Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group

Federal Court of Australia (Full Court)|2012-03-14|Before: Keane CJ, Dowsett JJ

INTRODUCTION 147 I have had the benefit of the reasons for the joint judgment of Keane CJ and Dowsett J. I gratefully adopt from those the reasons, the description of the background, the geography, the issues at the trial and how the primary judge resolved them, and their Honours' description of the issues on the appeal and on the cross appeal. 148 I also respectfully agree with their Honours that the cross appeal should be dismissed and with the orders they propose in relation to the cross appeal. 149 However, I have reached a different conclusion on the outcome of the appeal. In my view, the appeal should be dismissed, and the Determination made on 23 August 2010 should stand. I would, therefore, also order that the respondent should pay to the Commonwealth the costs of the appeal and of the cross appeal. As I am in the minority on the outcome of the appeal, the orders which Keane CJ and Dowsett J propose, including the order for costs, should be made. 150 These are my reasons for my conclusion on the appeal. 151 I adopt the description "the Seas Claim Group" to describe the applicant at first instance and the respondent to the appeal.

THE ISSUE ON THE APPEAL 152 The primary judge made a number of findings in his decision relating to the claim of the Seas Claim Group to hold native title over the claim area: Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) (2010) 270 ALR 564; [2010] FCA 643 (First Instance Decision). Those findings led to the Determination on 22 August 2010. The Determination, including the terms relevant to the appeal, are set out in the reasons of Keane CJ and Dowsett J at [7]-[11]. I shall not repeat them. 153 The appeal by the Commonwealth of Australia, supported by the State of Queensland and the persons described as The Commercial Fishing Parties, was in essence confined to the Determination that the native title rights and interests which are recognised as held by the Seas Claim Group in relation to the determination area include: … the right to access resources and to take for any purpose resources in the native title areas. (para 5 of the Determination) 154 That right was found to be a non-exclusive right, subject to and exercisable in accordance with the traditional laws and customs of the Seas Claim Group, and the laws of the State of Queensland and the Commonwealth of Australia, including the common law (paras 7 and 8 of the Determination). 155 The other interests in relation to the native title areas at the date of the Determination included any subsisting public right to fish, and the rights and interests of holders of licences, permits, authorities, resource allocations or endorsements issued under the Fisheries Act 1994 (Qld) (the Fisheries Act 1994), the Fisheries Regulations 2008 (Qld), the Torres Strait Fisheries Act 1984 (Cth) (the Torres Strait Fisheries Act) and the Fisheries Management Act 1991 (Cth) (the Fisheries Management Act) or any other legislative scheme for the control, management and exploitation of the living resources within the determination area (para 10 and Sch 6(2) and (4) of the Determination). 156 Ground 1 is in the following terms: The Court erred in holding that the legislative regimes of the State of Queensland since 1877, and of the Commonwealth since 1952, concerning fisheries and other marine resources: 2.1 did not, through the licensing schemes relating to taking fish and other marine resources for sale, create statutory rights to take fish and other marine resources for commercial purposes; and 2.2 did not, and do not, severally or together extinguish any native title right to take fish or other marine resources for commercial purposes. 157 Ground 2 complains of a failure to make positive holdings on those matters.

THE REASONS OF THE PRIMARY JUDGE 158 The application for the determination (as finally amended by leave given on 20 July 2009) identified the claimed native title rights and interests to include the rights to use and enjoy, and access, and take the resources (including fish and other marine resources) and to a livelihood based on accessing and taking the resources on the claim area (Sch E, cl 26). In describing the traditional laws and customs of the Seas Claim Group, it is made clear that they included cash sales of marine resources and the use and exploitation of the marine resources: 8. for personal, domestic and communal use and consumption; 9. in reciprocal exchange between, trade with, and cash sales to, other Torres Strait Islanders; 10. in trade with and cash sales to others; and 11. for their way of life and livelihood. 159 It is a proper starting point to record the findings of the primary judge that - but for their extinguishment - the Seas Claim Group held and would have continued to hold native title rights which fall within the description of the claimed rights. Those findings are not challenged on the appeal. They are reflected in para 5 of the Determination as set out in [7] above. By way of a shorthand description, the submissions frequently referred to those rights as "commercial fishing rights". 160 Under the heading "The Rights Issue" in the First Instance Decision, there is a section dealing with the claimed rights and interests, including "The rights to access resources, to take resources and to a livelihood based upon accessing and taking resources" in the reasons of the primary judge at [523]-[530] and a conclusion at [540]. 161 The State of Queensland, as his Honour recorded at [514], accepted: Subject to the traditional laws and customs that govern the exercise of the rights and interests by the native title holders: (i) the right to access the area in accordance with and for the purposes allowed by and under their traditional laws and customs; and (ii) the right to fish, hunt and gather living and plant resources for personal, domestic or non-commercial communal consumption in accordance with and for the purposes allowed by and under their traditional laws and customs; and in each instance do not confer rights of access, use, possession, occupation or enjoyment of the adjacent area on the native title holders to the exclusion of others. The Commonwealth also acknowledged the existence of non-exclusive rights, inter alia, to access and take the resources of the island waters for personal, domestic or non-commercial needs. It expressly indicated that those rights did not include the rights to trade in fish or other marine resources. 162 Consequently, at the trial, both the State and the Commonwealth objected to the claimed rights only to the extent that they extended to taking resources of the sea for commercial purposes. 163 The primary judge discussed the evidence about what traditionally were the allowable uses of marine resources taken by the Seas Claim Group. His Honour noted at [526] that the fact that such resources could be used in trade had a long and well chronicled history. His Honour concluded at[528]-[529] the following: While there may be some disagreement about the use of the word "commercial" in this setting, the evidence establishes beyond question that the Islanders sold marine resources for money - the sea provided their "income" - and after the advent of the marine industries, for some number of the Islanders, this was done regularly and systematically. And it was positively encouraged by the Queensland Government in the Company boat and Family boat system. I refrain from further comment on the obvious irony of the State's stance on this matter. The Islanders were, and are, trading fish. The point to be emphasised is that the fundamental resource-related right of use (cf Ward HC at [91]) was the right to take. Use of what was taken was unconstrained save by considerations of respect, conservation and the avoidance of waste. 164 Consequently, at [540], the primary judge concluded that the group members of the respective individual island communities have traditional but non-exclusive rights in their own and shared marine territories to access resources and to take for any purpose resources in those areas. In doing so, they are "expected to respect their marine territories and what is in them". Those rights, as his Honour found at [543], were group rights of the group members of the island community, or communities in the case of shared areas, which have emplacement based rights in that area. 165 As to extinguishment, there was only one issue to address (putting aside "public works" extinguishment which, for the purposes of the appeal, is not relevant). The only issue related to the non-exclusive native title right to take marine resources for commercial purposes. The issue was whether that right had been extinguished by comprehensive fisheries and other legislation, or whether that user right had only been regulated. 166 The conclusion of the primary judge is reflected in his observation at [765] in the following terms: The manner in which the State and the Commonwealth have formulated their extinguishment submissions requires a protracted and detailed examination of State and Commonwealth legislation. My conclusion is that the legislative regimes of the State since 1877, and of the Commonwealth since 1952, concerning fisheries, while of evolving complexity, were regulatory and not prohibitory in character. They were not directed at the underlying rights of the native title holders who were to comply with the regulatory measures imposed if they were to enjoy their native title rights. The various Acts severally or together did not, and do not, evince a clear and plain intention to extinguish in the Part A claim area native title rights to take fish for commercial purposes. They did not abrogate those rights and create new statutory rights to fish. A similar conclusion was expressed in [861] of the First Instance Decision. 167 Between [765] and [861], the primary judge explained why he had reached that conclusion. 168 My reasons for dismissing the appeal, in large measure reflect the reasons of the primary judge. I will not therefore set out separately and in detail his Honours reasons in the First Instance Decision on the issue. They are referred to extensively below.

