the coastal waters in Torres Strait closed in relation to bêche-de-mer; or that of 12 November 1981, that declared areas of Torres Strait closed waters in relation to nets. The evidence relating to licences, so far as it went, revealed that the licensing regimes of the various Acts were implemented but little more. I was, for example, taken to no evidence which indicated that exclusive leases or licences were granted under fisheries Acts, though they made provision for such grants.
The primary judge, having summarised the Queensland legislation, then summarised Queensland’s contention as to its effect upon the Seas Claim Group’s rights. His Honour said at [803]:
803 The State’s contention is that its legislative regime, dating back to 1877, evinces a clear and plain intention to regulate and control all “fishing” in Queensland waters (both domestic and commercial). Insofar as fishing for commercial purposes is concerned, the legislation does not merely regulate such activity; it clearly abrogates or extinguishes any (otherwise existing) right – whether a native title right, or a public right – to fish for commercial purposes; and it replaces such rights with private statutory rights to engage in commercial fishing activities, which are conferred only upon those who hold the necessary licences provided for under the legislation. Like the legislation considered by the High Court in Harper and Gumana HC, as well as by the Full Court in Yarmirr FC, by Sundberg J in Neowarra and by Selway J in Gumana TJ, the legislation summarised above has, it is said, extinguished any rights to take or use the resources of the claim area for trading or commercial fishing purposes.
His Honour summarised the relevant Commonwealth legislation at [807] – [816]. Once again, we gratefully adopt that summary:
807 The Fisheries Act 1952 (Cth) was the first general fisheries legislation enacted by the Commonwealth. This Act remained in force until repealed by the Fisheries Management Act 1991. At the same time as the Fisheries Act 1952 was enacted, the Parliament also enacted the Pearl Fisheries Act 1952 (Cth).
808 Both Acts operated on essentially the same principles. By s 7 of the Fisheries Act 1952 and s 8 of the Pearl Fisheries Act 1952, the Governor-General could, by proclamation, “declare any Australian waters to be proclaimed waters for the purposes of this Act”. “Australian waters” were originally defined as meaning “(a) Australian waters beyond territorial limits; and (b) the waters adjacent to a Territory and within territorial limits”. The definition of “Australian waters” was amended by the Fisheries Act 1953 (Cth) so as to include “(c) the waters adjacent to a Territory, not being part of the Commonwealth, and beyond territorial limits ...”. The Pearl Fisheries Act (No 2) 1953 (Cth) amended the definition in a like manner but also, adding in addition, “being waters that are above the continental shelf”. Proclamations were issued pursuant to s 7 of the Fisheries Act 1952 on 9 December 1954, 16 February 1956, 22 August 1968, 26 September 1979 and 20 December 1990 which embraced the claim area.
809 Both Acts provided for the granting of licences to take fish or use a boat to take fish in proclaimed waters or an area of proclaimed waters, such licence being subject to the conditions specified in them. The forms of licences under the Fisheries Act 1952 were prescribed in the Fisheries Regulations, Statutory Rules 1954 (Cth), No 116.
810 The Minister was empowered to prohibit the taking of fish. Section 4 provided that “fish” includes turtles, dugong, crustacea, oysters and other shellfish but does not include any species of whales, pearl shell, trochus, bêche-de-mer or green snail”. That definition was amended by the Fisheries Act 1968 (Cth) to exclude any organism that is a sedentary organism for the purposes of the Continental Shelf (Living Natural Resources) Act 1968 (Cth). Notices prohibiting the taking of prawns, for example, and providing for seasonal closures of specified areas, including areas of the claimed area, were in fact issued under the Fisheries Act 1952.
811 The taking of fish or pearl-shell, trochus, bêche-de-mer and green snail, or use of a boat for that purpose, in an area of proclaimed waters was prohibited without a licence: s 13. These prohibitions were not limited to the taking of fish for any particular purpose until 1973 when s 13(4) of the Fisheries Act 1952 was amended so as to create a defence to a prosecution for being in possession of fish when the taking of fish is prohibited by notice if the fish was not taken for trading or manufacturing purposes. Otherwise this scheme was essentially retained for the duration of this Act until 1985 with the introduction of managed fisheries where licences, specified to be issued for 12 month periods, were made subject to plans of management for the relevant fishery.
812 On 30 November 1954, the Governor-General issued a proclamation declaring “proclaimed waters” pursuant to s 7 of the Fisheries Act 1952. These waters completely surrounded the Australian coast but did not include waters within the territorial limits of a State. These proclamations were held to be valid in Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR 177. The “proclaimed waters” thus encompassed the waters within the claimed area.
813 The 30 November 1954 proclamation was amended and later replaced by proclamations issued by the Governor-General, and published in the Commonwealth Government Gazette on 16 February 1956 and 22 August 1968, respectively. The Fisheries Act 1952 was amended so as to provide that:
In relation to proclaimed waters comprised in the declared fishing zone, this Act applies to all persons, including foreigners, and to all boats, including foreign boats.
814 Subsequently, by a proclamation under s 7 of the Fisheries Act 1952, the Commonwealth established a fishing zone with an outer limit of 200 nm with effect from 1 November 1979. The Fisheries Act 1952 was amended in consequence so as to define the “Australian fishing zone” (AFZ) as the waters adjacent to Australia between the baselines and 200 nm seaward from the baselines, but excluding waters that were not “proclaimed waters” or that were “excepted waters” pursuant to a declaration under s 7A. Further, s 5B was inserted providing that:
...The Continental Shelf (Living Natural Resources) Act 1968 (Cth)
815 The Pearl Fisheries Act 1952 was repealed by the Continental Shelf (Living Natural Resources) Act 1968 (Cth). The primary purpose of the latter Act was said in the Commonwealth, Parliamentary Debates, House of Representatives, 21 November 1968, 3136 “to enable the fullest possible protection to be given to the living sedentary resources of the continental shelves of Australia and the external Territories”.
816 By s 7, the Governor-General was empowered to declare a marine organism to be a sedentary organism to which the Act applied when satisfied that it fell within the sedentary species covered by the Convention on the Continental Shelf done at Geneva on 29 April 1958. The relevant provisions of the Act related to areas of the continental shelf declared to be “controlled areas” under s 11 of the Continental Shelf Act 1968. Section 15 prohibited the taking, and the use of a ship for searching for or taking, of sedentary organisms in a controlled area without a licence although it was a defence if the search or taking was not for “a commercial purpose”. In addition, the taking of specified species or use of certain equipment and other activities in a controlled area, could be prohibited by notice. Various proclamations concerning marine and sedimentary organisms, and defining the controlled areas have been issued.
The primary judge reviewed the Torres Strait Fisheries Acts 1984 (Cth), which had “its provenance in the PNG Treaty” at [828] and the territorial application of which is to the Protected Zone to any adjacent area to the south of the Zone that has been declared by proclamation at [829]. At [831] – [838] his Honour went on to summarise the provisions of that Act which were relevant to the case at hand, saying:
831 The provisions of the Act do not apply in relation to fishing activities carried on for private purposes with the use of an Australian boat: s 7 (“private purposes” being defined as “not including references to activities carried on in the course of traditional fishing”: s 3(5).
832 Parts III, IV and V are of principal concern in this proceeding. Part III deals with regulation of fishing. There are three categories of fishing for the purposes of the Act: s 3. The first, “commercial fishing” means fishing for commercial purposes, “but does not include traditional fishing”; the second, “community fishing” means commercial fishing carried on by a person (or persons) who is (or are) a traditional inhabitant and an Australian citizen but who is not, in so doing, acting for, etc. another person who is not both an Australian citizen and a traditional inhabitant within the definition in the Treaty (“traditional inhabitant” requires no further elaboration here: Art 1 and the Act, s 3(3)); and, thirdly, “traditional fishing” has the same meaning as in the Treaty: Art 1.
