SUMMARY

A recent decision of the High Court of Australia has confirmed that the extinguishment of native title rights at common law by legislation which existed prior to the enactment of the Native Title Act 1993 (Cth) (NT Act) will not occur if the legislation regulates, but does not prohibit, activities which are the subject of native title rights (in this case, the right to fish). The High Court also adopted a broad interpretation of the terms of section 211 of the NT Act, a native title defence provision.

BACKGROUND

In 2009, a father and son who were members of the Narrunga People (applicants) were charged near Cape Elizabeth (South Australia) with possessing 24 undersize Greenlip abalone in contravention of section 72(2)(c) of the Fisheries Management Act 2007 (SA) (FMA 2007) and its associated regulation.

The applicants sought to defend the charge by relying on section 211 of the NT Act. They argued that the abalone were taken in accordance with their native title rights to fish and for the (non-commercial) purpose of feeding their family. The Prosecution conceded that the applicants had a native title right to take fish from the relevant waters and that this right included the taking of abalone, including undersize abalone. However, the Prosecution argued that the provisions of the FMA 2007, in particular section 115, did not satisfy the requirements of the defence provided by section 211 of the NT Act.

At first instance, in the South Australian Magistrates Court, the applicants were successful in defending the charges relying on section 211. The Prosecution appealed this decision.

On appeal, the Full Court of the Supreme Court of South Australia (Supreme Court) disagreed with the Magistrates Court. The Supreme Court held that the Magistrate had made an error in concluding that section 211 applied to the offence as charged because of the operation of section 115 of the FMA 2007. The Supreme Court also found that the defence under section 211 was not available in any event as the applicants’ native title rights had been extinguished in 1971 at common law by the Fisheries Act 1971 (SA) (FA 1971) which predated the FMA 2007. As a result, the applicants were found to have committed the offence with which they were charged.

The applicants applied for special leave to appeal to the High Court. Their application was heard by the Full Court of the High Court.

ISSUES FOR THE HIGH COURT’S DETERMINATION

The issues to be determined by the High Court were:

  1. Extinguishment issue: had the FA 1971 extinguished the native title rights of the Applicants to take fish from the relevant waters?
  2. Section 211 defence issue: if the FA 1971 had not extinguished the relevant native title rights, did section 211 of the NT Act apply as a defence to the charges laid so that section 72(2)(c) of the FMA 2007 did not apply to the applicants’ exercise of their native title rights?

THE HIGH COURT’S DECISION

Issue 1: Did the FA 1971 extinguish the applicants’ native title right to fish?

The High Court held that the provisions of the FA 1971 did not extinguish the applicants’ native title right to take fish.

In determining this issue, the High Court noted that the question was whether or not the provisions of FA 1971 were “effective at common law to work extinguishment of native title” (as per Akiba v Commonwealth (2013) 87 ALJR 916). That is, was the FA

1971 inconsistent with the continuing recognition by the common law of the Narrunga People’s native title right to fish. In order to answer this question, the High Court undertook a detailed analysis of the provisions of the FA 1971.

The FA 1971 prohibited a person taking fish “except as provided by the Act” or unless the person held a licence (section 29(1)). The licensing regime under the FA 1971 applied to commercial fishing. However, a person who did not have a licence was still permitted to take fish otherwise than for the purpose of sale (eg. by using a road and line, hand fish spear etc) (section 29(2)). The FA 1971 also prohibited the talking of undersize fish as declared by proclamation (section 47(1) and (2)). However, the FA 1971 extended to the Governor the power to grant, by proclamation, an exemption to any person or any person of a specified class from such a prohibition (section 47(4)). Further, the Minister had the power to grant a special permit to any person to take fish during such period, in such waters and subject to such terms and conditions specified in the permit, despite any other provision of the Act (section 42(1)).

Based on this analysis, the High Court found that, read as a whole, the FA 1971 “regulated rather than prohibited” fishing in the waters which it governed. As the FA 1971 did not prohibit the exercise of a native title right to fish, it “was not inconsistent with the continued exercise of, and did not extinguish, then existing native title rights to fish”. Specifically, the High Court held that the mechanism of the special permit available under the FA 1971 meant the Act could be “administered

consistently” with the continuing exercise of native title rights.

Issue 2: Did section 211 of the NT Act provide a defence to the offence under the FMA 2007?

The High Court held that the defence was available.

The answer to the question depended on whether an exemption provided by section 115 of the FMA 2007 constituted “a licence, permit or other instrument granted or issued.... under the law” within the meaning of section 211(1)(b) of the NT Act.

Section 211 of the NT Act provides:

  1. (1) Subsection (2) applies if:
    1. 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
    2. 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
      1. a) 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
    3. the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.
  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:
    1. for the purpose of satisfying their personal, domestic or non-commercial communal needs; and
    2. 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.

  1. Each of the following is a separate class of activity:
    1. hunting;
    2. fishing;
    3. gathering;
    4. a cultural or spiritual activity;
    5. any other kind of activity prescribed for the purpose of this paragraph.

(emphasis added) ​Section 115 of the FMA 2007 provides:

  1. Subject to this section, the Minister may, by notice in the Gazette —
    1. 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
    2. vary or revoke an exemption, or a condition of an exemption under this section or impose a further condition.
  1. 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.
  2. An exemption under this section operates for a period (not exceeding 12 months) specified in the notice of exemption.
  3. A person who contravenes a condition of an exemption is guilty of an offence. (emphasis added)

The High Court determined that the term “licence, permit or other instrument granted or issued....under the law” is not to be read narrowly. It was held to accommodate a large range of possible statutory regimes for permitting people or groups to conduct otherwise prohibited or restricted activities subject to terms and conditions. Specifically, the High Court held that those terms “are apt to cover any form of statutory permission issued to individual or classes or groups of people to carry on one or other of the clauses of activities described in s 211(3)”.

Having examined the terms of section 115 of the FMA 2007, the High Court concluded that the exemptions which it provides are at least a form of “other instrument” granted or issued under the FMA 2007 and fall within section 211(1) of the NT Act. As such, the defence under section 211 was available to the applicants.

The High Court granted the applicants special leave to appeal and allowed the appeal with costs. It set aside the orders of the Supreme Court and ordered that the appeal to that Court be dismissed with costs.

IMPLICATIONS

The High Court’s decision makes it clear that a law which pre-dates the NT Act and which creates rights or duties in relation to activities which are also the subject of native title rights will not be inconsistent with (and thereby extinguish) the continued existence of those native title rights, unless there is a clear statutory intention to prohibit the activities in question.

The defence under section 211 of the NT Act also has broad application. Provided the requirements of the defence are met, native title holders will not need to obtain a State or Commonwealth licence (or similar authorisation) if they are exercising their native title rights to hunt, fish, gather and undertake cultural or spiritual activities. Necessarily, this will involve consideration of applicable State and Territory laws such as the FMA 2007.