Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia and Ors

[2013] HCATrans 15

[2013] HCATrans 015

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B58 of 2012

B e t w e e n -

LEO AKIBA ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP

Appellant

and

COMMONWEALTH OF AUSTRALIA

First Respondent

STATE OF QUEENSLAND

Second Respondent

NEIL WADE

Third Respondent

MARKIM HOLDINGS T/A BARRIER REEF LIVE CRAY

Fourth Respondent

ROBERT JOHN STEFAN STANDEN

Fifth Respondent

BARRY WILSON

Sixth Respondent

MARK WILLIS

Seventh Respondent

TASMANIAN SEAFOODS PTY LTD

Eighth Respondent

KAREN SKUDDER

Ninth Respondent

BRUCE ROSE

Tenth Respondent

QUEENSLAND ROCK LOBSTER ASSOCIATION

Eleventh Respondent

THEOPHANIS PETROU

Twelfth Respondent

ELFREDA PETROU

Thirteenth Respondent

PETER J PAHLKE

Fourteenth Respondent

ALISON NEWBOLD

Fifteenth Respondent

RAYMOND MOORE

Sixteenth Respondent

MABEL MOORE

Seventeenth Respondent

MARK MILLWARD

Eighteenth Respondent

KENNETH JAMES McKENZIE

Nineteenth Respondent

JOHN STEWART McKENZIE

Twentieth Respondent

STEVEN MACDONALD

Twenty First Respondent

M G KAILIS PTY LTD

Twenty Second Respondent

ROBERT BRUCE LOWDEN

Twenty Third Respondent

NOEL LOLLBACK

Twenty Fourth Respondent

BOB LAMACCHIA

Twenty Fifth Respondent

RICHARD LAURENCE JONES

Twenty Sixth Respondent

PHILLIP JOHN HUGHES

Twenty Seventh Respondent

ROBERT GEORGE GIDDINS

Twenty Eighth Respondent

LARRY HUDSON

Twenty Ninth Respondent

PAMELA HUDSON

Thirtieth Respondent

DIANNE MAREE HUGHES

Thirty First Respondent

AUSTRALIAN MARITIME SAFETY AUTHORITY

Thirty Second Respondent

BARRY EHRKE

Thirty Third Respondent

DENNIS FRITZ

Thirty Fourth Respondent

JENNY TITASEY

Thirty Fifth Respondent

AUGUSTINUS TITASEY

Thirty Sixth Respondent

GEOFFREY DONALD McKENZIE

Thirty Seventh Respondent

ZIPPORAH GEAGEA

Thirty Eighth Respondent

PETER GEAGEA

Thirty Ninth Respondent

ROBERT GARNER

Fortieth Respondent

TROPICAL SEAFOOD OPERATION PTY LTD

Forty First Respondent

DIAKEN PTY LTD

Forty Second Respondent

CARL DAGUIAR

Forty Third Respondent

JIMMY ALISON

Forty Fourth Respondent

DANNY BROWNLOW

Forty Fifth Respondent

BEVERLEY JOAN BRUCE

Forty Sixth Respondent

GUY STEWART BRUCE

Forty Seventh Respondent

KIWAT LUI

Forty Eighth Respondent

TORRES STRAIT REGIONAL AUTHORITY

Forty Ninth Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 FEBRUARY 2013, AT 10.15 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MR R.W. BLOWES, SC, MR T.P. KEELY and MS S.A. HAMILTON, for the appellant.  (instructed by Torres Strait Regional Authority)

MR J.T. GLEESON, SC, Acting Solicitor‑General for the Commonwealth of Australia:   May it please the Court, I appear with MS R.J. WEBB, QC and MS N. KIDSON, for the Commonwealth, the first respondent.  (instructed by Australian Government Solicitor)

MS M.A. PERRY, QC:   May it please the Court, I appear with my learned junior, MS. H.P. BOWSKILL, for the second respondent, the State of Queensland.  (instructed by Crown Solicitor (Qld))

MR P.L. GORE:   May it please the Court, I appear for the 33 parties known as the Commercial Fishing Parties.  They are the 3rd to 31st, 33rd, 43rd and 45th to 47th respondents.  (instructed by Gore & Associates)

FRENCH CJ:   Thank you, Mr Gore.  There is a submitting appearance for the 32nd and 34th respondents and no appearance for the remaining respondents.

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I seek leave to intervene, appearing for the Attorney‑General of the State of Western Australia.  (instructed by State Solicitor (WA))

FRENCH CJ:   The Court will receive your written submissions, Mr Solicitor.

MR G.M.G. McINTYRE, SC:   May it please the Court, I also seek leave to intervene, on behalf of Biddy Bunwarrie and Others (Nomads) on behalf of the Warram People.  (instructed by Roe Legal)

FRENCH CJ:   The Court has read the materials that have been put before it in support of your summons, and the summons will be dismissed so the Court refuses leave.

MR McINTYRE:   Thank you, your Honour.

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   If it please the Court.  As your Honours have seen, there are two discrete issues, though of course they both turn on the understanding of, in particular, section 223.  The first issue, the extinguishment ground, does not do so as overtly as the second, the reciprocal rights issue.  On the first issue we identify as the source and really the character of the error in the Full Court, overturning the learned trial judge in this regard, as being a misreading, with great respect, of this Court’s decision in Yanner v Eaton to which we will come very soon.  That involves, in turn, a misunderstanding of the role of section 211, the alleviating provision, to which we will also come, in the reasoning of Yanner. 

As your Honours appreciate, the first issue of course turns on the significance in relation to so‑called extinguishment of the extremely familiar form of the regulation of activities, particularly exploitative activities, by means of requiring a licence for them to be carried on, including on certain conditions, whether as to manner, time, place or personnel.

Now, the second issue, the reciprocal rights issue, more overtly, as your Honours have seen, raises contentions by us as to error, both at first instance and in the Full Court, in the reading and application of section 223 to a body of evidence about which there is no contest here as there was no contest in the Full Court.  That body of evidence, in summary, gave rise to a perhaps unusually rich body of evidence from which, among other things, social dealings based upon travel and reciprocal rights constituted by reference both to familial relations, marriage relations and trading relations were the footing for factually undoubted rights which included rights governing, eventually, access to, and use of, part of the waters in question.

That last, rather longwinded paraphrase was in order to avoid coming straight to the statutory phrase in question which is at the heart of the second issue “in relation to”.  As your Honours know, there are other phrases in 223 upon which there must be attention to advance our contentions in this case, including the connection requirement and, in particular, including the acknowledgement and observation of traditional laws and traditional customs.  So, your Honours, that is the framework.

May I turn directly to what we wish to say about the extinguishment ground further to our written submissions?  In order to identify the error, may we take your Honours in appeal book volume 4, directly to page 1197?  Their Honours in the majority in paragraph 63 had concluded that what they there call the “plain effect” of the prohibition which is the first part of the licensing scheme is not deprived of that effect because it is an element of a regulatory regime.  Then in 64, in the third and fourth lines, they say of these licensing regimes – Commonwealth or State, it does not matter for present purposes – the following:

they did manifest a clear intention to extinguish all common law rights and that intention inevitably comprehended native title rights as well.

Now, there is good and bad in that summary but, in our submission, it is productive of error.  The first way in which it is productive of error is not to have recognised at common law in relation to common law rights a distinction of which Justice Brennan spoke in Harper in a passage to which I will come, and there all common law rights, whether they be rights of the public – attributes, if you like, of sovereignty – or whether they be private, that is, proprietary rights, are lumped together.  That lumping together is precisely what has been pointed out in a number of cases, including in the passage which was drawn to attention by the majority in this case of Justice Brennan to which we will come.