…
833 Part III enables the Minister to require the masters of boats and licensees engaged in commercial fishing (other than community fishing) in any area of Australian jurisdiction, to provide specified information relating to fishing: s 14. Catch report requirement notices made under this section are in evidence. I would also note in passing that the Torres Strait Fisheries Regulations 1985 authorised the Minister to require log books to be kept “in pursuit of the objectives of the Act” recording the taking of kinds of fish, areas etc: regs 10, 11. Notices made under these regulations are in evidence.
834 Section 15 as noted above, permits Proclamations to be made in relation to fishing in adjacent near areas. Under s 15A the Minister may, by legislative instrument, determine a plan of management for a fishery in an area of Australian jurisdiction. The objectives of such plans and the multitude of matters those may address – eg determining the fishing capacity of the area and its measure (s 15A(4)), licensing etc (s 15A(5)), the allocation of units of fishing capacity to boats (s 15A(6)) etc – are detailed at some length. Section 15(9) requires that while a management plan is in force, the performance of functions and exercise of powers under the Act in relation to the fishery “must be in accordance with the plan of management, and not otherwise”.
835 Section 16 outlines seventeen different and diverse subjects relating to fishing that the Minister may, by legislative instrument, prohibit. The section permits exemptions to be made.
836 A significant number of prohibitions (with or without exemptions) were tendered covering subjects as diverse as taking dugong and turtle, the equipment used in taking fish, rock lobster etc, the creation of sanctuaries, size and area restrictions for particular species, take and carry limits for specified fish species etc. A common form of exemption related to taking “in the course of traditional fishing”. The following is provided purely for illustrative purposes. It is a Fisheries Management Notice made under s 16:
PROHIBITIONS (GENERAL)
6.1 Pursuant to paragraph 16(1)(a) of the Act, the taking, processing or carrying of live pearl shell of the species Pinctada maxima or any other pearl shell species whether alive or dead, is prohibited.
6.2 Pursuant to paragraph 16(1)(a) of the Act, the taking, processing or carrying of dead pearl shell of the species Pinctada maxima is prohibited.
EXEMPTIONS FROM PROHIBITIONS
7. Pursuant to paragraph 16(1A)(d) of the Act, the following persons are exempt from the prohibitions in paragraph 6.1:
(a) a person holding a licence granted under either subsection 19(2) or 19(3) of the Act that entitles the person to take, process or carry pearl shell;
(b) a person using a boat and who holds a licence that was issued under the law of Papua New Guinea that is endorsed by Australia under section 20 of the Act, authorising the boat to be used to take pearl shell in the area of Australian jurisdiction;
(c) a person holding a licence granted under the Queensland Fisheries Act 1994 that entitles that person to engage in pearl shell farming;
(d) a person using a boat, that does not exceed 6 metres in length, in the course of community fishing; and
(e) a person using a boat in the course of traditional fishing.
837 Part IV deals with licences. Section 17 indicates the licences that may be required for taking fish in the course of community fishing. … Finally, s 45 creates fourteen offences relating to commercial fishing and community fishing. These relate, in the main, to fishing etc or being in charge of, or on, a boat without the prescribed licence, or to failing to comply with a condition of a licence.
838 Part V deals with the establishment, functions, arrangements for, etc of the Protected Zone Joint Authority. There is in evidence a copy of the current “arrangement” the Commonwealth has made with Queensland under s 31 to have management of the Protected Zone and adjacent near areas as a “fishery”. It was published on 19 March 1999….
The primary judge then stated the contention of the Commonwealth at [840] – [841]:
840 The Commonwealth’s contentions draw upon both the State’s and its own legislation. It is said that the seas adjacent to Queensland have since at least 1877 been the subject of legislative fisheries management and control. The analysis of the legislative regimes for fisheries in the claim area demonstrates that, by increasingly comprehensive management regimes, the Crown has retained exclusively for itself and its agencies the capacity to manage seas which include those in the claim area. In effect, it has “covered the field” so far as control rights over fishing are concerned.
841 In all the legislation since 1877 licences have been required to fish for commercial purposes. The powers to close off areas to fishing and to limit fishing activities and methods in particular areas or generally have, it is said, been conferred with respect to commercial fishing. From the outset, fisheries management has tended to focus upon commercial fishing. This focus has been indicative of the treatment of fisheries in the sea as a public resource and reflects concerns about the long term development and sustainability of the fishing industry. Commercial fishing potentially involves the greatest threat of over-exploitation and damage to the marine environment. In any event it is clear that the Torres Strait Fisheries Act would be inconsistent with any native title right to fish for commercial purposes.
His Honour set out the Seas Claim Group’s contention at [842]:
842 The Applicant has contended that the relevant native title right is a right to access and take marine resources, not a differentiated right to take resources for a trade or commercial purposes. The native title holders’ rights to access and take have not been extinguished in any respect by the regulatory regimes for offshore resources under Queensland or Commonwealth legislation. That legislation “merely regulates the enjoyment of native title or creates [a] regime of control that is consistent with the continued enjoyment of native title”: Mabo [No 2] at 64. Limited prohibitions that are part of a wider scheme of regulation are not inconsistent with characterising the scheme as regulatory. A legislative scheme imposing a requirement to obtain a licence before a prohibited act is done is, by its nature, a scheme of regulation rather than a prohibition. The case law on extinguishing the public right to fish (which is “freely amenable to abrogation”: Harper, at 330: Arnhem Land Aboriginal Land Trust, at [19]-[29]), applies a different legal criteria for extinguishment to that to be applied to native title.
In his consideration of these competing contentions, the primary judge focused upon the impact of the Commonwealth’s Fisheries Act 1952 (the 1952 Act) and Torres Strait Fisheries Act 1984 (the 1984 Act) on fishing for commercial purposes. His Honour explained his decision to focus primarily on the 1952 Act and the 1984 Act at [843]:
…save for a narrow area of internal water which is subject to Queensland law and possibly the coastal waters around the islands to the north of the Seabed Jurisdiction Line, the presently applicable law in relation to fisheries in the Part A sea claim area in which I have found native title rights to exist is the Torres Strait Fisheries Act: see s 15(1) and s 31 of the 1984 Act...
His Honour considered that this legislation exhibited two discernable, evolving, interrelated features over time. These were “the expansion of the particular public interests” and the “changing character of the discretions given in the grant (or refusal) of leases and licences under such legislation” at [848]. His Honour focussed his consideration on the 1952 Act and the 1984 Act noting that they followed a common pattern in allowing the Minister to regulate fishing by the prohibition of certain activities and matters (at [849]). The relevant question was whether the legislation was simply extended to control commercial fishing and not to define “underlying rights”: R v Sparrow (1990) 70 DLR (4th) 385 at 400-401 (at [850]).
His Honour framed the issue at [850] as being whether the legislative regimes “disclosed a clear and plain intent to extinguish native title” or if the legislative intent was “simply to extend the control of commercial fishing”. His Honour decided at [851] that his preferred “constructional choice” was one “more favourable to the retention of the right to fish for commercial purpose” as there was not a “clear and plain intention to extinguish it”. His Honour said at [851]:
There are, in my view, clear “constructional choices” open here: Evans, at [68]. In these circumstances, and given (i) that the 1984 Act did not of its own force seek directly to deny Islander fishing rights for commercial purposes, hence its creation of the community fishing category (although the Act did envisage such fishing might later be subject to licensing requirements: s 17 and the Second Reading Speech below); and (ii) the s 8(a) objective of the Act to acknowledge and protect, as a management priority, the traditional way of life and livelihood of traditional inhabitants, including their rights in relation to traditional fishing – I consider the choice that is more favourable to the retention of the right to fish for commercial purpose is to be preferred, there not being a clear and plain intention to extinguish it. I would add that, in the distinctive setting of this Act, and assuming native title rights subsisted in Torres Strait at the time of its enactment (see below), it would require particularly strong indications in the Act itself that existing rights were intended to be extinguished, given the markedly beneficial and protective intent of the PNG Treaty and of this Act.
