Dietman v Karpany - [2012] SASCFC 53

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DIETMAN v KARPANY & ANOR
[2012] SASCFC 53
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Kelly and The Honourable Justice Blue)
11 May 2012
ABORIGINALS - NATIVE TITLE - EXTINGUISHMENT
PRIMARY INDUSTRY - FISH - ABORIGINAL CUSTOMARY RIGHTS
PRIMARY INDUSTRY - FISH - CONSTITUTIONAL, TERRITORIAL AND RELATED ISSUES - CONSTITUTIONAL MATTERS - INTERACTION OF POWERS OF COMMONWEALTH AND STATES
Appeal from a decision of a Magistrate dismissing a complaint - appeal referred to the Full Court of the Supreme Court of South Australia for hearing and determination - defendants and respondents jointly charged for possession or control of undersized Greenlip abalone contrary to section 72 of the Fisheries Management Act 2007 (SA) - accepted by the defendants that if section 72(2)(c) was operative, the commission of the offences was proved - defendants were members of an Aboriginal group whose customary native title rights included fishing in the waters where the abalone were taken - defendants asserted section 72(2)(c) inoperative because of the terms of section 211 of the Native Title Act 1993 (Cth) - parties accepted that if section 211 applied, it would prevail over and render inoperative to the extent of inconsistency the provisions of section 72(2)(c) of the State Act due to section 109 of the Commonwealth Constitution - whether the Magistrate erred in law in the construction of section 211 of the Native Title Act 1993 (Cth) and of section 115 of the Fisheries Management Act 2007 (SA) in finding that an exemption under section 115 was a “permit, licence or other instrument” for the purposes of section 211 of the Native Title Act and erred in law in finding that section 211 applied so as to permit the defendants to take undersized Greenlip abalone contrary to the prohibition in section 72(2) of the Fisheries Management Act 2007 - whether any right that the Aboriginal group to which the defendants belonged enjoyed in the past to take undersized Greenlip abalone had been validly extinguished under State law.
Held: Appeal allowed.
Per Gray, Kelly and Blue J: Section 211 of the Native Title Act 1993 (Cth) distinguishes between laws permitting fishing etc under licence (regulatory laws) and laws prohibiting fishing etc (prohibitory laws) - section 71 and section 72(2)(c) of the Fisheries Management Act 2007 prohibit the taking of prohibited species and undersized fish - the Minister's exceptional power to grant an exemption under section 115 of the Act does not change the characterisation of those sections as prohibitory as opposed to regulatory - section 211 of the Native Title Act therefore has no application.
Per Gray J, Kelly J (agreeing): The Fisheries Act 1971 (SA) extinguished native title in the sense of any relevant customary rights that the Narrunga people had prior to the enactment of this statute.
Per Blue J: Section 29 of the Fisheries Act 1971 (SA) merely regulated rather than prohibited fishing generally by requiring a licence for commercial fishing - it was not inconsistent with the subsistence of native title rights to fish - it did not manifest a clear intention to extinguish native title rights - the reasoning of the High Court in Yanner v Eaton is applicable - no extinguishment of native titles rights was effected.
Fisheries Management Act 2007 (SA) s 51, s 52, s 53, s 54, s 57, s 59, s 67, s 71, s 72, s 115, Pt 6 and Pt 10; Fisheries Management (General) Regulations 2007 (SA) r 3, r 8(1)(a), Sch 2 and Sch 3; Native Title Act 1993 (Cth) s 211; Fisheries Act 1971 (SA) s 29 and s 47; Fisheries Act 1878 (No 102) (SA) s 14; Fisheries Act 1904 (SA) s 22; Fisheries Act 1917 (SA) s 48; Fisheries Act 1982 (SA) s 41; Racial Discrimination Act 1975 (Cth); Fauna Conservation Act 1974 (Qld) s 54; Fisheries Act 1988 (NT) s 10, referred to.
Mabo v Queensland (No 2) (1992) 175 CLR 1; Fejo v Northern Territory (1998) 195 CLR 96; Western Australia v Ward (2002) 213 CLR 1; Yanner v Eaton (1999) 201 CLR 351; Wik Peoples v Queensland (1996) 187 CLR 1; Toronto Municipal Corporation v Virgo [1896] AC 88; State of Western Australia v The Commonwealth (1995) 183 CLR 373; Wilkes v Johnsen (1999) 21 WAR 269; Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24; Harper v Minister for Sea Fisheries (1989) 168 CLR 314, considered.

DIETMAN v KARPANY & ANOR
[2012] SASCFC 53
Full Court Gray, Kelly and Blue JJ
GRAY J:

This is an appeal from a decision of a Magistrate dismissing a complaint. The appeal has been referred to this Court for hearing and determination.
The Trial
Owen John Karpany and Daniel Thomas Karpany, the defendants and respondents, belong to the Narrunga People. They were jointly charged that on 12 December 2009, they were in joint possession or control of 24 undersized Greenlip abalone, contrary to section 72(2)(c) of the Fisheries Management Act 2007 (SA).[1] “Undersized” for these purposes means less than 13 centimetres in length.[2]
[1] Section 72(2) of the Fisheries Management Act 2007 (SA) provides:
(2) Subject to this section, if a person sells or purchases, or has possession or control of—
(a)     an aquatic resource taken in contravention of this Act or a corresponding law;
or
(b)     an aquatic resource of a protected species; or
(c)     an aquatic resource of a prescribed class,
the person is guilty of an offence.
Maximum penalty:
(a)     in the case of a body corporate—
(i) if the offence involves the sale or purchase of fish of a priority species or the possession or control of fish of a priority species for the purposes of sale—$250 000;
(ii)     in any other case—$100 000;
(b)     in the case of a natural person—
(i) if the offence involves the sale or purchase of fish of a priority species or the possession or control of fish of a priority species for the purposes of sale—$50 000 or imprisonment for 4 years;
(ii) in any other case—$20 000.
[2]    See regulation 8(1)(a) and schedule 2, clause 6(2)(b)(i) of the Fisheries Management (General) Regulations 2007 (SA).
Fisheries officers found the meat of 32 Greenlip abalone and 30 shells in the joint possession and control of the defendants. Only six of the shells met the legal size limit, with 24 being undersized.
The matter came on for trial before a Magistrate. A body of written material described as the “trial booklet” was received as an exhibit at trial. The parties agreed that the prosecution evidence tendered at trial established each of the elements of the offence charged to the requisite standard of proof – namely, that the defendants were at the relevant times, in the waters of South Australia, in possession of 24 Greenlip abalone and that the abalone measured less than the legal size limit of 13 centimetres. It was accepted by the defendants that if section 72(2)(c) was operative, the commission of the offences was proved. In Mabo v Queensland (No 2), Brennan J described native title as follows:[3]
Native title to particular land (whether classified by the common law as proprietary, usufructuary or otherwise), its incidents and the persons entitled thereto are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connexion with the land. It is immaterial that the laws and customs have undergone some change since the Crown acquired sovereignty provided the general nature of the connexion between the indigenous people and the land remains. Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person's membership by that person and by the elders or other persons enjoying traditional authority among those people.
