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Bartlett, Richard --- "Native Title And Fishing Rights" [1996] AUIndigLawRpr 69; (1996) 1(3) Australian Indigenous Law Reporter 365

Native Title And Fishing Rights

I. Introduction

Fishing is and was obviously of great importance to many Aboriginal communities. It is an essential aspect of their relationship to their territory and homeland. This article seeks to examine the degree to which the traditional right to fish is recognised and protected at common law and by the Racial Discrimination Act 1975 (Cth) and the Native Title Act 1993 (Cth). It considers the problems of establishing native title, the likelihood of surviving extinguishment by State fisheries legislation, and whether any different regime applies in the off-shore. It raises questions as to the limited protection accorded to the native title right to fish by the Native Title Act.

II. Native Title Includes the Right to Fish

The source of native title is the traditional connection to the land or waters. The connection necessarily determines the content of native title. As Brennan J (as he then was) observed in Mabo v. Queensland
[No. 2] (hereinafter Mabo No.2) :

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. [1]

III. Proof

A. 'Exacting'

In the two cases where native title has been asserted as a defence in fishing prosecutions, proof of native title has been a formidable obstacle. Indeed in Mason v. Tritton Kirby P declared:

If the exacting nature of the evidential burden established by Mabo were not immediately apparent to potential claimants before, this case will serve to make clear the point. [12]

Before considering the two other grounds of appeal, I should say that the important constitutional issue as to the nature of Aboriginal title, if any, in respect of lands in British Columbia, will not be determined in the present appeal. They were not directly placed in issue by the appellants and a sound rule to follow is that questions of title should only be decided when title is directly in issue. [14]

In assessing the evidence it is, I believe, important to always recall that Mr Alphonse is not here seeking a declaration that Shuswap people have rights in the nature of ownership to any such territory. Claims of that general nature are presently before the Supreme Court of British Columbia in the well publicized Gitksan and Wet'suwet'en Tribal Council [Delgamuukw] and Meares Island cases. In those cases issues of great complexity are raised and evidence must be offered with proper regard for the observations of Dickson J. (now Chief Justice of Canada) in Kruger and Manuel v. The Queen, [1977] 4 WWR 300, 34 CCC (2d) 377 at 380. But such all encompassing considerations are neither necessary or appropriate in the present case where Mr Alphonse simply seeks to defend himself during a prosecution initiated on behalf of the crown. [15]

The extent of evidence necessary to establish an Aboriginal right:

At the outset of this case, and several times thereafter, I expressed my opinion it was not necessary for the defence to show those four elements referred to in the case of Hamlet of Baker Lake et al v. Minister of Indian Affairs and Northern Development et al., [1979] 3 CNLR 17 at 45, [1980] 1 FC 518, 107 DLR (3d) 513 at 524 and as subsequently confirmed in the case of AG Ontario v. Bear Island Foundation, supra. It should be remembered that those two cases were primarily, if not exclusively concerned with competing claims to an interest in real property. Needless to say, in cases of that kind, the degree of proof required will be much greater. In a case involving an Aboriginal right to hunt or fish, it should suffice for the accused to show that either by bloodlines, or native tradition, he is a recognized member of an Aboriginal group that prior to contact exercised a right to hunt or fish at the location in question and that on the day of the alleged offence he was not in breach of any traditional limitation of that right.

In the case at bar, it was quickly established that Mr Duncan was a Shuswap Indian, a member of the Canoe Creek Band and his forbearers were members of the High Bar Band. It also quickly establishes that members of one band could hunt upon the traditional hunting grounds of the other where prior permission for this had been given either expressly or by implication. [16]

(1) traditional laws and customs extending to the 'right to fish' were exercised by an Aboriginal community immediately before the Crown claimed sovereignty over the territory.

...

(3) that the appellant and intermediate descendants had ... continued, uninterrupted, to observe the relevant traditional laws and customs ... ' [17]

B. Membership of an Aboriginal Group

If a native title right to fish is established, the accused may claim the benefit of the defence if he or she is a member of the group. Throughout Mabo No. 2, Brennan J stressed that the protection of native title is vested in the members of the group. [19] Brennan J gave a cursory indication of what proof of membership might entail:

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. [20]

True, this evidence is not conclusive proof that the appellant is a direct descendant of the Micmac Indians covered by the Treaty of 1752. It must, however, be sufficient for otherwise no Micmac Indian would be able to establish descendancy. The Micmacs did not keep written records. Micmac traditions are largely oral in nature. To impose an impossible burden of proof would, in effect, render nugatory any right to hunt that a present day Shubenacadie Micmac Indian would otherwise be entitled to invoke ... [22]

... it is next to impossible to expect that Aboriginal Australians will ever be able to prove, by recorded details, their precise genealogy back to the time before 1788 ... it would be unreasonable and unrealistic ... [23]

There was nothing ... to show that the appellant was biologically descended from any Aboriginal group dating back to just before the establishment of the common law which observed a system of rules relating either to fishing generally or to abalone ... [24]

It appears from the evidence that one or more of the Aboriginal communities in the Port Hedland area ... probably have a right to fish the waters of Six Mile Creek. It appears also that the [accused] ... are biological descendants of one of those communities. [25]

The evidence relied upon was the evidence of the accused as to the identity of their forbears and their own membership of the communities.

C. An Exercise of the Native Title Right to Fish

An accused must be acting in accordance with the native title right to fish. In both Mason v. Tritton and Sutton v. Derschaw the defence was rejected because of a failure to satisfy this requirement. Kirby P in Mason v. Tritton phrased the requirement as follows:

(4) That the appellant's activity or conduct in fishing for abalone was an exercise of these traditional laws and customs. [26]

In Mason v. Tritton, the accused failed to give evidence, although he had been apprehended with a large number of abalone in his possession. All members of the Court concluded that the failure to give evidence as to whether fishing for such a large number of abalone fell within the native title right to fish was a 'fundamental failure of proof in the appellant's case'. [27] The establishment of the defence of acting within a native title right to fish will necessarily involve to some degree establishing the parameters of that right. [28] But it is not necessary to delineate every aspect of the right except to the extent of showing that the accused was acting within the ambit of the right. In that respect Heenan J's remarks in Sutton v. Derschaw seem too demanding:

But the evidence does not show the extent of the right - for example, whether it is a right to take sufficient fish for food for the individual, for the family or for the community. It does not show whether it is a right to be exercised by any person in the community or by only a chosen few. It does not show whether the right is restricted by season, time or frequency.

