Birri Gubba v State of Queensland

Birri Gubba v State of Queensland - [2003] FCA 276 - FCA 2003 case summary — Zoe

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8 The motion is, in truth, the vehicle selected by the QSIA, the commercial fishermen's association of which Griggs and Porter are members, to test a conflict that has emerged between commercial fishermen and the Queensland Environmental Protection Agency (the EPA), the department which administers the national parks regime contained in the NCA. It is a striking feature of the case that, though there has been in force since 1994 what counsel for the State of Queensland contends is a clear prohibition on commercial fishing in national parks, the Queensland Department of Primary Industries (the DPI), which administers the fisheries licensing regime, has continued to issue annual licences which, like those held by Griggs and Porter, authorise commercial fishing in some national parks. The attitude of the DPI to the position of the EPA does not, however, appear from the evidence. 9 As I understand the argument put forward on behalf of the State of Queensland, it was not suggested that the DPI was acting unlawfully or beyond its statutory powers under the Fisheries Act 1994 (Qld) in issuing licences containing permission to fish commercially in the waters of some national parks. Rather is the argument that, if holders of such licences seek to exercise the right to fish commercially in national parks conferred by those fisheries licences, they will contravene the prohibition contained in the NCA. The State's primary submission is that the term "interests" in s 84(3) and (5) the NTA comprehends only "lawful interests". Since Griggs and Porter will, despite holding their commercial fishing licences, infringe s 62(1) the NCA if they commercially fish in Station Creek, it follows, so the State contends, that any rights asserted by them to commercially fish in the tidal waters of the Cape Upstart National Park can only be unlawful and thus not capable of constituting interests within s 84(3) or (5) the NTA. The native title claimants have made submissions supporting this contention. 10 A legal right to fish within the native title claim area under a commercial fishing licence issued by a government department under legislation requiring the holding of such a licence before a person can lawfully fish in that part of the State can readily constitute an affected interest within s 84(5). The Birri Gubba seek a determination that their native title includes "the right to access and the right to determine the access of others to country". If the native title claim is established in those terms, then even if Griggs and Porter hold fishing licences that confer on them a legal right to fish commercially in the tidal waters of Station Creek, they may still be required to obtain the permission of the native title holders before being able to exercise their rights under the licences. That is enough to show that each has interests within s 84(5) that may be affected by the determination sought by the Birri Gubba claimants. 11 Licences of the kind held by Griggs and Porter issued under s 30 the Fisheries Regulation are typically issued only for periods of one year at a time. They are "authorities" for the purpose of Div 3 of Pt 5 of the Fisheries Act - see the "dictionary" scheduled to the Act. As such, they are renewable under ss 56 and 58 the Fisheries Act. A commercial fisherman like Griggs or Porter has an expectation, if not an enforceable entitlement, that his licence will be renewed from time to time. Commercial fishing could not exist as an industry if persons regularly participating in it could not expect such renewal. If it be necessary for Griggs or Porter to hold a lawful entitlement to fish for commercial purposes in Station Creek and their licences do confer such a lawful entitlement, the annual licences they have held and can expect to hold in the future are sufficient to give each an interest of the kind referred to in s 84(3) and (5) the NTA. Contrary to the submission of the native title claimants, each annual licence, either by itself or in the context of a series of licences issued in the past and anticipated to be issued in the future to a particular fisherman, is not too transitory an entitlement to constitute such an interest. 12 The central question raised by the motion to which the parties directed their attention is whether Griggs and Porter in fact have, by force of their fishing licences, the lawful right to take fish for commercial purposes from Station Creek, part of a national park, on which they rely to found their "interest" under s 84(5). The State and the applicants contend that they do not. They say that, if they were to take fish from Station Creek, that would constitute the offence created by s 62 the NCA notwithstanding possession by them of fishing licences that are not challenged as being in any way invalid or beyond the power conferred on the chief executive of DPI by ss 30 and 40 the Fisheries Regulation to issue such licences. 13 In my opinion, Griggs and Porter do not infringe s 62 the NCA by engaging in commercial fishing in the tidal waters of Station Creek: they are exempt from the prohibition in s 62(1) so long as they comply with the conditions referred to in s 27(2) the Nature Conservation Regulation 1994 (Qld). So long as they do that and fish in accordance with the conditions of their fisheries licences, they have a lawful right to fish commercially in the waters in question though they are within a national park. 14 I also think that, even if Griggs and Porter would contravene s 62 the NCA by fishing commercially in Station Creek, though fishing there in compliance with the conditions of their fishing licences, they would still be entitled in the circumstances of this case to be parties to the Birri Gubba native title claim.