[3] Mabo v Queensland (No 2) (1992) 175 CLR 1, 70.
For the purposes of the trial, the prosecution accepted that both defendants were members of an Aboriginal group whose customary native title rights included fishing in the waters where the abalone were taken.
The defendants asserted that they were entitled to take the undersized abalone. It was said that section 72(2)(c) was inoperative because of the terms of section 211 of the Native Title Act 1993 (Cth) in its application to this proceeding.[4] Both parties accepted that if section 211 applied, it would prevail over and render inoperative to the extent of inconsistency the provisions of section 72(2)(c) of the State Act. This was a consequence of the operation of section 109 of the Commonwealth Constitution.
[4] Section 211 of the Native Title Act 1993 (Cth) provides:
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 land or 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
(ba)the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; 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 land or 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.
Note:In carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application.
Definition of class of activity
(3)Each of the following is a separate class of activity:
(a)hunting;
(b)fishing;
(c)gathering;
(d)a cultural or spiritual activity;
(e)any other kind of activity prescribed for the purpose of this paragraph.
The complainant and appellant, Peter John Dietman,[5] accepted at trial and on appeal that the abalone were taken for a bona fide non-commercial, domestic or communal need;[6] that the customary rights of the Aboriginal group to which the defendants belonged included fishing;[7] and that the customary rights of the Aboriginal group, judged apart from the effect of prior State legislation, included the taking of abalone described as “undersized” under present State law.
[5] The Information filed in the Magistrates Court named the Informant as Robyn Nicholas Parks of the Department of Primary Industries – Fisheries SA. The appeal was lodged by Peter Dietman, a public officer of the Department of Primary Industries and Resources SA – Fisheries.
[6] For the purposes of section 211(2)(a) of the Native Title Act 1993 (Cth).
[7] For the purposes of sections 211(1)(a) and 211(3)(b) of the Native Title Act 1993 (Cth).
The Magistrate noted:
There then followed considerable argument as to the provisions of the s.211 of the Common Native Title Act and the relevant sections of the Fisheries Management Act.
Put briefly, the defence argument is that s.115 of the Fisheries Management Act enables the Minister to exempt a person or class of persons from the specified provisions of the Fisheries Management Act and that extends to an exemption from not taking undersized abalone and if that be the case then all the pre-requisites of s.211 (1) of the Commonwealth legislation are met and subsection two then applies to give both defendants a defence to the charge.
The Magistrate then proceeded to resolve what he described as a limited issue that he then defined in the following terms:
… The limited issue now being whether an exemption if granted under s.115 could be properly categorised as a license, permit or other instrument pursuant to the provisions of s.211 the Commonwealth Act.
The Magistrate resolved the issue as follows:
Having considered the parties written and oral submissions, and having considered in the limited time available to me the various authorities referred to, it is my view that an exemption under s.115 of the State Act is in fact an ‘instrument’ in the context of s.211 of the Native Title Act.
Accordingly in the present case I would conclude that the so-called ‘Native Title’ defence is available to both defendants with respect to the present charge.
As a consequence, the Magistrate found both defendants to be not guilty as charged.
The Appeal
On appeal two grounds were advanced. The first was a direct challenge to the Magistrate’s reasoning. It was said that the Magistrate erred in law in the construction of section 211 of the Native Title Act 1993 (Cth) and of section 115 of the Fisheries Management Act 2007 in finding that an exemption under section 115 of the Fisheries Management Act 2007 was a “license, permit or other instrument” for the purposes of section 211 of the Native Title Act and erred in law in finding that section 211 applied so as to permit the defendants to take undersized Greenlip abalone contrary to the prohibition in section 72(2) of the Fisheries Management Act 2007.
The second ground raised a further point that had not been raised before the Magistrate. It was contended by the complainant that any right that the Aboriginal group to which the defendants belonged had enjoyed in the past to take undersized abalone had been validly extinguished under State law. For this reason it was said that section 211 of the Native Title Act could not apply in the circumstances of the present proceeding. It was said that this arose because the requirement of section 211(2)(b), that the taking should occur in the exercise or enjoyment of native title rights and interests, could not be satisfied.
I agree with the reasons given by Blue J that the Magistrate was in error in holding that section 72(2)(c) of the Fisheries Management Act 2007 relevantly prohibited persons from fishing other than in accordance with a licence, permit or other instrument granted or issued under the law. In particular, Blue J has concluded that sections 71 and 72(2)(c) of the Fisheries Management Act 2007 prohibit activities associated with the taking of prohibited species and undersized fish, subject only to the Minister’s power to grant an exemption under section 115 of the Act.[8]
[8] Section 115 of the Fisheries Management Act 2007 (SA) provides:
(1)Subject to this section, the Minister may, by notice in the Gazette—
(a)    exempt a person or class of persons, subject to such conditions as the Minister thinks fit and specifies in the notice, from specified provisions of this Act; or
(b)    vary or revoke an exemption, or a condition of an exemption, under this section or impose a further condition.
(2)The Minister must, before making an exemption that relates to, or is to apply in respect of, a specially protected area, consult with the relevant Minister.
(4)The Minister may not exempt a person or class of persons from a provision of a management plan or regulations for a fishery or an aboriginal traditional fishing management plan or regulations relating to aboriginal traditional fishing.
(5)    An exemption under this section operates for a period (not exceeding 12 months) specified in the     notice of exemption.
(6)A person who contravenes a condition of an exemption is guilty of an offence.
Maximum penalty: $10 000.
Expiation fee: $500.
On the second question, for reasons set out below, I have reached the conclusion that section 29 of the Fisheries Act 1971 (SA) validly extinguished native title.
Native Title
It is convenient first to briefly address the leading authorities on native title and the extinguishment of native title.
The existence of native title as a special form of title was first recognised by the High Court in Mabo v Queensland (No 2).[9]The Court there recognised that common law native title was always subject to extinguishment by valid colonial and State laws and by valid executive action taken under such laws. Brennan J relevantly observed in Mabo (No 2):[10]
[9] Mabo v Queensland (No 2) (1992) 175 CLR 1.
[10] Mabo v Queensland (No 2) (1992) 175 CLR 1, 69.
After this lengthy examination of the problem, it is desirable to state in summary form what I hold to be the common law of Australia with reference to land titles:
1.The Crown's acquisition of sovereignty over the several parts of Australia cannot be challenged in an Australian municipal court.
2.On acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part.
3.Native title to land survived the Crown's acquisition of sovereignty and radical title. The rights and privileges conferred by native title were unaffected by the Crown's acquisition of radical title but the acquisition of sovereignty exposed native title to extinguishment by a valid exercise of sovereign power inconsistent with the continued right to enjoy native title.