In that case, Heenan J concluded that the 'evidence does not show that the setting of nets for mullet by the respondent on the afternoon in question was an exercise of traditional laws and customs bearing upon the right', asserting that 'the respondents were not fishing for, or as members of, any particular Aboriginal community with ties to the Port Hedland area'. The evidence was that the accused were fishing for food for a funeral gathering for a leading member of a nearby community composed of 'traditional people from the area'. [29]

IV. Extinguishment

A. Requirement of a Clear and Plain Intention

An action seeking to establish a native title right to fish may, of course, fail if it can be shown by the Crown that the right has been extinguished. However, extinguishment requires the manifestation of a clear and plain intention to extinguish because of 'the seriousness of the consequences to the indigenous inhabitants', [30] the need for a construction against 'compulsory deprivation of proprietary rights and interests without compensation', [31] and the nature of the relationship between the Crown and the Aboriginal people. [32] This requirement was affirmed in Western Australia v. The Commonwealth [33] and is a fundamental principle in the United States, [34] Canada [35] and New Zealand. [36] Moreover, the onus of establishing a clear and plain intention to extinguish native title is on the party asserting extinguishment. So declared the High Court in Western Australia v. Commonwealth:

To discharge the onus, it is necessary to show at least that the Crown has manifested clearly and plainly an intention to extinguish all native title. So much is required of any statute which is said to extinguish native title. [37]

A similar position can be found in Canadian [38] and United States [39] authorities.

B. Fisheries Legislation which merely Regulates the Enjoyment of Native Title does not Extinguish Native Title

Courts in Australia, Canada and New Zealand have consistently ruled that fisheries legislation which merely regulates the enjoyment of native title does not extinguish native title. In Mabo No. 2, Brennan J declared in a general review of the subject of 'the extinguishing of native title':

A clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title (R v. Sparrow [1990] 1 SCR 1076 at 1097). [40]

The above reference to R v. Sparrow is to the unanimous judgment of the Supreme Court of Canada where it was observed:

That the right is controlled in great detail by the regulations does not mean that the right is thereby extinguished.

In R v. Sparrow, [41] the accused was charged under section 61(1) of the Fisheries Act with the offence of fishing with a drift net longer than that permitted by the terms of his Indian food fishing license. Section 61(1) made it an offence to contravene the Act and the Fishery Regulations. Under s. 4 of the Regulations everyone was prohibited from fishing without a licence, and fishing with a licence was only permitted in areas and at times and in the manner authorized by the Act or Regulations. Section 27 of the Regulations authorised the issuance of 'Indian food fishing licences': 'a licence issued by the Minister to an Indian or a band for the sole purpose of obtaining food for that Indian and his family or for the band'. Section 12 authorised the imposition of restrictions, including the 'type and quantity of fishing gear and equipment', upon all licences including Indian food fishing licences. The first substantial regulation of fisheries in British Columbia had been proclaimed in 1876 and it became progressively more detailed and restrictive. In 1878, regulations had provided for an Indian right to fish for food 'and more stringent restrictions were added over the years'. [42]

The defence asserted a native title right to fish, which would receive constitutional protection under s. 35 of the Constitution Act 1982. The principal response of the Crown, 'what the Crown really insisted on, both in this Court and the courts below, was that the Musqueam Band's Aboriginal right to fish had been extinguished by regulations under the Fisheries Act'. The 'progressive restriction and detailed regulation of the fisheries' was argued to 'have had the effect of extinguishing any Aboriginal right to fish'. It was argued that there was 'a fundamental inconsistency between the communal right to fish embodied in the Aboriginal right' and the provision for Indian food fishing licences which might be cancelled in the event of the breach of terms or conditions. 'The Fisheries Act and its regulations were', the Crown argued, 'intended to constitute a complete code inconsistent with the continued existence of an Aboriginal right'. [43]

The unanimous judgment of the Supreme Court of Canada rejected the argument:

At bottom, the respondent's argument confuses regulation with extinguishment. That the right is controlled in great detail by the regulations does not mean that the right is thereby extinguished. [44]

The Court referred to the 'first fisheries case', AG for Canada v. AG for Ontario. [45] In that case, the Privy Council had recognized that fisheries regulations, for instance, prescribing the times of year or the instruments which might be employed, 'might very seriously touch the exercise of property rights' without extinguishing those rights. The Court concluded:

There is nothing in the Fisheries Act or its detailed regulations that demonstrates a clear and plain intention to extinguish the Indian Aboriginal right to fish. The fact that express provision permitting the Indians to fish for food may have applied to all Indians and that for an extended period permits were discretionary and issued on an individual rather than a communal basis in no way shows a clear intention to extinguish. These permits were simply a manner of controlling the fisheries, not defining underlying rights.

We would conclude then that the Crown has failed to discharge its burden of proving extinguishment. [46]

President Kirby held that neither the Regulation nor the Act 'reveal a clear and plain intention to extinguish native title' nor is 'the Regulation so inconsistent with the appellant's continued enjoyment of his native title that the Regulation would necessarily be deemed to have extinguished his native title'. Referring to R v. Sparrow, the President stated that 'the Regulation merely regulates the enjoyment of native title ..'. [47] He continued: 'The history of the Fisheries and Oyster Farms Act 1935 and its accompanying Regulations establishes a regime of control of the New South Wales fisheries in a manner amounting to stringent regulation but not extinguishment'.