His Honour referred at [852] to the Minister’s Second Reading Speech on the Bill for the Act (Commonwealth, Parliamentary Debates, House of Representatives, 19 October 1983, 1902-1903) that the Minister’s licensing discretion was for the purposes of “fishery management”. His Honour, while noting that he was taking a different view from that of Judges for whom he holds much respect, concluded at [854] that:
… when the licensing discretion is considered in the context of the s 8 “management priorities” to be followed “[i]n the administration of [the] Act”, it can only be characterised as a regulatory control measure “consistent with the continued enjoyment of native title”: Mabo [No 2], at 64. It does not create a new statutory fishing right.
His Honour characterised the licensing regimes as “clearly regulatory and control mechanisms”. For example, reference was made to the requirement to obtain a boat licence under Queensland’s 1887 Act as being “little if anything more than an authorisation for which a fee was payable in advance before a boat could be so used” (at [856]).
His Honour was satisfied the Queensland legislation raised the same “constructional choices” as the Torres Strait Fisheries Act. He concluded that the native title commercial fishing right was not extinguished. He stated at [857]:
…from 1877 onwards, Queensland fisheries legislation curtailed that right in relation to commercial fishing. What it did not do, is extinguish the “commercial fishing” incident of the native title right, save probably in those instances where grants were authorised to be, and were, made of particular types of exclusive lease or licence in particular areas: Fish and Oyster Act 1914, s 18; Oyster Act 1886. I have no evidence of such grants in Torres Strait. Judged against the “clear and plain” intention test, I am satisfied that such exclusive grants apart, the structure and character of the management and control scheme of Queensland’s legislation was similar to that of the Torres Strait Fisheries Act, save that it did not have the same beneficial aspiration for the traditional inhabitants of the Strait. The Queensland legislation raised, and raises, the same constructional choices as the Torres Strait Fisheries Act does. That choice should be answered in the same way as for that Act.
Ultimately, the primary judge concluded that while the complexity of the regulatory controls evolved over time, insofar as they addressed commercial fishing, they remained regulatory and not prohibitory as they were not directed at the “underlying rights” of native title holders, nor, did they create a new statutory right to fish: the “regime of control, was, and is, consistent with the continued enjoyment of native title” (Reasons at [859]). His Honour held at [861] that the legislative regime established by the State and the Commonwealth “did not, and do not, severally or together evince a clear and plain intention to extinguish native title rights to take fish for commercial purposes”.
EXTINGUISHMENT
The arguments of the parties
The appellants submit that the distinction between commercial and non-commercial fishing is recognised in s 211 of the NT Act which provides that native title rights (including the right to fish) are preserved for non-commercial purposes. They contend that the right to take resources for commercial purposes is a discrete and severable characteristic of a general right to take marine resources which is capable of being, and was, extinguished separately and independently of the general right.
As to commercial fishing under Queensland legislation, it is argued that the primary judge correctly identified (at [848]) that the concern of the legislation to control commercial fishing was apparent from the time of the Queensland 1914 fisheries legislation and thereafter; but the 1887 Act (Qld) was the first Act to place a general prohibition on taking fish for sale without a statutory licence (under ss 12 and 13). The appellants contend that, as the licensing regimes expressly prohibit the exercise of the native title right to take fish for commercial purposes without a licence, they were inconsistent with the continued enjoyment of that right and thereby extinguished it. This is because an express element of the regime of control of fishing is that any person wishing to take fish for sale might do so only under the authority of a licence granted under and in accordance with the relevant legislation.
The appellants support the argument that licences granted under the Fisheries Act 1952 (Cth) are a “new species of statutory entitlement”, which depend on the terms of the legislation by reference to Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567 at 585; and Harper at 325. In Harper it was held that the imposition of a general prohibition on taking abalone resources, followed by imposition of statutory licences for the taking of abalone, abrogated the previously existing common law right. The right to take abalone was abrogated by a prohibition on the taking of abalone coupled with permissions by way of statutory grant. In the same way, the legislation in the instant case prohibits the taking of fish for commercial purposes, and establishes statutory licences to allow the taking lawfully to occur. This regime is said to be inconsistent with the continued enjoyment of the native title rights to do the same acts.
The appellants argue that the primary judge erred in failing to recognise that the 1887 Act contained a general prohibition on taking fish for sale without a licence. Since 1952, Commonwealth prohibitions were placed on the unlicensed taking of fish for commercial purposes in proclaimed waters. Whatever the “protective effect” of the 1984 Act (Cth) and the Torres Strait Treaty in respect of “traditional fishing” it did not involve a revival or reinstatement of a native title right to fish for commercial purposes. Moreover, “community fishing”, as regulated under the 1984 Act, although less regulated than other commercial fishing, is nonetheless subject to a licensing regime.
The appellants, while acknowledging that s 14 of the Fisheries Act 1994 (Qld) protects Islanders’ rights to take fisheries resources in accordance with tradition, argue that it is not apt to revive or reinstate native title rights to take fish for commercial purposes in circumstances where that right was extinguished by earlier legislative regimes.
The Seas Claim Group contends that the primary judge was right to hold that the non-exclusive right to take marine resources for commercial purposes has not been extinguished but only regulated. The Seas Claim Group argues that the legislated licensing regimes relied on by the appellants are “regulatory” rather than “prohibitory”. The common element of the legislative regimes to which the Seas Claim Group points in support of its argument is the presence of a general prohibition of commercial fishing coupled with the licensing of that very activity. The regimes include various other control mechanisms, including other kinds of “prohibitions” such as the prohibition on using explosives or poison with the intent to take any fish: Queensland Fisheries Act 1887 (Qld) s 16. The presence of different kinds of prohibitions appearing simultaneously in certain Acts is said to support the conclusion that the Acts were intended to be “regulatory” rather than “truly prohibitory” where a “prohibition” on commercial fishing appears within the scheme of Acts and is directly coupled with licence requirements, such as Queensland Fisheries Act 1887 (Qld) s 13.
The correct analysis is said, following Yanner v Eaton (1999) 201 CLR 351 (Yanner) at [30], to involve the identification of the character of the legislative regime as a whole and then the question whether it evinces a clear and plain intention to extinguish native title. Only if this is answered affirmatively is it necessary to consider the extinguishing effect of particular prohibitions.
As to Harper, the Seas Claim Group argues that, while a public right to fish may be abrogated by a prohibition coupled with a licensing regime, a native title right is not abrogated because, where native title rights are concerned, a clear and plain intention to extinguish is required. That is said to be because public and native title rights are different and not equally amenable to legislative abrogation: although a native title holder may be deprived of his or her right as a member of the public in accordance with Harper, there remains the possibility that native title rights (for example to fish) will be left intact, albeit now regulated by, and exercisable subject to, a licensing regime.
EXTINGUISHMENT
Consideration
The learned primary judge’s characterisation of the licensing regimes as regulatory was based, in large part, on his view (at [771]) of the effect of the decision of the High Court in Yanner. It will be necessary to discuss this aspect of his Honour’s reasons in greater detail. Before moving to that discussion, however, it is necessary to observe that his Honour’s conclusion that the licensing regimes did not extinguish native title because they were merely regulatory of fishing rights sits uneasily with the orthodox approach to the issue of extinguishment whereby one looks to see whether the activity which constitutes the relevant incident of native title is consistent with competent legislation relating to that activity. While it may be correct to describe the licensing regimes as concerned, in a general way, to regulate fishing, it is necessary to observe that these regulatory schemes operate by way of a prohibition on unlicensed fishing for commercial purposes. That prohibition is not deprived of its plain effect because it is an element of a regime which can be described generally as regulatory of fishing.
True it is that the licensing regimes in question did not speak explicitly in terms of extinguishing native title to take fish for commercial purposes when they imposed restrictions on the manner of fishing; but they did manifest a clear intention to extinguish all common law rights and that intention inevitably comprehended native title rights as well.
In Fejo v Northern Territory (1998) 195 CLR 96 at [43], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said:
Native title is extinguished by a grant in fee simple … because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title.