4.Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (e.g., authorities to prospect for minerals).
…
[Emphasis added.]
In Fejo v Northern Territory Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ discussed the extinguishment of native title and relevantly observed:[11]
[11] Fejo v Northern Territory (1998) 195 CLR 96, [43].
… Native title is extinguished by a grant in fee simple. And it is extinguished 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. An estate in fee simple is, “for almost all practical purposes, the equivalent of full ownership of the land” and confers “the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination.” It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title.
Their Honours having referred to the earlier extracted passage from Mabo (No 2) continued:[12]
[12] Fejo v Northern Territory (1998) 195 CLR 96, [44].
Similar references to extinguishment are to be found elsewhere in Mabo [No 2]:
“ ... common law native title, being merely a personal right unsupported by any prior actual or presumed Crown grant of any estate or interest in the land, was susceptible of being extinguished by an unqualified grant by the Crown of an estate in fee or of some lesser estate which was inconsistent with the rights under the common law native title”
and:
“The personal rights conferred by common law native title do not constitute an estate or interest in the land itself. They are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession.”
To like effect are statements in the Native Title Act Case:
“ ... a grant cannot be superseded by a subsequent inconsistent grant made to another person ... At common law, however, native title can be extinguished or impaired by a valid exercise of sovereign power inconsistent with the continued enjoyment or unimpaired enjoyment of native title ...”
and in Wik Peoples v Queensland:
“The strength of native title is that it is enforceable by the ordinary courts. Its weakness is that it is not an estate held from the Crown nor is it protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant. Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it.”
[Emphasis added. Footnotes omitted.]

The Native Title Act, subject to specific exceptions that are not presently relevant, accepts as a fundamental premise that the extinguishment of native title rights may have occurred by or under valid legislation enacted before 1 July 1993.[13]
[13] State legislation passed after the entry into force of the Discrimination Act 1975 (Cth) may have been invalid under section 109 of the Commonwealth Constitution if it discriminated against Aboriginal people.
In circumstances that the complainant suggested were analogous to the present case, a valid State law preventing the harvesting of native plants and the taking of fauna in an area has been held by the High Court to extinguish native title rights to the extent that these included gathering of native plants or hunting of fauna in that area. Reference was made to Western Australia v Ward, where Gleeson CJ, Gaudron, Gummow and Hayne JJ observed:[14]
Western Australia contended that the by-laws made by the Minister under the Rights in Water and Irrigation Act extinguished any native title right to hunt or gather food that remained after the grant of a pastoral lease over the land in question. The by-laws prohibited “[t]he removal, plucking, or damaging of any wildflower, shrub, bush, tree or other plant growing on any land reserved for or vested in the Minister within half-a-mile of any reservoir and within the District”. Later, the by-laws were amended to prohibit “[t]he shooting, trapping or taking of fauna” on such land. In each case the prohibition was absolute. It follows that s 211 of the [Native Title Act 1993 (Cth)] (considered in Yanner v Eaton) was not engaged. The relevant by-laws were made before the enactment of the [Racial Discrimination Act 1975 (Cth)]. On the land to which the by-laws applied, native title rights to hunt fauna or gather plants were extinguished on the making of the applicable by-laws.
[Emphasis added. Footnotes omitted.]
[14] Western Australia v Ward (2002) 213 CLR 1, [265].
The common law rules in respect of native title provide that native title cannot revive once extinguished absent a statutory provision making it revive.[15] The common law rules also provide that inconsistency of native title with a valid State law leads not merely to suspension of native title, but to its extinguishment to the extent of the inconsistency.[16]
[15] Fejo v Northern Territory (1998) 195 CLR 96, [56].
[16] Fejo v Northern Territory (1998) 195 CLR 96, [57].
In Western Australia v Ward Gleeson CJ, Gaudron, Gummow and Hayne JJ rejected a view about extinguishment that proceeded:[17]
… from the premise that there may be “inconsistency between the rights and interests created by the law or act [in question] and native title but the degree of inconsistency is not sufficient to extinguish native title” …
[Emphasis in original.]
Their Honours reasoned:[18]
… First, it is an approach which proceeds from a false premise, that there can be degrees of inconsistency of rights, only some of which can be described as “total”, “fundamental” or “absolute”. 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. Secondly, it is a mistake to assume that what the [Native Title Act 1993 (Cth)] refers to as “native title rights and interests” is necessarily a single set of rights relating to land that is analogous to a fee simple. It is essential to identify and compare the two sets of rights: one deriving from traditional law and custom, the other deriving from the exercise of the new sovereign authority that came with settlement. …
[Footnotes omitted.]
[17] Western Australia v Ward (2002) 213 CLR 1, [81].
[18] Western Australia v Ward (2002) 213 CLR 1, [82].
Extinguishment
It is necessary to trace the history of the statutory enactments leading to the Fisheries Management Act 2007. The State of South Australia enacted the first relevant statute, the Fisheries Act 1878 (SA).That Act, by section 14, expressly did not apply to “any aboriginal native taking fish for his own use”.[19] The 1878 Act was repealed and replaced by the Fisheries Act 1904 (SA), in which Act section 22 substantially reiterated the content of section 14 above.[20] The 1904 Act was repealed and replaced by the Fisheries Act 1917 (SA).Section 48 of the 1917 Act provided that “[n]othing in this Act shall apply to … any full-blooded aboriginal inhabitant of this State taking fish for his household consumption: provided that no explosive or noxious matter is used in the taking of such fish”.
[19] Section 14 of the Fisheries Act 1878 (SA) provided as follows:
Nothing in this Act shall apply to any person using a landing net to secure fish caught with a rod and line, nor to any fixed engine used solely for catching eels, nor to any person using a hand shrimp net, nor to any aboriginal native taking fish for his own use, nor to any person taking fish in water of which he is the owner, nor to any person authorised by such owner to take fish in such water, nor to any person with the written permission of the Commissioner catching fish for the bona fide purpose of removing them to stock other waters, or otherwise in the discretion of the Commissioner, nor to any nets, engines, or boats used or fish taken by such person, nor to any person who, having unintentionally taken any fish contrary to the provisions of this Act, shall immediately return the same with as little injury as possible to the water.
[20] Section 22 of the Fisheries Act 1904 (SA) provided as follows:
Nothing in this Act shall apply to any person using a rod and line, or hand-line, or a landing-net to secure fish taken with a rod and line or hand-line or a hand crab-net, nor to any device used solely for catching eels or congolly, nor to any person using a hand shrimp-net, nor to any aboriginal native taking fish for his own use, nor to any person taking fish solely for bait, nor to any person taking fish in water of which he is the owner, nor to any person authorised by such owner to take fish in such water, nor to any person with the written permission of the Minister catching fish for the bona fide purpose of removing them to stock other water, or otherwise in the discretion of the Minister, nor to any device or boat used or fish taken by such last-mentioned person for the purpose aforesaid : Provided that fish caught by any method mentioned in this section (crab-nets excepted) shall not be sold or bartered.
