Wilkes v Johnsen

The case of Wilkes v Johnsen involved a dispute regarding native title fishing rights and the applicability of state law that restricted persons from carrying on fishing activities without a licence. The case was heard in the Federal Court of Australia. The plaintiff, Mr Wilkes, argued that his native title rights to fish were extinguished only if the state law regulated his activities in accordance with a licence, permit, or other instrument. The defendant, Ms Johnsen, contended that the state law was a valid regulation of fishing activities.

The central legal issue before the court was whether the state law restricting fishing activities other than in accordance with a licence, permit, or other instrument effectively extinguished the plaintiff's native title fishing rights. The court had to determine if the law was consistent with the native title framework under Australian law. It was also necessary for the court to consider the extent to which state laws could regulate native title rights without extinguishing them.

The court found that the state law did not extinguish the plaintiff's native title fishing rights because it did not regulate his activities in accordance with a licence, permit, or other instrument. The court emphasised that the native title rights were not absolute and could be regulated by the state, provided that the regulation was consistent with the native title framework. The court also held that the plaintiff's conviction for possession of totally protected fish should be set aside, as it was based on an invalid regulation of his native title rights. However, the conviction for failing to state his name and address to a fisheries officer was upheld, as it was not related to the native title rights in question.