CONSIDERATION 169 As the grounds of appeal indicate, this is a matter where the partial extinguishment of the native title right to access fish and marine resources and to take them for any purposes (including commercial purposes) is said to have been the direct product of legislation. It is not said to arise from any executive action under legislation. 170 There was no dispute about the applicable principles. They are set out in the First Instance Decision at [768]-[771]. 171 The starting point is whether the legislation has effected extinguishment of those native title rights and interests, as a question of statutory interpretation. That is to be answered by the question whether the legislature intended such a result. Because rights recognised by the common law are said to be extinguished, the legislative intention must be clear: Western Australia v Commonwealth (1995) 183 CLR 374 at 423; Mabo v Queensland (No 2) (1992) 175 CLR 1 at 64, 111, 136, 138 and 195-196 (Mabo (No 2)) and Mabo v Queensland (No 1) (1998) 166 CLR 186 at 213 and 223. That intention can be demonstrated either expressly or by necessary implication: see Wik Peoples Queensland (1996) 187 CLR 1 (Wik Peoples) per Toohey J at 126; per Gummow J at 168-169; per Kirby J at 247-249; and per Gaudron J at 155 and 166.. 172 The clear intention required is to be discerned objectively from the legislation itself, and not by the subjective thought processes of individuals. In Western Australia v Ward (2002) 213 CLR 1 (Ward HC), Gleeson CJ, Gaudron, Gummow and Hayne JJ at [78] said: The cases often refer to the need for those who contend that native title has been extinguished to demonstrate a "clear and plain intention" to do so. That expression, however, must not be misunderstood. The subjective thought processes of those whose act is alleged to have extinguished native title are irrelevant. Nor is it relevant to consider whether, at the time of the act alleged to extinguish native title, the existence of … native title rights and interests were present to the minds of those whose act is alleged to have extinguished native title. It follows that referring to an "expression of intention" is apt to mislead in these respects. (Emphasis in original; footnotes omitted.) 173 The objective intention is to be discerned on normal principles of statutory interpretation, including context, so that, as the primary judge observed at [770]: The absence in contextual material of any indication of a purpose to override native title rights could, I would respectfully suggest, be of some significance in the interpretation of a statute enacted after the decision in Mabo (No 2). The primary judge also referred to the comments of Gummow J at 184-187 in Wik Peoples to the same effect. 174 The required intention to extinguish is not disclosed in a law which "merely regulates the enjoyment of native title rights and interests" or which establishes a "regime of control" which is consistent with their continued enjoyment: see per Brennan J in Mabo (No 2) at 64. 175 Yanner v Eaton (1999) 201 CLR 351 (Yanner) provides an illustration of legislation which was found to be regulatory. 176 In Yanner, an Indigenous person had been charged with taking fauna contrary to the Fauna Conservation Act 1974 (Qld) (the Fauna Conservation Act). He had harpooned two juvenile estuarine crocodiles, and he and others had eaten some of the meat and frozen the rest for later consumption. He had no licence to do so under that Act. Section 54(1)(a) of the Fauna Conservation Act prohibited a person from taking or keeping fauna (including crocodiles) without a licence. Section 7(1) of that Act provided that: All fauna, save fauna taken or kept otherwise than in contravention of this Act during an open season with respect to that fauna, is the property of the Crown and under the control of the Fauna Authority. 177 The prosecution contended that s 7(1) of the Fauna Conservation Act had extinguished any native title right to hunt crocodiles in Queensland, so s 211 of the Native Title Act 1993 (Cth) (the NT Act) could not operate to protect the Indigenous person from committing the offence because he could not, at the time of the conduct, have been exercising native title rights. It was accepted in the High Court that, unless s 7(1) of the Fauna Conservation Act had extinguished that native title right, s 211 of the NT Act would have protected him. 178 The High Court (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ; McHugh and Callinan JJ dissenting) concluded that the native title rights and interests to hunt and take crocodiles for personal, domestic or non-commercial use had not been extinguished, and that s 211 of the NT Act together with s 109 of the Constitution meant that the Fauna Conservation Act did not prohibit the defendant from doing so. (Section 211 of the NT Act is not relevant to the resolution of the present appeal as, in its terms, it does not apply to taking fish or marine life for commercial purposes). 179 The plurality (Gleeson CJ, Gaudron, Hayne and Kirby JJ) observed at [20] that "property" is a comprehensive term capable of describing many different kinds of relationship between a thing and a person. At [22]-[27] their Honours identified the textual and contextual reasons why they concluded at [30] that the "property" referred to in s 7(1) was an aggregate of rights less than the rights of full beneficial or absolute ownership. The Fauna Conservation Act established a "regime forbidding the taking or keeping of fauna except pursuant to licence granted by or under" that Act. The respondent, the prosecutor, conceded that such legislation would not be sufficient to extinguish the relevant native title rights. The concession, of course, provides a critical point of difference from the present appeal. In addition, however, their Honours at [31] said that concession was "rightly made", and they explained why at [32]-[40]. 180 At [37] their Honours said: It is sufficient to say that regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists. No doubt, of course, regulation may shade into prohibition and the line between the two may be difficult to discern. Similarly, it may not always be easy to say whether the creation of statutory rights or interests before the enactment of the Racial Discrimination Act 1975 (Cth) and the Native Title Act was consistent with the continued existence of native title rights and interests. (Emphasis in original.) And their Honours continued: But in deciding whether an alleged inconsistency is made out, it will be necessary to keep well in mind that native title rights and interests not only find their origin in Aboriginal law and custom, they reflect connection with the land. 181 The plurality also said at [38]: And an important aspect of the socially constituted fact of native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land. Regulating 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). That is, 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 of that Aboriginal law and custom recognises them as possessing. 182 Reference was also made to s 211 of the NT Act, because it assumes that such a law does not sever the connection. As noted, s 211 is of no direct relevance on this appeal as its operation is confined to non-commercial uses of resources. 183 Gummow J at [76] pointed out that common law and statutory estates, and native title, are derived from two distinct sources. His Honour at [109] said: The question to be asked in each case is whether the statutory right necessarily curtails the exercise of the native title right such that the conclusion of abrogation is compelled, or whether to some extent the title survives, or whether there is no inconsistency at all. Indeed, statute may regulate the exercise of the native title right without in any degree abrogating it. 184 In that case, on the proper construction of the Fauna Conservation Act, his Honour concluded at [123] that it was only at the point of taking the crocodiles that the native title right was affected, and at that point s 211(2) of the NT Act operated so that s 54(1) of the Fauna Conservation Act was to be read down. 185 That reference also confirms that, subject to the operation of s 211 of the NT Act, the survival of native title rights does not relieve the holders of rights of their obligation of citizenship to comply with the law of the land so that if hunting or fishing, for example, is conditioned upon the holding of a licence, a licence must be held. See the First Instance Decision at [774]. The Seas Claim Group acknowledge that. 186 It is therefore necessary to apply the "inconsistency of incidents test", as described in Ward HC at [78]-[85] by an objective inquiry after identification of, and comparison between, the two sets of rights. Gummow J in Wik Peoples at 185 pointed out that the comparison is between the legal nature and incidents of the native title right and the statutory right to determine whether the respective incidents are such that the existing right cannot be exercised without abrogating the statutory right. In that event, the necessary implication would be that the statute extinguishes the existing right. The primary judge at [776] recognised that there are no degrees of inconsistency. 187 The application of those principles by the primary judge was done in three stages. The first was to look at the legislation of Queensland up until 1994. The second was to look at the Commonwealth legislation from 1952 to 1991 but excluding the Torres Strait Fisheries Act. The third was to consider both the Commonwealth's Torres Strait Fisheries Act and the Fisheries Act 1952 (Cth) (the Commonwealth Fisheries Act). His Honour under each of those headings then looked at the legislative history. 188 The Commonwealth contended that, from the Queensland Fisheries Act 1887 (Qld) (the Fisheries Act 1887), the legislative regimes have consistently established new statutory regimes which created rights to fish for commercial purposes, and thus prohibited the exercise of the native title right to take fish for commercial purposes without a licence to do so, with the consequence that the native title right was thereby extinguished. 189 It is necessary to address the successive legislative regimes from time to time to determine if that is the necessary effect of those regimes or any of them. It is also necessary to approach that task chronologically, because the Commonwealth contended that the primary judge had fallen into error by treating the Torres Strait Fisheries Act as representative of, or as illustrative of, the effect of the earlier Queensland legislation. 190 The starting point is the Fisheries Act 1887. In the First Instance Decision, the primary judge from [780]-[804] considered in chronological sequence the numerous Queensland enactments, and separately and again in sequence from [807]-[827] the relevant Commonwealth legislation preceding the Torres Strait Fisheries Act. That enactment was referred to in detail at [828]-[842]. 