This continued to be the legislative regime until 1971. It may be concluded that under this legislative regime the Aboriginal customary right to fish for personal purposes was largely unaffected.
In 1971 the legislation was subjected to a major overhaul. The Fisheries Act 1971 repealed and replaced the 1917 Act. The express exclusion with respect to the Aboriginal customary right to fish appearing in the earlier legislation was not repeated in the Fisheries Act 1971.It may be reasonably inferred that a decision had been taken to bring to an end the exclusion of Aboriginal people from the purview of the new regime enacted in 1971.
Section 29(2) of the Fisheries Act 1971 which came into force on 1 December 1971 gave all people the right to take fish otherwise than for sale using specified devices. However, this right was expressly made subject to other sections in the statute. Section 29 relevantly provided as follows:
(1)Except as is provided in this Act, a person shall not take fish unless he hold a fishing licence.
…
(2)A person may without holding a licence, but subject to the other sections of this Act—
(a) take fish otherwise than for the purpose of sale by means of a rod and line, hand line, hand fish spear or declared device;
…
The complainant submitted that by section 29 of the 1971 Act, all rights to take fish were taken away and replaced with a new right to take fish other than for the purposes of sale. The 1971 Act, it was said, took responsibility for the provision of fishing rights by purporting to be the sole authority for the right to take fish. Particular emphasis was placed on the words in section 29 “except as provided”. Section 47(2) is also of relevance. That section expressly prohibited the taking of undersized fish subject to a proclamation under section 47(4) exempting a person or persons from the prohibition. Under the 1971 Act, undersized for “[a]ll species of abalone” meant less than 10.2 centimetres. This was the subject of a proclamation made on 30 November 1971. The content of this proclamation endured until the 1971 legislation was repealed in 1982.[21] No proclamation was issued at any time under section 47(4) exempting the Narrunga people or any other Aboriginal person from taking undersized fish including abalone.
[21]In 1982, prior to the commencement of the Fisheries Act 1982, the 30 November 1971 proclamation was varied, but for all relevant purposes it kept the same measurements.
It was a further submission of the complainant that, at the very least, any customary right that the Narrunga people had to take undersized abalone was extinguished by section 47(2) of the 1971 Act.
In 1982, the 1971 Act was repealed and replaced by the Fisheries Act 1982 (SA). This Act continued the scheme of the 1971 Act. In particular, there was no exclusion of the applicability of the Act to Aboriginal people. The prohibition on the taking of undersized fish including abalone was reiterated.
Section 41 of the 1982 Act prevented fishing of a prescribed class and the taking of undersized abalone was such a prescribed class of fishing. This was the effect of regulations appearing in the Gazette of 28 June 1984. However at this time, the minimum length for abalone was specified as 13 centimetres in all waters of the State except the western zone, where the minimum length was specified at 14.5 centimetres. The waters around Cape Elizabeth are not in the western zone. The complainant, in relation to his alternative submission, contended that following 28 June 1984, any customary right to take abalone measuring less than 13 centimetres in length was extinguished by regulation that applied to the entire community.
The defendants accepted that the Fisheries Acts of 1971 and 1984 and the regulations made thereunder sought to regulate fishing. It was said, however, that the mere regulation of an activity was insufficient to sever the connection that Aboriginal people have with the land and did not deny the continued exercise of the rights and interests that Aboriginal law and custom recognise them as possessing. Reliance was placed on the following observations of Gleeson CJ, Gaudron, Kirby and Hayne JJ in Yanner v Eaton:[22]
Native title rights and interests must be understood as what has been called “a perception of socially constituted fact" as well as "comprising various assortments of artificially defined jural right”. And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land. Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal peoples, “You may not hunt or fish without a permit”, does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing.
[Footnote omitted.]
[22] Yanner v Eaton (1999) 201 CLR 351, [38].
The defendants further contended that the removal of the exclusion of Aboriginal people from the fisheries regulatory regime in 1971 did not extinguish native title. It was contended that the 1971 Act only operated to regulate the manner in which native title rights and interests may be enjoyed or exercised. It was said that the fact of the regulation necessarily assumed their existence. It was submitted that the 1984 Act, properly construed, did not allow the conclusion that native title rights were extinguished. It was then asserted that if this submission were to be rejected “the purported extinguishment would probably have fallen foul of the Racial Discrimination Act 1975 (Cth)” and as a consequence be rendered invalid.
Whether or not provisions of the Fisheries Acts extinguish native title is a question of statutory interpretation.[23] If the legislature intended to extinguish native title, it must manifest a clear and plain intent to do so.[24] An intent to extinguish will not be manifest in law if it merely regulates the enjoyment of the native title rights or establishes a regime of control consistent with their enjoyment.[25] Native title will be extinguished where the native title right or interest is inconsistent with a right conferred by statute – this may be described as the inconsistency of incidence test and calls for a comparison of the legal nature and incidence of the native title right and interest with that of the statutory right.[26] An objective inquiry is to be undertaken. This inquiry requires identification of and comparison between the two sets of rights.[27]Native title rights and interests are a bundle of rights, the individual components of which may be extinguished separately[28] and are extinguished to the extent of any inconsistency.[29]
[23] Mabo v Queensland (No 2) (1992) 175 CLR 1, 110-11.
[24] WikPeoples v Queensland (1996) 187 CLR 1, 247; Mabo v Queensland (No 2) (1992) 175 CLR 1, 64, although it has been held that this phrase is apt to mislead: Western Australia v Ward (2002) 213 CLR 1, [78].
[25] Yanner v Eaton (1999) 201 CLR 351, [37]; Mabo v Queensland (No 2) (1992) 175 CLR 1, 64.
[26] Western Australia v Ward (2002) 213 CLR 1, [78]-[85].
[27] Western Australia v Ward (2002) 213 CLR 1, [78].
[28] Western Australia v Ward (2002) 213 CLR 1, [76], [95].
[29] Western Australia v Ward (2002) 213 CLR 1, [82].
The relevant native title right in the present proceeding is that which was accepted at trial and on appeal, namely that the defendants enjoyed a right to access and take fish. There is no documentary evidence of the terms of the concession, however, the endorsement on the Magistrates Court file notes that it was conceded that “the defendants were conducting a native title fishing activity”.
The effect of the 1971 Act was to bring all persons under the regime of the Act and to prohibit the taking of undersized fish and in particular Greenlip abalone. The object of the legislation was to impose the same obligations on all persons. This was not a case like Yanner v Eaton where there was a prohibition subject to an exemption. The substantive effect of the legislation was to place all persons, including Aboriginal persons, under the regime of the statute and to treat all persons as subject to the rights and obligations set out in the statute. As a consequence, the native title right to fish was extinguished and was replaced by a statutory right available to all persons in the State. That right is to fish and take fish not for sale, subject to limitations contained in the Act, including limitations as to size. In my view, the submissions of the complainant should be accepted.