Likewise, the licensing regimes in question in this case do not permit of the employment by anyone other than the holder of a licence of the right to take fish from these waters for commercial purposes. The licensing regimes expressed a clear intention to extinguish the common law right to take fish for commercial purposes. No common law rights survived the legislative displacement of those rights. To accept that an expression of legislative intention to extinguish all common law rights in a particular field is not apt to extinguish native title rights recognised by the common law in the same field is to elevate native title above other rights under common law. That course is not supported by the authorities.
Inconsistency of incidents
In Western Australia v Ward (2002) 213 CLR 1 (Ward), the High Court held that native title rights and interests are to be considered as a bundle of rights, the individual components of which may be extinguished separately. Gleeson CJ, Gaudron, Gummow and Hayne JJ said at [95]:
Further, recognising that the rights and interests in relation to land which an Aboriginal community may hold under traditional law and custom are not to be understood as confined to the common lawyer’s one-dimensional view of property as control over access reveals that steps taken under the sovereign authority asserted at settlement may not affect every aspect of those rights and interests. The metaphor of “bundle of rights” which is so often employed in this area is useful in two respects. It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom. Not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land.
Whether there is an inconsistency between two sets of rights depends on a comparison of the two sets of rights. This may be described as the “inconsistency of incidents” approach. If there is an inconsistency, then to the extent of the inconsistency between native title rights and statutory provision, the native title rights will be extinguished to the extent of the inconsistency.
Extinguishment leaves no room for revival, save where statute makes specific provision to that effect. In Ward, Gleeson CJ, Gaudron, Gummow and Hayne JJ said at [82]:
Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment. Absent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise.
It is not necessary to refer again to the detail of each piece of legislation whereby the activity of fishing for commercial purposes in the Torres Strait was subject to control prior to 1975 when the Racial Discrimination Act 1975 (Cth) commenced, or prior to 1994 when the NT Act commenced. It is sufficient to note that, by the Fish and Oyster Act 1914 (Qld) and the Fisheries Act 1952 (Cth), the activity of taking fish for commercial purposes without a licence granted under the statute was prohibited. Thereafter, the activity of taking fish for commercial purposes was unlawful save where it was carried on pursuant to a licence granted under the statute. These regimes prohibit the taking of fish for commercial purposes save pursuant to a licence. There is no room for doubt that the prohibition is directed at all fishing for commercial purposes.
The prohibition of all unlicensed fishing for commercial purposes
In Harper it was established that a licence granted under the State licensing regimes confers a right, exclusive of all other members of the public, to take quantities of a valuable public resource that needs to be conserved. Mason CJ, Deane and Gaudron JJ said at 325:
The licensing system which the Fisheries Act 1959 (Tas.) and the Sea Fisheries Regulations 1962 (Tas.) establish in relation to abalone fisheries in Tasmanian waters is not a mere device for tax collecting. Its basis lies in environmental and conservational considerations which require that exploitation, particularly commercial exploitation, of limited public natural resources be carefully monitored and legislatively curtailed if their existence is to be preserved. Under that licensing system, the general public is deprived of the right of unfettered exploitation of the Tasmanian abalone fisheries. What was formerly in the public domain is converted into the exclusive but controlled preserve of those who hold licences. The right of commercial exploitation of a public resource for personal profit has become a privilege confined to those who hold commercial licences. This privilege can be compared to a profit à prendre. In truth, however, it is an entitlement of a new kind created as part of a system for preserving a limited public natural resource in a society which is coming to recognize that, in so far as such resources are concerned, to fail to protect may destroy and to preserve the right of everyone to take what he or she will may eventually deprive that right of all content.
In that context, the commercial licence fee is properly to be seen as the price exacted by the public, through its laws, for the appropriation of a limited public natural resource to the commercial exploitation of those who, by their own choice, acquire or retain commercial licences. So seen, the fee is the quid pro quo for the property which may lawfully be taken pursuant to the statutory right or privilege which a commercial licence confers upon its holder. It is not a tax. That being so, it is not a duty of excise.
In Harper at 329-332, Brennan J said:
[T]he right of the owner of the soil over which the waters flow (whether the owner be the Crown or not) to enjoy the exclusive right of fishing in those waters or to grant such a right to another as a profit à prendre is qualified by the paramount right to fish vested in the public: see Attorney-General (British Columbia) v. Attorney-General (Canada)…The existence of a public right to fish in tidal waters was accepted by Stephen and Jacobs JJ. in New South Wales v. The Commonwealth [Seas and Submerged Lands Case]. But the right of fishing in the sea and in tidal navigable rivers, being a public not a proprietary right, is freely amenable to abrogation or regulation by a competent legislature: see Attorney-General (British Columbia) v. Attorney-General (Canada); Attorney-General (Canada) v. Attorney-General (Quebec).
The public right of fishing in tidal waters is not limited by the need to preserve the capacity of a fishery to sustain itself. The management of a fishery to prevent its depletion by the public must be provided for, if at all, by statute.
…The Regulations prescribe a management regime for the abalone fishery in State fishing waters.
…In addition to the prohibition against the taking of abalone contained in reg. 17A of the Regulations, reg. 17B provides, inter alia:
(1) Subject to regulation 17AA and this regulation, no person shall in State fishing waters take by diving or swimming under water—
(b) any abalone, except pursuant to—
(i) a subsisting commercial abalone licence; or
(ii) a subsisting non-commercial diving licence issued for that purpose under this regulation.
Regulation 44(1)(o) prohibits any person from taking in State fishing waters more than ten abalone in any one day unless he is the holder of a subsisting commercial abalone licence; and reg. 44(1)(ra) prohibits the holder of a commercial abalone licence to take in State fishing waters more than the quantity of abalone specified as the quantity that may be taken by the holder of the licence. That quantity is specified in the licence in accordance with reg. 19ab. Regulation 44(3) makes any failure to comply with the Regulations an offence. The public right of fishing for abalone in State fishing waters is thus abrogated and private statutory rights to take abalone in limited quantities are conferred on the holders of commercial and non-commercial abalone licences. The Regulations thus control the exploitation of a finite resource in order to preserve its existence. They seek to achieve this end by imposing a general prohibition on exploitation followed by the grant of licences for the taking of limited quantities of abalone. The only compensation, if compensation it be, derived by the public for loss of the right of fishing for abalone consists in the amounts required to be paid by holders to obtain abalone licences under the Regulations.
(Footnotes omitted).In our respectful opinion, it is not permissible to reason that a more explicit expression of an intention to extinguish all rights to fish for commercial purposes was required to extinguish native title rights than was contained in the licensing regimes. As in Harper, the terms of the legislation were apt to apply to all persons by whom the activity of commercial fishing might be conducted. As the primary judge himself observed at [776], “[t]here are no degrees of inconsistency. The rights are inconsistent or they are not”. If a statutory right is inconsistent with the right to fish for commercial purposes derived from the common law, it will also be inconsistent with a right to fish for commercial purposes derived from native title interests recognised by the common law. That is the case, even though the law does not single out, in express terms, the native title right. It should also be noted that there is no support in authority for the view that an explicit reference to native title rights is necessary to include them within a general prohibition. Indeed, such a view is quite inconsistent with the “inconsistency of incidents” approach supported by Ward.
Regulation and prohibition
Neither Yanner, nor any other decision, supports the general proposition that a law which prohibits an activity, save pursuant to a licence, is not, in truth, a prohibition of the unlicensed activity. In Yanner it was the operation of s 211 of the NT Act upon the Queensland legislation which denied effect to the prohibition which would otherwise have applied to the activity.
