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Cited legislation

5 cited instruments linked from this judgment.

The Commonwealth and Queensland contested the inclusion of any right to take resources for commercial purposes. They argued that successive colonial, State and Commonwealth fisheries statutes, beginning with the Queensland Fisheries Act 1877 (Q) and the Commonwealth Fisheries Act 1952 (Cth) and Pearl Fisheries Act 1952 (Cth), had extinguished any such right. These statutes imposed prohibitions on taking fish or aquatic life for commercial purposes without a licence. No party contended that native title had been extinguished by the grant of exclusive leases or that specific species had been wholly replaced by statutory management plans. The appellant maintained that the right was a single, broad right to take for any purpose and that the legislation regulated its exercise rather than extinguishing any incident of it. The primary judge accepted this characterisation. He held that the legislation did not evince a clear and plain intention to extinguish native title rights to take fish for commercial purposes; instead, it regulated the manner and conditions of commercial fishing, leaving native title holders with the qualified opportunity to exercise their rights while complying with the law of the land.

On appeal, the Full Court of the Federal Court (Keane CJ and Dowsett J, Mansfield J dissenting) allowed the appeal in part on 14 March 2012. The majority varied Order 5(b) by adding the words "This right does not, however, extend to taking fish and other aquatic life for sale or trade." They characterised the successive licensing regimes as prohibiting commercial fishing without a government licence and concluded that this prohibition was not mere regulation but effected partial extinguishment of the native title right insofar as it concerned commercial purposes. The Full Court dismissed a cross-appeal concerning reciprocal rights. The primary judge had found that, while the claim group held emplacement-based or occupation-based rights, there existed additional "reciprocal rights" arising from personal relationships (kinship or tebud/thubud). These rights allowed access and use of resources in the estate of another rights holder but were ultimately subject to control by that holder. The primary judge ruled that these were rights in relation to persons, not rights "in relation to" waters within s 223(1) of the Native Title Act 1993 (Cth) ("NT Act").

Special leave was granted by the High Court on 5 October 2012 limited to the extinguishment and reciprocal rights grounds. The High Court (French CJ, Hayne, Crennan, Kiefel and Bell JJ) delivered judgment on 7 August 2013. The Court allowed the appeal in part on extinguishment, set aside the Full Court's variation, ordered that the appeal to the Full Court be dismissed, and restored the primary judge's determination. The appeal on reciprocal rights was dismissed. Costs orders followed against the first and second respondents. The joint reasons of French CJ and Crennan J and the separate reasons of Hayne, Kiefel and Bell JJ both emphasised that the NT Act lies at the core of the litigation and that the statute governs questions of extinguishment.

Why the court decided this way

The High Court decided the extinguishment issue by returning to the statutory text and the objective inconsistency test developed in earlier authorities. Both sets of reasons stressed that the NTA defines native title rights and interests in s 223 and that s 11(1) provides that native title cannot be extinguished contrary to the Act. Section 227 defines an "act" (including legislation) as affecting native title if it extinguishes the rights or is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. Section 238 sets out the non-extinguishment principle: where an act is partly inconsistent, the native title continues to exist in its entirety but has no effect to the extent of the inconsistency.

The Court held that the fisheries legislation imposed conditional prohibitions: a person could not take fish for commercial purposes without a licence. Properly construed, these provisions regulated the exercise of the native title right rather than extinguished it. The native title right was framed as a single right "to access resources and to take for any purpose resources in the native title areas". The purpose for which the right was exercised on any given occasion (commercial or otherwise) was not an "incident" or lesser right capable of separate extinguishment. French CJ and Crennan J observed that a native title right defines a relationship between the holders and the waters; the right is one thing, its exercise for a particular purpose another. Hayne, Kiefel and Bell JJ reinforced that focusing on the activity of "taking for sale or trade" reframed the question erroneously and risked reviving an adverse dominion test rejected in Western Australia v Ward.

The Court distinguished regulation from extinguishment by reference to Yanner v Eaton, where a licensing regime for taking fauna was held not to extinguish native title hunting rights. The plurality in Yanner had stated that regulating the way in which rights may be exercised presupposes that the right exists. The same logic applied to the Torres Strait waters. The legislation did not prevent native title holders from applying for licences, nor did it sever their connection with the waters. The Court rejected the respondents' reliance on Harper v Minister for Sea Fisheries, noting that Harper concerned the abrogation of a common-law public right to fish, not native title rights rooted in traditional laws and customs. Public rights are freely amenable to legislative abrogation; native title rights, recognised by the common law, are not.