I have reached the conclusion that the Fisheries Act 1971 extinguished native title, by that I refer to any relevant customary rights that the Narrunga people had prior to the enactment of this statute, and as a consequence it is unnecessary to further consider the complainant’s submission with respect to the Fisheries Act 1982.
Conclusion
I would allow the appeal. I would find each of the elements of the complaint established beyond reasonable doubt. I would remit the matter for resentencing and in particular, for a consideration as to whether the Magistrate should exercise his discretion to proceed without recording convictions.
KELLY J: I agree with the order proposed by Gray J and with his reasons.
BLUE J. The respondents/defendants were charged with having in their joint possession 24 undersized Greenlip Abalone.[30]
[30] Fisheries Management Act 2007 (SA) s 72(2)(c) and Fisheries Management (General) Regulations 2007 (SA) reg 8(1)(a).
At trial, the prosecution tendered documents and a DVD recording which were received into evidence. The defendants accepted that the exhibits proved the offence subject only to the defence that the defendants as native title holders were exempted by s 211 of the Native Title Act 1993 (Cth) from compliance, in this respect, with the State law. This defence gave rise to a number of factual and legal issues.
It was agreed by the parties, and the Magistrate determined, that the Magistrate should decide the legal issue whether or not s 72(2)(c) of the Fisheries Management Act 2007 (SA) comprises a law which “prohibits or restricts persons from carrying on [fishing] other than in accordance with a licence, permit or other instrument granted or issued to them under the law” within the meaning of s 211(1)(b) of the Native Title Act.
The Magistrate heard submissions on that legal issue and decided in favour of the defendants. The prosecution then indicated that it did not wish to put the defendants to proof on the other issues as to the application of s 211 of the Native Title Act to the circumstances of the case. As a result, the Magistrate acquitted the defendants.
The informant appeals against the acquittal on two alternative grounds, namely:
1.the Magistrate erred in holding that s 72(2)(c) of the Fisheries Management Act relevantly prohibited persons from fishing “other than in accordance with a licence, permit or other instrument granted or issued to them under the law”; and
2.the defendants were not exercising native title rights because they had been extinguished in 1971 by s 29(2) of the Fisheries Act 1971 (SA).
The appeal was referred to the Full Court for hearing and determination.
Licence, permit or other instrument
Section 211 of the Native Title Act provides as follows:
(1)     Subsection (2) applies if:
(a)     the exercise or enjoyment of native title rights and interests in relation to land or 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
(ba)   the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and
(c)     [not relevant].
(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 land or 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.
Note: in carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application.
(3)     Each of the following is a separate class of activity:
(a)     hunting;
(b)     fishing;
(c)     gathering;
(d)     a cultural or spiritual activity;
(e)     any other kind of activity prescribed for the purpose of this paragraph.
Section 72(2)(c) of the Fisheries Management Act provides:
Subject to this section, if a person sells or purchases, or has possession or control of –
(c) an aquatic resource of a prescribed class,
the person is guilty of an offence.

Regulation 8(1)(a) of the Fisheries Management Regulations 2007 (SA) provides:
For the purposes of s 72(2)(c) of the Act, the following classes of aquatic resources are prescribed:
(a) undersize fish.
Regulation 3(1) defines “undersize fish” to mean fish that is undersize as determined in accordance with Schedule 2. Schedule 2, clauses 5 and 6 define undersize Greenlip Abalone to be less than 13cm in length.[31]
[31] A different length is prescribed if taken in the waters of the Western Zone, but this is irrelevant in the present case. The definition refers in the alternative to the meat, having been removed from the shell, weighing less than 113 grams, but this is irrelevant for the purposes of this case.
The Magistrate held that s 72(2)(c) of the Fisheries Management Act permitted the taking of abalone with a “licence, permit or other instrument granted or issued to [a person]” because of the provisions of s 115(1)(a) of that Act. Section 115(1)(a) provides:
Subject to this section, the Minister may, by notice in the Gazette –
(a)exempt a person or class of persons, subject to such conditions as the Minister thinks fit and specifies in the notice, from specified provisions of this Act.
The Magistrate held that an exemption under s 115(1)(a), while not a “licence” or “permit”, was an “other instrument” within the meaning of s 211(1)(b) of the Native Title Act.
The purpose of s 211 is to exclude native title holders exercising native title rights to hunt, fish, or gather from having to obtain a State or Commonwealth licence (in one form or another) in order to do so (as opposed to laws of general application which would otherwise apply to native title holders undertaking that activity, including laws which prohibit the activity).[32]
[32] State of Western Australia v The Commonwealth (1995) 183 CLR 373 at 474 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ; [1995] HCA 47.
Thus, the distinction drawn by s 211(1)(b) of the Native Title Act is between:
(a)a law which permits persons to carry on a class of activity (in this case fishing) but requires them first to obtain a licence (in one form or another); and
(b) a law which prohibits persons from carrying on a class of activity.
In The State of Western Australia v The Commonwealth,[33] Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ said:[34]
Section 211(2) removes the requirement of a ‘licence, permit or other instrument granted or issued … under the law’ referred in s 211(1)(b) as a legal condition upon the exercise of the native title rights specified in sub-s (3). If the affected law be a law of the State … its operation is suspended in order to allow the enjoyment of the native title rights and interests, which, by s 211, are to be enjoyed without the necessity of first obtaining ‘a licence, permit or other instrument’.
[33] (1995) 183 CLR 373.
[34] (1995) 183 CLR 373 at 474.
This purpose had been identified in the Senate in the following terms:[35]
… to ensure that Aboriginal people are not prevented from exercising their inherent native title rights and interests in the circumstances where State and Commonwealth laws allow others to engage in those activities. The amendment does not prevent State or the Commonwealth from prohibiting a native title activity where it is necessary … but it does prevent them from doing so while allowing others to engage in the same activity.
[35] Commonwealth, Parliamentary Debates, Senate, 20 December 1993, 5440, (Christabel Chamarette).
In Yanner v Eaton,[36] the High Court considered, in a very different context, the distinction between prohibition and regulation. Gleeson CJ, Gaudron, Kirby and Hayne JJ said:[37]
It is sufficient to say that regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists. No doubt, of course, regulation may shade into prohibition and the line between the two may be difficult to discern … regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal peoples, ‘you may not hunt or fish without a permit’, does not sever their connection with the land concerned and does not deny the continued existence of the rights and interests that Aboriginal law and custom recognises them as possessing.
[Emphasis in original, citations omitted]
[36] (1999) 201 CLR 351; [1999] HCA 69.
[37] (1999) 201 CLR 351 at [37]-[38].