No doubt stringent regulation may reach the point where the ordinary rights and privileges associated with property are so curtailed that property rights can no longer be enjoyed. Whether that is the case is ultimately a question of fact. It is not, in my opinion, the case here. [48]

The other two members of the Court of Appeal, Priestley JA and Gleeson CJ, did not consider the question of extinguishment. [49]

In Sutton v. Derschaw the fisheries legislation of Western Australia was considered. The legislation, as elsewhere in Australia, imposes 'stringent regulation' on the fishery. The first Fisheries Act 1899 [50] provided in s. 11:

This act shall not apply to fish obtained for food by the Aboriginal inhabitants of the Colony in their accustomed manner, otherwise than by means of any weir or hedge.

The provision was continued in the Fisheries Act 1905 and remained unamended until 1979. Only in 1979 was the non-application of the Act to 'fishing for food' made subject to sections 9 (gazettal of closed fisheries), 10 (illegal devices), 23 (waters not to be stalled), 23A (rock lobster pots), 24 (undersize fish) and 26 (dynamite or any explosive substance).

In Sutton v. Dershaw, the accused were charged with fishing with a net in waters closed by notice under
s. 9 to all except licensed professional fisherman. The magistrate acquitted and inter alia held that the Fisheries Act had not extinguished the native title right to fish, relying upon Mabo No. 2, R. v.Sparrow and Mason v. Tritton. The magistrate considered that the statutory provision for Aboriginal fishing for food recognized rather than extinguished the 'traditional right to fish'. [52] The question of extinguishment was not considered by Heenan J on the appeal to the Supreme Court.

The leading New Zealand authority is Te Weehi v. Regional Fisheries Officer, which was cited with approval by Brennan J in Mabo No. 2. [51] In Te Weehi v. Regional Fisheries Officer, the accused was charged with a violation of subs. 8(1)(b) of Fisheries (Amateur Fishing) Regulations 1983 by failing to comply with the restriction on the minimum size of paua shellfish. The accused asserted a Maori fishing right in defence. The Court affirmed the requirement of a 'clear and plain intention' to extinguish and concluded that the fisheries legislation had not extinguished the Maori right. The legislation provided that nothing in the Act should affect Maori fishing rights, and provided for special rights for Maori to fish. The Court rejected the Crown argument that the recognition of a common law Maori fishing right would frustrate the purposes of the Fisheries Act 1983 and that the Act intended to recognise only statutorily conferred Maori fishing rights.

It would seem reasonably clear from Mabo No. 2, R v. Sparrow, Sutton v. Dershaw and Te Weehi v. Regional Fisheries Officer that fisheries legislation, although imposing a 'stringent regulation' on the fishery, will not be considered to have extinguished the native title right to fish where some special provision has been made for an Aboriginal right to fish. In addition, the rationale of R v. Sparrow and Mason v. Tritton, and the facts of Mason v. Tritton, would suggest that an extinguishment will not be found even in the absence of a special provision providing for an Aboriginal right to fish for food. The regime of control may regulate and inhibit the native title right to fish but will not extinguish the right. Such a regime will not be considered to demonstrate a clear and plain intention to extinguish unless the regime eliminates the possibility of enjoying the right.

The majority of jurisdictions in Australia make special provision for an Aboriginal or Torres Strait Islander right to fish, and accordingly the legislation will not be considered to have extinguished the native title right to fish. The Commonwealth legislation makes such provision in the Torres Strait Fisheries Act 1984, which provides for 'traditional fishing' and 'community fishing' (s. 17). To similar effect is the exemption for traditional fishing (s. 3) and the provision for community fishing in the Fish and Fisheries Act 1988 of the Northern Territory. Queensland provides an exemption in s. 5 of the Fisheries Act 1976, provision for community fishing in the Community Services (Aboriginal) Act 1984 (s. 77) and Community Services (Torres Strait) Act 1984 (s. 76), and Fishing Industry Organisation and Marketing Act 1982 (s. 31) and legislation parallel to that of the Commonwealth in the Torres Strait Fisheries Act 1984. The New South Wales and Western Australian legislation have already been referred to, although in 1994 Western Australia repealed the Fisheries Act and enacted the Fish Resources Management Act 1994. Section 6 dispenses with the requirement of a recreational fishing license for non-commercial traditional fishing.

There are no special provisions for Aboriginal or Islander fishing in the Fisheries Act 1959 of Tasmania, Fisheries Act 1968 of Victoria, nor the Fisheries Act 1971 of South Australia, although exemptions were provided for traditional fishing in the latter two States until the enactment of those pieces of legislation, in 1968 and 1971 respectively. [53]

It is suggested that prima facie none of the fisheries legislation in Australia extinguished the native title right to fish generally or in a 'blanket' manner prior to the enactment of the Racial Discrimination Act in 1975 or the Native Title Act 1993. Native title rights to fish non-commercially are now protected by s. 211 of the Native Title Act. [54]

V. The Off-shore Fishery

The off-shore fishery would seem as fundamental to Aboriginal and Island peoples' traditional way of life as the on-shore. Since native title is founded upon a traditional connection with the territory at the time of the acquisition of Crown sovereignty, the principles and rationale of native title at common law would suggest that native title should apply off-shore in the same manner and subject to the same constraints as it applies on-shore. [55] Moreover, precedents from the United States, Canada and New Zealand are to that effect.