On the reciprocal rights issue, the Court upheld the primary judge's characterisation. The evidence showed that reciprocal rights arose from personal relationships of kinship or tebud/thubud and gave rise to personal obligations of hospitality, sharing and generosity. These obligations were enforceable under Islander law but were rights in relation to persons, not rights in relation to waters. Section 223(1) requires rights and interests "in relation to land or waters". Because the reciprocal rights were mediated through personal status and dependent on the continued willingness of the occupation-based rights holder, they fell outside the statutory definition. The Full Court had correctly dismissed the cross-appeal for substantially the same reasons.

The disposition followed directly: the appeal was allowed on the first two grounds concerning extinguishment, the Full Court's variation was set aside, and the primary determination restored. The reciprocal rights ground failed, so the appeal was otherwise dismissed.

Before and after state of the law

Prior to this decision, the law on extinguishment of native title by regulatory regimes was shaped by a series of High Court authorities that moved from a "clear and plain intention" test to an objective inconsistency test. Mabo v Queensland [No 2] had established that native title could be extinguished by Crown grant or statute only where a clear and plain intention appeared. Wik Peoples v Queensland emphasised inconsistency between the incidents of the statutory grant and the native title rights. Fejo v Northern Territory held that a fee simple grant extinguished native title because the rights were inconsistent. Yanner v Eaton clarified that regulation of the exercise of usufructuary rights (there, hunting) did not sever the connection with land or deny the continued existence of the rights. Western Australia v Ward confirmed that native title rights may be viewed as a bundle, that partial extinguishment is possible, and that the inquiry is objective: identify the two sets of rights and compare them for inconsistency. The Commonwealth v Yarmirr applied the same approach to native title in the territorial sea, finding no inconsistency with public rights to navigate and fish, but inconsistency with any claim to exclusive possession.

The NT Act itself, particularly after the 1998 amendments, expressly contemplated partial inconsistency without extinguishment (ss 227 and 238) and carved out protection for certain traditional activities for personal, domestic or non-commercial communal needs (s 211). Yet lower courts had continued to grapple with whether licensing regimes that comprehensively managed a resource could be said to have extinguished native title rights to exploit that resource for commercial gain.

After Akiba, the law is clearer that a statutory prohibition on commercial taking without a licence does not, of itself, extinguish a broadly framed native title right to take resources for any purpose. The decision confirms that the distinction between the right and its exercise is fundamental. Regulation, even comprehensive regulation, of a particular mode of enjoyment does not equate to extinguishment unless the statute, on its proper construction, is inconsistent with the continued existence of the underlying right. The decision also confirms that s 223(1) imposes a strict requirement that the rights and interests be "in relation to" land or waters; intramural, personal or reciprocal rights that are essentially relational do not qualify. The pre-Mabo statutes are to be construed by reference to objective inconsistency rather than the legislature's then-understanding that native title did not exist. The result is a more nuanced but robust protection for non-exclusive usufructuary native title rights in marine estates, while preserving the ability of governments to regulate fisheries for conservation and management purposes.

Key passages with plain-English translation

Several passages encapsulate the Court's reasoning. French CJ and Crennan J stated: "the legislative regimes of the State since 1877, and of the Commonwealth since 1952, concerning fisheries did not, and do not, severally or together evince a clear and plain intention to extinguish native title rights to take fish for commercial purposes." In plain English, this means the laws never showed an unmistakable purpose to wipe out the Islanders' traditional right to fish for sale; they merely set rules that everyone, including native title holders, must follow.

The joint judgment also explained: "A native title right or interest defines a relationship between the native title holders and the land or waters to which the right or interest relates. The right is one thing; the exercise of it for a particular purpose is another." Translated, the Court is saying you cannot chop a single traditional right into smaller pieces based on what someone plans to do with the fish. The right to take resources exists independently of whether the holder intends to eat them, trade them or sell them.

Hayne, Kiefel and Bell JJ observed: "regulating the way in which a right may be exercised presupposes that the right exists." This is a concise way of saying that if Parliament passes a law requiring a licence, it is assuming the activity is still lawful once the licence is obtained; the law is not declaring the underlying traditional right dead.