The judgment cited four cases concerning the validity of Council by-laws which allegedly prohibited an activity where the Council was given power by statute to “regulate” it. The first of those cases was Toronto Municipal Corporation v Virgo.[38] In that case, the Privy Council held that a statutory power “for licensing, regulating and governing hawkers” did not empower the Council to prohibit hawking in Toronto.[39]
[38] [1896] AC 88 at 99-94.
[39] Applied or referred to in the three subsequent High Court cases cited in Yanner, namely Melbourne Corporation v Barry (1922) 31 CLR 174, Williams v Melbourne Corporation (1933) 49 CLR 142 and Brunswick Corporation v Stewart (1941) 65 CLR 88.
In The State of Western Australia v Ward,[40] Gleeson CJ, Gaudron, Gummow and Hayne JJ said:[41]
… the Minister … made by-laws … [which] prohibited ‘[t]he removal, plucking or damaging of any wild flower, shrub, bush, tree or other plant growing on any land reserved for or vested in the Minister within half-a-mile of any reservoir and within the district’. Later, by-laws were amended to prohibit ‘[t]he shooting, trapping or taking of fauna’ on such land. In each case the prohibition was absolute. It follows that s 211 of the NTA (considered in Yanner v Eaton) was not engaged.
[Citations omitted]
[40] (2002) 213 CLR 1; [2002] HCA 28.
[41] (2002) 213 CLR 1 at [264]-[265].
The concept of a “licence, permit or other instrument granted or issued to them” contemplated by the High Court in State of Western Australia v The Commonwealth and State of Western Australia v Ward is of a licence, permit or other instrument which is granted or issued to a specific person upon satisfaction that the person meets criteria determined by the relevant legislation or by the grantor or issuer of the instrument.
Part 6 of the Fisheries Management Act is entitled “Regulation of Fishing and Processing” and creates a licensing regime in respect of fishing for commercial purposes (Division 1) and fish processing for commercial purposes (Division 3).
The licensing regime created in respect of fishing is as follows.
1.Section 52 requires a person to obtain a licence or permit in respect of the relevant fishery before engaging in a fishing activity for a commercial purpose.
2.Section 53 requires a person to obtain a boat registration in respect of the relevant fishery prior to using a boat to engage in a fishing activity for a commercial purpose.
3.Section 51 defines an “authority” to mean a licence, permit or registration.
4.Section 54(1) requires an applicant for an authority to make application in a manner and form approved by the Minister and to pay a fee fixed by regulation.
5.Section 54(10) requires the Minister to be satisfied that the applicant is a fit and proper person to hold an authority prior to granting it.
6.Section 57 envisages the transfer of an authority with the consent of the Minister.
7.Section 59 obliges the holder of an authority to carry it with him or her when engaged in a fishing activity thereunder.
8. Section 67 prohibits the misuse of an authority.
These provisions demonstrate that a fishing licence, fishing permit and boat registration all fall within the concept of “licence, permit or other instrument granted or issued to [a person]” within the meaning of s 211(1)(b) of the Native Title Act.
On the other hand, s 71 of the Fisheries Management Act prohibits the taking of fish of a protected species and s 72(2)(c) of the Fisheries Management Act, in conjunction with reg 8 of and Schedule 3 to the Fisheries Management Regulations, prohibits a person having in his or her possession or control undersize fish.
Section 115 gives to the Minister a general power to exempt a person or class of persons from specified provisions of the Act. Section 115 thus empowers the Minister to exempt a person from compliance with s 71 (protected species) or s 72(2)(c) (undersize fish).
There are marked contrasts between a licence, permit or registration under Part 6 and an exemption under Part 10 of the Fisheries Management Act.
1.The former must be the subject of application (with the provision of the requisite information and payment of the requisite fee) and result in the issue of a document to the holder. The Act does not regard the licensed activities as inherently contrary to the interests of the people of South Australia. They apply only to fishing for commercial purposes, and do not apply to fishing for personal or domestic purposes.
2.By contrast, taking protected species or undersized fish is regarded by the Act as inherently undesirable and is prohibited, regardless of whether or not the purpose is commercial or personal or domestic or otherwise. If the Minister were to grant an exemption in respect of taking fish of a protected species or undersized fish, no document would be granted or issued to the person or persons concerned but rather the exemption would operate solely by reason of having been made by the Minister and published in The Gazette.
Whereas licences, permits and boat registrations regulate commercial fishing activities, s 71 and s 72(2)(c) prohibit activities associated with taking prohibited species or undersized fish, subject only to the power of the Minister to grant an exemption under s 115. The mere existence of that reserve power does not convert a prohibition regime into a mere licensing regime.
The defendants rely upon the decision of the Full Court of the Supreme Court of Western Australia in Wilkes v Johnsen.[42] In that case, Kennedy J and Wheeler J held that an exemption under the Fish Resources Management Act 1994 (WA) comprised a “licence, permit or other instrument granted or issued to [a person]” within the meaning of s 211 of the Native Title Act. However, the provisions of the Western Australian Act were very different to those of the South Australian Act. The Western Australian Act in many respects equated an exemption with a licence or permit. This was described by Kennedy J in the following terms:[43]
In probably the majority of cases, there will be a distinction between the licence or permit, which constitutes an authority to do that which would otherwise be prohibited (or be wrongful or illegal) … and an exemption, which, when granted, excludes the action in question from the scope of the prohibition. But in the Fish Resources Management Act, ‘a licence or permit’ on the one hand, and ‘an exemption’ on the other, have very much the same effect.
… An application for an exemption may be made to the Minister or to the Executive Director and must be made in a form approved for that purpose by the Executive Director and it must be accompanied by the prescribed fee (if any). An exemption may be granted subject to such conditions as the Minister thinks fit … A penalty is imposed upon any person contravening a condition of an exemption.
In the case of a licence or permit, an application for the grant must be made to the Executive Director in a form approved for that purpose by the Executive Director, and must be accompanied by a fee (if any) prescribed. Under the various licences and permits, conditions may be imposed … Penalties are imposed upon any person contravening a condition of the licence or permit.
In relation to the administration of the Act, licences, permits and exemptions are dealt with in the same way. Thus, in relation to the powers of fishery’ officers, a fishery officer may require any person engaged in fishing to state whether or not the person holds an authorisation or exemption, and a fishery officer may require any person to produce for inspection any authorisation or exemption …
Under the Fish Resources Management Act, a licence, a permit and an exemption serve many similar purposes and, in my view, in the circumstances, an exemption can fairly be described as an ‘other instrument’ in the description ‘a licence, permit or other instrument granted’ in s 211(1)(b) of the Native Title Act.
[42] (1999) 21 WAR 269; [1999] WASCA 74.
[43] (1999) 21 WAR 269 at [5]-[8], [10].
When the differences between the South Australian and Western Australian legislation are understood, the decision in Wilkes v Johnsen has no application to the South Australian Act. Accordingly, the Magistrate was in error in concluding that s 211 of the Native Title Act applied to s 72(2)(c) of the Fisheries Management Act.
