HAYNE, KIEFEL AND BELL JJ. The facts and circumstances giving rise to this appeal are described in the reasons of French CJ and Crennan J. As is explained in those reasons, there are two issues in this appeal: one about extinguishment and the other about reciprocal rights. We agree that, for the reasons given by French CJ and Crennan J, the appeal about reciprocal rights should be dismissed. For the reasons which follow, the appeal about extinguishment should be allowed and the primary judge's determination restored.
The primary judge's determination
The primary judge, Finn J, determined that the native title holders (represented by the appellant in this Court) hold native title rights and interests in defined areas of waters of the Torres Strait. Those native title rights and interests were described in the native title determination made by Finn J as "the rights to access, to remain in and to use the native title areas" and, subject to some qualifications about minerals and petroleum resources which need not now be noticed, "the right to access resources and to take for any purpose resources in the native title areas".
The Full Court
On appeal, the Full Court of the Federal Court (Keane CJ and Dowsett J, Mansfield J dissenting) held that the determination made by Finn J should be varied. The Full Court found the continued existence of a native title right and interest "to access resources and to take for any purpose resources in the native title areas" to be inconsistent with, and to have been partly extinguished by, successive Commonwealth and Queensland Acts which prohibited taking fish or other aquatic life for commercial purposes without a licence. Accordingly, the Full Court ordered that the determination that the native title holders had "the right to access resources and to take for any purpose resources in the native title areas" be varied by adding the qualification that the right "does not, however, extend to taking fish and other aquatic life for sale or trade".
Relevant principles
Resolution of the extinguishment issue presented in this appeal depends upon applying principles established and applied by this Court in several decisions about the Native Title Act 1993 (Cth) ("the NTA"). Those decisions include Wik Peoples v Queensland, Fejo v Northern Territory, Yanner v Eaton, The Commonwealth v Yarmirr and Western Australia v Ward.
In particular, resolution of the extinguishment issue depends upon four propositions. Three are identified most conveniently by reference to the plurality reasons in Ward. First, "[b]ecause what is claimed in the present [matter is] claims made under the NTA, for rights defined in the NTA, it is that statute which governs" (original emphasis). Second, "[t]he NTA provides that there can be partial extinguishment or suspension of native title rights". Third, "[q]uestions of extinguishment first require identification of the native title rights and interests that are alleged to exist".
The fourth proposition of critical importance to the determination of this appeal is established by, and reflected in, all five of the cases that have been mentioned. It is that inconsistency of rights lies at the heart of any question of extinguishment.
Something more must be said about each of these propositions.
The statute governs
As the plurality noted in Ward, this Court's decisions in Wik, Fejo and Yanner "were not given in appeals brought in respect of the determination by the Federal Court of applications under the NTA". By contrast with those three cases, but like Yarmirr and Ward, this is an appeal against orders of the Full Court of the Federal Court made on appeal against a determination of native title made by a single judge of the Federal Court. The determination provisions of the NTA are directly engaged. The NTA "lies at the core of this litigation". Questions about extinguishment of native title rights and interests cannot be answered without beginning in the relevant provisions of the NTA.
The expression "native title" or "native title rights and interests" is defined in s 223. Paragraphs (a) and (b) of s 223(1) indicate that it is from the traditional laws and customs that native title rights and interests derive, not the common law. Section 10 of the NTA provides that "[n]ative title is recognised, and protected, in accordance with" the NTA and s 11(1) provides that native title cannot be extinguished contrary to the NTA.
In this case, partial extinguishment of native title was said to have been effected by the making of legislation prohibiting taking, without a licence issued under the relevant Act, fish or other aquatic life for sale or trade. Section 226 of the NTA provides that "the making ... of any legislation" was one species of an act affecting native title. Accordingly, in considering questions about extinguishment said to have been effected by the making of legislation prohibiting commercial fishing without a licence, regard must be had to s 227 of the NTA, which provides that:
"An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise."
As Toohey J said in Wik (with the concurrence of Gaudron, Gummow and Kirby JJ):
"Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established. If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees." (emphasis added)
Two other aspects of the NTA may be mentioned but put aside from further consideration. First, it was not submitted in this appeal that the making of the early legislation about fishing which was said to have extinguished native title (particularly the Fisheries Act 1952 (Cth) and the Queensland Fisheries Act 1887 (Q)) was a "past act" within the meaning of s 228 of the NTA. And no separate argument for extinguishment was advanced with respect to later legislation which may have fallen within the definition of a "past act". Accordingly those provisions of the NTA which deal with a "past act" may be put aside from consideration. The question is whether the legislation about fishing was "effective at common law to work extinguishment of native title". Second, it was not submitted that the "non‑extinguishment principle" dealt with in s 238 was engaged, and again, that provision may be put aside from consideration.