On reciprocal rights, French CJ and Crennan J wrote: "They are rights in relation to persons. The corresponding obligations are likewise social and personal and can be quite intense in character. This emerges clearly in the Islander evidence, the predominant emphases being on helping, sharing, being hospitable." In everyday language, these sharing arrangements are about family duties and mutual respect between people, not ownership-style rights over particular patches of sea. Because native title law requires a direct link to the waters themselves, these personal rights fall outside the statutory definition.

Finally, the Court reiterated from Yanner: "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." Applied to the Torres Strait, telling Islanders they need a licence to sell fish commercially does not break their spiritual and legal connection to the sea or cancel their traditional rights.

What fact patterns trigger this precedent

This precedent is triggered where a native title claim over marine or aquatic areas asserts a broadly framed right to access and take resources for any purpose, and a respondent contends that fisheries or resource management legislation has extinguished any commercial component of that right. The critical elements are: (1) the native title right is not expressed as a discrete right to take for trade or sale but as a general usufructuary right; (2) the legislation imposes a licensing regime that prohibits unlicensed commercial taking but does not bar native title holders from obtaining licences; (3) the waters are not covered by grants that confer exclusive possession or wholly supplant native title; and (4) the claim also asserts intramural reciprocal rights arising from personal or kinship relationships that are said to confer access to another group's marine estate.

The decision applies whenever a court must characterise the effect of successive regulatory statutes enacted both before and after Mabo [No 2]. It is engaged where the asserted inconsistency rests on the prohibition of an activity (commercial taking) rather than on a direct grant of inconsistent rights to third parties. It is not triggered where the legislation creates exclusive proprietary rights or where the native title claim itself seeks exclusive possession over waters. Fact patterns involving terrestrial resources or purely terrestrial hunting and gathering would engage the same principles but would require analogous regulatory statutes. The reciprocal rights aspect is engaged whenever claimants seek to include relationship-based or status-based rights that are not themselves grounded in a connection to the land or waters but depend on personal ties to an occupation-based rights holder.

How later courts have treated it

Although the judgment itself does not speak to its own future treatment, the reasoning demonstrates how this Court applied and reinforced the principles established in Yanner v Eaton, Western Australia v Ward, Fejo and Wik. The Court treated Yanner as establishing that a licensing regime does not extinguish native title rights even where it prohibits taking without a permit for any purpose and declares fauna to be Crown property. The present legislation was less intrusive, so the same outcome followed. Ward was applied for the propositions that native title rights may be a bundle, that partial extinguishment is possible, that the inquiry is objective, and that inconsistency is assessed by comparing the legal incidents of the two sets of rights. The Court cited Fejo and Wik for the inconsistency test and emphasised that the NTA "lies at the core of this litigation", consistent with the approach in Yarmirr and Ward that the statute governs once a determination under the NTA is in issue.

Harper was distinguished on the basis that it concerned abrogation of a common-law public right rather than native title derived from traditional laws and customs. The judgment therefore operates as a careful synthesis and application of the existing authorities rather than a radical departure. By restoring the primary judge's determination and rejecting the subdivision of a general right into purpose-specific incidents, the Court has provided lower courts with a clear analytical framework that prioritises the statutory text of the NTA and the logical distinction between a right and its exercise. The reciprocal rights analysis has been treated as confirming a strict reading of the "in relation to land or waters" requirement in s 223(1), limiting native title to rights that are not merely personal or intramural.

Still-open questions

The judgment leaves open the precise point at which regulation shades into prohibition so as to become inconsistent with the continued existence of native title. While the Court held that the fisheries licensing regimes did not cross that line, it acknowledged that "regulation may shade into prohibition, and the line between the two may be difficult to discern." Future cases may test whether a statutory scheme that effectively denies native title holders any realistic opportunity to obtain licences, or that permanently closes a fishery to all but a defined class of non-native title holders, would effect extinguishment.

Another open question is the exact content of "for any purpose" in a native title determination. The Court accepted the primary judge's finding that the right extended to commercial purposes but did not explore whether particular traditional laws and customs might limit the right to non-commercial uses in other claims. The boundary between personal reciprocal rights and rights that might be characterised as group rights "in relation to" waters also remains fact-sensitive. The primary judge's detailed findings on Islander evidence were accepted, but different evidence in another claim might lead to a different characterisation.