Because of the importance of the decision in Yanner to the argument of the Seas Claim Group, it is necessary to set out in detail the facts of the case and to review the conclusions of the High Court. In that case, Yanner, an Aboriginal person, caught two juvenile estuarine crocodiles on his traditional land using traditional means. The Fauna Conservation Act 1974 (Qld) prohibited a person from taking fauna of any kind “unless he is the holder of a licence, permit, certificate or other authority granted and issued under this Act”. Yanner did not hold such a licence, but s 211 operated to prevent the prohibition from taking effect because the activity in question came within s 211(2) and (3) of the NT Act. Further, s 7(1) of the Act made all fauna to be the property of the Crown and under the control of the Fauna Authority, save that lawfully taken during open season.
Gleeson CJ and Gaudron, Kirby, and Hayne JJ held at [30] that “property” created by the legislation was no more than the aggregate of the various rights of control by the Executive and, that the rights in question were less than full or beneficial ownership. Their Honours said at [28], quoting Toomer v Witsell 3 (1948) 34 US 385 at 402 per Vinson CJ, that the statutory vesting of property in this was nothing more than:
“…a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an importance resource” [sic].
In that case, on the proper construction of the Fauna Conservation Act, his Honour concluded at [123] that it was only at the point of taking the crocodiles that the native title right was affected, and at that point s 211(2) of the NT Act operated so that s 54(1) of the Fauna Conservation Act was to be read down.
That reference also confirms that, subject to the operation of s 211 of the NT Act, the survival of native title rights does not relieve the holders of rights of their obligation of citizenship to comply with the law of the land so that if hunting or fishing, for example, is conditioned upon the holding of a licence, a licence must be held. See the First Instance Decision at [774]. The Seas Claim Group acknowledge that.
It is therefore necessary to apply the “inconsistency of incidents test”, as described in Ward HC at [78]-[85] by an objective inquiry after identification of, and comparison between, the two sets of rights. Gummow J in Wik Peoples at 185 pointed out that the comparison is between the legal nature and incidents of the native title right and the statutory right to determine whether the respective incidents are such that the existing right cannot be exercised without abrogating the statutory right. In that event, the necessary implication would be that the statute extinguishes the existing right. The primary judge at [776] recognised that there are no degrees of inconsistency.
The application of those principles by the primary judge was done in three stages. The first was to look at the legislation of Queensland up until 1994. The second was to look at the Commonwealth legislation from 1952 to 1991 but excluding the Torres Strait Fisheries Act. The third was to consider both the Commonwealth’s Torres Strait Fisheries Act and the Fisheries Act 1952 (Cth) (the Commonwealth Fisheries Act). His Honour under each of those headings then looked at the legislative history.
The Commonwealth contended that, from the Queensland Fisheries Act 1887 (Qld) (the Fisheries Act 1887), the legislative regimes have consistently established new statutory regimes which created rights to fish for commercial purposes, and thus prohibited the exercise of the native title right to take fish for commercial purposes without a licence to do so, with the consequence that the native title right was thereby extinguished.
It is necessary to address the successive legislative regimes from time to time to determine if that is the necessary effect of those regimes or any of them. It is also necessary to approach that task chronologically, because the Commonwealth contended that the primary judge had fallen into error by treating the Torres Strait Fisheries Act as representative of, or as illustrative of, the effect of the earlier Queensland legislation.
The starting point is the Fisheries Act 1887. In the First Instance Decision, the primary judge from [780]-[804] considered in chronological sequence the numerous Queensland enactments, and separately and again in sequence from [807]-[827] the relevant Commonwealth legislation preceding the Torres Strait Fisheries Act. That enactment was referred to in detail at [828]-[842].
I shall not repeat that analysis. Nothing was put by way of argument which indicated any significant misdescription of, or misunderstanding about, how that legislation operated. The written submissions of the Commonwealth under the heading “Structure of the legislation” and in Attachment A to the submission headed “Comprehensive legislative regime” present a summary not significantly different from that of the primary judge, and in part quote or refer to aspects of his Honour’s analysis as representing a reliable picture. Where the submissions refer to particular parts of the successive legislative regimes, they are considered below.
At [843]-[861], the primary judge under the heading “Consideration” then gave consideration to those principles and that legislative history. He observed that the submissions had focused almost entirely on fishing, so that it was not necessary to discuss separately “marine resources”.
The primary judge indicated also that he focused primarily upon the Commonwealth Fisheries Act and the Torres Strait Fisheries Act because, save for a narrow area of internal water which is subject to Queensland law and possibly the coastal waters around the islands to the north of the sea bed jurisdiction line, the presently applicable law in relation to fisheries in the claim area being considered is the Torres Strait Fisheries Act and the Commonwealth Fisheries Act.
Next the primary judge noted what was not in issue. It is apparent from the recital above. Firstly, it was not said by the parties that the native title right to take marine resources had itself been extinguished. Indeed, the concessions of the State and the Commonwealth acknowledged that that had not been the case, subject to the issue about “commercial” fishing. Secondly, it had not been contended that, at any time since the Fisheries Act 1887, the native title holders had been legislatively precluded from applying for licences to fish for commercial purposes. Next, the primary judge noted at [845] that although particular statutes:
… probably have prohibited native title holders absolutely from taking particular marine resources, I do not understand that I am being asked to do otherwise than note that there are such proscriptions in fisheries legislation; that they apply to native title holders; and that they are unaffected by s 211 of the NT Act.
Nor was it contended that the native title rights had been extinguished in any particular parts of the sea claim area by leases and licences given under statutes which attached exclusive rights to such grants. Fifthly, his Honour noted neither Queensland nor the Commonwealth had argued that the right to fish a particular marine species, or number of species, for commercial purposes had been legislatively extinguished and replaced by, in effect, a statutory fishing right by virtue of the manner in which specific, legislatively mandated management plans had been structured. Sixthly, the primary judge noted that no submissions had been made, and no evidence led, to support a case that the Seas Claim Group fishing for commercial purposes may be permissible under the Torres Strait Fisheries Act because such fishing was “traditional fishing”, ie was “for use in the course of … traditional activities”.
Seventhly, as noted earlier, it was not in dispute that Seas Claim Group members wishing to engage in fishing for commercial purposes in those parts of the Protected Zone and the declared near adjacent areas into which the area fell had to secure such licences as are or were required under the applicable legislation from time to time, and that if they fish without such licences they may be liable to prosecution.
Consequently, the primary judge at [845] referred to the remaining issue as “a narrow and seemingly barren question”. He defined the question in the following way:
Notwithstanding that the Islanders can, by seeking the necessary licences, avail of the present fisheries regime operative in the Part A claim area to fish for commercial purposes, have they nonetheless lost a native title right to fish for commercial purposes because of the extent of the rights of regulation and control the Crown in its State and Commonwealth manifestations has progressively arrogated to itself over a more than 130 year period?
The primary judge at [847] accepted that, although the native title right to fish or to access and take marine resources was not circumscribed by the use to be made of the resources taken, for the purposes of considering that question a right to take resources for trading or commercial purposes is a discrete and severable characteristic of a general right to take resources, and that it was permissible to “subdivide” that right. The Seas Claim Group did not contest that step. The primary judge then referred to two discernable and evolving features of the fisheries legislation over time. The first concerned the expansion of particular public interests of which account is to be taken in the design and implementation of legislative schemes to regulate and control fisheries. The second related to the changing character of the discretions given in the grant (or refusal) of leases and licences under such legislation. Hence, as his Honour observed, while certain types of fisheries (examples: pearl shell, beche-de-mer and oyster fisheries) were highly regulated from an early date, the more general legislation imposed increasingly comprehensive and sophisticated management regimes which had and have as a principal focus the control and management of commercial fishing of those types of fish. The discretions given to grant or refuse licences for those purposes were permissive and absolute.