Extinguishment of Native Title Rights
On appeal (but not before the Magistrate), the informant contends that in any event native title rights to engage in fishing had been extinguished in 1971 by s 29 of the Fisheries Act 1971 (SA) prior to the enactment of the Native Title Act.
It is common ground between the parties to the appeal that s 211 only applies if the relevant native title rights and interests were still in existence, and in particular had not been extinguished by, amongst other things, State legislation prior to the enactment of the Native Title Act in 1993.[44]
[44] Mabo v The State of Queensland(No 2) (1992) 175 CLR 1 at 69 per Brennan J; [1992] HCA 23; Western Australia v The Commonwealth (1992) 183 CLR 373 at 454 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ; Fejo v Northern Territory (1998) 195 CLR 96 at [43]-[44] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; [1998] HCA 58; Western Australia v Ward (2002) 213 CLR 1 at [265] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
First, native title can be extinguished by a law which simply extinguishes native title, but it will not be held to do so “unless there be a clear and plain intention to do so”.[45]
[45] Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 at 64 per Brennan J (Mason CJ and McHugh J agreeing), and see also at 111 per Deane and Gaudron JJ and at 196 per Toohey J; Western Australia v Commonwealth (1995) 183 CLR 373 at 423 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ; Wik Peoples v The State of Queensland (1996) 187 CLR 1 at 84-85 per Brennan CJ (Dawson J and McHugh J agreeing), 123-124 per Toohey J, and 146-147 per Gaudron J.
Secondly, native title may be extinguished by the enactment of a law which creates rights or duties which are inconsistent with the continued right to enjoy native title.[46]
[46] Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 at 68 per Brennan J (Mason CJ and McHugh J agreeing); Wik Peoples v The State of Queensland (1996) 187 CLR 1 at 84-85 per Brennan CJ (Dawson J and McHugh J agreeing), 125-127 per Toohey J, 146-147 per Gaudron J, 185-186 per Gummow J and 221, 238 and 247 per Kirby J; Yanner v Eaton (1999) 201 CLR 351 at [35] per Gleeson CJ, Gaudron, Kirby and Hayne JJ and [107]-[115] per Gummow J; Western Australia v Ward (2002) 213 CLR 1 at [78]-[82] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
The differences between these types of extinguishment was illustrated (albeit in a different context involving property rights) by Brennan CJ (Dawson and McHugh JJ agreeing) in Wik Peoples v The State of Queensland[47] as follows:
[47] (1996) 187 CLR 1 at [84]-[86].
Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it. Such laws or acts may be of three kinds:
(i) laws or acts which simply extinguish native title;
(ii) laws or acts which create rights in third parties in respect of a parcel of land subject to native title which are inconsistent with the continued right to enjoy native title;
and
(iii)laws or acts by which the Crown acquires full beneficial ownership of the land previously subject to native title.
A law or executive act which, though it creates no rights inconsistent with native title, is said to have the purpose of extinguishing native title, does not have that effect “unless there be a clear and plain intention to do so”. … The test of intention to extinguish is an objective test.
A law or executive act which creates rights in third parties inconsistent with a continued right to enjoy native title extinguishes native title to the extent of the inconsistency, irrespective of the intention of the legislature or the executive and whether or not the legislature or the executive officer adverted to the existence of native title …
In considering whether native title has been extinguished in or over a particular parcel of land, it is necessary to identify the particular law or act which is said to effect the extinguishment and to apply the appropriate test to ascertain the effect of that law or act and whether that effect is inconsistent with the continued right to enjoy native title. In the present case, it would be erroneous, after identifying the relevant act as the grant of the pastoral lease under the 1910 Act, to inquire whether the grant of the lease exhibited a clear and plain intention to extinguish native title. The question is not whether the Governor in Council intended or exhibited an intention to extinguish native title but whether the right to exclusive possession conferred by the leases on the pastoral lessees was inconsistent with the continued right of holders of native title to enjoy that title.
[citations omitted]
In Western Australia v Ward,[48] Gleeson CJ, Gaudron, Gummow and Hayne JJ said:
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.
[48] (2002) 213 CLR 1 at [82].
In Yanner v Eaton,[49] an Aboriginal man caught two crocodiles using a harpoon. He was charged with contravening s 54(1)(a) of the Fauna Conservation Act 1974 (Qld). Section 54(1)(a) at that time was in the following terms:
A person shall not take, keep or attempt to take or keep fauna of any kind unless he is the holder of a licence, permit, certificate or other authority granted and issued under this act.
[49] (1999) 201 CLR 351.
The defendant relied upon s 211 of the Native Title Act, and the prosecution in turn claimed that the native title right to hunt crocodiles and other fauna had been extinguished by the Fauna Conservation Act. The High Court held that there had been no extinguishment.
Gleeson CJ, Gaudron, Kirby and Hayne JJ said:[50]
[50] (1999) 201 CLR 351 at [31], [35], [37] and [38].
The respondent expressly disclaimed a contention that the enactment of legislation forbidding the taking or keeping of fauna except pursuant to licence would be sufficient to extinguish the rights and interests relied on by the appellant. This concession was rightly made and it follows, therefore, from what we have said about the meaning and effect of the Fauna Act … that the Act did not extinguish those rights and interests. It is as well, however, to examine why the respondent’s concession was right. …
… native title is extinguished by the creation of rights that are inconsistent with the native title holders continuing to hold their rights and interests. The extinguishment of such rights must, by conventional theory, be clearly established. …
It is sufficient to say that regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists. …
Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might or might to some extent). That is, saying to a group of Aboriginal peoples, “You may not hunt or fish without a permit”, does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing.
Gummow J said:[51]
Native title rights will be extinguished where they are inconsistent with the statutory rights. This requires ‘a comparison between the legal nature and incidence of the existing right and of the statutory right. The question is whether the respective incidence thereof are such that the existing right cannot be exercised without abrogating the statutory right. If it cannot, then by necessary implication, the statute extinguishes the existing right.’ [Wik at 185 per Gummow J].
Whether in a given case native title rights have been extinguished is a question of law. The inquiry turns on the legal criterion of inconsistency. …
… Factual findings are necessary to establish the ambit of the native title right as defined by the traditional laws and customs of the indigenous community. The ambit of the native title right is a finding of law. This must then be placed against the statutory rights which are said to abrogate it. The question to be asked in each case is whether the statutory right necessarily curtails the exercise of the native title right such that the conclusion of abrogation is compelled, or whether to some extent the title survives or whether there is no inconsistency at all. Indeed, statute may regulate the exercise of the native title right without in any degree abrogating it.
The exercise of the native title right to hunt was a matter within the control of the appellant’s indigenous community. The legislative regulation of that control, by requiring an indigenous person to obtain a permit under the Fauna Act in order to exercise the privilege to hunt, did not abrogate the native title right. Rather, the regulation was consistent with the continued existence of that right.