The interaction between the non-extinguishment principle in s 238 and future legislative or executive acts that impose ever-tighter quota systems or marine protected areas is not resolved. The Court emphasised that native title holders must comply with the law of the land, but the extent to which such compliance can cumulatively erode the practical enjoyment of native title without triggering the statutory compensation or non-extinguishment mechanisms remains to be tested. Finally, the decision does not address how the principles apply to other regulated resources such as minerals or petroleum where different statutory regimes operate; the orders expressly excluded minerals and petroleum from the determination, leaving that boundary for another day. These open questions ensure that Akiba remains a pivotal but not exhaustive statement of the law on marine native title and regulatory extinguishment.

1. The international right of innocent passage through the territorial sea.
2. Any subsisting public right to fish.
3. The public right to navigate.
4. The rights and interests of holders of licences, permits, authorities, resource allocations or endorsements issued under the Fisheries Act 1994 (Q), the Fisheries Regulation 2008 (Q), the Torres Strait Fisheries Act 1984 (Cth) and the Fisheries Management Act 1991 (Cth), or any other legislative scheme for the control, management and exploitation of the living resources within the determination area.
5. Other rights and interests under various licences, certificates and permits or otherwise granted by the Crown or conferred by statute, rights of access under statutory authority, and rights and interests held by the State or the Commonwealth.
6. Rights and interests of the Australian Maritime Safety Authority as the owner and manager of aids to navigation in various defined locations and under certain sub-leases, and, subject to the laws of Australia, the customary rights of citizens of Papua New Guinea who live in the Protected Zone or the adjacent coastal area of Papua New Guinea. Extinguishment and fisheries legislation in the Federal Court The effects of colonial, State and Commonwealth fisheries legislation on the native title right "to take for any purpose resources in the native title areas" were considered by the primary judge and the Full Court. That consideration involved a review of historical and contemporary statutes. It is not necessary for present purposes to repeat that review in detail. The succession of relevant statutes was set out in the judgment at first instance and extracted from that judgment at some length in the majority judgment of the Full Court. It is sufficient to say that the history of the relevant colonial and State legislation dates back to the Queensland Fisheries Act 1877 (Q). The history of the relevant Commonwealth legislation began with the Fisheries Act 1952 (Cth) and the Pearl Fisheries Act 1952 (Cth). It was not in dispute that between them the relevant statutes applied to all of the waters in the determination area. The common feature of the legislation, which was invoked by the Commonwealth and by the State of Queensland in favour of their extinguishment submissions, was the imposition of a prohibition against any person taking fish and other aquatic life for commercial purposes without a licence granted under the relevant statute. It was that feature which the parties debated in this Court. No contention was advanced before the primary judge that: • native title had been extinguished in any part of the determination area by leases or licences given under Queensland statutes attaching exclusive rights to such grants; • the right to fish for particular species or a number of species for commercial purposes had been legislatively extinguished and replaced by rights granted pursuant to, or in connection with, statutory management plans. The State of Queensland submitted to the primary judge that its successive legislative regimes since 1877 had abrogated or extinguished any pre-existing native title rights to fish for commercial purposes and replaced them with rights conferred only upon those who held the necessary statutory licences. The legislative history was said to have resulted in the extinguishment of any rights to take or use the resources of the claim area for trading or commercial fishing purposes. The Commonwealth submission, reflecting that of the State, pointed to a history of increasingly comprehensive management regimes and the retention by the Crown exclusively for itself and its agencies of the capacity to manage the seas, including those in the claim area. Fisheries management had focused upon commercial fishing, reflecting the treatment of fisheries in the sea as a public resource and concerns about the long-term development and sustainability of the fishing industry. The appellant submitted before the primary judge that the relevant native title right was the right to access and take marine resources and not a differentiated right to take resources for trade or commercial purposes. Neither the State nor the Commonwealth argued that the native title right to take marine resources had itself been extinguished. The appellant submitted that the effect of the successive regulatory schemes was to regulate the exercise of native title rights and not to extinguish them or their incidents. There was nothing to suggest, and no party suggested, that native title holders had ever been precluded from applying for licences to fish for commercial purposes under the successive regimes or are now precluded from doing so. In a key passage in his reasons for judgment on the extinguishment issue, his Honour said: "The native title right I have found is a right to access and take marine resources as such - a right not circumscribed by the use to be made of the resource taken." His Honour nevertheless accepted