A. United States, Canada and New Zealand

The United States courts have never doubted that native title at common law extended to the sea. As the court observed in the litigation regarding oil and gas development off the shore of Alaska: 'Aboriginal title or right is a right of exclusive use and occupancy held by Natives in lands and waters used by them and their ancestors prior to the assertion of sovereignty by the United States'. [56] In 1984, the Aboriginal people of the villages of Gambell and Stebbins brought an action to enjoin the conduct of a sale of oil and gas leases in the Norton Sound Basin off the western shore of Alaska. They argued that oil and gas development would be inconsistent with their native title. The United State Government and the oil companies argued that any native title claim to the off-shore was inconsistent with the paramount interests of the national government. The Court rejected the argument:

The Villages are not asserting a claim of sovereign rights. Rather, they contend that they possess rights of occupancy and use that are subordinate to and consistent with national interests. This argument is persuasive. That Aboriginal rights may exist concurrently with a paramount federal interest, without undermining that interest is clearly expressed in County of Oneida v. Oneida Indian nation, 470 US 226. [57]

The United States government and the oil companies next argued that since the United States had not asserted full territorial sovereignty over the outer continental shelf, the equivalent of a fee simple interest, a dependent right such as native title could not be recognized. The Court also rejected that argument:

... we hold that the United States has assumed sufficient control over the outer continental shelf constituting sovereignty which requires recognition of Aboriginal rights in the outer continental shelf ... [58]

The Court of Appeal thus held that native title could, as a matter of law, extend to the off-shore, including the outer continental shelf. The Court remanded the case to the District Court to decide whether the Aboriginal people could, as a matter of fact, establish native title in the outer continental shelf. The decision that native title extends to the off-shore is, of course, consistent with the concept's rationale and its long maintained application in the United States. It makes clear that the basis of native title is traditional use and occupation and is not confined by a public interest in sovereignty.

Canadian jurisprudence upon native title is founded upon the same principles as that of the United States. [59] Not surprisingly, Canadian courts have not doubted the application of native title to the off-shore. In the landmark case of Calder v. AG of British Columbia, the Supreme Court of Canada made it clear that native title included a right to fish. The claim in Calder v. AG of British Columbia included the tidal and sea waters of Observatory Inlet and Portland Inlet and Canal [60] . The Court concluded that the native title included those waters. In the more recent landmark decision of R v. Sparrow, [61] the Supreme Court held that the Aboriginal right to fish included the tidal waters at the mouth of the Fraser River in British Columbia. In Saanichtan Marina Ltd v. Claxton, [62] an injunction was granted to restrain the construction of a marina in a bay on Vancouver Island because it would interfere with the Aboriginal right to fish. The case involved a treaty affirmation of the native title right to fish, but no different result would have ensued in the absence of that affirmation. The Court did not accept the Crown's argument that its proprietary interest in the sea-bed of the bay was sufficient to deny the Aboriginal claim. It concluded that the sui generis nature of the right protected 'the Indians against infringement of their right to carry on the fishing, as they have done for centuries'.⁶³ Federal policy relating to the settlement of native title declares that:

... if an Aboriginal group's traditional activities have extended to off-shore areas, their claim settlement may include off-shore wildlife harvesting rights. To the extent possible negotiations are to be conducted in accordance with the same principles which are applied to land areas. Participation in environmental management regimes and resource-revenue sharing arrangements may also be negotiated with respect to off-shore areas. [64]

As in the other jurisdictions, native title at common law is the foundation of Aboriginal off-shore rights in New Zealand. In 1847, [65] the principles of Johnson v. McIntosh were affirmed as having been part of the common law of New Zealand. The Privy Council subsequently affirmed this analysis. [66] In Te Weehi v. Regional Fisheries Officer, [67] Williamson J cited the jurisprudence upon native title from the United States and Canada and decisions of the Privy Council and concluded that native title rights extended to the collection of shell-fish on the beach. The conviction of the accused was quashed. Subsequently in Runangao Inc v. Attorney General, [68] the High Court of New Zealand issued interim declarations that the implementation of a fishing quota system should cease on the basis of a native title right in the off-shore. Greig J observed:

What has been done in the promulgation and the operation of the quota management system has been done without taking into account the Maori rights in fisheries, at least in the sense that I have concluded on the interim basis these rights exist. [69]

The Court of Appeal has affirmed that understanding, [70] observing that:

In interpreting New Zealand parliamentary and common law it must be right for New Zealand Courts to lean against any inference that in this democracy the rights of the Maori people are less respected than the rights of Aboriginal peoples are in North America. [71]

Native title in New Zealand, as elsewhere in the common law world, extends to the off-shore.

B. Australia

The High Court in Mabo No. 2 did not consider the question of native title in the off-shore. The result has been that there has been some suggestion, despite the overwhelming precedents from elsewhere, that native title does not extend to the off-shore. It has been argued that native title does not extend to the off-shore because:

i. Off-shore rights can only accrue to sovereign entities and Australia itself only acquired such rights upon federation in 1901, and

ii. Commonwealth legislation passed in 1973 and 1980 with respect to sovereignty, jurisdiction and title in the off-shore extinguished native title. [72]

(1) The accrual of the native title right to fish

It was decided in the New South Wales v. Commonwealth (the Seas and Submerged Lands Case) [73] that the Commonwealth enjoyed sovereign and proprietary rights in the territorial sea and continental shelf. Cullen observes that such rights were acquired under Australian law by 'a process of absorption of customary and treaty international law principles'. This process operated to benefit the Commonwealth in 1901 upon federation when it became a 'recognised international entity'. Cullen concludes that since off-shore rights may vest only in 'international entities' and sovereign and proprietary rights have vested in the Commonwealth, native title cannot have arisen in the off-shore. [74]

However, in a contest between a State and the Commonwealth, it is to be expected that off-shore rights, based on international law treaty and custom, will vest in the internationally recognised entity. But the common law and common law native title apply in the off-shore under and to the extent of Australian sovereignty. It is not excluded by the vesting of sovereignty in the Commonwealth rather than in the States. The common law may be limited by the ambit of Australian sovereignty, but as far as the common law extends, so does native title. 'Section 6 of the Seas and Submerged Lands Act 1973 declared the sovereignty of the Commonwealth over the territorial sea. Section 11 declared that the sovereign rights of Australia for the purposes of exploring and exploiting the natural resources of the continental shelf were also vested in the Commonwealth. Such assertions of sovereignty depict the ambit of the common law and the application of native title'. [75] Nor were off-shore rights vested in the Commonwealth absolutely to the exclusion of any other rights whatsoever, in particular native title. Such argument was totally rejected on land in Mabo No. 2. Mabo No. 2 may not have considered the question of native title at common law in the off-shore, but the Court did consider the dicta suggestive of absolute ownership uttered in the Seas and Submerged Lands Case. The Court rejected such dicta as suggesting any exclusion of native title. Brennan J declared:

... if the land were occupied by the indigenous inhabitants and their rights and interests in the land were recognised by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land. [76]

Brennan J referred to the Seas and Submerged Lands Case dicta, which suggested a universal and absolute ownership, as not being 'acceptable'. [77] Toohey J also referred to the dicta and declared:

The real question is whether the rights of the Miriam people to the Islands survived annexation. This is not answered by pointing to dicta which acknowledge that, on settlement, land vested in the Crown, irrespective of whether there were indigenous inhabitants. [78]

(2) Extinguishment

It has also been suggested that native title in the off-shore has been extinguished by the Seas and Submerged Land Act 1973, the Coastal Waters (State Powers) Act 1980, and the Coastal Waters (State Title) Act 1980 of the Commonwealth. [79] However, the legislation was directed to establishing sovereignty and title to the off-shore as between the Commonwealth and the States and giving effect to the International Conventions on the Territorial Sea and the Continental Shelf and the 1979 Australian off-shore settlement. None of the extensive legislative preambles or Parliamentary debates considered the question of native title. The legislation is directed to resolving questions between the Commonwealth and the States, not the rights of Aboriginal people.

Mabo No. 2 and Western Australia v. The Commonwealth established that the declaration of the title and sovereignty of the Crown and its power to dispose of Crown lands or waters is not sufficiently clear and plain intent to extinguish native title. The High Court in Mabo No. 2 held that legislation providing for the disposition of the public lands in the State of Queensland did not evince a clear and plain intention to extinguish native title. The various Land Acts empowered the Crown to grant interests, including a fee simple, with respect to 'all land in Queensland' not already subject to Crown grant or reservation. The legislation was, in the words of Justice Brennan, founded on the 'belief, which has been current since Attorney General v. Brown, that the absolute ownership of all land in Queensland is vested in the Crown'. [80] But that assumption and the passage of legislation declaring powers of disposition of land and resources founded on that assumption, was not sufficient to extinguish native title. [81] In the result it must be concluded that the off-shore legislation does not manifest a 'clear and plain intention' to extinguish native title.

VI. The Racial Discrimination Act 1975

The operation of section 10 of the Racial Discrimination Act 1975 is critical to the protection of all native title rights, including the right to fish, from State legislation and inconsistent grants. Section 10 of the Racial Discrimination Act requires genuine equality before the law, not merely formal equality. Genuine equality recognises the unique rights arising from the traditional Aboriginal relationship to land and resources:

The principle of equality before the law does not mean the absolute equality, namely the equal treatment of men without regard to individual, concrete circumstances, but it means that relative equality, namely the principle to treat equally what are equal and unequally what are unequal. [82]

Equality does not mean uniformity. [83]

In Mabo No. 1 [84] the High Court expressly recognised that the traditional interests asserted by the Miriam people were interests which could not be asserted by others but readily concluded that their abrogation constituted a denial of equality before the law. [85] As Deane J explained, the effect of the Queensland Coast Islands Declaratory Act (Qld) ('the 1985 Act'), which purported to extinguish native title if it existed, was to distinguish between interests according to whether they were 'ultimately founded in pre-annexation traditional law and custom or post-annexation European law. It discriminates against the former ...'. Any regard to the effect of the impugned Queensland legislation, although on its face non-discriminatory, would entail the conclusion that it discriminated against, indeed 'singled out', the rights of Torres Strait Islanders. [86]

It is obviously of great significance that, in the context of fisheries legislation common law native title rights to the fishery are unique. A fishery may be vested in the public at large, in which case it is termed a 'public fishery', or it may be vested in one or more individuals, in which case it is called a 'private fishery'.⁸⁷ There is a public fishery in tidal waters, [88] but 'being a public not a proprietary right' it is 'freely amenable to abrogation or regulation by a competent legislature'. [89] There are no private rights of fishery in tidal waters in Australia other than those created by statute, for example by licence, except the native title right to fish.⁹⁰ There are no common law private fisheries in tidal waters comparable to the native title right to fish. Private fisheries at common law can exist in non-tidal inland waters. Title to such a fishery arises from the 'right to the soil' that is, ownership of the water-bed. Such fisheries are not in practice significant and are derived from an entirely different source from the native title right to fish. They are dependent on ownership of land not the maintenance of a traditional way of life.

In the result, the effect of a generally applied prohibition or regulation of fishing would be to 'single out'⁹¹ the necessarily Aboriginal holders of native title for a loss which no other race could suffer. [92] Yet genuine equality before the law requires that all rights and interests be treated in accordance with a single standard or general principle. Rights and interests must not be denied or diminished except in accordance with such a standard applied equally to all. The general standard applied to rights and interests in land, waters or resources is that of affording 'full respect' to the particular tenor of the right of interest. The general standard of 'full respect' was asserted by the High Court in Mabo No. 2. [93] Brennan J (Mason CJ and McHugh concurring) and Deane and Gaudron JJ quoted with approval Lord Denning's succinct statement of the general standard, speaking for the Privy Council, in Adeyinka Oyekan v. Musendiku Adele:

... there is one guiding principle. It is this: The courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected. Whilst, therefore, the British Crown, as Sovereign, can make laws enabling it compulsorily to acquire land for public purposes, it will see that proper compensation is awarded to every one of the inhabitants who has by native law an interest in it: and the courts will declare the inhabitants entitled to compensation according to their interests, even though those interests are of a kind unknown to English law. [94] (emphasis added)

The general standard of 'full respect' requires that rights and interests be given effect to according to their tenor. Interests must not be denied or diminished:

i. arbitrarily, that is, without procedures for notice, objections and their consideration,

ii. except for a particular public purpose or public works,

iii. without the provision of compensation according to tenor.