At [851], the primary judge indicated that he was approaching the matter in the following way:
There are, in my view, clear “constructional choices” open here: Evans v New South Wales (2008) 168 FCR 576 at [68]. In these circumstances, and given (i) that the 1984 Act did not of its own force seek directly to deny Islander fishing rights for commercial purposes, hence its creation of the community fishing category (although the Act did envisage such fishing might later be subject to licensing requirements: s 17 and the Second Reading Speech below); and (ii) the s 8(a) objective of the Act to acknowledge and protect, as a management priority, the traditional way of life and livelihood of traditional inhabitants, including their rights in relation to traditional fishing – I consider the choice that is more favourable to the retention of the right to fish for commercial purpose is to be preferred, there not being a clear and plain intention to extinguish it. I would add that, in the distinctive setting of this Act, and assuming native title rights subsisted in Torres Strait at the time of its enactment (see below), it would require particularly strong indications in the Act itself that existing rights were intended to be extinguished, given the markedly beneficial and protective intent of the PNG Treaty and of this Act.
The Second Reading Speech on the Bill for the Act (Commonwealth, Parliamentary Debates, House of Representatives, 19 October 1983, 1902-1903) indicated that the Torres Strait Fisheries Act was responsive to the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two countries, including the area known as Torres Strait, and related matters, signed on 18 December 1978 (ATS 1985 no 4, entered into force 15 February 1985) (the PNG Treaty), at least in relation to the fisheries aspects of the PNG Treaty. The Second Reading Speech indicated that, as a domestic Australian measure, the Torres Strait Fisheries Act made special provision for commercial fishing enterprises among the Seas Claim Group (and other Australian traditional inhabitants) by the concept of community fishing, albeit that s 17 contemplated by declaration that the boats of the members of the Seas Claim Group engaged in community fishing should be licensed. His Honour said at [853], paraphrasing Gummow J in Yanner at [115], that “… did not abrogate the native title right [to fish for commercial purposes]” but was a measure taken for fishery management. It was consistent with the continued exercise of that right. He also observed at [854] that the commercial fishing incident of the native title right could only be enjoyed if and when a licence is granted under s 19(2) and that fishing without a licence would be unlawful: s 45(1)(b). His Honour then added:
However, when the licensing discretion is considered in the context of the s 8 “management priorities” to be followed “[i]n the administration of [the] Act”, it can only be characterised as a regulatory control measure “consistent with the continued enjoyment of native title”: Mabo [No 2], at 64. It does not create a new statutory fishing right.
Consequently, the primary judge reached the view that the Torres Strait Fisheries Act did not extinguish the commercial purposes incident of the native title right to access and to take fish and other marine resources.
Under the heading Conclusion at [861], the primary judge said:
My conclusion responds to the extinguishment contentions as put by the State and the Commonwealth. It is that the legislative regimes of the State since 1877, and of the Commonwealth since 1952, concerning fisheries did not, and do not, severally or together evince a clear and plain intention to extinguish native title rights to take fish for commercial purposes. To the extent that those legislative regimes regulate the manner in which, and the conditions subject to which, commercial fishing can be conducted in a fishery in the native title holders’ marine estate, or prohibits qualifiedly or absolutely particular activities in relation to commercial fishing in the fishery in that estate: cf s 211 of the NT Act; the native title holders must, in enjoying their native title rights, observe the law of the land. This is their obligations as Australian citizens. But complying with those regimes provides them with the opportunity – qualified it may be – to exercise their native title rights.
The errors in the reasons of the primary judge are said to be that in application of accepted principles:
(1)his Honour should not have focused primarily on the Commonwealth Fisheries Act and the Torres Strait Fisheries Act, but should have commenced with the historic legislation as it applied to the claim area, and that properly understood both the Fisheries Act 1887 and then the Fisheries Act 1976 (Qld) (the Fisheries Act 1976) each extinguished the native title right to fish for commercial purposes; and
(2)each of those earlier enactments, through their licensing regimes, created new statutory rights to fish for commercial purposes, in substitution for any existing native title or common law rights to fish, so that the native title rights to fish for commercial purposes was necessarily extinguished.
Those propositions are complementary.
It is clear that the primary judge did not overlook or fail to consider the significance of the legislation earlier than the Torres Strait Fisheries Act. It is carefully rehearsed in the First Instance Decision. Moreover, it is clear that the primary judge assumed for the purposes of considering the significance of the Torres Strait Fisheries Act that, up to that time, the native title right to take fish and other marine resources, including for commercial purposes, had not by then been extinguished. However, his Honour recognised at [856] that he had made that assumption to that point, and then addressed whether that assumption was correct. There was no failure to consider the significance of the legislation prior to the Torres Strait Fisheries Act, including the Fisheries Act 1887 and the Fisheries Act 1976 or the Fisheries Act 1994. He concluded that all those earlier regimes were regulatory and not prohibitory.
I respectfully agree with that conclusion. As with all the legislation addressed in the contentions, the Fisheries Act 1887 was clearly directed to conservation of the fisheries, and fair practices in fishing. It put restrictions on the use of poisons and explosives to catch fish (s 16). It prescribed the minimum size of nets and fish that might be taken (ss 4 and 7). More importantly, it made it an offence to take fish for sale from a boat without a licence and to take fish for sale without a licence (ss 12 and 13). The Governor in Council was empowered to prohibit or restrict the taking of particular kinds of fish or to close fishing areas for different seasons, or to prohibit the use of certain devices for fishing (s 18).
The next evolution of the Queensland fishing regulatory regime was the Fish and Oyster Act 1914 (Qld). I put aside the “comprehensive regime of the regulation of oystering” (as it is described in the Commonwealth’s Attachment A to its submissions). The powers of the Governor in Council were extended to issue exclusive licenses to take fish or particular fish or marine products in any specified part of Queensland waters.
That enactment was amended by the Fish and Oyster Acts Amendment Act 1955 (Qld) so that it did not apply to the taking of fish by any Islander (as defined in the Torres Strait Islanders Act 1939 (Qld)) who usually lives on a reserve and for consumption by Islanders. The amendment in 1955 therefore recognised a difference between taking fish for personal consumption and for sale, and by implication intended that it should otherwise apply to the Seas Claim Group. I do not consider that is of any particular significance to resolution of the appeal. It is not in dispute that the successive legislative regimes applied to the Seas Claim Group so that its members, from at least 1887 (that is, from the Fisheries Act 1887) were required to comply with the licensing regime in force from time to time. It does not routinely follow that any then existing native title rights to take fish for commercial purposes were extinguished. Consequently, the 1955 amendment, and other specific provisions to similar effect such as the “community fishing licence” introduced by the Fisheries Amendment Act 1981 (Qld), are not inconsistent with the continued existence of the general native title rights to fish, including for commercial purposes. The primary judge reached the same conclusion at [858].
The Fisheries Act 1957 (Qld) consolidated the law relating to whaling, oystering and other fisheries. At the general level, it continued the general prohibition on taking fish for sale without a licence, and it also regulated minimum fish sizes, prohibited certain fishing methods, required that fishing vessels and persons taking fish for sale be licensed, and empowered the Governor in Council to issue exclusive licences to take certain marine life (ss 70, 71, 79 and 80).
The Act was in turn repealed and replaced by the Fisheries Act 1976. It is described by the Commonwealth as “establishing a comprehensive scheme for the regulation of fishing off the coast of Queensland.” That included the power to set apart and declare parks, reserves and sanctuaries, in addition to existing powers. Its intention was, again to quote the Commonwealth’s submission, “to develop the fishing industry and to balance that against the need to preserve sea resources from over exploitation”. In 1981, Part IVA was inserted into that Act by the Fisheries Amendment Act 1981 (Qld) to enable arrangements with the Commonwealth to be made with respect to the management of fisheries, as contemplated by s 12H of the Commonwealth Fisheries Act.
The final relevant step in the Queensland legislative sequence is the Fisheries Act 1994, discussed by the primary judge at [798]-[800]. It applied inter alia, to the coastal waters of Queensland, but not to activities covered by a Commonwealth law cooperative fishery or to exclusive Commonwealth matters for a State law cooperative fishery (s 11). Section 14 protects Aboriginal and Torres Straits Islanders rights to take fisheries resources and to use fish habitats in accordance with tradition, subject to express application of regulations or management plans. The Commonwealth correctly points out that s 14, whatever its effect, could not operate to revive or reinstate any native title rights to take fish for commercial purposes if those rights had already been extinguished by earlier legislative regimes.