191 I shall not repeat that analysis. Nothing was put by way of argument which indicated any significant misdescription of, or misunderstanding about, how that legislation operated. The written submissions of the Commonwealth under the heading "Structure of the legislation" and in Attachment A to the submission headed "Comprehensive legislative regime" present a summary not significantly different from that of the primary judge, and in part quote or refer to aspects of his Honour's analysis as representing a reliable picture. Where the submissions refer to particular parts of the successive legislative regimes, they are considered below. 192 At [843]-[861], the primary judge under the heading "Consideration" then gave consideration to those principles and that legislative history. He observed that the submissions had focused almost entirely on fishing, so that it was not necessary to discuss separately "marine resources". 193 The primary judge indicated also that he focused primarily upon the Commonwealth Fisheries Act and the Torres Strait Fisheries Act because, save for a narrow area of internal water which is subject to Queensland law and possibly the coastal waters around the islands to the north of the sea bed jurisdiction line, the presently applicable law in relation to fisheries in the claim area being considered is the Torres Strait Fisheries Act and the Commonwealth Fisheries Act. 194 Next the primary judge noted what was not in issue. It is apparent from the recital above. Firstly, it was not said by the parties that the native title right to take marine resources had itself been extinguished. Indeed, the concessions of the State and the Commonwealth acknowledged that that had not been the case, subject to the issue about "commercial" fishing. Secondly, it had not been contended that, at any time since the Fisheries Act 1887, the native title holders had been legislatively precluded from applying for licences to fish for commercial purposes. Next, the primary judge noted at [845] that although particular statutes: … probably have prohibited native title holders absolutely from taking particular marine resources, I do not understand that I am being asked to do otherwise than note that there are such proscriptions in fisheries legislation; that they apply to native title holders; and that they are unaffected by s 211 of the NT Act. Nor was it contended that the native title rights had been extinguished in any particular parts of the sea claim area by leases and licences given under statutes which attached exclusive rights to such grants. Fifthly, his Honour noted neither Queensland nor the Commonwealth had argued that the right to fish a particular marine species, or number of species, for commercial purposes had been legislatively extinguished and replaced by, in effect, a statutory fishing right by virtue of the manner in which specific, legislatively mandated management plans had been structured. Sixthly, the primary judge noted that no submissions had been made, and no evidence led, to support a case that the Seas Claim Group fishing for commercial purposes may be permissible under the Torres Strait Fisheries Act because such fishing was "traditional fishing", ie was "for use in the course of … traditional activities". 195 Seventhly, as noted earlier, it was not in dispute that Seas Claim Group members wishing to engage in fishing for commercial purposes in those parts of the Protected Zone and the declared near adjacent areas into which the area fell had to secure such licences as are or were required under the applicable legislation from time to time, and that if they fish without such licences they may be liable to prosecution. 196 Consequently, the primary judge at [845] referred to the remaining issue as "a narrow and seemingly barren question". He defined the question in the following way: Notwithstanding that the Islanders can, by seeking the necessary licences, avail of the present fisheries regime operative in the Part A claim area to fish for commercial purposes, have they nonetheless lost a native title right to fish for commercial purposes because of the extent of the rights of regulation and control the Crown in its State and Commonwealth manifestations has progressively arrogated to itself over a more than 130 year period? 197 The primary judge at [847] accepted that, although the native title right to fish or to access and take marine resources was not circumscribed by the use to be made of the resources taken, for the purposes of considering that question a right to take resources for trading or commercial purposes is a discrete and severable characteristic of a general right to take resources, and that it was permissible to "subdivide" that right. The Seas Claim Group did not contest that step. The primary judge then referred to two discernable and evolving features of the fisheries legislation over time. The first concerned the expansion of particular public interests of which account is to be taken in the design and implementation of legislative schemes to regulate and control fisheries. The second related to the changing character of the discretions given in the grant (or refusal) of leases and licences under such legislation. Hence, as his Honour observed, while certain types of fisheries (examples: pearl shell, beche-de-mer and oyster fisheries) were highly regulated from an early date, the more general legislation imposed increasingly comprehensive and sophisticated management regimes which had and have as a principal focus the control and management of commercial fishing of those types of fish. The discretions given to grant or refuse licences for those purposes were permissive and absolute. 198 At [851], the primary judge indicated that he was approaching the matter in the following way: There are, in my view, clear "constructional choices" open here: Evans v New South Wales (2008) 168 FCR 576 at [68]. In these circumstances, and given (i) that the 1984 Act did not of its own force seek directly to deny Islander fishing rights for commercial purposes, hence its creation of the community fishing category (although the Act did envisage such fishing might later be subject to licensing requirements: s 17 and the Second Reading Speech below); and (ii) the s 8(a) objective of the Act to acknowledge and protect, as a management priority, the traditional way of life and livelihood of traditional inhabitants, including their rights in relation to traditional fishing - I consider the choice that is more favourable to the retention of the right to fish for commercial purpose is to be preferred, there not being a clear and plain intention to extinguish it. I would add that, in the distinctive setting of this Act, and assuming native title rights subsisted in Torres Strait at the time of its enactment (see below), it would require particularly strong indications in the Act itself that existing rights were intended to be extinguished, given the markedly beneficial and protective intent of the PNG Treaty and of this Act. 199 The Second Reading Speech on the Bill for the Act (Commonwealth, Parliamentary Debates, House of Representatives, 19 October 1983, 1902-1903) indicated that the Torres Strait Fisheries Act was responsive to the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two countries, including the area known as Torres Strait, and related matters, signed on 18 December 1978 (ATS 1985 no 4, entered into force 15 February 1985) (the PNG Treaty), at least in relation to the fisheries aspects of the PNG Treaty. The Second Reading Speech indicated that, as a domestic Australian measure, the Torres Strait Fisheries Act made special provision for commercial fishing enterprises among the Seas Claim Group (and other Australian traditional inhabitants) by the concept of community fishing, albeit that s 17 contemplated by declaration that the boats of the members of the Seas Claim Group engaged in community fishing should be licensed. His Honour said at [853], paraphrasing Gummow J in Yanner at [115], that "… did not abrogate the native title right [to fish for commercial purposes]" but was a measure taken for fishery management. It was consistent with the continued exercise of that right. He also observed at [854] that the commercial fishing incident of the native title right could only be enjoyed if and when a licence is granted under s 19(2) and that fishing without a licence would be unlawful: s 45(1)(b). His Honour then added: However, when the licensing discretion is considered in the context of the s 8 "management priorities" to be followed "[i]n the administration of [the] Act", it can only be characterised as a regulatory control measure "consistent with the continued enjoyment of native title": Mabo [No 2], at 64. It does not create a new statutory fishing right. 200 Consequently, the primary judge reached the view that the Torres Strait Fisheries Act did not extinguish the commercial purposes incident of the native title right to access and to take fish and other marine resources. 201 Under the heading Conclusion at [861], the primary judge said: My conclusion responds to the extinguishment contentions as put by the State and the Commonwealth. It is that 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. 202 The errors in the reasons of the primary judge are said to be that in application of accepted principles: (1) his Honour should not have focused primarily on the Commonwealth Fisheries Act and the Torres Strait Fisheries Act, but should have commenced with the historic legislation as it applied to the claim area, and that properly understood both the Fisheries Act 1887 and then the Fisheries Act 1976 (Qld) (the Fisheries Act 1976) each extinguished the native title right to fish for commercial purposes; and (2) each of those earlier enactments, through their licensing regimes, created new statutory rights to fish for commercial purposes, in substitution for any existing native title or common law rights to fish, so that the native title rights to fish for commercial purposes was necessarily extinguished. Those propositions are complementary. 203 It is clear that the primary judge did not overlook or fail to consider the significance of the legislation earlier than the Torres Strait Fisheries Act. It is carefully rehearsed in the First Instance Decision. Moreover, it is clear that the primary judge assumed for the purposes of considering the significance of the Torres Strait Fisheries Act that, up to that time, the native title right to take fish and other marine resources, including for commercial purposes, had not by then been extinguished. However, his Honour recognised at [856] that he had made that assumption to that point, and then addressed whether that assumption was correct. There was no failure to consider the significance of the legislation prior to the Torres Strait Fisheries Act, including the Fisheries Act 1887 and the Fisheries Act 1976 or the Fisheries Act 1994. He concluded that all those earlier regimes were regulatory and not prohibitory. 204 I respectfully agree with that conclusion. As with all the legislation addressed in the contentions, the Fisheries Act 1887 was clearly directed to conservation of the fisheries, and fair practices in fishing. It put restrictions on the use of poisons and explosives to catch fish (s 16). It prescribed the minimum size of nets and fish that might be taken (ss 4 and 7). More importantly, it made it an offence to take fish for sale from a boat without a licence and to take fish for sale without a licence (ss 12 and 13). The Governor in Council was empowered to prohibit or restrict the taking of particular kinds of fish or to close fishing areas for different seasons, or to prohibit the use of certain devices for fishing (s 18). 