The second part of that quoted half sentence, in our submission, also contains more assumption than demonstration.  That intention does not inevitably comprehend native title rights as well because it has comprehended common law rights, there is not that necessary connection.  The question is whether native title rights can coexist with the regulation by a conditional prohibition, that is, that which requires a licence, which is instituted by part of the 1887 Queensland Act or the 1952 Commonwealth Act.

The importance of the issue ‑ bearing in mind that, of course, my clients are bound by public acts, that is, they require a licence by law ‑ the importance of the issue is pointed up by the considerations raised by the majority in paragraph 66 on page 1197, on which we need not dwell.  It suffices to say that if the native title right has been extinguished, as the majority has held, then nothing by way of future change, radical or otherwise, repeal or otherwise of statutory fishing regimes can lead to its revival.

FRENCH CJ:   Is this a discrete right to take for commercial purposes which is said to have been extinguished, or is it a carve‑out from a more broadly expressed right in relation to fish and marine resources?

MR WALKER:   Your Honours appreciate better than any the dangers of using metaphor, but to adopt the one that your Honour has raised with me, it is really a carve‑out.  Whether it is a stick in a bundle, it is an aspect sufficiently straightforwardly identifiable as to be an aspect capable of extinguishment – and here is the important thing – while leaving the rest subsisting.

FRENCH CJ:   Is there another way of looking at it?  That it is not so much a carve‑out of a right as a limitation on a particular use or a particular mode of enjoying a native title right more holistically expressed?

MR WALKER:   That is another way of putting it.  It is, with respect, a superior way because it is a literal description of the legal effect of what is a legal inquiry.  The metaphors of carve‑out or bundle, nonetheless, serve the purpose of both requiring and, in an appropriate case, permitting an aspect less than the whole of an activity about which there may be a right to carry it on being subtracted by reference to an inconsistent legislative provision.  Thus, for example, bag limits or size limits could, of course, also fit the same model.

KIEFEL J:   In the way in which you approach what appears, on its face, to be a legislative prohibition do you contend that the native title rights are in a sense suspended by the operation of what is not permitted to be done by the statute and then regulated, so that when I say the rights associated with the native title rights do not cease to exist but are somehow put in abeyance and then regulated, or are they simply regulated?

MR WALKER:   It is the last.

KIEFEL J:   Simply regulated.

MR WALKER:   That is the last.  We would avoid, as strongly as we could, the notion of suspension or being put into abeyance.  There is, we submit, on the authority of this Court in Yanner, no call for notions of suspension or abeyance but, rather, an understanding of the nature of the prohibition which is conditional – that is, a prohibition which is the threshold to a licensing regime.

HAYNE J:   That is, that the statutory command is not sufficiently identified as “you may not”.  The statutory command is the more complex proposition, “you may not without permission”.

MR WALKER:   Or “if you wish to you must”, yes, quite so, your Honour.  Quite so.

KIEFEL J:   Could I ask you, in relation to the primary judge’s identification of these rights, that they are in relation to Part A, are they not?

MR WALKER:   Yes, these are synthetic pieces of territory because of the forensic history.

KIEFEL J:   Yes, I understand that.  Were they described by his Honour as exclusive rights to fish in the area?

MR WALKER:   No, they are not exclusive and the determination so holds and that is not an issue in this Court.

KIEFEL J:   Does that affect the view of them as proprietary rights?

MR WALKER:   No.  It depends on what one means by proprietary.  If one is intending in western terms to distinguish that from usufructuary, for example, then it is not a useful ‑ ‑ ‑

KIEFEL J:   Yes.  I have in mind what Justice Brennan said in Mabo 175 CLR 1 at page 52.

MR WALKER:   Yes.

KIEFEL J:   In the third line in the first full paragraph his Honour was talking about the “exclusive possession of land” as being akin to a proprietary right.

MR WALKER:   Yes.  In the previous paragraph, of course, things were not quite so exclusively proprietary.  One sees the last two sentences, that is, the first two full sentences on page 52.  In our submission, there is some danger in proceeding to require, ultimately in English terms, a proprietary character of everything which – enjoyed by those with a connection under traditional law and custom and in relation to land, including waters, may be described factually from a system of law which, of course, is not and may well radically or utterly differ in basal concepts from English land law.

Nonetheless, using the word proprietary in a very general sense and in particular concentrating on what is necessary for recognisable native title, that is, there is something in the traditional law and custom sufficiently normative and describable so as to be capable of application.  I am trying to avoid the word “enforcement” with its notion of a court but, nonetheless, it has to be something capable of application.

That normative requirement may well stand for the proprietary notion, that is, a right according to law and custom which gives, in relation to land, interests and permitted forms of activity which resemble those, for example, enjoyed by estate holders in English law, but the resemblance need only be at the most diffuse and general level.

FRENCH CJ:   There is some caution about the use of these categories, I think, in Yarmirr at page 38 in the joint judgment, paragraph 13, that is 208 CLR 1, and that picks up what was said in Yanner v Eaton.

MR WALKER:   Yes.  May I then, continuing in the majority’s reasons, take your Honours first to the way conveniently there is set out at page 1199 and following the passage from Harper to which I have twice made reference?  The particular passage is found in 168 CLR 314 at 330, about point 3 and 4.  It is quoted in paragraph 30 on page 1199 by the majority and in particular the passage I wish to emphasise is the statement immediately preceding the reference to the two Canadian cases:

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:

Now, that expression “freely amenable” stands in contrast, not fully articulated in the authorities it is true, or elaborated as to its implications, with the clear intention which it is common ground, not in contest in this case, is required for the extinguishment by inconsistent incidents of native title by a statutory prescription including by way of regulation.  That passage in Harper is, of course, a passage that is talking about two species of common law rights.  The first species is, of course, not a right held by individuals as individuals but it may be enjoyed by individuals because they are members of the public.

The second proprietary rights are held by individuals as individuals.  The first is no doubt important.  Some public rights may tend, in the eyes of some, to approach the status of the kind of fundamental freedoms that in another context of statutory interpretation attracts a reticent approach by the Court.  But this is a statement that that is not so here and that they do not belong to that class which is to be placed in tension with the possible general application of words understood literally in a statute where more is asked of the words in order to accomplish the abrogation. 

Now, that contrast, which was I stress within an entirely common law discourse in Harper, has been misused in the passage to which I have drawn attention by the majority.  It is as if the proprietary right referred to by Justice Brennan, being a common law right, has been lumped in with the public right referred to by Justice Brennan and there is one category of common law right freely amenable to statutory abrogation and lo and behold by the word “inevitably” one has native title carried along as well.  In our submission, there is a passage of reasoning right at the beginning where their Honours have taken insufficient, indeed one may say no explicit regard, to the statements which require the clear intention for native title rights for reasons very similar to those which are required for the abrogation of private property rights.

On page 1200 in the reasons of the majority, paragraph 73, there is in the middle of that paragraph, which refers to what we submit is the unexceptionable or not helpful proposition that the general Act applies to everyone, in the middle at about line 37 or so their Honours say:

If a statutory right is inconsistent with the right to fish for commercial purposes derived from the common law –

Now, that portmanteau phrase does not actually describe any recognised public right.  The public right is to fish.  What you do with the fish is up to you, but that is what their Honours are there talking about.  If it is inconsistent with the public right:

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, in our submission, false logic.  It is not an equivalence which follows from authority or from the different approach to statutory interpretation as between public and proprietary right within common law that we saw in Justice Brennan’s passage just quoted on the previous page.  Of course their Honours are right at the foot of 73, with great respect, in abjuring the notion of explicit reference in order that there be sufficiently clear intention.  No one is arguing that.  We did not argue that.