Orders-in-Council under the various Queensland legislative regimes, as the primary judge observed at [802] and [857], have no particular significance to the resolution of this appeal.
The Commonwealth Fisheries Act was the first general fisheries legislation introduced by the Commonwealth. It was introduced together with the more focused Pearl Commonwealth Fisheries Act, which was repealed and replaced by the Continental Shelf (Living Natural Resources) Act 1968 (Cth).
The Commonwealth Fisheries Act prohibited the taking of fish, and the use of a vessel to take fish, without a licence (ss 9 and 13). Its reach was in Australian waters as defined and as extended by proclamation (ss 4 and 7). It is accepted that its reach extended to the claim area of the Seas Claim Group. In 1973, s 13(4) was amended so that it became a defence to a prosecution if the fish was not taken for trading or manufacturing purposes. Until that time, the prohibition extended to all fishing, and not merely commercial fishing, and in its terms that general prohibition continued after 1973. The Fisheries Legislation Amendment Act 1985 (Cth) amended that Act to provide for the determination of management plans for fisheries in proclaimed waters.
The primary submissions of the Commonwealth do not contend that its contentions are significantly advanced by the terms of the Continental Shelf (Living Natural Resources) Act 1968 (Cth), or by the amendments to the Commonwealth Fisheries Act effected by the Fisheries Amendment Act 1980 (Cth) to implement the Offshore Constitutional Settlement, or by the Fisheries Management Act, which replaced the Commonwealth Fisheries Act. As such, it is not necessary to consider their detailed provisions.
The next significant legislative step by the Commonwealth was the Torres Strait Fisheries Act. It legislatively established the regulatory framework for managing fish and other marine resources in the Torres Strait, following the PNG Treaty. It established the Protected Zone Joint Authority (PZJA), responsible for managing the “fishery” (defined in s 31) to be managed in accordance with the laws of the Commonwealth.
The regulatory regime of the Torres Strait Fisheries Act followed, to a large extent, that of the Commonwealth Fisheries Act. However, the Commonwealth contends that the emphasis or focus of the primary judge on that Act in making his constructional choice, and then “applying that choice to earlier legislation”, led him into error.
I do not accept that contention for two reasons. The first is that, in my view, the primary judge properly and independently considered the significance of the earlier Queensland and Commonwealth legislation. Further, for the reasons set out below, I agree with his Honour’s conclusion about their significance. The second is that neither the context in which that Act came into existence, nor its terms, are shown to have influenced the overall conclusion of the primary judge in an inappropriate way.
The Torres Strait Fisheries Act provided for four different types of fishing within the Protected Zone: commercial fishing but excluding traditional fishing (defined in s 3(1)); community fishing which in effect is commercial fishing by traditional inhabitants (defined in s 3(1)); private fishing (defined in s 3(1) and (5); and traditional fishing which is fishing by traditional inhabitants for their personal consumption or for use in the course of other traditional activities (defined in s 3(1), with a meaning taken from Art 1 para 1(1) of the PNG Treaty).
The Torres Strait Fisheries Act does not apply to private fishing. That is governed by the Queensland fisheries legislation in force from time to time. Nor does the application of that Act to traditional fishing have particular significance for present purposes. It does apply to commercial fishing, and within that description to the subcategory of community fishing (commercial fishing by Australian traditional inhabitants). As the Commonwealth’s submissions suggest, the definition of community fishing may extend beyond the traditional style of taking and using fish for commercial purposes, including bartering or marketing fish. There are different licensing regimes for commercial fishing and community fishing. It is apparent from s 8(1) that the concept of community fishing was introduced as an additional benefit for Australian traditional inhabitants under less stringent forms of regulation.
Three observations about that should be made. First, the Seas Claim Group did not contend that the Torres Straight Fisheries Act somehow operated to preserve or to recognise or to revive their native title rights to fish, including to take fish for commercial purposes if they had by then been extinguished. Nor did the primary judge reason in that way. Secondly, the Seas Claim Group did not contend that the provisions in that Act relating to, and regulating, community fishing amounted to an expression of their native title rights to fish and to take fish for commercial purposes. Again, nor did the primary judge. Thirdly, the Commonwealth did not contend that the provisions of that Act, in particular in providing for regulating community fishing, somehow extinguished such native title rights to fish and to take fish for commercial purposes, if such native title rights were (contrary to its submissions) found to exist at the time of its introduction. As the Commonwealth’s submissions note, the definition of “traditional inhabitants” is not necessarily co-extensive in its scope with the Seas Claim Group determined to hold native title in accordance with s 223 of the NT Act.
In my view, the analysis of the successive Queensland and Commonwealth legislative regimes for fisheries shows, with increasingly more sophisticated or comprehensive detail, the legislative intention to regulate the taking of fish by the management of fisheries and the manner of taking fish. It does so generally by the prohibition of taking fish, either absolutely or for commercial purposes unless a license is granted to engage in that activity, and by prescribing how the taking of fish may occur. Over time, the prohibition of taking fish was potentially extended to encompass prohibition from taking fish in particular areas and/or for particular periods (although, as noted, such powers to be exercised generally by proclamation are not shown to have been exercised in any relevant way in relation to the native title rights of the Seas Claim Group in the now Determination area).
I do not consider that those legislative regimes, in particular as the Commonwealth contends by requiring licences to fish for commercial purposes, necessarily means that the native title rights to fish and take fish for commercial purposes was extinguished. The objectives of the legislation were, in essence, the proper conservation of fisheries and fish resources by their management, and the securing of what the Commonwealth called fair fishing practices. Those objectives were fulfilled by a conditional prohibition, that is a prohibition from engaging in fishing without a licence. The complementary restrictions on the manner of fishing were not said themselves to extinguish the native title rights in issue.
The conditional prohibition, which the Seas Claim Group accept they must comply with, was consistent with the continued existence of the native title rights in issue. It did not sever the Seas Claim Group’s connection with the land and seas concerned. It did not deny to them the continued exercise of their rights and interests in that respect which the common law recognises (but for any extinguishment). It is consistent with the continued existence and enjoyment of those rights.
There are, of course, circumstances in which regulation may shade into prohibition, as was said by the plurality in Yanner at [37] and by Gummow J at [115].
The Commonwealth contended that Harper v Minister for Sea Fisheries (1989) 168 CLR 314 (Harper) showed that licences granted under the Commonwealth Fisheries Act, and indeed by the earlier Queensland legislation from the Fisheries Act 1887 are a new species of statutory right to fish, the existence and nature of which depends on the legislation only. Hence, it is argued, the new statutory right to fish and take fish for commercial purposes of necessity is inconsistent with the continued existence of the native title rights to do so.
Harper concerned the licensing system which the Sea Fisheries Act 1959 (Tas) and the Sea Fisheries Regulations 1968 (Tas) established in relation to abalone fisheries. Mason CJ, Deane and Gaudron JJ at 325 described that legislation as creating an entitlement of a new kind created as part of a statutory system. Brennan J at 334-335 also referred to a new statutory right replacing the public right to fish. Earlier Brennan J at 330 pointed out that the public right to fish, not being a proprietary right, is freely amenable to abrogation or regulation by a competent legislature. See also Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 at 585 (per Black CJ, Davies and Sackville JJ) in relation to the effect of the Commonwealth Fisheries Act on the public right to fish, and the rights under the licensing regime of that legislation.
The primary judge at [857] recognised that different considerations may apply in the case of the asserted extinguishment of native title rights and interests because of their character. The special character of those rights was recognised, inter alia, in Yanner. The question is whether the legislation referred to created a regime of control which is necessarily inconsistent with the continued enjoyment of the native title rights in issue (per Brennan J in Mabo (No 2) at 64). The answer is, in my view, in the negative. There is nothing to indicate that any of the legislative regimes was directed at native title rights and interests, when the holders of those rights were required to comply with the restrictions and requirements imposed by those regimes to continue to enjoy their native title rights.