Partial extinguishment
The NTA postulates that there may be partial extinguishment of native title rights and interests. So, for example, s 23A(1) of the NTA speaks of the provisions of Div 2B of Pt 2 of the NTA providing that certain acts "attributable to the Commonwealth that were done on or before 23 December 1996 will have completely or partially extinguished native title". And that postulate of the NTA is wholly consistent with the conclusion reached by the plurality in Ward that native title rights and interests may properly be seen as a bundle of rights, the separate components of which may be extinguished separately. As the plurality said in Ward, "it is a mistake to assume that what the NTA refers to as 'native title rights and interests' is necessarily a single set of rights relating to land [or waters] that is analogous to a fee simple".
The native title rights and interests in issue
As has already been noted, debate about extinguishment must begin by identifying the native title rights and interests that are in issue. As s 225 of the NTA required, the determination of native title made in this case, by Finn J, identified the holders of the rights comprising the native title and identified the areas in respect of which those rights and interests existed. The relevant native title rights and interests were determined to be "the rights to access, to remain in and to use the native title areas" and, subject to some presently irrelevant qualifications about minerals and petroleum resources, "the right to access resources and to take for any purpose resources in the native title areas". These are the rights and interests which are at stake. Have these rights and interests been partially extinguished? More particularly, did the enactment of laws which prohibited the unlicensed taking of fish or other aquatic life for commercial purposes partially extinguish the right to take resources for any purpose?
Inconsistency of rights
This Court held in Western Australia v The Commonwealth (Native Title Act Case) that, at common law, native title rights and interests can be extinguished by "a valid exercise of sovereign power inconsistent with the continued enjoyment or unimpaired enjoyment of native title". In Yanner, the plurality noted that the "extinguishment of such rights must, by conventional theory, be clearly established". Likewise, as the plurality held in Ward, under the NTA, "[w]hether native title rights have been extinguished by a grant of rights to third parties or an assertion of rights by the executive requires comparison between the legal nature and incidents of the right granted or asserted and the native title right asserted".
As was also noted, however, by the plurality in Ward, while it is often said that a "clear and plain intention" to extinguish native title must be demonstrated, it is important that this expression not be misunderstood. The relevant question is one of inconsistency, and that is an objective inquiry. The "subjective thought processes of those whose act is alleged to have extinguished native title are irrelevant".
Hence, as the NTA acknowledges in s 211, and as was held in Yanner, "[r]egulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent)". Likewise, regulating particular aspects of the usufructuary relationship with traditional waters does not sever the connection of the Torres Strait Islanders concerned with those waters (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent).
Not only does regulation of a native title right to take resources from land or waters not sever the connection of the peoples concerned with that land or those waters, regulation of the native title right is not inconsistent with the continued existence of that right. Indeed, as was pointed out in Yanner, "regulating the way in which a right may be exercised presupposes that the right exists". Of course, regulation may shade into prohibition, and the line between the two may be difficult to discern. But the central point made in Yanner, and reflected in each of Wik, Fejo, Yarmirr and Ward, is that a statutory prohibition on taking resources from land or waters without a licence does not conclusively establish extinguishment of native title rights and interests of the kind found to exist in this case: "the rights to access, to remain in and to use the native title areas", and "the right to access resources and to take for any purpose resources in the native title areas".
Prohibition of a particular activity
In this case, the majority in the Full Court identified the starting point for consideration of extinguishment as "whether the activity which constitutes the relevant incident of native title is consistent with competent legislation relating to that activity" (emphasis added). The essential premise for the analysis that followed was that the relevant "activity" was to be identified as "taking fish and other aquatic life for sale or trade" and that the activity identified in this way was an "incident of native title". That premise is flawed.
The relevant native title right that was found to exist was a right to access and to take resources from the identified waters for any purpose. It was wrong to single out taking those resources for sale or trade as an "incident" of the right that had been identified. The purpose which the holder of that right may have had for exercising the right on a particular occasion was not an incident of the right; it was simply a circumstance attending its exercise.
Focusing upon the activity described as "taking fish and other aquatic life for sale or trade", rather than focusing upon the relevant native title right, was apt to, and in this case did, lead to error. That shift of focus, from right to activity, led to error in this case by inferentially reframing the question determinative of extinguishment as being whether the statutory prohibition against fishing for a particular purpose without a licence was inconsistent with the continued existence of a native title right to fish for that purpose. But the relevant native title right that was found in this case was a right to take resources for any purpose. No distinct or separate native title right to take fish for sale or trade was found. The prohibition of taking fish for sale or trade without a licence regulated the exercise of the native title right by prohibiting its exercise for some, but not all, purposes without a licence. It did not extinguish the right to any extent.