FRENCH CJ:   Speaking of clear intention, I suppose it really translates into an issue of coherence, does it not, between a statutory regime and the subsistence of common law recognition of and mapping, if you like, in the common law domain of rights and interests which subsist under traditional law and custom?

MR WALKER:   Yes.  Can I add just one qualification to that?  It is not just mapping in the common law domain.  It is also then depicting it – if I can continue the metaphor – as required by 223, 225.  In other words, it is ultimately a legislative ‑ ‑ ‑

FRENCH CJ:   Yes, but the extinguishment issue predates the Act. 

MR WALKER:   Is common law.

FRENCH CJ:   This is a common law issue, is it not, a common law relationship to those statutes from 1877 on?

MR WALKER:   Yes, it is a decision of our law, that is, the common law as to the effect of those statutes on those putatively pre‑existing native title rights, to use an inexact English language expression.  In fact, it is the timing of those matters, the fact that there is an anterior state of affairs to be considered that underlies our criticisms of the majority in a number of the aspects to which I am now immediately coming.

CRENNAN J:   Would you elucidate what it means to speak of the right to fish for commercial purposes, pre‑1887?

MR WALKER:   I am not sure 1887 is exactly the right date for this purposes, but it will do for the sake of the reason.

CRENNAN J:   The point.

MR WALKER:   Pre any statute which required a licence in order to carry on commercial fishing and by reason of a necessary decision about reception of the common law into this country, there being a favourable decision about reception there is, at common law, the public right to fish.  That is not a right which depends – how shall I say – at the time of the conduct, wetting the line on your intention or ambition as to what you will do with the product.  Some might be for sale.  Some might be for eating.  Depending upon your attitude to life, you will keep the good one and sell the not so good one, or vice versa. 

Now, pre any such statute, at common law, therefore, for the reasons I mentioned when I drew to attention the expression in the middle of the majority’s paragraph 73, it really is not appropriate to talk about a common law right to fish for commercial purposes.  It is even less appropriate to speak about the pre‑statutory native title position as including something so named. 

CRENNAN J:   I suppose that was all a function of certain concessions that were made and the narrow basis on which the argument was put.

MR WALKER:   In a sense, but if one is talking about the facts in this case, the facts in terms of – I will just call it anthropology – show that there was a set of activities, including fishing, not confined to personal or domestic consumption, to use expressions familiar from Yanner, or 211.  It is for those reason that perhaps, over‑elliptically, there is resort to language such as “a right to fish for commercial purposes”.  A more longwinded way would be saying that there was an activity about which one can see what might be called a right under traditional law and custom of fishing where it was not material, in terms of permission or not, as to how the fish could be used and it was used for trade.

FRENCH CJ:   Is it correct to say that the primary judge determined the right to access and take for any purpose resources in the native title areas?

MR WALKER:   In essence, yes, subject to the particular findings for particular resources, yes.

FRENCH CJ:   He did not actually set out a commercial usage.

MR WALKER:   No, no.  Trade is permitted under traditional law and custom – which is why I say it is accessibly elliptical to jump to talking about a right to fish for commercial purposes.  It is rather more accurate to say that the right found, under traditional law and custom, enjoyed by these people, was to fish among other taking and enjoyment of natural resources, and that fish could be and was – could be – that is normatively could be, under the traditional law and custom and was – that is, as a matter of history, enjoyed not only by consumption within at the one half, but also, by trade.

FRENCH CJ:   So suppose if I own a farm, I can raise cattle on it or I can grow wheat, or I can plant vines, but I do not talk of my ownership rights in terms of rights to raise cattle, grow wheat, or plant vines.

MR WALKER:   No, no.

FRENCH CJ:   That is what kind of territory we are in, is it not?

MR WALKER:   Yes, but if asked does your right to farm - perhaps liberty to farm might be more accurate in some circumstances ‑ ‑ ‑

FRENCH CJ:   Well, it is the only – I own the land.

MR WALKER:   Yes, does the liberty which comes from the right - and therefore partakes of the character of right to some extent – to farm, if someone asked does that include grapes, maybe a puzzled answer would be farming, just farming.  Now, if a statute came along and said you will not plant something which is noxious – it might be tasty but noxious - in our submission that would be an example of a carve‑out or a limitation or a curtailment rather than something which is so inconsistent in its incidents with the general right to farm as to require, alas, the general right to farm to have been countered, abrogated.

Now, the argument for abrogation in such a case would presumably go along these lines.  You have a general right to farm.  One of its incidents is that you choose what you grow.  You are now told by Parliament you cannot choose what you grow.  Here is a no go area; you cannot choose that.  That is inconsistent.  You had choice.  Now you do not have freedom of choice.  I am sorry, the hold has gone.  In our submission, if one imagines a common law argument like that, the absurdity and excessiveness, the excess of arguing that that is an inconsistency of incident that produces abrogation of the whole right can be seen.  A similar kind of argument is that which informs our contention here.

HAYNE J:   Well, can I understand the proposition?

MR WALKER:   Yes, your Honour.

HAYNE J:   Is it that the native title right or interest, that is, the right or interest held by traditional law and custom, is a right to take fish?

MR WALKER:   Yes.

HAYNE J:   That right was not by traditional law and custom limited by reference to the purpose of the taking?

MR WALKER:   Correct.

HAYNE J:   Statute later intervenes and says you may not take for certain purposes without permission?

MR WALKER:   Yes.

HAYNE J:   Your argument is, as I would understand it, that the statute does not intersect in a relevant way to achieve extinguishment of the right to take fish?

MR WALKER:   That is right.

HAYNE J:   Not by traditional law and custom limited in any sense?

MR WALKER:   That is correct, your Honour, yes.

HAYNE J:   Or is there more to it than that?

MR WALKER:   No, no, but where the majority, in our submission, have gone wrong is to say of what Justice Hayne has put to me, with respect, appropriately for our position, to say of that position that by definition it must fail, that that is an impossibility because the requirement for a licence is naturally structured – I do not say it must be, but it always is structured as being prohibition and licence and because of that, that which Justice Hayne put to me as the encapsulated reasoning for success by us on this first issue, is a priori ruled impossible by the majority. 

One can pick it up in the very next paragraph I wanted to go to at page 1201, paragraph 74.  It is the introduction of the matter and this is the very important aspect of Yanner which requires a bit more attention than the encapsulated outline would suggest.  In paragraph 74, the first sentence shows the complete emphasis to the exclusion of what was considered by this Court in Yanner on the prohibition.  That is the beginning of the inquiry.  It is treated by the majority as the end of it.

Now, if one slightly tweaks that first sentence in paragraph 74 one would not be asking about whether something which prohibits is a prohibition, in a sense that is an unhelpful truism, but rather whether something which prohibits in order to provide a regime of licensing, which is what these statutes do, requires extinguishment as a matter of the legal synthesis of the statutes and the pre‑existing native title right, just as the same synthesis is required by statute at a pre‑existing common law proprietary right.

HAYNE J:   But does not the proposition you have just advanced slide between radical areas of discourse?

MR WALKER:   I hope not, your Honour.

HAYNE J:   Paragraph 74 speaks of prohibiting an activity.  What is the activity?  Is it fishing generally, fishing for a particular purpose?  Questions of extinguishment concern inconsistency between rights and the first step to find the right that is in issue.

MR WALKER:   That is why the Chief Justice drew to attention the form of words, very general, designedly very general, that one sees in our determination, and our determination 5(b) has that expression.

FRENCH CJ:   What page does that appear at?

MR WALKER:   That is in the order at 1104.

FRENCH CJ:   Thank you.

MR WALKER:   It is that expression:

the right to access resources and to take for any purpose resources in the native title areas.