In Western Australia v. Commonwealth, [95] the High Court struck down the Land (Titles and Traditional Usage) Act 1993 (WA) in its entirety as being inconsistent with section 10 of the Racial Discrimination Act 1975 (Cth). The Act purported to extinguish all native title and substitute 'rights of traditional usage' which were 'administratively defeasible' and inferior to other rights granted by the Crown. The Act did provide for the payment of compensation, unlike the legislation considered in Mabo No. 1. The Court declared that the question was whether the 'security of enjoyment of that property [native title] is more limited than the security enjoyed by others who have a right to own or to inherit other property.' [96] The Court applied the 'benchmark' of the security of enjoyment of other interests in its examination of the amendments the Act made to the Land Act (WA), Mining Act (WA), Petroleum Act (WA) and Public Works Act(WA). They concluded that the security was 'transparently insubstantial', 'significantly less', provided 'lesser rights than the holders of title to private land', and denied the 'same protection'. [97]

The Court struck down the entire Act including the amendments to the Pearling Act (WA). The Pearling Act amendments had recognised rights of traditional usage and established the same procedure for notice and objection as under the Land Act (WA), Mining Act (WA), Petroleum Act (WA)and Public Works Act (WA). The Court struck down the Pearling Act (WA) amendments because the provisions fell 'short of the rights and entitlements conferred by native title the protection of which is demanded by s. 10(1) of the Racial Discrimination Act. The shortfall is substantial'. [98] The Court did not make comparisons with like interests because in the off-shore there are none.

The striking down of the Pearling Act amendments was explicable by reference to:

i. the substantial shortfall from the general standard of respect due to all rights and interests including native title rights, apart from any comparison with the treatment of other interests; and

ii. the declaration of the priority of licensed interests over native title. [99]

A similar analysis is, of course, applicable to fisheries legislation. Generally applied prohibitions or restrictions on fishing, which thereby diminish or restrict native title rights to fish, will be inconsistent with s. 10 of the Racial Discrimination Act and be invalid pro tanto insofar as they are implemented:

i. arbitrarily, that is, without procedures for notice, objections and their consideration; and

ii. without provision of any compensation,

and confer a priority and preference on others. Most fisheries legislation in Australia has been administered and implemented with respect to native title in that manner.

The Courts have not yet offered an authoritative opinion on the relationship between fisheries legislation and the Racial Discrimination Act with respect to native title. In Mason v. Tritton, in the Supreme Court, Young J considered that the fishing legislation was not inconsistent with the Racial Discrimination Act because 'it reduced both sides to the same level'. [100] However, Young J's opinion on other matters was rejected on appeal in several significant respects in the Full Court. In the Full Court, only Kirby P offered an opinion but did so without reasoning. Kirby P considered that there would be no inconsistency. [101] A possible explanation can be found elsewhere in his judgement where he observes:

I do not take it to be the intent of the High Court in Mabo that successful claimants of a form of native title should then be able to remove themselves from the ordinary regulatory mechanism of Australian society. In the particular context of this case, the control and regulation of fishing activity applies to all those who fish, regardless of the nature of the fishing right which they severally purport to exercise. [102]

Kirby P, like Young J, appears to be advocating a form of 'uniformity' rather than 'equality'. The observation fails to recognize the unique loss for which Aboriginal people are 'singled out' and the lack of regard for procedural and substantive respect due the native title right to fish.

VII. The Native Title Act 1993

The Native Title Act 1993 of the Commonwealth is in part an attempt to provide a legislative detailing of the requirements of the Racial Discrimination Act with respect to native title. It accordingly provides some limited protection for native title rights to fish. But it severely limits that protection in the off-shore and also provides for the validation of inconsistent interests. The Act does afford some protection to the right to fish for food.

Native title rights to fish for the purpose of satisfying 'personal, domestic or non-commercial communal needs' are exempted from the prohibitions or restriction of fisheries regulations or legislation, where the regulations or legislation restricts persons from fishing without a licence or permit (s. 211). [103] The section is, however, only an exemption from prohibitions or restrictions. It does not restrain grants of interests or activities which damage or deplete the fishing resource. Section 211 would not control the construction of a marina that damaged the resource and thereby caused loss to native title holders.

Such grants or activities are subject to the future act regime. The provision for future on-shore [104] grants and interests seeks to protect native title rights to water and water use by imposing the standard of protection accorded freeholder owners of adjoining or surrounding land. Only 'permissible future acts' have full force and effect with respect to native title' (s. 22, 23). Future acts 'on-shore' are 'permissible' if the legislation applies in the same way, or the grant may be made, if the native title holders held 'ordinary' title to the land adjoining, or surrounding the waters (s. 235(2)(5)). The nature of the protection accorded to native title rights to fish does not properly address the nature of fishery rights. Private rights of fishery are not dependent on title to adjoining or surrounding land but upon ownership of the water-bed. [105] However there is a presumption at common law that a grant of land bounded by a river is entitled to the water-bed usque medium filum acquae. [106] If a private right of fishery could thereby be said to arise from ownership of adjoining land, the Crown could not grant a fishery right in derogation of such a right. [107] It may be argued upon such analysis that a grant of fishing rights would not be a 'permissible future act' in inland waters. It is far from clear that the protection accorded the native title right to fish on-shore will be sustained in such manner. It may do so if 'ordinary title' is construed as a freehold in fee simple title that entails the presumption of ownership of the water-bed.

Any future act in relation to an off-shore place is a 'permissible future act' [108] (s. 235(8)(a)). Accordingly future grants of fishing interests or other resource development interests off-shore constitute permissible future acts which will take effect subject only to the payment of compensation (s. 23(2)(4)), and such procedural rights as are possessed by 'corresponding rights and interests' (s. 23(6)).

The Act also enables the validation of grants of fishing interests made before 1994. Such grants are defined so as to include post 1993 grants made as a matter of right, for example, renewals and extensions as of right (s. 228). In the case of leases validated by the Act native title is extinguished. [109] In other cases the non-extinguishment principle applies. In both cases compensation is payable to native title holders (s. 17).