The Full Court's focus upon a particular activity was not consistent with the plurality's observation in Ward that reference to activity "is relevant only to the extent that it focuses attention upon the right". The focus upon the activity led to the majority framing the relevant question as being whether the identified activity was "consistent with competent legislation relating to that activity". But extinguishment of native title rights and interests is not to be determined by asking whether the federal or State legislature has asserted control, or dominion, over a particular activity, and then concluding that the relevant native title right no longer includes the right to pursue that form of activity. To pursue an inquiry of that kind would be apt to revive some variation of the adverse dominion test for extinguishment rejected by this Court in Ward. The enactment of legislation controlling some activity which may be undertaken in exercise of a native title right or interest presents a question about extinguishment. The extinguishment question is to be answered by deciding whether the legislation is inconsistent with the relevant native title right or interest; it is not determined by observing only that there is legislation which governs or affects the exercise of the right.
These are reasons enough to reject the conclusion reached by the majority in the Full Court. There are, however, three particular errors in reasoning to which reference must be made.
Three particular matters
First, the majority in the Full Court said that the "general conservation objectives" of the relevant legislation prohibiting commercial fishing without a licence could "be easily defeated by the expedient of traders buying fish in commercial quantities from native title holders". That is obviously right, but it is irrelevant to the issue of extinguishment. It is an observation that assumes that the native title holders may take fish for sale or trade without a licence under the relevant legislation. But it was not suggested in the Full Court, or in this Court, that the exercise of the native title right to take resources from the native title areas was, or is, unaffected by legislation about fishing. Contrary to the reasoning of the majority in the Full Court, inconsistency is not demonstrated by assuming that exercise of the native title right or interest would be unaffected by the law or laws in issue. That is, it is not to the point to ask, as the Full Court did, what the position would be if the legislation did not affect the exercise of native title rights and interests. The only question is whether the legislation has extinguished the right in whole or in part.
Second, the majority in the Full Court were wrong to treat the decision in Yanner as depending wholly upon the availability and operation of s 211 of the NTA. (It will be recalled that s 211 permits holders of native title rights to hunt or fish to exercise those rights "for the purpose of satisfying their personal, domestic or non‑commercial communal needs", despite legislation prohibiting or restricting that activity other than in accordance with a statutory licence.) Section 211 can be engaged only if relevant native title rights and interests continue to exist.
What is presently important is that Yanner established that legislation may regulate the exercise of native title rights and interests without extinguishing those rights or interests. And it is important to recognise that this Court held in Yanner that the relevant native title rights and interests continued to exist despite the nature and extent of the regulation effected by the legislation at issue in that case, the Fauna Conservation Act 1974 (Q).
Like the various forms of fisheries legislation at issue in this appeal, the Fauna Conservation Act prohibited taking fauna without a licence. But the Fauna Conservation Act went further than the legislation now in issue in two respects. First, it prohibited taking fauna without a licence for any purpose. Second, it provided that all fauna (other than fauna taken during an open season with respect to that fauna) "is the property of the Crown and under the control of the Fauna Authority". This Court held that the Fauna Conservation Act did not extinguish the relevant native title rights and interests.
Third, Finn J was right to hold that this Court's decision in Harper v Minister for Sea Fisheries does not have any direct application to the issues of extinguishment of native title rights and interests which arise in this appeal. Nor does Harper provide useful guidance about those issues. To the extent to which the decision of the majority in the Full Court depended upon drawing on what was said in Harper, that reasoning was erroneous. Harper decided that, on its true construction, legislation providing for the licensed taking of abalone abrogated the common law public right to fish for abalone. That is, Harper decided that an Act dealt with a subject comprehensively, to the exclusion of a common law right. The question decided in Harper was, therefore, radically different from the question presented in this appeal. This case concerns the relationship between legislation prohibiting commercial fishing without a licence and rights and interests which are rooted, not in the common law, but in the traditional laws acknowledged, and traditional customs observed, by Torres Strait Islanders.
Conclusion and orders
As the plurality in Yanner held, "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" (emphasis added). Likewise, telling the native title holders in this case, "You may not fish for the purpose of sale or trade without a licence", did not, and does not, sever their connection with the waters concerned and it did not, and does not, deny the continued exercise of the rights and interests possessed by them under the traditional laws acknowledged, and traditional customs observed, by them. The repeated statutory injunction, "no commercial fishing without a licence", was not, and is not, inconsistent with the continued existence of the relevant native title rights and interests.
The Full Court was wrong to conclude that the determination of native title rights and interests made at first instance should be varied. The orders proposed by French CJ and Crennan J should be made.