that an activity carried on in exercising a native title right might be treated as a distinct "incident" of the right for extinguishment purposes when the activity had a discrete and understood purpose. It was in that context that his Honour rejected the appellant's submission that it was impermissible to subdivide the general right to take resources. He said: "The distinction between engaging in an activity for commercial purposes or for non-commercial, private or other purposes is one commonly made. It was from the outset, and remains, a characteristic of the fisheries legislation considered in this matter. It is reflected in the differentiation of purposes in s 211 of the NT Act." A broadly defined native title right such as the right "to take for any purpose resources in the native title areas" may be exercised for commercial or non‑commercial purposes. The purposes may be well defined or diffuse. One use may advance more than one purpose. But none of those propositions requires a sectioning of the native title right into lesser rights or "incidents" defined by the various purposes for which it might be exercised. The lesser rights would be as numerous as the purposes that could be imagined. A native title right or interest defines a relationship between the native title holders and the land or waters to which the right or interest relates. The right is one thing; the exercise of it for a particular purpose is another. That proposition does not exclude the possibility that a native title right or interest arising under a particular set of traditional laws and customs might be defined by reference to its exercise for a limited purpose. That is not this case. The right defined by Order 5(b) of the Determination, which, save for the extinguishment question, was not in dispute, was a right "to take for any purpose resources in the native title areas." His Honour treated the exercise for commercial purposes of the group right to take resources in the native title areas as though it were the exercise of a right to take marine resources for commercial purposes. That equivalence attracted the application of principles governing the extinguishment of native title. On that basis, the question of construction, as his Honour posed it, was whether successive Queensland and Commonwealth legislative regimes had disclosed a clear and plain intention to extinguish that right. His Honour held that they had not: "the legislative regimes of the State since 1877, and of the Commonwealth since 1952, concerning fisheries did not, and do not, severally or together evince a clear and plain intention to extinguish native title rights to take fish for commercial purposes. To the extent that those legislative regimes regulate the manner in which, and the conditions subject to which, commercial fishing can be conducted in a fishery in the native title holders' marine estate, or prohibits qualifiedly or absolutely particular activities in relation to commercial fishing in the fishery in that estate: cf s 211 of the NT Act; the native title holders must, in enjoying their native title rights, observe the law of the land. This is their obligations as Australian citizens. But complying with those regimes provides them with the opportunity - qualified it may be - to exercise their native title rights." The majority in the Full Court, in a similar vein, focused upon "the effect of successive licensing regimes whereby, in simple terms, fishing for commercial purposes without a licence issued by the government of Queensland or the Commonwealth was prohibited." Their Honours concluded that it was sufficient to establish extinguishment of a native title right to take fish for commercial purposes that the Fish and Oyster Act 1914 (Q) and the Fisheries Act 1952 (Cth) prohibited that activity without licences granted under those respective statutes. Central to their Honours' reasoning was the proposition that the prohibition could not be characterised as mere regulation of fishing in the native title area. Consideration of the Full Court's judgment directs attention to the distinction between rights and their exercise for particular purposes, and to the concepts of "extinguishment" and "native title right" and their interaction. Those matters are inter-related and, to the extent that they involve the concept of extinguishment as an effect of legislative action, a question of statutory construction is raised. Rights, extinguishment and statutory construction "Extinguishment" in relation to native title refers to extinguishment or cessation of rights. Such extinguishment of rights in whole or in part is not a logical consequence of a legislative constraint upon their exercise for a particular purpose, unless the legislation, properly construed, has that effect. To that proposition may be added the general principle that a statute ought not to be construed as extinguishing common law property rights unless no other construction is reasonably open. Neither logic nor construction in this case required a conclusion that the conditional prohibitions imposed by successive fisheries legislation in the determination area were directed to the existence of a common law native title right to access and take marine resources for commercial purposes. In any event, nothing in the character of a conditional prohibition on taking fish for commercial purposes requires that it be construed as extinguishing such a right. Recognition of the distinction between a broadly stated right and its exercise in particular ways or for particular purposes is implicit in the legislative scheme of the NT Act dealing with extinguishment. The NT Act contemplates the existence of legislative or executive acts which "affect" native title rights and interests by constraint or restriction but do not extinguish them. Section 227 provides: "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." The term "act" there includes the making, amendment or repeal of any legislation and includes legislation which is partly inconsistent with the continued enjoyment or exercise of native title rights and interests. The plurality in Western Australia v Ward adverted to "the distinction between the extinguishment of native title rights and interests and partial inconsistency" in the NT Act which was continued by the amendments to that Act in 1998. That distinction, which is made in s 227, is also brought out in s 238, which "sets out the effect of a reference to the non-extinguishment principle applying to an act." The non-extinguishment principle is applied to various classes of "act" by the NT Act. If an "act" to which it applies affects any native title in relation to the land or waters concerned, then "the native title is nevertheless not extinguished, either wholly or partly." Section 238(4) provides: "If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency." The "non-extinguishment" principle is a statutory construct. It is nevertheless underpinned by a logical proposition of general application: that a particular use of a native title right can be restricted or prohibited by legislation without that right or interest itself being extinguished. The distinction between the existence and exercise of a right appears in s 211 of the NT Act. Because the section was mentioned by the primary judge and in submissions, it is desirable to set out the relevant parts of it: "Requirements for removal of prohibition etc on native title holders (1) Subsection (2) applies if: (a) 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 (b) 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 ... Removal of prohibition etc on native title holders (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: (a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and (b) 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. Definition of class of activity (3) Each of the following is a separate class of activity: (a) hunting; (b) fishing; (c) gathering; (d) a cultural or spiritual activity; (e) any other kind of activity prescribed for the purpose of this paragraph." The distinction between native title rights and their exercise is made explicit in s 211 and was noted by the plurality in Yanner v Eaton. Their Honours said that: "the section necessarily assumes that a conditional prohibition of the kind described [in s 211(1)(b)] does not affect the existence of the native title rights and interests in relation to which the activity is pursued." There is a tension between that observation and an element of the reasoning in Western Australia v The Commonwealth (Native Title Act Case) in which the plurality Justices appeared to equate each broadly stated "class of activity" described in s 211(3) with a usufructuary right or interest, being an incident of a more broadly stated native title. That will be so in many, if not most, cases. Whether it is a proposition that emerges from the construction of s 211 was not a question whose resolution formed any part of the reasoning which led their Honours to hold that s 211 was a valid exercise of Commonwealth power. The existence of the distinction between the exercise of a native title right for a particular purpose or in a particular way, and the subsistence of that right, is relevant to the construction of statutes said to effect the extinguishment of native title rights. Put shortly, when a statute purporting to affect the exercise of a native title right or interest for a particular purpose or in a particular way can be construed as doing no more than that, and not as extinguishing an underlying right, or an incident thereof, it should be so construed. That approach derives support from frequently repeated observations in this Court about the construction of statutes said to extinguish native title rights and interests. The early approach of this Court in Mabo v Queensland [No 1] and Mabo v Queensland [No 2] to determine whether native title rights or interests had been extinguished by legislative or executive action focused upon the intention to be imputed to the legislature or the executive. For both legislative and executive action, a plain and clear intention to extinguish native title was required. Imputed legislative intention is, and always was, a matter of the construction of the statute. As was stated in Lacey v Attorney-General (Qld): "Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts." (footnote omitted) The identification of a statute's purpose may aid in its construction. That identification may be done by reference to the apparent legal effect and operation of the statute, express statements of its objectives and extrinsic materials identifying the mischief to which it is directed. However, purposive construction to ascertain whether a statute extinguishes native title rights or interests is not without difficulty where the statute was enacted prior to this Court's decision in Mabo [No 2] that the common law could recognise native title. The difficulty was described by Gummow J in Wik Peoples v Queensland. The Court in that case was, as his Honour pointed out, construing statutes "enacted at times when the existing state of the law was perceived to be the opposite of that which it since has been held then to have been." That reality affected the application of the purposive approach to construction. The Court therefore focused on inconsistency as the criterion for extinguishment. In the case of competing rights - native title rights and interests on the one hand and statutory rights on the other - the question was: "whether the respective incidents thereof are such that the existing right cannot be exercised without abrogating the statutory right. If it cannot, then by necessary implication, the statute extinguishes the