205 The next evolution of the Queensland fishing regulatory regime was the Fish and Oyster Act 1914 (Qld). I put aside the "comprehensive regime of the regulation of oystering" (as it is described in the Commonwealth's Attachment A to its submissions). The powers of the Governor in Council were extended to issue exclusive licenses to take fish or particular fish or marine products in any specified part of Queensland waters. 206 That enactment was amended by the Fish and Oyster Acts Amendment Act 1955 (Qld) so that it did not apply to the taking of fish by any Islander (as defined in the Torres Strait Islanders Act 1939 (Qld)) who usually lives on a reserve and for consumption by Islanders. The amendment in 1955 therefore recognised a difference between taking fish for personal consumption and for sale, and by implication intended that it should otherwise apply to the Seas Claim Group. I do not consider that is of any particular significance to resolution of the appeal. It is not in dispute that the successive legislative regimes applied to the Seas Claim Group so that its members, from at least 1887 (that is, from the Fisheries Act 1887) were required to comply with the licensing regime in force from time to time. It does not routinely follow that any then existing native title rights to take fish for commercial purposes were extinguished. Consequently, the 1955 amendment, and other specific provisions to similar effect such as the "community fishing licence" introduced by the Fisheries Amendment Act 1981 (Qld), are not inconsistent with the continued existence of the general native title rights to fish, including for commercial purposes. The primary judge reached the same conclusion at [858]. 207 The Fisheries Act 1957 (Qld) consolidated the law relating to whaling, oystering and other fisheries. At the general level, it continued the general prohibition on taking fish for sale without a licence, and it also regulated minimum fish sizes, prohibited certain fishing methods, required that fishing vessels and persons taking fish for sale be licensed, and empowered the Governor in Council to issue exclusive licences to take certain marine life (ss 70, 71, 79 and 80). 208 The Act was in turn repealed and replaced by the Fisheries Act 1976. It is described by the Commonwealth as "establishing a comprehensive scheme for the regulation of fishing off the coast of Queensland." That included the power to set apart and declare parks, reserves and sanctuaries, in addition to existing powers. Its intention was, again to quote the Commonwealth's submission, "to develop the fishing industry and to balance that against the need to preserve sea resources from over exploitation". In 1981, Part IVA was inserted into that Act by the Fisheries Amendment Act 1981 (Qld) to enable arrangements with the Commonwealth to be made with respect to the management of fisheries, as contemplated by s 12H of the Commonwealth Fisheries Act. 209 The final relevant step in the Queensland legislative sequence is the Fisheries Act 1994, discussed by the primary judge at [798]-[800]. It applied inter alia, to the coastal waters of Queensland, but not to activities covered by a Commonwealth law cooperative fishery or to exclusive Commonwealth matters for a State law cooperative fishery (s 11). Section 14 protects Aboriginal and Torres Straits Islanders rights to take fisheries resources and to use fish habitats in accordance with tradition, subject to express application of regulations or management plans. The Commonwealth correctly points out that s 14, whatever its effect, could not operate to revive or reinstate any native title rights to take fish for commercial purposes if those rights had already been extinguished by earlier legislative regimes. 210 Orders-in-Council under the various Queensland legislative regimes, as the primary judge observed at [802] and [857], have no particular significance to the resolution of this appeal. 211 The Commonwealth Fisheries Act was the first general fisheries legislation introduced by the Commonwealth. It was introduced together with the more focused Pearl Commonwealth Fisheries Act, which was repealed and replaced by the Continental Shelf (Living Natural Resources) Act 1968 (Cth). 212 The Commonwealth Fisheries Act prohibited the taking of fish, and the use of a vessel to take fish, without a licence (ss 9 and 13). Its reach was in Australian waters as defined and as extended by proclamation (ss 4 and 7). It is accepted that its reach extended to the claim area of the Seas Claim Group. In 1973, s 13(4) was amended so that it became a defence to a prosecution if the fish was not taken for trading or manufacturing purposes. Until that time, the prohibition extended to all fishing, and not merely commercial fishing, and in its terms that general prohibition continued after 1973. The Fisheries Legislation Amendment Act 1985 (Cth) amended that Act to provide for the determination of management plans for fisheries in proclaimed waters. 213 The primary submissions of the Commonwealth do not contend that its contentions are significantly advanced by the terms of the Continental Shelf (Living Natural Resources) Act 1968 (Cth), or by the amendments to the Commonwealth Fisheries Act effected by the Fisheries Amendment Act 1980 (Cth) to implement the Offshore Constitutional Settlement, or by the Fisheries Management Act, which replaced the Commonwealth Fisheries Act. As such, it is not necessary to consider their detailed provisions. 214 The next significant legislative step by the Commonwealth was the Torres Strait Fisheries Act. It legislatively established the regulatory framework for managing fish and other marine resources in the Torres Strait, following the PNG Treaty. It established the Protected Zone Joint Authority (PZJA), responsible for managing the "fishery" (defined in s 31) to be managed in accordance with the laws of the Commonwealth. 215 The regulatory regime of the Torres Strait Fisheries Act followed, to a large extent, that of the Commonwealth Fisheries Act. However, the Commonwealth contends that the emphasis or focus of the primary judge on that Act in making his constructional choice, and then "applying that choice to earlier legislation", led him into error. 216 I do not accept that contention for two reasons. The first is that, in my view, the primary judge properly and independently considered the significance of the earlier Queensland and Commonwealth legislation. Further, for the reasons set out below, I agree with his Honour's conclusion about their significance. The second is that neither the context in which that Act came into existence, nor its terms, are shown to have influenced the overall conclusion of the primary judge in an inappropriate way. 217 The Torres Strait Fisheries Act provided for four different types of fishing within the Protected Zone: commercial fishing but excluding traditional fishing (defined in s 3(1)); community fishing which in effect is commercial fishing by traditional inhabitants (defined in s 3(1)); private fishing (defined in s 3(1) and (5); and traditional fishing which is fishing by traditional inhabitants for their personal consumption or for use in the course of other traditional activities (defined in s 3(1), with a meaning taken from Art 1 para 1(1) of the PNG Treaty). 218 The Torres Strait Fisheries Act does not apply to private fishing. That is governed by the Queensland fisheries legislation in force from time to time. Nor does the application of that Act to traditional fishing have particular significance for present purposes. It does apply to commercial fishing, and within that description to the subcategory of community fishing (commercial fishing by Australian traditional inhabitants). As the Commonwealth's submissions suggest, the definition of community fishing may extend beyond the traditional style of taking and using fish for commercial purposes, including bartering or marketing fish. There are different licensing regimes for commercial fishing and community fishing. It is apparent from s 8(1) that the concept of community fishing was introduced as an additional benefit for Australian traditional inhabitants under less stringent forms of regulation. 219 Three observations about that should be made. First, the Seas Claim Group did not contend that the Torres Straight Fisheries Act somehow operated to preserve or to recognise or to revive their native title rights to fish, including to take fish for commercial purposes if they had by then been extinguished. Nor did the primary judge reason in that way. Secondly, the Seas Claim Group did not contend that the provisions in that Act relating to, and regulating, community fishing amounted to an expression of their native title rights to fish and to take fish for commercial purposes. Again, nor did the primary judge. Thirdly, the Commonwealth did not contend that the provisions of that Act, in particular in providing for regulating community fishing, somehow extinguished such native title rights to fish and to take fish for commercial purposes, if such native title rights were (contrary to its submissions) found to exist at the time of its introduction. As the Commonwealth's submissions note, the definition of "traditional inhabitants" is not necessarily co-extensive in its scope with the Seas Claim Group determined to hold native title in accordance with s 223 of the NT Act. 220 In my view, the analysis of the successive Queensland and Commonwealth legislative regimes for fisheries shows, with increasingly more sophisticated or comprehensive detail, the legislative intention to regulate the taking of fish by the management of fisheries and the manner of taking fish. It does so generally by the prohibition of taking fish, either absolutely or for commercial purposes unless a license is granted to engage in that activity, and by prescribing how the taking of fish may occur. Over time, the prohibition of taking fish was potentially extended to encompass prohibition from taking fish in particular areas and/or for particular periods (although, as noted, such powers to be exercised generally by proclamation are not shown to have been exercised in any relevant way in relation to the native title rights of the Seas Claim Group in the now Determination area). 221 I do not consider that those legislative regimes, in particular as the Commonwealth contends by requiring licences to fish for commercial purposes, necessarily means that the native title rights to fish and take fish for commercial purposes was extinguished. The objectives of the legislation were, in essence, the proper conservation of fisheries and fish resources by their management, and the securing of what the Commonwealth called fair fishing practices. Those objectives were fulfilled by a conditional prohibition, that is a prohibition from engaging in fishing without a licence. The complementary restrictions on the manner of fishing were not said themselves to extinguish the native title rights in issue. 