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26 It was not suggested Griggs or Porter had, when they fished commercially in Station Creek in accordance with the terms of their fisheries licences, contravened any of these six conditions. 27 In the context of s 62(1)(d), the term "issued" is apt to apply to authorisations, including licences and permits, to take resources from a national park which would otherwise infringe the prohibition in s 62(1), that are separate from the regulation made under s 175 the NCA that provides for their being issued. The expression "given under a regulation" made under the NCA in s 62(1)(d) is apt to refer to the authorisation to do that which would otherwise be prohibited by s 62(1) which is created by the regulation itself, without there being in existence any separate licence or permit. 28 To give the language of s 62(1)(d) what I regard as its ordinary English meaning is, in my opinion, consistent with its statutory context. The making of regulations under the NCA providing for authorisations to do that which would otherwise be prohibited by s 62(1) is expressly contemplated by s 175(2)(h) of the Act. Under that sub-section, a regulation may be made by the Governor in Council with respect to the "taking of animals or plants into, or out of, protected areas". Section 27(2) the Nature Conservation Regulation is just such an exercise of that power: a person who would otherwise infringe the prohibition in s 62(1) is exempt from that prohibition, if, acting within the conditions set out in s 27(2), he takes fish from a national park. So acting, he takes those fish "under a[n] … authority … given under a regulation", ie, s 27(2) the Nature Conservation Regulation. 29 The State of Queensland understandably does not contend that s 27 the Nature Conservation Regulation is ultra vires s 175(2)(h) or otherwise invalid. It submits, however, that s 27 should be read as operating solely to prescribe the conditions referred to in s 62(4) the NCA as those which must be complied with before fish can be taken from a national park for non-commercial purposes. It can be accepted that s 27 does operate to prescribe those conditions in s 62(4). But there is, in my opinion, no justification for reading s 27 as confined to doing just that and nothing more. The object of s 62(4), as qualified by sub-sec (5), is to create an express right for recreational fishermen to fish in national parks, subject always to their compliance with the restrictions contained in those sub-sections themselves and in any regulation applicable to such fishing. Section 27 the Nature Conservation Regulation is one such regulation, in so far as it operates to impose the restrictions therein contained on all fishermen, including but not limited to recreational fishermen, who fish in national parks. 30 That s 27 the Nature Conservation Regulation cannot be given the restricted operation suggested by counsel for the State of Queensland is, in my opinion, apparent from its terms and its context. It is framed in words of general application, ie, as a general authorisation to take fish from national parks subject only to the conditions set out in s 27(2), (3) and (4). It appears in Pt 1 of Ch 2 the Nature Conservation Regulation. As such, it is a provision enacted to give effect to the purpose of that Chapter of the Regulation, viz, the purpose of managing the way people may use a national park under the management principles for the area: see s 23. The note to s 23 the Nature Conservation Regulation states that the "management principles are given in sections 16 to 26" of the NCA. Nothing in ss 16 to 26 can, however, be read as creating an unqualified prohibition against the taking of resources, including fish, from national parks: s 62(1)(a), (b), (c) and (d) of the Act, as well as s 175(2)(h), are inconsistent with reading anything in ss 16 to 26 in that way. These management principles in ss 16 to 26 were never intended to be inviolable: the Minister, in her second reading speech on the Nature Conservation Amendment Bill 1994, said:

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39 (The sunset clause, sub-section (5), was repealed in 1997.) Pressure from recreational fishing interests was sufficient to cause the government to make provision, by the amendments to s 57(4) and (5) made in 1994, for such fishing in national parks. The NCA as originally enacted in 1992, by s 57, imposed a blanket prohibition on recreational fishing in national parks: there was, as I understand it, no legislation requiring recreational fishermen to be licensed and thus no legislation providing for the issue of permits or licences to recreational fishermen which, by force of s 57(1)(d) as originally enacted, would have exempted them from the prohibition against fishing in national parks. 40 The Explanatory Memorandum accompanying the Nature Conservation Amendment Bill 1994 does not explain why the original s 57(1)(d) was repealed and the current provisions now found in s 62(1)(c)(iii) and (d) inserted in its place. Nor did the Minister in her second reading speech on the Nature Conservation Amendment Bill on 28 April 1994 explain that. It is noteworthy that, though the Minister in introducing the Bill that became the 1992 Act, expressly stated that it would not "override the existing commercial fisheries management policies and plans under the fisheries legislation of" the State and though, in her speech on the Amendment Bill in 1994 the new Minister expressly referred to the amending provisions enabling "the department [of Environment and Heritage] to authorise and regulate recreational fishing on certain specified national parks", she made no mention at all of commercial fishing in national parks and, in particular, no mention of any intention to prohibit such commercial fishing even if carried out under the authority of licences issued under the Fisheries Act. Against the background of s 57(1)(d) as originally enacted in 1992, its being in force from February 1993 to September 1994, and against the background of the undisputed evidence as to the long standing and widespread practice of commercial fishermen being permitted by their licences issued under the Fisheries Act to fish in the waters of certain national parks, the absence of any explicit statement by the Minister in her 1994 second reading speech to the legislative intent of the 1994 amendments being to ban commercial fishing in national parks, there is good reason to read the legislative scheme for managing national parks that has been in effect since 1994 and which includes s 27 the Nature Conservation Regulation as permitting commercial fishing in national parks subject to the conditions contained in s 27 and subject to commercial fishermen holding such other authorisations as may be required by the legislative regime governing fisheries to permit them to engage in that particular activity. The Parliamentary materials contain no basis, in my opinion, for reading what is now s 62 the NCA as prohibiting commercial fishing in national parks even though that is done under the authority of a licence issued under the Fisheries Act. 41 That s 27 the Nature Conservation Regulation itself operates to permit fishing, including commercial fishing in some national parks, does not mean that a person who acts within its constraints is free to take fish from a national park. If restrictions are imposed on a person fishing in a park by other legislative provisions, including provisions of the Fisheries Act additional to those incorporated in s 27(2) the Nature Conservation Regulation via Sch 2 Pt 2 to that Regulation, then those restrictions must also be complied with for the taking of fish to be lawful. Though Griggs and Porter can rely on s 27 to authorise their fishing activities in Station Creek, restrictions are imposed by the Fisheries Act and the Fisheries Regulation on their activities there, as well as on their fishing activities in other waters covered by their licences. If they are to take fish lawfully from Station Creek, they must therefore comply not only with the conditions to which the authorisation created by s 27(2) the Nature Conservation Regulation is subject, but also with the requirements of the fisheries legislation applicable to their fisheries licences. 42 I reject the submission by the State of Queensland that, if s 27 is interpreted as authorising commercial fishing in a national park, it would be inconsistent with the specific statutory prohibition contained in s 62(5) against taking fish from national parks for commercial purposes. Section 62(5) is not a general prohibition against commercial fishing in national parks. It is expressly limited to qualifying the permission contained in s 62(4) to take fish from national parks. Section 62(5) has no operation on any other provision in s 62 and, in particular, it does not purport to qualify the various authorisations to take fish from national parks that may be found in any of the instruments, agreements or authorities referred to in s 62(1)(a) to (e). The legislative history to which I have referred suggests that s 62(4) and (5) should be read as confined to preserving the right of recreational fishermen to fish in certain national parks first conferred by the 1994 amendments to the old s 57. 43 Since it is common ground that Griggs and Porter hold fishing licences validly issued under the Fisheries Act and Fisheries Regulation that authorised them to take the species of fish they do take from the waters of Station Creek, s 27 the Nature Conservation Regulation, so long as they comply with it, operates by force of s 62(1)(d) to exempt them from the prohibition contained in s 62(1). They thus have a conditional lawful right to fish commercially in Station Creek.