The question is whether a component, to use a problematic word, whether a component of that general right, which is fishing for commercial purposes, as it were, a hyphenated and rather odd‑looking right, whether that has been extinguished, that is what their Honours are turning to under the heading “Regulation and prohibition” in their paragraphs 74 and following.  We, with respect, accept entirely the stricture that Justice Hayne has expressed.  We, however, would seek to defend ourselves against the accusation of eliding fundamental distinctions as to the discourse involved.  It is precisely our point that this is not a statute apt to have this once and for all destructive effect upon this aspect of the general right to take resources, which is our very argument.  Now, Yanner is dealt with ‑ ‑ ‑

HAYNE J:   I am sorry to harp on about this, but as I would understand it to be the central point of this first branch of the case.  Some rights in respect of realty, particularly, can only be described by reference to the purposes for which the rights are to be exercised.  I have in mind the easement.  One has a right over Blackacre as an easement of way for the purpose of passing, repassing, et cetera.  Other rights in respect of items of property are to be identified without restriction of purpose, for example, fee simple ownership.

MR WALKER:   That does not mean that the use one makes of the product of that right may not itself be regulated, such as the criminalising of the growing of certain crops, marijuana, for example, but it does not mean you do not have the rights of a landowner.

HAYNE J:   I do not know why you thought of that.  I was thinking of erecting a house, Mr Walker, but there we are.

MR WALKER:   I was thinking farming, your Honour.

FRENCH CJ:   The use does not define the right, that is the point, is it not?

MR WALKER:   Quite, and that is why I say it is a quite curious sort of hyphenated right in question, which the nature of the argument about the putative extinguishment raised in this case.  We say there is a completely general resource right, to which we referred.  The carve‑out question arises because it said that “here is a statute”.  No one says it would abrogate the whole or extinguish the whole of the resource taking right, it is only an aspect of it and it is not even something defined in natural terms such as by definition of a resource; fish or fish of a particular kind or whatever.  It is fish to be used in a particular social fashion, summed up by commercial.

As I say, we depend upon, for the identification of error, the fact that it is rather the mixing of categories, the lumping together of the two common law categories and then the elision of any distinction between them, as between themselves and as between them and native title, as recognisable by common law that is the basis by which their Honours reached the conclusion, to which I am now coming, in effect requiring the misreading of Yanner lest they decide contrary to Yanner.

Now, I will come to Yanner directly rather than deal with it simply as it is quoted on these following pages.  But at the foot of page 1204 one sees, after all that extensive quotation, the following observations by their Honours in their paragraph 79.  At [38] to [40] necessity is stated as to the observations in [38] to [40] of Yanner to which I am about to come.  Nothing in that passage was against us, for reasons I am about to come to, particularly the first sentence at [40] is important.  That then relates to what their Honours say about [36] and [37], namely:

the only relevant “regulation” of the way native title rights might have been extinguished was the vesting of title in fauna in the Crown, not an earlier prohibition on the unlicensed taking of fauna.

It is a difficult passage.  Regulation, printed as it is with quotes or not, is an odd expression in relation to extinguishment.  The concession, which dealt with the issue of extinguishment by the requirement for a licence in Yanner, is the very thing to which I am about to come by going to Yanner and the short point is that is a concession which was very important for their Honours’ reasoning and it was a concession which their Honours held to be correct.  It is not an unexamined concession.

Over to page 1205, one then sees an extract from Justice Gummow’s reasons, to which I will also go somewhat more fully in their Honours’ paragraph 80, and there is a holding that it is section 211(2) that explains the outcome.  Presumably, their Honours have particularly in mind the last sentence of Justice Gummow’s paragraph 122, which they quote at about line 18.  That, however, is in a sequence of reasoning which particularly includes, of course, the whole of paragraph 123 to which I will come.  It is not the case that either the plurality or Justice Gummow in Yanner dealt with the case on the basis that section 211 was preventing extinguishment.  Section 211 alleviates a statutory effect upon a person who is, ex hypothesi, otherwise exercising a right – that is, a native title right.  I will come back to that proper reading of Yanner.

HAYNE J:   I may be wrong, but I thought the central point argued in Yanner concerned the effect of the vesting of property in the Crown.

MR WALKER:   It was.  It absolutely was, and the first ‑ ‑ ‑

HAYNE J:   And extinguishment was said to follow ‑ ‑ ‑

MR WALKER:   From that vesting.

HAYNE J:   ‑ ‑ ‑from that fact, or that statutory provision.

MR WALKER:   Quite so, your Honour, quite so.  It is, as your Honours appreciate from our written submissions, the reasoning, in particular, about the order of events and, in particular, the reasoning for holding the concession about the licensing regime to be correct upon which we depend in this case.  It cannot be distinguished from this case.  And, their Honours, with respect, have misunderstood it, as Justice Finn and Justice Mansfield did not, with respect, misunderstand it.

Paragraph 82, at the foot of 1205, will require, of course, comparison with paragraphs 37 and 39 of Yanner, to which I am about to come.  One sees there that a negative is stated:

that Yanner does not support the general proposition that a legislated prohibition upon an activity, save subject to a licence, is to be understood as having effect merely to regulate the exercise of an underlying right to carry out that activity.

Now, if that were intended to suggest that there is a universal template which produces one, one only, answer in all cases then, of course, that would be absurd.  It is a case by case determination where, among other things, the shading of regulation to prohibition may be important to consider.  But the High Court in Yanner did utter general propositions about the effect of the conditional prohibition in a licensing regime whose first step is the prohibition, in relation to the co‑existing – or the possible co‑existence – of an anterior or preceding right, and their Honours have given little or no weight to that, although they have quoted the relevant passages.

In paragraph 83, about line 8 or so, there is what might be an inconsistency in the reasoning.  Their Honours refer to subsection 211(2) of the Act not operating:

to modify the legal effect of the legislative prohibitions on the unlicensed taking of fish for commercial purposes which took effect well before the enactment of the Racial Discrimination Act 1975 (Cth) and the NT Act.  Once the native title right to take fish for commercial purposes was extinguished –

so that is something anterior to the RDA and the NTA –

it could not be revived by invoking s 211 of the NT Act.  Section 211 of the NT Act alters the current effect of existing legislation:  it does not purport to deny the past effect of legislation.

All of that is, with great respect, correct.  It shows the importance of the temporal sequence of legal consequence that one sees in Yanner, which was why it was necessary, as the plurality pointed out in Yanner, to examine the correctness of the concession, because that reasoning – that principled approach would apply as well, for example, to the vesting statute which was the one argued in Yanner, as to the licensing statute which was the one conceded in Yanner.  When I say conceded, I mean conceded not to have extinguished.  That was important because if it had not extinguished and if the vesting had not extinguished then 211 was available, there was an extant right available for 211 to have the alleviating effect for personal and domestic consumption.

In paragraph 84 the key expression at the end of that first somewhat difficult sentence is “not apt to extinguish native title”.  The question, of course, in this case was whether Justice Finn was wrong in holding, in accordance with the reasoning in Yanner, that it had not extinguished native title.  It would appear in that sentence that their Honours are in effect saying, well, as a rule such a piece of legislation, whether you call it regulation or not, if by reason of there being a prohibition is inconsistent with anyone being at liberty to engage save pursuant to a licence.  In our submission, that gives no weight whatever to the great importance that the High Court gave in Yanner to the save pursuant to a licence being the means by which this conditional prohibition was not so inconsistent in these incidents with the pre‑existing right.

There is a reference to what might be called a matter of policy relevant to evident statutory purpose in the next sentence of paragraph 84, namely, the easy defeat of the:

general conservation objectives . . . by the expedient of traders buying fish in commercial quantities from native title holders.