Mick Dodson has commented in the context of fishing that 'the Native Title Act does not provide substantial protection for native title and it does not interfere with past grants or seriously impact on the grant of new rights'. [110]

VIII. Limited Recognition and Protection

There has been some reluctance to give full effect to the concept of native title in upholding fishing rights of Aboriginal people. The native title right to fish has been challenged as to its existence, an asserted difficulty of proof, its possible extinguishment and the lack of protection of the Racial Discrimination Act. However, it is considered that the principles of native title and the protection of the Racial Discrimination Act ensure that the native title right to fish is fully recognised and protected. Moreover, arguments which would deny its application in the off-shore will fail.

However, the Native Title Act imposes substantial limits on the degree of such recognition and protection. Native title fishing rights may be affected by inconsistent grants and other forms of resource development in the off-shore without protection beyond the requirement that due procedures be followed and that compensation be paid. It is not clear that native title on-shore fishing rights are secured by any greater protection. Financial compensation cannot address the denial of such a fundamental aspect of a way of life. The future act regime of the Native Title Act, with respect to the off-shore, and perhaps the on-shore, subordinates the fishing rights of the Aboriginal people in a manner which violates the standard generally demanded by the Racial Discrimination Act.

[*] Professor of Law, University of Western Australia, Australia.

[1] [1992] HCA 23; (1992) 175 CLR 1, 58.

[2] (1993) 70 A Crim R 28.

[3] (1994) 34 NSWLR 572 (NSWCA), 600.

[4] Ibid, 575, 582.

[5] Unreported, S. Ct. WA, Heenan J, 15 August 1995, Libr. No. 950427.

[6] [1990] 1 SCR 1075. See Mabo No. 2, supra n. 1, per Brennan J at 64.

[7] [1973] SCR 313. See Mabo No. 2, supra n. 1, per Brennan J at 57.

[8] Ibid, 352.

[9] (1888) 14 App Cas 46, 54.

[10] As it was held in R v. Secretary of State for Foreign and Commonwealth Affairs [1982] QB 892, 915.

[11] Mabo No. 2, supra n. 1, 83, 85.

[12] Mason v. Tritton, supra n. 3, 584.

[13] (1977) 75 DLR (3d) 434.

[14] Ibid, 437.

[15] [1988] 3 CNLR 92, 94. Affirmed by the Court of Appeal fo British Columbia: R v. Alphonse [1993] 4 CNLR 19.

[16] [1990] 2 CNLR 135, 143.

[17] Mason, supra n. 3, 584. See also Priestley JA at 598, although he refers to a 'system of rules' rather than 'traditional laws and customs'. Also see Gleeson CJ at 574. Heenan J applied those elements in Sutton v. Derschaw, supra n. 5.

[18] Ibid, per Priestley JA at 602-03, per Gleeson CJ at 574, and per Kirby P at 585.

[19] Mabo No. 2, supra n. 1, 51, 60, 61.

[20] Ibid, 70.

[21] (1985) 24 DLR (4th) 390.

[22] Ibid 407.

[23] Mason v. Tritton, supra n. 2, 588.

[24] Ibid, 602, See also per Gleeson CJ at 574.

[25] Sutton v. Dershaiv, supra n. 5.

[26] Mason v. Tritton, supra n. 3, 584.

[27] Ibid, per Priestley JA at 604, per Gleeson CJ at 575, and per Kirby P at 590.

[28] Ibid, per Gleeson CJ at 574.

[29] Sutton v. Derschaw, supra n. 5, 5.

[30] Mabo No. 2, supra n. 1, per Brennan at 64.

[31] Mabo No. 1 (1988) 166 CLR 186 per Deane J. Mabo No. 2, supra n. 1, per Gaudron and Deane JJ at 95, 111.

[32] See R. Bartlett 'The Aboriginal Land which may be claimed at Common Law' (1992) 22 University of Western Australia Law Review 272.

[33] [1995] HCA 47; (1995) 69 ALJR 309 (HCA), 215.

[34] United States v. Sante Fe Pacific Railroad [1942] USSC 12; (1941) 314 US 339, 354.

[35] Simon v. R [1985] 2 SCR 387, 405-06. R v. Sparrow, supra n. 6, 1099; Delgamuukw v.The Queen (1993) 104 DLR (4th) 470 (BCCA), per MacFarlane JA at 523.

[36] Te Weehi v. Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680, 691-692.

[37] Western Australia v. Commonwealth, supra n. 35, 315. Also see R. Bartlett, 'Onus of Proof for Native Title', [1995] AboriginalLawB 45; (1995) 3(75) Aboriginal Law Bulletin 8.

[38] Calder v. AG of BC, supra n. 7, per Hall J at 404; Simon v. R, supra n. 37, per Dickson CJC at 405-06; R v. Horseman (1990) 55 CCC (3d) 353, per Cory J at 375; R v. Sparrow, supra n. 6, per Dickson CJC at 1098; Delgamuukw v. The Queen, supra n. 37, at 521-22, 595, 663, 673-74, 753.

[39] Lipan Apache v. United States (1967) 180 Ct. Cl. 487, per Davis J at 492.

[40] Mabo No.2, supra n. 1, 64. Also see per Dawson J at 134, per Toohey J at 188, 192, 196.

[41] R v. Sparrow, supra n. 6.

[42] Ibid, 1096.

[43] Ibid, 1095-97.

[44] Ibid, 1097.

[45] [1898] AC 700.

[46] Cited in R v. Sparrow, supra n. 6, 1099.

[47] Mason v. Tritton, supra n. 3, 592.

[48] Ibid, 592-93.

[49] Ibid, 601, 574.

[50] 63 Vic. No. 47.

[51] Sutton v. Dershaw, unreported, Port Hedland Mag WA, 8 November 1994, 10, 11.

[52] Mabo No. 2, supra n. 1, 64.

[53] See Fisheries Act 1904 (SA) No. 864 s. 22, 1917 No. 1293 s. 48(a).

[54] See discussion Infra, part 7.

[55] See generally R Bartlett 'Aboriginal Sea Rights at Common Law: Mabo and the Sea', in Turning the Tide, Faculty of Law, NTU, 1993.