222 The conditional prohibition, which the Seas Claim Group accept they must comply with, was consistent with the continued existence of the native title rights in issue. It did not sever the Seas Claim Group's connection with the land and seas concerned. It did not deny to them the continued exercise of their rights and interests in that respect which the common law recognises (but for any extinguishment). It is consistent with the continued existence and enjoyment of those rights. 223 There are, of course, circumstances in which regulation may shade into prohibition, as was said by the plurality in Yanner at [37] and by Gummow J at [115]. 224 The Commonwealth contended that Harper v Minister for Sea Fisheries (1989) 168 CLR 314 (Harper) showed that licences granted under the Commonwealth Fisheries Act, and indeed by the earlier Queensland legislation from the Fisheries Act 1887 are a new species of statutory right to fish, the existence and nature of which depends on the legislation only. Hence, it is argued, the new statutory right to fish and take fish for commercial purposes of necessity is inconsistent with the continued existence of the native title rights to do so. 225 Harper concerned the licensing system which the Sea Fisheries Act 1959 (Tas) and the Sea Fisheries Regulations 1968 (Tas) established in relation to abalone fisheries. Mason CJ, Deane and Gaudron JJ at 325 described that legislation as creating an entitlement of a new kind created as part of a statutory system. Brennan J at 334-335 also referred to a new statutory right replacing the public right to fish. Earlier Brennan J at 330 pointed out that the public right to fish, not being a proprietary right, is freely amenable to abrogation or regulation by a competent legislature. See also Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 at 585 (per Black CJ, Davies and Sackville JJ) in relation to the effect of the Commonwealth Fisheries Act on the public right to fish, and the rights under the licensing regime of that legislation. 226 The primary judge at [857] recognised that different considerations may apply in the case of the asserted extinguishment of native title rights and interests because of their character. The special character of those rights was recognised, inter alia, in Yanner. The question is whether the legislation referred to created a regime of control which is necessarily inconsistent with the continued enjoyment of the native title rights in issue (per Brennan J in Mabo (No 2) at 64). The answer is, in my view, in the negative. There is nothing to indicate that any of the legislative regimes was directed at native title rights and interests, when the holders of those rights were required to comply with the restrictions and requirements imposed by those regimes to continue to enjoy their native title rights. 227 Finally, I note that the Commonwealth contended that there were other decisions in the way of that conclusion. 228 The Commonwealth said there is authority that a native title right to take or use fish and marine resources for commercial purposes has been extinguished by similar State and Commonwealth legislative schemes. 229 I do not consider that the three decisions referred to in fact advance in any real way the application of the principles discussed above to the relevant native title right of the Seas Claim Group. That Group has distinctive traditional laws and customs derived from the utility and practicality of their particular geography and circumstances. The findings of the primary judge recognise that. The Commonwealth acknowledged it. 230 Commonwealth v Yarmirr (1999) 101 FCR 171 (Yarmirr FC) also concerned an appeal by the Commonwealth about the status of claimed native title rights to fish and take marine resources. In that case, the relevant claim area was the seabed in the Croker Island region of the Northern Territory. The first instance decision (Yarmirr v Northern Territory (1998) 82 FCR 533 (Yarmirr SJ)) decided that non-exclusive native title rights existed in that claimant group in relation to the sea and seabed in the vicinity of Croker Island to fish and gather marine resources for personal, domestic or non-commercial needs. The Commonwealth's unsuccessful appeal was directed to the proposition that native title rights to take fish and marine resources in the sea and seabed could not be and had not been established. That issue was unsuccessfully pursued in the High Court: Commonwealth v Yarmirr (2001) 208 CLR 1. The important point for present purposes is that the claimant group cross-appealed to the Full Court of this Court against the finding at first instance that their native title right to take fish and other marine resources from the sea and sea bed was non-exclusive. Their cross-appeal was dismissed by the Full Court, having regard to the public's right to fish at common law and to navigate both tidal waters and the high seas, and to the legislative and administrative regime applicable to those waters, and the international law right of innocent passage, as acknowledged by Australian law. There was no appeal to the High Court from the Full Court decision on the cross-appeal. 231 The section of the Full Court's reasons in Yarmirr FC relied upon by the Commonwealth on this appeal is clearly not part of the critical reasoning of the Full Court. The primary judge had rejected the claim that the native title right to take fish and marine resources included a right to trade in those resources: Yarmirr SJ at 586-588. That factual decision was upheld by the Full Court: Yarmirr FC per Beaumont and von Doussa JJ at [254]. Their Honours then added, in the passage relied upon by the Commonwealth, at [255]: Although not now strictly necessary for us to consider, it should be mentioned that any final consideration of a claim of a right to fish, hunt and gather within these waters for the purposes of trade, would need to take into account the impact of relevant respective fishing legislative regimes of South Australia, the Territory and the Commonwealth. The various forms of applicable fisheries legislation and administrative action thereunder, which clearly had at least the potential to affect a claim by any person to fish or hunt in these waters, were summarised by the primary judge (at 594-599). We need not repeat that summary here. It will suffice for us to say that, by this means, any right of the public to fish for commercial purposes, and any such traditional right, were at least regulated and possibly wholly or partially extinguished, by statute or executive act or both. 232 As is apparent, those observations leave open in respect of that legislative regime the issue which is the subject of this appeal. 233 Neowarra v State of Western Australia [2003] FCA 1402 (Neowarra) was a decision concerning native title in an extensive area in the Kimberley Region. The decision addressed all aspects of the claim. At [379]-[383], Sundberg J concluded that the claimant group held the "right to possession, occupation, use and enjoyment of the claim area as against the whole world" under their traditional laws and customs. At that point of the reasons, his Honour did not need to "unbundle" the right. In considering extinguishment, that step became necessary to some degree. The concluding section only of those reasons under the heading "WAFIC" (Western Australian Fishing Industry Council) is relevant to the present appeal. It is encompassed in [761]-[784], where the claim to use and enjoy the resources of the claim area including the fish and other marine resources was addressed. After referring at [777] to the Fisheries Act 1905 (WA) and to the Fisheries Regulations 1938 (WA) made under that Act, his Honour at [789] quoted the passage in Yarmirr FC set out at [85] above and added: The legislative regimes considered in Yarmirr were essentially of a licensing nature, as were the Fisheries Regulations 1938 referred to above. Claim (vii) is expressed in broad language that would include a right to take fish for commercial purposes. Any such right would be extinguished by the operation of the Regulations. 234 As can be seen, that question was only marginal to the overall decision in that case, and his Honour with respect appears to have attributed to the observations of Beaumont and von Doussa JJ in Yarmirr FC a somewhat more definitive statement than their Honours expressed. Neowarra is a decision made in relation to particular legislation which does not, in the circumstances, materially advance consideration of this appeal. 235 The other case referred to by the Commonwealth in this regard is the decision of Selway J in Gumana v Northern Territory (2005) 141 FCR 457. It is accepted that the passage in his Honour's reasons at [247(b)] relied upon was introduced with the observation that the question of the extinguishment "probably did not need detailed consideration". In my view, the remarks of Selway J also do not advance consideration of the issue on the appeal. 236 Reference may also be made to the conclusion of French J (as his Honour then was) in Sampi v Western Australia [2005] FCA 777 at [1146] regarding the effect of the Pearling Act 1912 (WA) on the native title right to take pear oysters and shell for ceremonial purposes. 237 In my judgment, the decision of the primary judge on this issue was correct. I consider the appeal should be dismissed with costs. I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Schedule No: (P)QUD387/2010 Federal Court of Australia District Registry: Queensland Division: General Respondent: LEO AKIBA Respondent: GEORGE MYE Respondent: NEIL WADE Respondent: MARKIM HOLDINGS T/A BARRIER REEF LIVE CRAY Respondent: ROBERT STEFAN JOHN STANDEN Respondent: BARRY WILSON Respondent: MARK WILLIS Respondent: TASMANIAN SEAFOODS PTY LTD Respondent: KAREN SKUDDER Respondent: BRUCE ROSE Respondent: QUEENSLAND ROCK LOBSTER ASSOCIATION Respondent: THEOPHANIS PETROU Respondent: ELFREDA PETROU Respondent: PETER J PAHLKE Respondent: ALISON NEWBOLD Respondent: RAYMOND MOORE Respondent: MABEL MOORE Respondent: MARK MILLWARD Respondent: KENNETH JAMES MCKENZIE Respondent: JOHN STEWART MCKENZIE Respondent: STEVEN MACDONALD Respondent: M G KAILIS PTY LTD Respondent: ROBERT BRUCE LOWDEN Respondent: NOEL LOLLBACK Respondent: BOB LAMACCHIA Respondent: RICHARD LAURENCE JONES Respondent: PHILLIP JOHN HUGHES Respondent: ROBERT GEORGE GIDDINS Respondent: LARRY HUDSON Respondent: PAMELA HUDSON Respondent: DIANNE MAREE HUGHES Respondent: STATE OF QUEENSLAND Respondent: AUSTRALIAN MARITIME SAFETY AUTHORITY Respondent: BARRY EHRKE Respondent: DENNIS FRITZ Respondent: JENNY TITASEY Respondent: AUGUSTINUS TITASEY Respondent: GEOFFREY DONALD MCKENZIE Respondent: ZIPPORAH GEAGEA Respondent: PETER GEAGEA Respondent: ROBERT GARNER Respondent: TROPICAL SEAFOOD OPERATION PTY LTD Respondent: DIAKEN PTY LTD Respondent: CARL DAGUIAR Respondent: JIMMY ALISON Respondent: DANNY BROWNLOW Respondent: BEVERLEY JOAN BRUCE Respondent: GUY STEWART BRUCE Respondent: KIWAT LUI Respondent: TORRES STRAIT REGIONAL AUTHORITY Cross Appellant: LEO AKIBA Cross Appellant: TORRES STRAIT REGIONAL SEAS CLAIM Cross Respondent: STATE OF QUEENSLAND