Whether that is a by the way comment or not it is, with respect, inappropriate and any use made of it wrong, in particular ignores the material to which we have drawn attention in paragraph 9 of our reply submissions where you will see the reference to paragraph 235 of the trial judge’s findings to which one can add paragraph 649 of the trial judge’s findings.  I do not need to take you to them.

FRENCH CJ:   The native title claimants were not denying the application of the licensing regime.

MR WALKER:   No, no, that is the very next point I am coming to, not at all.  But even before you get to the licensing regime there is this; namely, that the traditional law and customs in accordance with which these rights must be exercised have themselves explicit conservation objectives.

So the “evading the purpose of the statute” point in that second sentence of paragraph 84 lacks an essential factual foundation.  In particular, it is an inappropriately extended and indirect fashion to understand the intention to extinguish, as their Honours appear to have done in the last sentence of their paragraph 84.  That is a sentence, as I say, that proceeds upon a false factual premise.  It is not as if the native title right is such as would defeat conservation objectives.

FRENCH CJ:   The native title determination expressed the rights to be subject to the laws of Queensland and of the Commonwealth.

MR WALKER:   Quite, and also in accordance with traditional law and custom and all of them add up so as to deny that effect – that mischievous effect.  Paragraph 85 is a reference to what is there unfortunately depicted as if it were a forensic manoeuvre on our part.  It is no such thing, for the reasons the Chief Justice has pointed out and, in any event, it is axiomatic, were bound by the law.  There is, in our submission, then error displayed in the way in which the majority’s conclusion is expressed in paragraph 85 on page 1207 about line 4 or so.  The argument is characterised as displaying incoherence.  In particular, it is said a couple of sentences down:

Once it is accepted that the statutory prohibition includes those who engage in that activity –

that is, taking fish for commercial purposes –

pursuant to native title, it becomes impossible to contend that this incident of native title is consistent with the statute.

Now, that is, on any view of it, overstatement, given the reasoning in Yanner.  It is, we submit, respectfully, wrong.  It is not impossible.  It is in fact a usual or expected outcome of such a conjunction of a licensing regime with a pre‑existing right, that is, a pre‑existing right which at common law was proprietary or as the ownership character of a native title right.  Then their Honours go and say:

It makes little sense to speak of a right to engage in an activity which it is accepted is prohibited by law -

to which the tart response can be made that that is not the whole of it at all.  It does make sense, as this Court showed in Yanner, to speak of a right to engage in activity subject to the requirement of a licence and it is the requirement of a licence which is the more complete statement of the state of affairs than to talk about prohibition.  If it were absolute prohibition then things would have followed as they did in Ward.  That is not this case.

KIEFEL J:   Is it correct to look at the position of the rights enjoyed before and after the coming into effect of the statutes?

MR WALKER:   Yes.

KIEFEL J:   I think it is put against you that after the statute the permit holders enjoy rights which are different and have a difference source than those which they enjoyed before, whether one speaks of public rights or of native title rights.

MR WALKER:   It is, but, in our submission, when one talks about the incidence of, I will call it rights or regimes to be compared with paramountcy to one, the statutory here, then it is in particular practicalities that matter, and the activity of fishing before the statute, the activity of fishing for a particular purpose or just fishing requiring a licence after the statute are not so different, in our submission, as this Court explained in Yanner, as to involve extinguishment by the latter of the former.

KIEFEL J:   That is the activity, but what about the right that you are exercising?  It is different, is it not, after the statute?

MR WALKER:   It is not different as to source.  It is different as to the observance now called for of the statutory requirement of the licence.

KIEFEL J:   Why is it not different as to source?

MR WALKER:   Because unless one assumes the conclusion against us, there was the native title right to do so, the activity permitted by that right is still being carried on.  Question:  is that native title right extinguished by the fact that there is now a requirement in common with everyone else to observe the general law requiring a licence.  The Court said in Yanner, no that does not destroy, that is, extinguish, the native title right because there is not the necessary inconsistency of incidents simply by the imposition of a requirement for a licence.

KIEFEL J:   Could you not have a native title right and then yet a statutory right overlaying it?

MR WALKER:   You can have both, just as the native title owners also had the common law public right to fish, which was unquestionably abrogated by the first of the comprehensive fishery legislation.  So one may have multiple sources of rights to do things, not always, but one may, and in this case the licensing regime works perfectly comfortably by presupposing an anterior right to fish and simply saying, but from now on you need a licence to do that which you have always done under your traditional law and custom, which is no different from saying, you are not to fish in a boat less than a certain length or without a certain supply of fuel or without lifejackets on board or with children below a certain age on board in certain waters.  All of those are prohibitions on doing things without observing precautions.  That would not be inconsistent with the right to fish.

KIEFEL J:   Is it your contention that the statutes operate effectively as a prohibition in relation to the public rights?

MR WALKER:   Yes, and I do not think anyone doubts that.  The common law public right to fish was abrogated by the first of the comprehensive fisheries legislation.

FRENCH CJ:   It falls into a different area of discourse, does it not?  I mean, if the legislation is removed the public right to fish subsists.

MR WALKER:   Revives.

FRENCH CJ:   Yes.

MR WALKER:   Quite, unlike native title.  That is partly, of course, the importance for my clients of this point, for the common law right, which, if I may use the language, is freely amenable, Justice Brennan’s language, to a statute that says, well, there is no common law public right available now; it is governed by a statute.  If those statutes are repealed the common law right continues unless of course this Court holds that conditions have so changed that it is no longer appropriate, which would be unlikely.

KIEFEL J:   One may accept that a public right of its nature is capable of abrogation, but are you not giving the statute two different operations in relation to rights?

MR WALKER:   It necessarily operates differently upon different anterior states of affairs.  It necessarily operates differently for the reasons that Justice Brennan noted in Harper.  Being public, not being proprietary, was his description of the means by which as a matter of statutory interpretation and the reasoning associated with that process the public right of fishing had been abrogated in that case.

KIEFEL J:   Does that not mean it is more than a question of construction then?  There is something more involved, some assumptions, some legal assumptions, not just construction.

MR WALKER:   It could be readily conceded it is no mere interpretational issue, but ultimately it comes down to what is the meaning and effect of these statutes upon the pre‑existing state of affairs.  I agree it is no mere interpretive issue.

FRENCH CJ:   But in a sense you avoid that debate, do you, or sidestep it if you say that all that the statute does is to affect – all that it affects is a particular mode of enjoying or using the right ‑ ‑ ‑

MR WALKER:   That is right.

FRENCH CJ:   ‑ ‑ ‑ and that the discourse of extinguishment simply does not apply in that field.

MR WALKER:   Exactly, and it is for those reasons that one sees the error culminating in the language that simply puts a bare prohibition against a right to engage in an activity, at line 11 on page 1207.  As to paragraph 86, the reference at 847 which appears in a sentence that places the primary judge, as it were, out on a limb, is wrong.  It could not be 847.  There is no acknowledgement of departure there.  There is a reference to coincidence of view.  It might be a reference to 855, as to which see also 854.  I do not need to take you to either of them.  But as Justice Finn explains at 854 and 855 and as we embrace, this was a point argued in this case in a manner not argued beforehand.

Your Honours, can I then go immediately and in conclusion on this point to Yanner to make good the points.  In my outline I have covered most of what I wanted to say in 1 and 3.  In relation to 1, I have already made the reference to paragraph 265 of Ward which is Western Australia v Ward (2002) 213 CLR 1 at 152, and in particular in paragraph 265 there is the reference to the prohibition of shooting, trapping and taking of fauna on the catchment area.  In each case the prohibition was absolute and then an important sentence:

It follows that s 211 of the NTA (considered in s 211 of the NTA (considered in Yanner v Eaton) was not engaged.