existing right." His Honour observed that that notion of inconsistency included the effect of a statutory prohibition of the activity in question. In Fejo v Northern Territory the plurality held that a grant of land in fee simple extinguished underlying native title because the two sets of rights were inconsistent with each other. Similarly, in Yanner v Eaton the plurality said: "native title is extinguished by the creation of rights that are inconsistent with the native title holders continuing to hold their rights and interests." Nevertheless, "[t]he extinguishment of such rights must, by conventional theory, be clearly established." The inconsistency criterion was considered in relation to statutory regulation in Yanner v Eaton. The plurality observed that "regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence." Gummow J, in a separate judgment, noted that a requirement for an Indigenous person to obtain a permit under the Fauna Conservation Act 1974 (Q) to hunt did not abrogate the native title right to hunt: "Rather, the regulation was consistent with the continued existence of that right." Inconsistency analysis was applied by this Court to the question whether the common law would recognise native title in the territorial sea. The answer to that question was in the affirmative. In The Commonwealth v Yarmirr, the Court found no inconsistency to exist between past or present laws relating to the territorial sea and recognition by the common law of Australia of native title rights and interests in relation to the seas and sea-beds in that area. There was, however, an inconsistency between native title rights to exclusive possession and common law public rights to navigate and to fish and the international right of innocent passage recognised by Australia. So it is that in this case the right to access and take the resources of the native title area is not an exclusive right. The pre-eminence of inconsistency as the criterion of extinguishment of native title rights by the grant of rights by the Crown or pursuant to statutory authority was reiterated by the plurality in Western Australia v Ward. Their Honours warned against misunderstanding the criterion of "clear and plain intention" to extinguish, which had been used in earlier decisions of the Court. The subjective states of mind of those whose acts were alleged to have extinguished native title were irrelevant: "As Wik and Fejo reveal, where, pursuant to statute, be it Commonwealth, State or Territory, there has been a grant of rights to third parties, the question is whether the rights are inconsistent with the alleged native title rights and interests. That is an objective inquiry which requires identification of and comparison between the two sets of rights." (footnotes omitted) In so saying, their Honours emphasised the need to identify and compare the two sets of rights. In so doing, they distinguished between activities on land and the right pursuant to which the land is used. Their Honours went on to reject the proposition that there could be degrees of inconsistency between rights or, absent statutory powers, suspension of one set of rights in favour of another and said: "Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment." The State of Queensland relied upon that observation in its written submissions. While this case is concerned with inconsistency, it is not concerned with inconsistency of rights. The question in this case is whether successive statutory regimes were inconsistent with the recognition by the common law of an asserted native title right. The State of Queensland characterised the successive colonial, State and Commonwealth fisheries laws as inconsistent with a right to take fish or aquatic life for commercial purposes. The asserted inconsistency turned, critically, upon the general application of the statutory prohibitions against taking fish and aquatic life for such purposes, absent a licence. Extinguishment was said to flow from a comparison of the statutory regime and the rights claimed. The Commonwealth identified an inconsistency arising "because of the limited and defined creation of statutory rights to fish for commercial purposes which did not allow for the continued enjoyment of native title rights ... to fish for those purposes." The Commonwealth and the State of Queensland relied upon the decision of this Court in Harper v Minister for Sea Fisheries. The question in that case was whether a fee charged for a licence to take abalone in Tasmania was an excise. To take abalone without a licence was prohibited by regulation. The Court held the fee was not a tax and therefore not a duty of excise. The licence conferred a privilege analogous to a profit à prendre. The fee for the licence was a charge for the acquisition of that right, which was akin to a property right. The effect of the licensing regime was to convert what was formerly in the public domain into "the exclusive but controlled preserve of those who hold licences." The public right to take abalone, "being a public not a proprietary right, [was] freely amenable to abrogation or regulation by a competent legislature". As the appellant submitted, Harper is not authority for the proposition that native title rights and interests, derived from traditional laws and customs and recognised by the common law, are as freely amenable to abrogation as public rights derived from the common law. Moreover, the decision in Harper did not deal with the question whether what is affected by a licensing regime is the exercise, for a particular purpose, of a broadly stated native title right capable of being exercised for any purpose. The submissions as to inconsistency made by the Commonwealth and the State of Queensland ought not to be accepted. The premise upon which they rest is the characterisation of the exercise, for a particular purpose, of