Fauna Conservation Act 1974(Qld)

Fish and Oyster Act 1914(Qld)

Fish and Oyster Acts Amendment Act 1955(Qld)

Fisheries Act 1887(Qld)

Fisheries Act 1957(Qld)

Fisheries Act 1976(Qld)

Fisheries Amendment Act 1981(Qld)

Fisheries Legislation Amendment Act 1985(Cth)

Fisheries Regulations 2008(Qld)

Oyster Act 1886(Qld)

Pearl-shell and Beche-de-mer Fishery Act 1881(Qld)

Queensland Fisheries Act 1887(Qld)s 16., s 13.

Torres Strait Islanders Act 1939(Qld)

Native Title Act 1994(Cth)

(Qld), the Fisheries Regulation 2008(Qld)

(Qld), Torres Strait Fisheries Act 1984(Cth)

was repealed by the Continental Shelf (Living Natural Resources) Act 1968 (Cth)), the Fisheries Act 1952(Cth)

(Cth), the Fisheries Management Act 1991(Cth)

Natural Resources) Act 1968(Cth)

Pearl-shell and BÊche-de-mer Fishery Act 1881(Qld)

Sale of Opium Act 1897(Qld)

(Fisheries Act 1976(Qld)

Fisheries Act 1953(Cth)

Fisheries Regulations, Statutory Rules 1954(Cth)

Fisheries Act 1968(Cth)

(Qld), the Torres Strait Fisheries Act 1984(Cth)

Fisheries Amendment Act 1980(Cth)

Sea Fisheries Act 1959(Tas)

Sea Fisheries Regulations 1968(Tas)

Fisheries Act 1905(WA)

Fisheries Regulations 1938(WA)

Pearling Act 1912(WA)

Cases cited: Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) (2010) 270 ALR 564 referred to Akiba v Queensland (unreported, FCA, 23 August 2010, Finn J) referred to Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 cited Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 cited Commonwealth of Australia v Yarmirr and Others (2001) 208 CLR 1 discussed Commonwealth v Yarmirr (1999) 101 FCR 171 discussed Fejo v Northern Territory (1998) 195 CLR 96 applied Gumana v Northern Territory (2005) 141 FCR 457 cited Harper v Minister for Sea Fisheries (1989) 168 CLR 314 applied Lord Advocate v Wemyss (1899) 2 F (H.L.) 1 cited Mabo v Queensland (No 1) (1998) 166 CLR 186 cited Mabo v Queensland (No 2) (1992) 175 CLR 1 cited Minister for Immigration, Local Government and Ethnic Affairs v Hamsher and Others (1992) 35 FCR 359 cited Neowarra v State of Western Australia [2003] FCA 1402 cited Original Hartlepool Collieries Company v Gibb (1877) 5 Ch D 713 cited Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 cited R v Lord (1864) 1 P.E.I. 245 cited R v Sparrow (1990) 70 CLR (4th) 385 cited Sampi v Western Australia [2005] FCA 777 cited Western Australia v Commonwealth (1995) 183 CLR 374 cited Western Australia v Ward (2002) 213 CLR 1 followed Wik Peoples v The State of Queensland and others (1996) 187 CLR 1 followed Yanner v Eaton (1999) 201 CLR 351 followed Yarmirr v Northern Territory (1998) 82 FCR 533 discussed

Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25

KEANE CJ AND DOWSETT J 1 The Torres Strait Regional Seas Claim was filed on 23 November 2001. The original application, as we will refer to it, purported to be made on behalf of the Torres Strait Regional Seas Claim Group (the Seas Claim Group), who are descendants of a number of identified Torres Strait Islanders. It appears that the requisite authority under the Native Title Act 1994 (Cth) (the NT Act) had not been obtained to make the original application, but all parties to this litigation agreed that this irregularity did not stand in the way of the determination by the learned primary judge. 2 In 2008 the Kaurareg and Gudang peoples filed native title claims, each of which overlapped with the area specified in the original application. The primary judge ordered that the original application be split into Parts A and B, with Part B consisting of the area of the overlap. The decision the subject of the present appeal relates only to Part A. 3 The original application sought a determination of native title rights and interests in a large part of the sea area of the Torres Strait. The occupation of the region by them and their ancestors was of an essentially maritime character. The sea is an integral presence in the lives and livelihood of the Islander communities which comprise the Seas Claim Group. Permanent human occupancy of the Torres Strait can be traced back 4,000 to 2,600 years. The continued presence of the Islanders in the Strait is self evident, as is their knowledge and exploitation of the marine resources of the Strait. The primary judge found that the assertion of sovereignty over the islands of the Strait by the British Crown "did not lead to the Islanders being dispossessed of their land or sea domains, or deprived of their traditional means of livelihood": Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v Queensland (No 2) (2010) 270 ALR 564; [2010] FCA 643 at [6] (the Reasons). 4 At trial the Seas Claim Group contended that at sovereignty the members of the Seas Claim Group and their ancestors were members of one "society" for the purposes of the NT Act. This contention was disputed by the Commonwealth and the State of Queensland. The primary judge concluded that there is indeed a single Torres Strait Islander society and that it is the only relevant society. His Honour rejected the State of Queensland's contention that there were thirteen societies and the Commonwealth's contention that there were four societies made up of regional cluster groups of islands. His Honour held that the group rights are held by each of the thirteen island communities in respect of the marine estate associated with each island (at [492]). 5 The Seas Claim Group contended that their native title rights included the taking of fish and other marine resources for sale or trade and that this right had not been extinguished by legislation of the State of Queensland or the Commonwealth of Australia. The primary judge accepted this contention, holding that the Seas Claim Group members enjoyed a non-exclusive right "…to access, to remain in and to use their own marine territories or territories shared with another, or other communities…[and] to access resources and to take for any purpose resources in those territories": (at [11]). 6 The primary judge delivered his reasons on 2 July 2010. Final orders were made by his Honour on 23 August 2010 (Akiba v Queensland (unreported, FCA, 23 August, 2010, Finn J) (the Determination). 7 The learned primary judge determined that native title subsists in those parts of the determination area described in Schedule 4 of his Honour's order of 23 August 2010. Paragraph 4 of the order is in the following terms: 4. (1) The group rights comprising the native title are held by the members of each of the following island communities in respect of the native title areas described in Schedule 4: (a) Meriam (Mer); (b) Erubam Le (Erub); (c) Ugarem Ler (Ugar); (d) Masigalgal (Masig); (e) Porumalgal (Poruma); (f) Warraberalgal (Warraber); (g) Iamalgal (Iama); (h) Mualgal (Mua); (i) Badulgal (Badu); (j) Gumulgal (Mabuiag); (k) Saibailgal (Saibai); (l) Boigulgal (Boigu); (m) Dauanalgal (Dauan). (2) The native title holders are, in aggregate, the persons identified in Schedule 5(1). 8 The relevant native title interests are described in paragraph 5 of the order as: (a) the rights to access, to remain in and to use the native title areas; and (b) subject to [presently immaterial exceptions], the right to access resources and to take for any purpose resources in the native title areas. 9 Paragraphs 7 and 8 of the order of 23 August 2010 are in the following terms: 7. The native title rights and interests do not confer: (a) possession, occupation, use and enjoyment of the native title areas or any parts thereof on the native title holders to the exclusion of all others; or (b) any right to control the conduct of others. 8. The native title rights are subject to and exercisable in accordance with the: (a) traditional laws and customs of the native title holders; and (b) laws of the State of Queensland and the Commonwealth of Australia including the common law. 10 Schedule 6 of the order of 23 August 2010 described "[t]he nature and extent of the other interests" in relation to the native title areas. Those interests included relevantly for the purposes of the cross-appeal: (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 (Qld), the Fisheries Regulation 2008 (Qld), 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. … (10) Subject to the laws of Australia, a customary right, if any, that: (a) is held by a person or persons who: live in the Protected Zone or the adjacent coastal areas of Papua New Guinea (as each is defined in the Treaty); is a citizen, or are citizens, of Papua New Guinea; and maintain traditional customary associations … 11 Paragraph 11 of the order of 23 August 2010 is in the following terms: 11. The relationship between the native title rights and interests and the other interests is as follows: (a) the other interests co-exist with the native title rights and interests; (b) the determination does not affect the validity of those other interests; (c) to the extent of any inconsistency, the native title rights and interests yield to the other interests referred to in Schedule 6. 12 At trial, the primary judge was required to resolve many issues, most of which are no longer controversial. No purpose would be served by canvassing the many issues which have been satisfactorily resolved by his Honour's judgment. The issues, which remain controversial, are as follows: whether the Commonwealth and State licensing regimes for commercial fishing extinguished the native title right to take fish or other marine life for commercial or trading purposes; the geographic boundaries to the area of sea in which any native title rights and interests subsist; the nature and extent of subsisting native title rights and interests. 13 The Commonwealth of Australia, the State of Queensland and a number of persons described as The Commercial Fishing Parties, appeal against the decision of the primary judge, contending that any native title right to fish for trade or exchange (commercial purposes) had long ago been extinguished by controls placed upon commercial fishing in the Torres Strait by State and Commonwealth legislation. 14 The Seas Claim Group cross-appeals against certain aspects of the primary judge's decision. In this regard, the primary judge did not uphold the claim by the Seas Claim Group to the full geographical extent of their claim: his Honour held that the claim had not been established in respect of the waters at the geographical extremities of the claimed area. The parts of the determination area where his Honour held that native title does not exist are depicted hatched in red on the map that is Schedule 7 to the orders of 23 August 2011. That map is reproduced below. 15 The primary judge also rejected the Seas Claim Group's contention that Torres Strait Islanders enjoyed reciprocity based rights and interests as between themselves which constituted a communal native title for the purposes of s 223(1) of the NT Act. 16 The Seas Claim Group also challenges paragraph 11 of the order of 23 August 2010 insofar as it requires native title rights and interests to yield to the other rights and interests there mentioned. 17 In brief summary, the Seas Claim Group contends in the cross-appeal that the primary judge erred in: failing to find that the Seas Claim Group had established the connection required by s 223(1)(b) of the NT Act to four areas in the north-eastern part of the claimed area consequently denying the existence of native title in these areas. The four areas can be seen hatched in red at the north-east of the claim area in the map referred to above; They are: 1. an area of sea to the north of the sea adjacent to the northern side of Pearce Cay (Guchen Sandbank) (Area 1); 2. an area of sea to the north of the sea adjacent to the northern part of Stephen Island (Ugar) (Area 2); 3. areas of sea to the north of the sea adjacent to the northern parts of Black Rocks (Rebes) and Bramble Cay (Maizab Kaur) (Area 3); and 4. an area of sea to the north of the northern side of Anchor Cay (Garboi) and East Cay (Misnare) (Area 4). failing to accept as native title rights under s 223(1) of the NT Act the "reciprocal rights" for which the Seas Claim Group contended or to accommodate them in the order appealed from; failing to set out a correct statement of law or fact in paragraph 11(c) of the order of 23 August 2010, in that his Honour proceeded on the footing that the native title rights must yield to the common law public rights to fish and to navigate, and to the customary rights described in Schedule 6(10) of the Determination, to the extent of any inconsistency.