A terse description of the proper reading of the Yanner v Eaton, for which we contend there was an extinguishment by that absolute prohibition, there was, therefore, nothing for 211 to provide the alleviation for.  And, that sequence can be seen in the passages to which we have drawn attention in Yanner in our written submissions.  May I quickly complete that argument by taking your Honours to Yanner v Eaton 201 CLR 351, picking it up at 372?  Paragraph 36, as Justice Hayne has pointed out, with respect, the point that was argued there, in dispute between the parties, was an inconsistency leading to extinguishment by reason of the – I will call it the vesting or Crown property legislation.

In paragraph 37, as the first sentence makes clear, general propositions are being uttered.  I do not mean universally true, regardless of wording.  I mean general propositions.  And, in particular, we draw to attention the second sentence of paragraph 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.

And one interpolates to say, otherwise the modern state as it has largely been seen for the last century would be intolerable, surely; it would be rights free.  Continuing the quote:

Indeed, regulating the way in which a right may be exercised presupposes that the right exists.

And 211, as your Honours appreciate, proceeds upon just that premise.  Then the next sentence arises which is what calls for the case by case determination – I do not mean it will be a wilderness of single instances – I mean that there are zones that may not have bright lines separating them:

regulation may shade into prohibition and the line between the two may be difficult to discern.

That is certainly not true here.

FRENCH CJ:   Now, that arises out of statutory powers to provide for regulation of activities as ‑ ‑ ‑

MR WALKER:   Where the ultra vires doctrine is invoked by judicial scrutiny to say, what you are doing here goes beyond regulation, this is truly prohibition.  None of that arises.

FRENCH CJ:   One would have to be careful not to bring too much of inappropriate aspects of that discourse into this field, I think.

MR WALKER:   Quite so.  And, much of what one would find captured by footnote 96 is of that kind.  It is not directly, or usefully, applicable for the present question.  Paragraph 38 is, in our submission, of very considerable importance in relation to the exploration of the correctness of the concession.  About halfway through:

Regulating particular aspects of the usufructuary relationship with tradition land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether –

I stress “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.

Now, that is a sentence which necessarily incorporates and encompasses the state of affairs for which we contend, that there is not here the inconsistency of incidents which produces extinguishment by the existence of a later enacted legislative regulatory scheme turning on a requirement for licensing, which is the case here.  Paragraph 39, which I will not read, makes the point about section 211, to which I have already referred.  Paragraph 40 points out the temporal sequence, that is:

The Fauna Act did not extinguish the rights and interests –

Accordingly section 211 could operate.  That is the point that differentiated in Ward where there had been the prior extinguishment, and the passage in Justice Gummow’s reasons to which reference has already been made says nothing, in our submission, which is contrary to that approach.  We rely upon what we have written about that reading of Yanner for the demonstration of the error by the Full Court on the point. 

May I then turn, your Honours, to the second issue?  The second issue turns, importantly, upon the following general argument by us.  The key expressions in section 223 have been wrongly glossed and therefore misapplied by the reasoning at first instance and in the Full Court, in particular in the Full Court in passages to which I will shortly come.  Notions of directness or indirectness in particular, mediated or unmediated as well, have been inserted in a manner not justified by the text let alone the purpose of the text.

May I start with the text of 223, simply in these very familiar words to emphasise the phrases I have in mind in the last statements I have made?  Your Honours have seen them referred to in our written submissions.  In subsection (1), the chapeau of that, of section 223 of the Native Title Act one has two important expressions:

native title rights and interests means the communal, group or –

We emphasise, as we have done in paragraph 4 of our outline for address, that conjunction “or” –

individual rights and interests of –

Then follows a very general and encompassing expression –

Aboriginal peoples or Torres Strait Islanders –

an expression which is going to be later qualified by paragraph (b).  So, there is the “communal, group or individual rights”.   It can be any one or more of those.  They are the interests of “Aboriginal peoples or Torres Strait Islanders”, a plurality, a collective, and then critically they must be in relation to land or waters.  We failed on that connective.

Under paragraph (a) of subsection (1) very important matters, supported by rich evidentiary record in this case, were found in our favour and are not contested in relation to the content of:

the traditional laws acknowledged and the traditional customs observed by the . . . Torres Strait Islanders -

and, in particular, for the so‑called reciprocal rights those social dealings involving members of family, including by marriage link, involving trading link and what might be called visitation rights and use rights reciprocally, were proved in a manner that is described by the trial judge and not subject to any contest.  The question was whether rights and interests of that kind fall within the prescription of section 223.  As I say we failed on the “in relation to” point.  But paragraph (b) is also important obviously ‑ ‑ ‑

FRENCH CJ:   That anterior characterisation “rights and interests of that kind” where does the characterisation of them as rights and interests come from?

MR WALKER:   In this case it came from the evidence, descriptive of the norms of conduct ‑ ‑ ‑

FRENCH CJ:   Norms of conduct, yes.

MR WALKER:   They have to be, as we ‑ ‑ ‑

FRENCH CJ:   A hospitality obligation, for example, I think was one example, was it not?

MR WALKER:   Yes, and that is a useful one for one short form of answer to the “in relation to” argument.  A hospitality obligation, as shown in the evidence, is hospitality at a certain place because somebody has come there and you or yours have a particular status in relation to that place.  To put it over‑crudely, but generally correctly for the evidence here, another Torres Strait islander to whom I owe for familial intermarriage or inherited trading relationship reasons, the tebud obligations, to whom I owe these obligations or hospitality it is triggered by their arrival in my part of the waters.

Now, I do not mean my part in the sense of a fee simple or a right to exclude.  Indeed, all of the evidence is to the contrary.  Rather, there is an obligation on the one part to seek something which is inadequately called permission and on the other part there is an obligation to give it, except for good reason, that is reason contemplated under traditional law and custom or else by violating the norm threatening the structure of the society by destroying that and ramified relationships. 

It is for those reasons, in our submission, that one comes to this short answer, “Well, if that is not in relation to those waters, what is it?”  It is not hospitality at large, it is hospitality when you arrive there.  How is it manifested?  It is manifested by what is permitted there and is it integral or central to the proposition that one has a location at which these rights produce the conduct which is normatively called for and the answer is, yes of course it is all locational.

It is for those reasons, in our submission, that without having to resort to the usual suspects of judicial statements about “in relation to” in that plethora of extraordinarily various statutory contexts in which it can be found that one can say that at its most ordinary and literal in certainly in the kind of context one sees it appearing in section 223, that what I might call these locationally‑triggered hospitality obligations are, of course, in relation to waters.

They affect what the persons whose island that is must or must not do in relation to other Torres Strait islanders with the appropriate reciprocal relationship coming to those waters and it is for those reasons that in a double sense, in a complete social sense, there is the relation called for by the expression in the chapeau.  We also go to section 223(1)(b) because there may be some doubt about the position ‑ ‑ ‑

FRENCH CJ:   Can I just understand how these reciprocal – who are the subjects of these – the beneficiaries, if you like, of these reciprocal rights?  How do they relate to the members of the claim group, or within them?

MR WALKER:   In particular by familial links to marriage partners and in particular by what might be called traditional or inherited trading networks.

FRENCH CJ:   But they are all outside the claim group?

MR WALKER:   No, as it happens, what we call for – everyone is within the claim group.  So Torres Strait islanders, one society, that was a point fought and now determined, have, obviously, different islands and so if I am a resident of one island with my family traditionally located there and in those waters I will have – I will call them rights and interests - in relation to part of the overall claim group which are different in nature, not least with respect to no need for permission, et cetera, than I would have in other parts of the waters and so as it happens ‑ ‑ ‑

FRENCH CJ:   Is it right to call these, then, intramural arrangements?