[56] People of Village of Gambell v. Clark [1984] USCA9 1863; (1984) 746 F, 2d 572, 574 (USCA-9th), and 869 Fed. R (2d) 1273; and Amoca Productions v. Gambell [1987] USSC 38; 480 US 531, 536[1987] USSC 38; , 94 L Ed (2d) 542, 550.

[57] Ibid, 1276-77.

[58] Ibid, 1278.

[59] See Calder v. AG British Columbia, supra n. 7, 34 DLR (3d) 145, per Judson J at 151, and per Hall J at 169; Guerin v. R (1985) 13 DLR (4th) 321 335, [1985] 1 CNLR 120 per Dickson CJ at 132.

[60] Calder v. AG British Columbia, supra n. 7.

[61] supra n. 6.

[62] (1989) 3 CNLR 46 (BCCA).

[63] Ibid 56 and cited in Guerin v. The Queen [1984] 2 SCR.

[64] Indian and Northern Affairs, Canada 'Federal Policy for the Settlement of Native Claims', March 1993, at 10; 'Comprehensive Land Claims Policy',1987, at 13.

[65] R v. Symonds (1847) NZ PCC 387 (S. Ct. NZ), 390. And see R. Bartlett 'Aboriginal Claims at Common Law', (1983) 15 University of Western Australia Law Review 293, PG McHugh 'Aboriginal Title in New Zealand Courts' (1984) 2 Canta LR 235, and in particular PG McHugh 'The Legal Status of Maori Fishing Rights in Tidal Waters' (1984) 14 VUWLR 247.

[66] Nireaha Tamaki v. Baker (1901) NZ PCC 371, 382-84

[67] Te Weehi v. Regional Fisheries Officer, supra n. 38.

[68] [1990] 2 NZLR 641 (CA).

[69] Ibid, 646-647.

[70] Ibid, 654.

[71] Ibid, 655.

72 R. Cullen 'Rights to Off-shore Resources after Mabo 1992 and the Native Title Act 1993', November 1995 draft of paper delivered at ALTA Conference, Melbourne, September 1995.

[73] [1975] HCA 58; (1975) 135 CLR 337.

[74] Cullen, supra n. 74, 11-14, 18.

[75] M. Storey 'The Black Sea' (1996) 3(79) Aboriginal Law Bulletin 4, 6. Section 6 of the Native Title Act 1993 supports that conclusion: 'This Act extends to the coastal sea of Australia ... and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973'.

[76] Mabo No. 2, supra n. 1, 48.

[77] Ibid, 53-4.

[78] Ibid, 182.

[79] For instance, see Cullen, supra n. 74.

[80] Mabo No. 2, supra n. 1, 66.

[81] Ibid, 69-70.

[82] Tanaka J in SW Africa Cases (Second Phase) [1966] 1 CJ Rep at 305-6, quoted by Brennan J in Gerhardy v. Brown [1985] HCA 11; (1985) 159 CLR 70, 129.

[83] See Hon. Justice Gaudron 'Equal Rights and Anti-Discrimination Law', Sir Richard Blackburn Lecture, Academy of Science, Canberra, 29 July 1992, p. 28.

[84] Mabo No. 1, supra n. 33.

[85] Ibid, per Brennan, Toohey, Gaudron JJ, at 218, per Deane J, at 231-2.

[86] Ibid, 231-2.

[87] Halsbury's Laws of Australia, Vol 18, 'Fisheries' para. 602.

[88] Ibid, para 609.

[89] Harper v. Minister of Fisheries [1989] HCA 47; (1989) 168 CLR 314, per Brennan J at 330, per Mason CJ, Deane, Gaudron JJ at 325, per Dawson, Toohey, McHugh JJ at 336.

[90] Ibid, 330, Halsbury's Laws of Australia, Vol 18, 'Fisheries' para. 615.

[91] Mabo No. 1, supra n. 33, per Deane J at 231-2.

[92] And see Lambert JA in R v. Alphonse (BCCA), supra n. 16, paras 134-8 at 60.

[93] Mabo No. 2, supra n. 1, 56, 82.

[94] [1957] 1 WLR 876, 880; [1957] 2 All ER 785, 788.

[95] Western Australia v. Commonwealth, supra n. 35.

[96] Ibid, 324.

[97] Ibid, 326 (Land Act), 329 (Mining Act), 329 (Petroleum Act), 331 (Public Works Act).

[98] Ibid, 331.

[99] Ibid, 325.

[100] supra n. 2, 40.

[101] Mason v. Tritton, supra n. 3, at 595.

[102] Ibid, 593.

[103] The protection would seem inapplicable if the legislation does not impose any licence requirement upon domestic or recreational fishing, but does impose restrictions on methods or times of catch. In a prosecution in such circumstances the Racial Discrimination Act would protect the native title right to fish (as explained above).

[104] An 'on-shore' place means waters within a State or Territory (s. 253) and is accordingly confined to rivers, estuaries, bays and inlets. An 'off-shore' place is any waters beyond the State waters and includes the sea and coastal waters.

[105] AG for Canada v. AG for Quebec [1921] 1 AC 413, 421.

[106] Halsbury's Laws of Australia (4th), Vol 18, 'Fisheries' para. 628.

[107] Western Australia v. Commonwealth, supra n. 35, 324-5: '... a grant cannot be superseded by a subsequent inconsistent grant made to another person'.

[108] The requirement to pay compensation is required by section 51 (xxxi) of the Constitution. See J. Behrendt: 'So long and thanks for all the fish' [1995] AboriginalLawB 4; (1995) 3 (72) Aboriginal Law Bulletin 11.

[109] Section 212(1)(c) declares that a law of the Commonwealth, a State or Territory may confirm 'that any existing fishing access rights prevail over any other public or private fishing rights'. In the last days of its passage through the Senate, a subsection was added which declares that the 'confirmation under this section does not extinguish or impair any native title rights and interest'. Fishing access rights are considered to be distinct from fishery rights.

[110] Native Title Report, Jan-June, 1994, Aboriginal and Torres Strait Islander Social Justice Commission, 1995, p. 154.