The primary judge's reasons and conclusions 36 The learned primary judge's general conclusion in relation to the subsistence of native title was expressed in paragraph [11] of his Honour's reasons: I have rejected the Applicant's claim insofar as it asserted that what it called reciprocity based rights and interests constitute native title for the purposes of s 223(1) of the Act. Put inexactly, those are rights based upon reciprocal personal relationships with persons who have native title rights in their own land and marine territories. The native title rights I have found are the non-exclusive rights of the group members of the respective inhabited island communities first, to access, to remain in and to use their own marine territories or territories shared with another, or other, communities; and, secondly; to access resources and to take for any purpose resources in those territories. In exercising these rights the group members are expected to respect their marine territories and what is in them. Importantly, and this requires emphasis, none of these rights confer possession, occupation, or use of the waters to the exclusion of others. Nor do they confer any right to control the conduct of others. 37 In relation to the issue of extinguishment the question of current concern relates to his Honour's conclusion that the native title rights he found included the right to take marine resources, which is for practical purposes, the right to fish for commercial purposes. The resolution of this issue depends 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. These licensing regimes were in place long before the enactment of the Racial Discrimination Act 1975 (Cth) or the NT Act. 38 The primary judge set out the parameters within which this issue fell to be resolved at [844]. In this regard: 1. it was not argued that the native title right to take marine resources has been generally extinguished; 2. it was not argued that, at any time since Queensland's 1877 Fisheries Act, the native title holders have been legislatively precluded from applying for licences to fish for commercial purposes: the evidence from the nineteenth century onwards, such as it is, is to the contrary; 3. the primary judge was not asked to do otherwise than note that there are such proscriptions in Fisheries legislation; that they apply to native title holders; and that they are unaffected by s 211 of the NT Act; 4. it was not contended, and was not the subject of evidence, that native title has been extinguished in any particular parts of the sea claim area by leases or licences given under Queensland Statutes which attached exclusive rights to such grants; 5. the [appellants] did not argue that the right to fish a particular marine species, or number of species, for commercial purposes has been legislatively extinguished and replaced by, in effect, a statutory fishing right, by virtue of the manner in which specific, legislatively mandated management plans have been structured - as, for example, the Torres Strait Prawn Fishery Management Plan 2008 made under s 15A of the 1984 Act; see also The Western Tuna and Billfish Fishery Management Plan 2005 made under s 17 of the Fisheries Management Act 1991; 6. no submissions were made, and no evidence led, to support a case that Islander fishing for commercial purposes may be permissible under the 1984 Commonwealth Act to the extent that such fishing was "traditional fishing", ie was "for use in the course of ... traditional activities"; 7. it was not disputed that, if Islanders wish to engage in fishing for commercial purposes, they must secure such licences as are required under the Act and that if they fish without such licences, they are liable to prosecution under s 45 of the Act. 39 The primary judge thus at [845] isolated for resolution the "narrow and seemingly barren question", to which we have referred, whether: Notwithstanding that the Islanders can, by seeking the necessary licences, avail of the present fisheries regime operative in the Pt A claim area to fish for commercial purposes, have they nonetheless lost a native title right to fish for commercial purposes because of the extent of the rights of regulation and control the Crown in its State and Commonwealth manifestations has progressively arrogated to itself over a more than 130 year period? 40 The primary judge held that the licensing regimes of the State and Commonwealth extinguished the common law right of any member of the public to take fish from its waters. Nevertheless, his Honour held that these legislative measures were not apt to extinguish the native title right to take fish for sale or trade. His Honour's reasoning at [763]-[861] involves the following steps: 1. a clear and plain legislative intention is necessary to extinguish native title recognised at common law; 2. the common law right to take fish from tidal waters for commercial purposes is an aspect of a public right the extinguishment of which has been affected by the licensing regimes. The common law right of fishing in the sea and, in tidal navigable rivers, was viewed as a public rather than private right and so as "freely amenable to abrogation by regulation by a competent legislature"; 3. the differential effect of legislation on the common law right and the native title right results from regarding native title as a private right and, the common law right as a public right which is more readily amenable to extinguishment; 4. an intention to extinguish native title is not indicated by legislative measures which do no more than regulate the exercise of an incident of native title; 5. the licensing regimes do no more than regulate the exercise of the native title rights to take fish for commercial purposes. 41 The primary judge reviewed the extensive "interlocking and complicated legislative regimes which apply in the Torres Strait", considering at [779] to [842]: • Queensland's legislation up until 1994, which consisted of the Queensland Fisheries Act 1887 (Qld); the Fish and Oyster Act 1914 (Qld); the Pearl-shell and Beche-de-mer Fishery Act 1881 (Qld) and the Oyster Act 1886 (Qld); the Fisheries Act 1957 (Qld); the Fisheries Act 1976 (Qld); the Fisheries Amendment Act 1981 (Qld) and the Fisheries Act 1994 (Qld) which is currently in force; • the Commonwealth's legislation from 1952 to 1991 which included the Fisheries Act 1952 (Cth); the Pearl Fisheries Act 1952 (Cth) repealed by the Continental Shelf (Living Natural Resources) Act 1968 (Cth) and the Fisheries Management Act 1991 (Cth) which replaced both the Fisheries Act 1952 (Cth) and the Continental Shelf (living Natural Resources) Act 1968 (Cth); and • specifically, the Torres Strait Fisheries Acts 1984 (Cth). 42 His Honour summarised the Queensland legislation at [780] - [802]. We gratefully set out his Honour's summary: 780 Queensland's first Fisheries Act - that of 1877 - had manifest regulatory and conservation purposes. It prohibited using a boat for catching fish for sale (a formula later to be defined and used in such legislation thereafter) without a licence (s 11) and catching fish with a net for sale in certain areas without a licence (s 12). The licensing regime took the form of the payment of a standard fee in advance for the licence to engage in the activity in question. The conservation measures in the Act included controlling netting and the prescription of permissible net types and uses (s 2); regulating the size of fish that could be taken (s 4); and banning the use of explosives and poisons for taking (s 8). 781 The next significant marine products legislation was the Pearl-shell and BÊche-de-mer Fishery Act 1881 (Qld). It imposed stringent controls over the business of diving for, collecting, preparing, storing or carrying pearl oysters, pearl oyster shells, bÊche-de-mer (s 1) and (from 1890) turtles, by requiring all ships or boats employed in such a business to be licensed (s 3), and making it an offence to employ a ship or boat in such activities without a licence (see ss 4, 5 and 6). Amendments made in 1891 extended the regime of regulation of the pearl-shell and bÊche-de-mer fishery; introduced restrictions as to size and varieties (s 11); and enabled prohibitions to be imposed in respect of particular areas (s 13). 782 Importantly for present purposes the Amendment Act of 1891 created a leasing system for pearl shell and bÊche-de-mer grounds. Section 16 permitted the Governor in Council to grant a lease of the whole or any part of an outlying reef or bank, or of the foreshore of an island, or of any Crown lands lying below high-water mark in any river, inlet, estuary, or creek, or any lands lying below tidal waters within the limits of the territorial jurisdiction of Queensland, for the collection, storage, cultivation, or propagation, of pearl oyster shell or of bÊche-de-mer, or of sponges or other products of the sea. By an amendment made in 1913, a lease so granted would by virtue of s 16A and subject to the Regulations made under the Act: (i) Confer on the lessee the right to take, collect, and gather within the demised area (to the exclusion of all other persons) pearls, pearl-shell, bÊche-de-mer, sponges, and any other marine animal life or product of the sea; (ii) Confer authority on the lessee to exclude persons from the demised area, and such authority shall be absolute unless by the terms of the lease it is made subject to any modification; (iii) Enure for the benefit of and be binding on the lessee, his executors, administrators, and permitted assigns. The same amendment made it an offence for any person, other than the lessee or a person having the lessee's authorisation, to take any of the things in the demised area given by the exclusive right. A lease so given would clearly extinguish any native title right to take marine resources in the area given by the lease. I should add that the 1881 Act was given extensive extra-territorial application by an Act of the Federal Council of Australasia, The Queensland Pearl Shell and BÊche-de-Mer Fisheries (Extra-territorial) Act of 1888. 