MR WALKER:   They are intramural in a sense, that is, they are within the group, but they are none the worse for that in terms of section 223 because under traditional law and custom different content is given in different places for different people, depending on whether they are what might be called occupation‑based or reciprocal‑based rights and interests.  The different content can be sufficiently demonstrated by being the person who needs to ask for this permission, so called, or whether you are the person who is obliged to give it.

CRENNAN J:   Just in relation to point 8 in your hand‑up document, if it is possible to deny a right, albeit attracting recrimination in doing so does that suggest the rights would tend to be personal as distinct from rights in relation to lands and waters?  I mean, are there sanctions other than recrimination?  I just did not quite follow exactly what you are describing there as something other than a personal right.

MR WALKER:   It is a difficult area.  May I approach the answer in a number of parts?  The existence of the norm, including by reference to the consequences of its violation, can be seen in the kind of evidence considered by his Honour the subject of findings in paragraph 189 at first instance.  I do not need to take you to it.  Appeal book 834, as an example.  It is not simply recrimination, that is, you should have done this and I think the worse of you for not having done so.  It is the destruction of that relationship, this being a relationship‑based set of traditional laws and customs making the society that his Honour found.  That is the first thing.

The second is that, in our submission, the question is whether the right is one in relation to waters.  That is why I have started with the statute.  That is not answered, as it were, by a kind of categorical argument, or an argument by category, by saying it is personal any more than by saying it is communal, group or individual.  It must be communal, group or individual to qualify under 223.  We draw to attention that “individual” is not a word that stands across some jurisprudential divide opposite from “personal”, but in truth neither does “communal” or “group” if one is focusing on the question of a particular person or individual’s position.  I personally enjoy and take advantage of that which I have communally, or that which I have as a member of a group, or that which I have as an individual.

So at the beginning of 223, and at the critical passage, that is, in relation to waters, one does not see any text and no evident purpose, that is, intention as we are talking fictitiously, that there not be so‑called personal rights as part of native title rights and interest.  To put it another way, the epithet “personal” is in grave danger of being overworked, of being asked to bear too much weight in terms of distinguishing when it is used as a mode of reasoning about the application of 223.

CRENNAN J:   Well, it may have a bearing on what is meant by “connection”.

MR WALKER:   Indeed.  That is why I drew attention to “connection”.  It is a critical part of the statutory inquiry about what is, and therefore what is not, a native title right or interest.  Now, in this case that is not a problem.  It is not a problem because what we ask for, and what we asked for, and argued, were the reciprocal rights of those within the claim group, all of whom were Torres Strait islanders with an uncontested connection, and may I stress, the connection is not of an individual, qua a single person, the connection called for under paragraph (b) is of the Torres Strait islanders, that is, an expression cognate with Aboriginal peoples, the plurality or assemblage.

So the first thing is that the so‑called right – if the right is denied – it can be denied with impunity save for the fact that that means denying a relationship between two individuals.  That, we would submit, is a considerable distance from having a relationship, or a connection, with the waters of the community where a member owes the obligation.

The second point is in paragraph 506.  When one looks at the examples of the rights, the description that they are hospitality based is correct and, in some senses, illuminating their rights to provide a welcome, to provide accommodation, to provide sustenance.  Now, does one say that the rights to welcome, accommodation and sustenance create rights in relation to the land?  That would seem to be an odd consequence.  We, then, see fishing:

to go fishing with, to share with, him or her . . . the reciprocal obligations assumed are situational in the sense of requiring the appropriate response to the friend’s requirements of the moment – “If a person asks his thubud for help, then that person must help” –

So the second critical aspect is that the so‑called right needs to be triggered by a request and one is immediately in the area of what will be the response to my request.  Your Honours see near the end of that paragraph when we come back to fishing, the rights:

are not limited, for example to permitting the friend to fish, usually in the host’s company, on the family’s or community’s marine estate.

So that in the usual case you do not have any right to simply take your boat out and go fishing in the waters, your right is to ask for some hospitality which in the ordinary case you will receive but you may not receive and the hospitality will involve being hosted on the boat.  Now, that, we would submit, is again a vast distance from being in relation to or in connection with the waters.  In the next paragraph, 507, about the middle, his Honour says:

The relationships and the rights and obligations that arise in them are personal in that the discharge of the performance obligation is the responsibility –

of the host.  Again, that is drawing what is a sharp distinction and perhaps an inconsistency with the true native title right in relation to the waters which is group held and this matter of obligation which does not bind the group in any way, it binds, at most, the host.  That leads his Honour in paragraph 508 to the finding which we contend is correct that these:

are rights in relation to persons.  The corresponding obligations are likewise social and personal . . . the rights provide a “passport” to the host, partner’s island and, with permission, will allow fishing in the community waters of the host –

but that:

diverts attention from the personal nature –

of it.  The final matter I would put on this topic, your Honour, is that if one comes back to connection in section 223(1)(b) and one asks what is the type of connection which is required by the statute and one considers the findings that I commenced my submissions with of the connection which was in fact found which justified the group right one sees the vast distance between this situation and a connection with the waters.

For the group the connection arose, as I mentioned from knowledge of the marine estate ownership, power to grant permission to access it and power to make the decisions over it that I have mentioned.  None of those rights over the waters in question exist, in relation to this reciprocal rights arrangement.  That is all I wish to put, your Honour.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Walker.

MR WALKER:   May I start, your Honours, with the extinguishment issue?  In our submission, the arguments by both the State and the Commonwealth, concerning the applicability of the learning, reasoning and outcome in Yanner on the extinguishment position overlook the way in which, in the plurality reasons, consistently with Justice Gummow as well, extinguishment by the licensing system formed a critical part in the reasoning about the next logical step, which was the possible application of section 211.  I do not want to repeat what I have said in‑chief.

Your Honours will appreciate that the salient points showing that sequence of reasoning can be seen at the end of paragraph 31 in the plurality where the need to examine the correctness of the concession of no extinguishment by the licensing regime is introduced by the culmination of that part of the reasoning, particularly in the last part the imagined speech at the end of paragraph 38.

That imagined speech is precisely in terms apt to dispose of the, in our submission, ineffective distinguishing by our learned friends of this statute.  So the statute in Yanner had means other than a licence of escaping the statutory prohibition such as other forms of exemption.  So what?  It forms absolutely no part of the ratio.  It forms absolutely no part of the dispositive reasoning in particular in paragraph 38 which concentrates on that which is in common with our case, namely, the need for a licence.

Next, and in particular from the Acting Solicitor‑General for the Commonwealth, may I turn to the statutory assumption?  That is dealt with separately though, of course, producing and contributing to the same outcome, in paragraph 39 of the plurality reasons.  At no point, bearing in mind the correctness of the concession which had already been established in the reasoning between paragraphs 31 and 38, at no point can one see any finding in Yanner that the statutory assumption was of dubious correctness, to the contrary.  And yet, in the Commonwealth’s argument, one could be forgiven for thinking that we were ‑ ‑ ‑

HAYNE J:   The Commonwealth’s argument in this case or in Yanner?

MR WALKER:   In this case, in this case.  One could be forgiven for thinking that it was a case of willing to wound, afraid to strike with respect to that assumption.  Was Parliament wrongheaded or not?  My learned friend went only so far as to say, it may or not be correct.  In our submission, this Court has held in Yanner it is correct.  It may be an immaterial difference, but alternatively Yanner certainly held it was not incorrect.

The way in which both State and Commonwealth in this case put the inconsistency argument for extinguishment, in our submission, necessarily involves that that assumption, that statutory assumption in 211, must always be incorrect because by definition a licence is added to the state of affairs necessary to permit lawfully the conduct pursuant to or under the traditional laws and customs, that is, exercising the native title right, but that is precisely what that critical part of the reasoning in Yanner decided was not true.