Finally, I note that the Commonwealth contended that there were other decisions in the way of that conclusion.
The Commonwealth said there is authority that a native title right to take or use fish and marine resources for commercial purposes has been extinguished by similar State and Commonwealth legislative schemes.
I do not consider that the three decisions referred to in fact advance in any real way the application of the principles discussed above to the relevant native title right of the Seas Claim Group. That Group has distinctive traditional laws and customs derived from the utility and practicality of their particular geography and circumstances. The findings of the primary judge recognise that. The Commonwealth acknowledged it.
Commonwealth v Yarmirr (1999) 101 FCR 171 (Yarmirr FC) also concerned an appeal by the Commonwealth about the status of claimed native title rights to fish and take marine resources. In that case, the relevant claim area was the seabed in the Croker Island region of the Northern Territory. The first instance decision (Yarmirr v Northern Territory (1998) 82 FCR 533 (Yarmirr SJ)) decided that non-exclusive native title rights existed in that claimant group in relation to the sea and seabed in the vicinity of Croker Island to fish and gather marine resources for personal, domestic or non-commercial needs. The Commonwealth’s unsuccessful appeal was directed to the proposition that native title rights to take fish and marine resources in the sea and seabed could not be and had not been established. That issue was unsuccessfully pursued in the High Court: Commonwealth v Yarmirr (2001) 208 CLR 1. The important point for present purposes is that the claimant group cross-appealed to the Full Court of this Court against the finding at first instance that their native title right to take fish and other marine resources from the sea and sea bed was non-exclusive. Their cross-appeal was dismissed by the Full Court, having regard to the public’s right to fish at common law and to navigate both tidal waters and the high seas, and to the legislative and administrative regime applicable to those waters, and the international law right of innocent passage, as acknowledged by Australian law. There was no appeal to the High Court from the Full Court decision on the cross-appeal.
The section of the Full Court’s reasons in Yarmirr FC relied upon by the Commonwealth on this appeal is clearly not part of the critical reasoning of the Full Court. The primary judge had rejected the claim that the native title right to take fish and marine resources included a right to trade in those resources: Yarmirr SJ at 586-588. That factual decision was upheld by the Full Court: Yarmirr FC per Beaumont and von Doussa JJ at [254]. Their Honours then added, in the passage relied upon by the Commonwealth, at [255]:
Although not now strictly necessary for us to consider, it should be mentioned that any final consideration of a claim of a right to fish, hunt and gather within these waters for the purposes of trade, would need to take into account the impact of relevant respective fishing legislative regimes of South Australia, the Territory and the Commonwealth. The various forms of applicable fisheries legislation and administrative action thereunder, which clearly had at least the potential to affect a claim by any person to fish or hunt in these waters, were summarised by the primary judge (at 594-599). We need not repeat that summary here. It will suffice for us to say that, by this means, any right of the public to fish for commercial purposes, and any such traditional right, were at least regulated and possibly wholly or partially extinguished, by statute or executive act or both.
As is apparent, those observations leave open in respect of that legislative regime the issue which is the subject of this appeal.
Neowarra v State of Western Australia [2003] FCA 1402 (Neowarra) was a decision concerning native title in an extensive area in the Kimberley Region. The decision addressed all aspects of the claim. At [379]-[383], Sundberg J concluded that the claimant group held the “right to possession, occupation, use and enjoyment of the claim area as against the whole world” under their traditional laws and customs. At that point of the reasons, his Honour did not need to “unbundle” the right. In considering extinguishment, that step became necessary to some degree. The concluding section only of those reasons under the heading “WAFIC” (Western Australian Fishing Industry Council) is relevant to the present appeal. It is encompassed in [761]-[784], where the claim to use and enjoy the resources of the claim area including the fish and other marine resources was addressed. After referring at [777] to the Fisheries Act 1905 (WA) and to the Fisheries Regulations 1938 (WA) made under that Act, his Honour at [789] quoted the passage in Yarmirr FC set out at [85] above and added:
The legislative regimes considered in Yarmirr were essentially of a licensing nature, as were the Fisheries Regulations 1938 referred to above. Claim (vii) is expressed in broad language that would include a right to take fish for commercial purposes. Any such right would be extinguished by the operation of the Regulations.
As can be seen, that question was only marginal to the overall decision in that case, and his Honour with respect appears to have attributed to the observations of Beaumont and von Doussa JJ in Yarmirr FC a somewhat more definitive statement than their Honours expressed. Neowarra is a decision made in relation to particular legislation which does not, in the circumstances, materially advance consideration of this appeal.
The other case referred to by the Commonwealth in this regard is the decision of Selway J in Gumana v Northern Territory (2005) 141 FCR 457. It is accepted that the passage in his Honour’s reasons at [247(b)] relied upon was introduced with the observation that the question of the extinguishment “probably did not need detailed consideration”. In my view, the remarks of Selway J also do not advance consideration of the issue on the appeal.
Reference may also be made to the conclusion of French J (as his Honour then was) in Sampi v Western Australia [2005] FCA 777 at [1146] regarding the effect of the Pearling Act 1912 (WA) on the native title right to take pear oysters and shell for ceremonial purposes.
In my judgment, the decision of the primary judge on this issue was correct. I consider the appeal should be dismissed with costs.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 14 March 2012
Schedule
No: (P)QUD387/2010
Federal Court of Australia
District Registry: Queensland
Division: General
Respondent: LEO AKIBA
Respondent: GEORGE MYE
Respondent: NEIL WADE
Respondent: MARKIM HOLDINGS T/A BARRIER REEF LIVE CRAY
Respondent: ROBERT STEFAN JOHN STANDEN
Respondent: BARRY WILSON
Respondent: MARK WILLIS
Respondent: TASMANIAN SEAFOODS PTY LTD
Respondent: KAREN SKUDDER
Respondent: BRUCE ROSE
Respondent: QUEENSLAND ROCK LOBSTER ASSOCIATION
Respondent: THEOPHANIS PETROU
Respondent: ELFREDA PETROU
Respondent: PETER J PAHLKE
Respondent: ALISON NEWBOLD
Respondent: RAYMOND MOORE
Respondent: MABEL MOORE
Respondent: MARK MILLWARD
Respondent: KENNETH JAMES MCKENZIE
Respondent: JOHN STEWART MCKENZIE
Respondent: STEVEN MACDONALD
Respondent: M G KAILIS PTY LTD
Respondent: ROBERT BRUCE LOWDEN
Respondent: NOEL LOLLBACK
Respondent: BOB LAMACCHIA
Respondent: RICHARD LAURENCE JONES
Respondent: PHILLIP JOHN HUGHES
Respondent: ROBERT GEORGE GIDDINS
Respondent: LARRY HUDSON
Respondent: PAMELA HUDSON
Respondent: DIANNE MAREE HUGHES
Respondent: STATE OF QUEENSLAND
Respondent: AUSTRALIAN MARITIME SAFETY AUTHORITY
Respondent: BARRY EHRKE
Respondent: DENNIS FRITZ
Respondent: JENNY TITASEY
Respondent: AUGUSTINUS TITASEY
Respondent: GEOFFREY DONALD MCKENZIE
Respondent: ZIPPORAH GEAGEA
Respondent: PETER GEAGEA
Respondent: ROBERT GARNER
Respondent: TROPICAL SEAFOOD OPERATION PTY LTD
Respondent: DIAKEN PTY LTD
Respondent: CARL DAGUIAR
Respondent: JIMMY ALISON
Respondent: DANNY BROWNLOW
Respondent: BEVERLEY JOAN BRUCE
Respondent: GUY STEWART BRUCE
Respondent: KIWAT LUI
Respondent: TORRES STRAIT REGIONAL AUTHORITY
Cross Appellant: LEO AKIBA
Cross Appellant: TORRES STRAIT REGIONAL SEAS CLAIM
Cross Respondent: STATE OF QUEENSLAND
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