a general native title right as the exercise of a lesser right defined by reference to that purpose. That characterisation is not a logical necessity. Nor is it necessary for coherence in the law. Its rejection is consistent with the maintenance of a proper distinction between proprietary or usufructuary rights and their exercise in particular ways or for particular purposes. The appeal on the first two grounds should be allowed. The reciprocal rights ground As appears from the Determination and the reasons of the primary judge, his Honour found that while all of the claim group members were, in aggregate, the holders of all of the native title rights, they did not hold them communally. They were best described as "group rights and interests". The groups comprised the claim group members of each of the island communities who held emplacement-based rights in their respective areas or estates. There were also rights held by claim group members of more than one island community in shared areas. The appellant had sought inclusion in the Determination of persons said to be the holders of "reciprocal rights". The primary judge held that those rights, being relationship-based, were not rights "in relation to" waters within the meaning of s 223(1) of the NT Act. The Full Court dismissed the appellant's cross-appeal against this aspect of the primary judge's decision. The reciprocal rights asserted by the appellant derived from the "customary marine tenure model", which the primary judge found to encompass two types of rights. The first were "ancestral occupation based rights" or "emplacement based rights". The second were "reciprocal rights". His Honour found that the latter differed from "occupation based rights". Their defining characteristics were that they: "(a) are held by each person who has or each group of persons who have a relevant reciprocal relationship (whether based in kinship or of another kind, such as tebud/thubud) with an ancestral occupation based rights holder or group of such rights holders; and (b) can be called rights or interests because they are enforceable and sanctioned by appeal to the law or custom that associates the reciprocal obligation with the relationship and the law or custom that sanctions consequences for denial of the reciprocal obligation; (c) are 'group' or 'individual' rights; (d) cover the area covered by the rights held by the person or group upon whom the right depends (but ultimately subject to regulation by that person or group or by the descent group of ancestral occupation based rights holders for that area); (e) the content of the rights is reciprocal shared access and use which permits the same activities as may be done by the person or group upon whom the right depends but does not include territorial control or livelihood and the exercise of the right is subject ultimately to control by ancestral occupation based rights holders." (emphasis in original) His Honour accepted that the Islander society has a body of laws and customs founded upon a dominant and pervasive principle of reciprocity and exchange. It is a principle which expresses notions of "respect, generosity and sharing, social and economic obligations and the personal nature of relationships". The relationships and the rights and obligations which arose out of them were personal in that the discharge of the performance obligation was the responsibility of the Islander host (in the case of a tebud relationship) or of the relative and not of the Island community. The relationship could be passed down through generations. His Honour concluded that the parties to such status‑based relationships had what could properly be described as rights and obligations recognised and expected to be honoured or discharged under Islander laws and customs. They were not mere privileges. However, they were not rights in relation to land or waters. His Honour said: "They are rights in relation to persons. The corresponding obligations are likewise social and personal and can be quite intense in character. This emerges clearly in the Islander evidence, the predominant emphases being on helping, sharing, being hospitable." The Full Court dismissed the cross-appeal on this ground, substantially for the reasons given by the primary judge. In their joint judgment, Keane CJ and Dowsett J observed that the primary judge's use of the term "status-based" as a description of the reciprocal relationships was derived from the evidence of an expert witness called on behalf of the appellant. Their Honours said: "Such rights cannot be said to be possessed by the claimants themselves, so far as they relate to land and waters: such rights are not held by reason of the putative holders' own connection under their laws and customs with the land and waters in question but are held mediately through a personal relationship with a native title holder who does have the requisite connection". Putting to one side the reference to "connection", which was criticised by the appellant in his submissions to this Court, it is sufficient to say that the primary judge was correct in his characterisation, on the basis of the evidence before him, of the reciprocal rights as rights of a personal character dependent upon status and not rights in relation to the waters. The appeal against this aspect of the Full Court's judgment should be dismissed. Conclusion For the above reasons, the appeal should succeed on the extinguishment question, but fail on the reciprocity of rights question. The following orders should be made:
7. Appeal allowed in part.
8. Set aside par 1 of the order made by the Full Court of the Federal Court of Australia on 14 March 2012 and, in its place, order that the appeal to that Court is dismissed.
9. The first and second respondents pay the appellant's costs of the appeal to this Court.
10. Appeal otherwise dismissed.