In relation to, in particular the Commonwealth’s way of putting the day before, day after comparison, namely, the day before the group makes the decision whereby the activity ensues lawfully, the day after, that is, the day after enactment of the licence regime, the group’s decision will not suffice, now it will be the Minister or his delegate, it will always be him in those days, his delegate, the Secretary of the department.  Now, in our submission, that is in danger of suggesting there is a substitution of decision‑making there.

Indeed, we put it this way.  It is simply an adding of something else.  The group decision is still necessary.  If someone wants to exercise a native title right, there still will need to be the group decision if that is part of the traditional law and custom, but now there will need to be a licence as well, like there will need to be a lifejacket or like there will need to be a navigation certificate if you are going to carry paying passengers, et cetera.  There is not a change; there is a regulation of a kind which unremarkably is consistent with the continuation of the broader, deeper, more general native title right.

Your Honours, can I then turn to the reciprocal rights question?  In relation to the argument of the State, particularly before the adjournment and just after the adjournment, in our submission there was an unexpressed threshold proposition to the emphasis on native title rights by descent, by which we mean ancestry.  Now, there is nothing in the Native Title Act that privileges or selects for special solicitude, traditional laws and customs that proceed by pedigree rather than, say, social relationships such as friendship.  It may be, though it is not to the point, that an anthropological panopticon would suggest that biological descent is a near common feature of all societies, to which the short answer is, so what?

It is proved factually in each case as to what the traditional laws and customs say and it need not, obviously, it would be wrong to read the Act as requiring biological descent to be recognised if the facts showed otherwise, or noticing to the detriment of the applicant’s case, that it is not or is not the only form by which relationships produce native title rights and interests in a particular case, and that is our case.  Everyone is familiar with the idea that non‑biological, that is marriage relationships, can produce groups with native title rights. 

Why would one, a priori, as seen to be implicit in the State’s argument, regard as in a different category for the purposes of section 223 compliance, relationships which are neither blood nor marriage, particularly bearing in mind that marriage is a relationship which, as in this case, and as may easily be imagined, including by reading of the Federal Court Reports, can extend to persons other than just the two spouses, in‑laws, nieces, nephews, et cetera. 

In our submission, the passages, to which I need not go, in paragraphs 542 to 543, to which my learned friend, Ms Perry, went in Justice Finn’s reasons are consistent with the way we have just put it and do not support the way in which Queensland put it.

As to the characterisation of communal group or individual, in our submission, nothing turns on the matter so long as one or more of those three descriptions is appropriate.  That does not seem to be contested, whereby it follows that Queensland’s criticism of the reciprocal rights that they do not appear to be communal is not to the point.  As Justice Finn said, no group or individual. 

Attachment 8 has already been drawn to your Honours’ attention in relation to the notion of area, by which I mean space, for the reciprocal rights.  Your Honours will find, as you have been shown, the references to attachment 8 in paragraphs 642 and 685 of Justice Finn’s reasons.  I do not need to take you there.

The word “indicative” appears in 642, indicative, if I may put it this way, of the probably, at a 223 stage, 225 stage, probably the irreducible inexactness of matters, which under traditional law and custom, do not follow from cadastral delineation on the face of the ocean.  Now, in theory at least, one might imagine that that might defeat such law and custom having an appropriately normative quality as to give rise to native title rights and interests, but that has not been argued in this case and it would be odd were it so.

Rather, such matters that may require or lend themselves perhaps to greater precision in terms of where may I share, where may I not – that should obviously be left to disputes – most of which, of course, will never come to a court of law.  It does not cease to be traditional law and custom.  It does not cease to lend itself to the determination of native title rights and interests, but his Honour could not go beyond that indicative exercise. 

On the other side of the coin, his Honour warned – see paragraph 433 – against – and this is our characterisation of what his Honour was doing – what he called the “micro‑allocation of rights and interests” as being necessary or appropriate for the exercise in question.  Now, that picks up what members of the Bench had raised with me before the adjournment in relation to intramural arrangements, allocation and details.

In our submission, the arguments concerning reciprocal relationships against us approached the position of challenging their existence for the lack of that micro‑allocation which, for the reasons the trial judge pointed out, would not be an appropriate way of disposing of the issue.  His Honour disposed of it by saying we failed on “in relation to”, but made findings of fact strongly in our favour concerning the normative nature of what traditional law and customs said about these rights.

BELL J:   What do you say to be proposition, I think, last raised by the Solicitor, respecting the form of your order?  What is the meaning of your proposed new paragraph 2?  This is appeal book 1285.  What content can that be taken to have?

MR WALKER:   It is, as the Chief Justice put to me before the adjournment, general of course.  It is encompassing of course.  It describes persons and relations generically, that is, without using personal names, but the same is true at one remove by people being described as descendants which will require – of named persons which will require inquiry and delineation if and when the nature of any dispute requires it.  What that order does, usefully and properly, in our submission, is to record by the formal determination that which the fact finding not challenged yields, namely, that there is traditional law and custom under which in relation to waters there are rights of the kind that have been described possessed by persons of a particular description. 

All those persons, as our form of words require, are persons who are members of the claim group.  That is why the case that his Honour adverted to but obviously did not have before him of, say, PNG citizens or mainland Aboriginals, did not in any way diminish the merit of the claim to those rights by people who were members of the claim group or are members of the claim group, which is a necessary part of that finding.  So there is utility at a method by which, if it ever comes to it, identities can be worked out in the same way, though of course a different kind of inquiry, as one has with the reference to descendants of named individuals which is another part of the appendices.

It was put by the Acting Solicitor‑General for the Commonwealth as part of an argument which might be understood really as challenging the sufficiently normative quality of what the traditional law and customs showed about these reciprocal rights that “permission could be refused with impunity”.  That was his expression.  That is, in fact, contrary to the evidence and findings which we do not understand to be challenged.  “With impunity” was explained by my learned friend as being the state of affairs that occurs if all that happens is that the relationship is destroyed.

Now, with respect, that is not impunity for a relationship to be destroyed and it was not and it is not, according to traditional law and custom, as was the subject of the evidence and findings at the trial in this case.  Far from it being with impunity for the violation of what traditional law and custom called for as a response to a so‑called request for so‑called permission, the destruction of the relationship showed the seriousness of that violation and thus the normative nature of the expected response.

FRENCH CJ:   Native title rights are referred to in the proposed order.  Is that the whole menu of native title rights, which are otherwise distributively allocated across the islands in terms of the ‑ ‑ ‑

MR WALKER:   I may have misheard the first part of your Honour’s question?  The native title ‑ ‑ ‑

FRENCH CJ:   The proposed order says “The native title rights are also held by a native title holder”, et cetera.  Is that a reference to the whole menu of native title rights, which appears earlier in the determination?

MR WALKER:   That is how it reads, yes, your Honour.

FRENCH CJ:   So, there is no limitation by reference to the nature of the reciprocal relationship?

MR WALKER:   No.  That falls to the micro‑allocation question pursuant to the traditional law and custom and, hence, to the nature of request and permission, as the evidence to which attention has been drawn in both written submissions and addresses illustrate.  My learned friend, the Acting Solicitor‑General, also said that these reciprocal relationship‑based rights does not bind a group.  In our submission, that is to misunderstand the nature of those findings.  The group is bound - to use a western forensic expression - in the sense that what is being done is in accordance with traditional law and custom.  Traditional law and custom cannot be invoked as a ground of objection or resistance to, for example, the permission in question.  May it please, your Honours.

FRENCH CJ:   Thank you, Mr Walker.  The Court will reserve its decision.  The Court is adjourned until 10 o’clock tomorrow morning.

AT 4.20 PM THE MATTER WAS ADJOURNED