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45 Olney J's view has prevailed. French J, sitting as President of the National Native Title Tribunal, followed it in Re Gunai People (1997) 2 AILR 265 in preference to his earlier opinion that s 253 controlled the meaning of "interests" in the provision of the NTA then in force and to the same effect as s 84(3). It was a little later approved as a correct statement of the law by the Full Court in Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1. That case considered the meaning of "interests" in relation to joining parties to an application before the Native Title Tribunal under s 68(2)(a) the NTA as then in force; however, the comments about that provision have equal application to the meaning of "interests" in s 84(3) and (5): see Black CJ at 4. 46 The Byron Environment Centre case shows that, though it is not necessary that a person have a legal or equitable interest in the land the subject of the native title claim, if the person is to have a sufficient interest to entitle him or her to be joined as a party to the claim under s 84, a mere emotional, conscientious, ideological or intellectual interest in the subject matter of the native title claim will not suffice; the kind of interest which will entitle a person to be made a party to a native title claim are interests that are not indirect, remote or lacking substance, capable of clear definition and of such a character that may be affected in a demonstrable way by a determination in relation to the application (per Black CJ). The interests must be not remote, indirect or fanciful, they must be above that of an ordinary member of the public and not there of a mere intermeddler or busybody (per Lockhart J). Interests that will suffice are those that may be genuinely, demonstrably and not indirectly affected by a determination of native title, that are not remote or so insubstantial that the effect of the determination will be merely speculative and they must be able to be defined with reasonable certainty and be readily ascertainable (per Merkel J). 47 Why the Full Court took the view that the "interests" which could be affected by a determination in relation to an application for native title and thus entitle the person to become a party to the native title application are not confined to those legal or equitable interests in land or waters referred to in s 253 the NTA appears from the statement of Black CJ at 7 - 8:

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50 There is no reason to limit interests sufficient for the purposes of s 84(3) and (5) to non-commercial interests only in cases where the persons seeking to become parties are not relying on any legal or equitable rights. As Olney J observed in Yorta Yorta, whether a "person's interests may be affected by" a determination of native title so as to permit the person to be joined as a party in the native title claim is a question of fact governed by the circumstances of the particular case. His Honour accepted that habitual use of land or waters without any legal right to do so, but by "the mere acquiescence" of the title holder may, according to the circumstances, be sufficient to give rise to an interest within s 84(3) and (5). His Honour here is speaking about acquiescence in a non-technical, practical sense, not acquiescence in the technical legal sense, which creates legally enforceable rights by way of estoppel. Dowsett J, in the Combined Mandingalbay Yidinji-Gunggandji Claim, consistently with this approach, accepted that habitual use without any legal right in circumstances where the title holder has tolerated that use, may also, according to the circumstances, be sufficient to give rise to an interest within s 84 the NTA. 51 That each of Griggs and Porter has held a series of licences issued under the Fisheries Act purporting on their face to authorise each of them to engage in that activity in Station Creek is an important part of the relevant factual circumstances that show, in my opinion, that each does have an interest sufficient for the purposes of s 84(3) and (5). The undisputed evidence of Griggs, Porter and Souter also establishes that, for many years, fishermen, including commercial fishermen like Griggs and Porter, have fished waters within national parks. I do not think it possible to infer, in the face of this evidence, that the national parks authorities charged with enforcing s 62 the NCA have remained, since 1994, in a state of ignorance about what Griggs, Porter and Souter say are quite widespread and regular activities by commercial fishermen. Though at least since the coming into force of s 62 the NCA, there has been in place what the State contends is a prohibition against that activity, a prohibition reinforced by criminal sanctions, there is no suggestion in the material before me that there has been a single prosecution of a fisherman claiming the right to fish national park waters by force of a fisheries licence, which on its face gives him that right. The entire absence, so far as the evidence before me reveals, of any action by the EPA to enforce s 62 the NCA over the past eight years against licence holders commercially fishing in national parks against the background of Souter's evidence and the views expressed by the Minister responsible for the administration of the NCA in the Queensland Parliament as to just what fishing should be permitted within national parks suggests that a deliberate policy of non-enforcement of s 62 against commercial fishermen has to date been adopted, at least by the EPA. That this is the proper inference is supported by the failure on the part of the State of Queensland to contradict the explicit evidence of Souter that commercial fishing by persons holding licences under the Fisheries Act in national parks is widespread and of long standing. It is reinforced by the fact that failure has occurred in the context of a proceeding which has been treated by QSIA, which is backing Griggs and Porter, and by the State of Queensland as a test case for determining whether fishermen can fish commercially in national parks provided they hold fisheries licences authorising that activity. The EPA, the authority with responsibility for enforcing s 62 the NCA, has, on the evidence before me, for a long while tolerated commercial fishing in national parks, if, contrary to my view, s 62 is in fact a prohibition against the activities of Griggs and Porter and of many other commercial fishermen that are here in question. 52 These circumstances are sufficient, in my opinion, to show that even if they do not have a lawful right to fish commercially in the waters in question, Griggs and Porter still have interests by reason of their fishing activities in those waters sufficient to entitle them to be joined as parties to the Birri Gubba native title claim under s 84(5) the NTA. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

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