[Emphasis in original, citations omitted]
[51] (1999) 201 CLR 351 at [106]-[109] and [115].

The informant contends that s 29 of the Fisheries Act 1971 (SA) is inconsistent with a native title right to fish and hence extinguished any native title right to fish in South Australia in 1971. The informant put his contention on the broad basis that the native title right to undertake any fishing activity whatsoever was extinguished by s 29 and not on any narrow basis that, for example, only the native title right to fish for certain species or certain sizes of fish or using certain methods of fishing had been extinguished.
Section 29 of the Fisheries Act 1971 provided that:
(1)    Except as provided in this Act, a person shall not take fish unless he holds a fishing licence.
(2)    A person may without holding a licence, but subject to the other sections of the Act –
(a)    take fish otherwise than for the purpose of sale by means of a rod and line, hand line, hand fish spear or declared device…
Section 29(1) of the Fisheries Act 1971 is not materially different to s 54(1)(a) of the Fauna Conservation Act 1974 (Qld) considered in Yanner v Eaton. The reasoning of the High Court in Yanner v Eaton applies directly to s 29(1) of the Fisheries Act 1971. The mere fact that the Fisheries Act 1971 regulated the right to fish by requiring the fisher to hold a licence was not inconsistent with the continued existence of a native title right to fish and did not extinguish that right.
The informant contends that the approach of the High Court in Yanner v Eaton should not be taken to s 29 of the Fisheries Act 1971 because, so it is said, the approach of the High Court in the later case of Northern Territory v Arnhem Land Aboriginal Land Trust[52] dictates the opposite conclusion.
[52] (2008) 236 CLR 24; [2008] HCA 29.
The relevant legislation in the latter case was s 10 of the Fisheries Act 1988 (NT), which relevantly provided that:
(1)Subject to this Act or to an instrument of a legislative or administrative character made under it, a person shall not:
(a) take any fish … unless the person does so under and in accordance with a licence.
(2)Nothing in this section shall apply to the taking of fish … by a person for subsistence or personal use only (and not for the purposes of sale), within such limits (if any) relating to numbers, quantity, size, weight, methods, types and amount of fishing gear, and periods of time (including closed and open seasons), as may be prescribed for any such fish …
No question arose in that case whether s 10 of the Fisheries Act 1988 (NT) extinguished a native title right to fish. However, the question did arise as to whether s 10 abrogated any “common law” public right to fish that existed before the Act was enacted. The High Court held that the “common law” right to fish had been abrogated by the Fisheries Act 1988 (NT).
Gleeson CJ, Gummow, Hayne and Crennan JJ held that the “common law” public right of fishing was “freely amenable to abrogation or regulation by a competent legislature”.[53] They went on to say:[54]
By necessary implication, the Fisheries Act (and in particular ss 10 and 11) abrogated any public right to fish in tidal waters in the Northern Territory that existed before the Fisheries Act was enacted … just as ‘when a prerogative power of the Executive Government is directly regulated by statute, the Executive can no longer rely on the prerogative power and must act in accordance with the statutory regime laid down by the Parliament’, the comprehensive statutory regulation of fishing in the Northern Territory provided by the Fisheries Act has supplanted any public right to fish in tidal waters. … Whether and how a person may take fish or aquatic life in the Northern Territory are questions to be answered by resort to the Act, not any common law public right. The common law public right has been abrogated.
[53] (2008) 236 CLR 24 at [22] quoting from Brennan J in Harper v Minister for Sea Fisheries (1989) 168 CLR 314 at 330; [1989] HCA 47.
[54] (2008) 236 CLR 24 at [27]-[28].
There was no suggestion in that case that it followed from the fact that the “common law” public right to fish was abrogated that the native title right to fish was extinguished. There was no suggestion by Gleeson CJ, Gummow J and Hayne J in that case that their earlier judgments in Yanner v Eaton were wrong.
It is to be noted that the provisions of s 29(2) of the Fisheries Act 1971 (SA) are different to the provisions of s 10(2) of the Fisheries Act 1988 (NT). It might be argued that s 29 of the Fisheries Act 1971 (SA) would not be construed as abrogating the public right to fish in South Australia. However, making the assumption that the public right to fish was so abrogated, it does not follow that the native title rights to fish were extinguished. The approach to extinguishment identified by the High Court in Mabo, Wik and Yanner is different to the approach of the High Court to abrogation of the “common law” public right to fish in Arnhem Land Trust. As identified in the latter case, the test for abrogation is less exacting than the test for extinguishment.
It follows that the decision in Arnhem Land Trust in no way derogates from the application of the principles earlier identified in Yanner in determining whether or not native title rights have been extinguished.
The informant also relies upon the legislative history leading up to the enactment of the Fisheries Act 1971.
The first Act to regulate fishing in South Australia was the Fisheries Act 1878 (SA). Section 14 of that Act provided that nothing in the Act applied to, inter alia, “any Aboriginal native taking fish for his own use”. The Fisheries Act 1904 (SA) contained a provision (s 22) in the same terms. The Fisheries Act 1917 (SA) contained a provision (s 48) in similar terms, although confined to a “full-blooded Aboriginal inhabitant of this State” and it substituted “household consumption” for “own use”. By contrast, the Fisheries Act 1971 (SA) contained no such exclusion in relation to Aboriginal people.
The informant contends that the fact that the 1971 Act removed the previous exclusion from the legislative regime of Aboriginal peoples evinced an intention to extinguish any native title right to fish. I do not accept this contention.
Where (as the informant contends in the present case) extinguishment of native title is said to be the result of the creation of inconsistent rights or duties, as the High Court said in Ward v Western Australia, there is either inconsistency or there is not. If there is not inconsistency, there is no extinguishment under this head. As the High Court said in Yanner v Eaton, where there is merely regulation as opposed to prohibition, there would not usually be inconsistency.
On the other hand, if the legislation manifests a clear and plain intention simply to extinguish native title, questions of inconsistency do not arise. The informant in the present case did not expressly contend that the 1971 Act manifested an intention to extinguish native title. The mere fact that the 1971 Act no longer contained a wholesale exclusion of its provisions to Aboriginal peoples, when fishing for domestic consumption, does not evince an intention to extinguish native title. The two matters are not the same. On the one hand, prior to the 1971 Act, the fisheries legislation simply had no application to particular Aboriginal peoples taking fish for particular purposes: it did not matter whether those peoples were exercising native title rights or not. On the other hand, native title rights are not necessarily confined to full-blooded Aboriginal peoples or to inhabitants of the State. All that the 1971 Fisheries Act did was to remove the exclusion of particular Aboriginal peoples from the overall legislative regime: it simply did not speak to native title rights. Merely removing that general exclusion did not manifest an intention to extinguish native title.
Conclusion
I would allow the appeal. I agree with the orders proposed by Gray J.