783 I would also note in passing that, in 1927 in an Act to amend the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld), provision was made for the Governor in Council to establish reserves within the territorial waters of Queensland: ... solely for the use of Torres Strait islands natives and Queensland aboriginals for getting by swim-diving pearl-shell, bÊche-de-mer or trochus shell from any port, bank, channel, reef, or cluster of reefs, or any part of the same within any such area. 784 A variant of the Pearl shell and BÊche-de-mer leasing arrangement was adopted in relation to oyster leases under The Oyster Act 1886 (Qld). Oyster leases were granted by the Governor in Council for the purposes of oyster culture and were to be put up to public auction. A lease was designated to be for fourteen years and entitled the lessee (s 5(4)) to: ... the exclusive right to fish, dredge for, and obtain, and to deposit or make beds or layings of, oysters within the limits of the land comprised in the lease. The Act as well prohibited absolutely the taking of oysters for sale from any oyster ground not under lease or licence (s 11); imposed regulations as to the size of oysters which could be taken (s 12); and imposed a requirement for a licence to be held to take oysters (s 15), or to employ a boat or vessel in so doing (ss 18 and 19). 785 The regulatory patterns so established in the above Acts were replicated in the consolidating Fish and Oyster Act 1914 (Qld). This Act applied to "all salt, brackish and fresh waters within the territorial limits of Queensland". Under the Act it was unlawful to take fish for sale without a licence (s 17); to employ a vessel in taking fish without a licence (s 16); and to take, sell or have in possession certain fish (s 8). The use of nets was again regulated (s 9). The one strikingly new provision (borrowed from Western Australian legislation: Act No 24 of 1911, s 2) was s 18. It allowed for the grant of an exclusive licence for a term not exceeding fourteen years to take any fish or "marine products" from any "specified part" of Queensland waters (s 18(1)). No licence could be for any length of coast exceeding 75 miles (s 18(2)). It was unlawful for a person unauthorised by the licensee to take any fish or marine product from within the licensed area subject to the proviso that (s 18(3)): ... nothing herein shall prevent any person from taking therein any fish or marine products for his personal use and consumption, but not for sale. I would note in passing it was also made an offence to (inter alia) cut or remove any mangroves or timber growing upon any part of the foreshores of any Queensland waters: s 36. In 1945 an amendment to the Act introduced a licensing system for the removal of coral and shell grit: s 18(6). A 1955 amendment permitted such licences to be exclusive: Fish and Oyster Acts Amendment Act 1955, s 6. 786 Conservation measures were a more prominent feature of the Act and were enlarged over the ensuing decades. ... 787 One presently notable exemption from the provisions of the 1914 Act as amended was contained in the 1955 amending Act; the Act was not to apply to the taking of fish by any Islander (within the meaning of the Torres Strait Islanders Act 1939 (Qld)) who usually lives on a reserve, for consumption by Islanders: s 4. ... 789 In 1957 a further consolidating Fisheries Act was enacted. It brought the Whaling, Pearling, Oystering and Other Fisheries legislation into one Act. Under s 6(1) of the Act Queensland waters were defined to mean, inter alia, "[t]he sea within the territorial limits of Queensland". The Fisheries Act 1957 (Qld) continued the absolute prohibition in respect of certain whales (s 15), and the prohibition on taking other types of whales without a licence (ss 16-20); continued the prohibitions in respect of the taking of pearls, pearl-shell, trochus, bÊche-de-mer etc (including making it unlawful to use a vessel for pearling unless licensed) (Part III); continued the prohibitions in respect of oystering (Part IV); and continued the prohibitions in respect of other fisheries (Part V), including the general prohibition on taking fish for sale without a licence (s 80), and employing or using a vessel to take fish without a licence (s 79). This Act is significant in a number of respects. First, it continued the exemption from the Act of Torres Strait islands taking fish, and now oysters, for consumption by Islanders: s 3(1). Secondly, it defined "Sell" for the first time: s 6(1). Notably the definition included "barter, exchange, or supply for profit". Thirdly, again for the first time, the legislation dealt explicitly with the issue of licences... ... 790 In 1976 a further consolidating and amending Fisheries Act was passed (Fisheries Act 1976 (Qld)). Its orientation was reflected in its long title: An Act to consolidate and amend the law relating to pearling, oystering and fisheries generally, to promote the good order, management, development and welfare of the fishing industry, to provide for the protection, conservation and management of the fisheries resources of the State and for incidental purposes. The Act applied to Queensland waters which as a result of a declaration by Order in Council all waters extending for a distance of 3 nm to the seaward side of the baseline of the territorial sea bordering the coast of Queensland were declared to be Queensland waters: Queensland Government Gazette No 68, 10 December 1977. The Act continued and added to the range of licences that could be granted under predecessor legislation. It used a common and emphatic formula to describe the Minister's licensing discretion - "The Minister shall consider each application and may grant or refuse it": cf s 22(3)(b). It equally used relatively common formulae in its provisions relating to licences. These included that a licence: ... shall be subject to such terms, conditions or restrictions as are prescribed and such further terms, conditions or restrictions as the Minister in a particular case thinks fit, inserted therein or endorsed thereon. And if it was a person, not a vessel, being licensed, the licence: ... shall ... authorize the holder to do such acts and things as are prescribed with respect thereto. 791 The Act dealt explicitly with "commercial fishing". It defined a "commercial purpose" in relation to fish and marine products to mean: ... the purpose of sale, trade, processing or manufacture, pearl culture or other purpose of any kind directed to gain or reward. It changed the form of the Islander exemption from the Act from that of the 1914 and 1957 Acts. The exemption now applied to takings "for purposes other than commercial purposes": s 5(1)(d); but was enlarged to cover "fish or marine products", the latter term including "oyster, pearl-oyster, trochus, green snail, coral, coral limestone, shell grit and star sand": s 6(1). The requirement relating to Islander "consumption" was deleted: s 5(1)(d). Again significantly, the word "sell", which is used in the "Commercial Fishing" part of the Act, was defined. As in the 1957 Act, it included "barter, exchange or supply for profit". 792 I need note only the following aspects of the commercial fishing provisions. Section 22, insofar as presently relevant, provide: ... Section 23 created offences relating, inter alia, to taking fish, selling fish or using a fishing vessel, for commercial purposes, if the person or the vessel was not licensed as stipulated. ... 794 The Commonwealth has described the 1976 Act as establishing "a comprehensive scheme" for the regulation of fishing off coastal Queensland, and as having heralded "a more sophisticated approach to the industry generally". I agree. 795 The Act was amended in 1981. The primary purpose of this was to enable arrangements with respect to the management of certain fisheries to be entered into between, and be given effect to by, the Commonwealth and the State. I will refer in passing to joint arrangements below. One aspect of the amendment related to fishing for commercial purposes by "community fishermen", ie licensed Islanders. The apparent object of the provisions was to encourage the development of "cottage-industry-type fishing" in the Strait: Record of the Legislative Acts, First Session, 1981-82, at 223; Queensland, Parliamentary Debates, Legislative Assembly, 24 November 1981, 3875... ... 797 For the sake of completeness, I would note that the Fisheries Act 1994 (Qld) is the legislation currently in force. The Act applies, inter alia, to the coastal waters of Queensland but does not apply to activities to which a Commonwealth law co-operative fishery applies, or exclusive Commonwealth matters for a State law co-operative fishery: s 11. Section 14 protects Aboriginal and Torres Strait Islanders rights to take fisheries resources and use fish habitats in accordance with tradition, though subject to the provisions of any regulation that "applies to acts done under ... Island custom". The extensively defined main purpose of the Act (s 3), was to be achieved, inter alia, by providing for "the management of commercial, recreational and indigenous fishing". 798 Part 4 of the Act established the Queensland Fisheries Management Authority to ensure the appropriate management, use, development and protection of fisheries resources. Management and regulation is largely left to be defined by management plans produced by fisheries agencies.... 799 In addition to the imposition of a comprehensive and multi-tiered licensing system, the Act made it an offence to contravene closed season and closed water declarations: s 77; to take or sell regulated fish or to contravene quotas: ss 78 and 79. Part 6 reflects increasing concern to protect and preserve fisheries resources. ... 801 The State relies as well upon "numerous examples" of acts done under the particularised legislation on which it relies which, it says, similarly evince a clear and plain intent to control the use of the sea, the seabed and its resources and to extinguish or abrogate any otherwise existing public right, native title right, or right to take the resources of the sea for any commercial purpose. Of this material I would make the following comments. 802 There are in evidence a relatively slight number of Orders in Council made under fisheries and fauna statutes which illustrate regulatory measures being taken which were of an essentially conservation and fisheries management variety. The primary preoccupations under fisheries legislation were with netting and mesh sizes, closing waters, catch size, and prohibiting taking certain species. There was little that relates directly to Torres Strait: but see the Order in Council of 16 November 1967 prohibiting the taking of Trumpet Shell "in all Queensland waters"; that of 20 April 1978 declaring much of the coastal waters in Torres Strait closed in relation to bÊche-de-mer; or that of 12 November 1981, that declared areas of Torres Strait closed waters in relation to nets. The evidence relating to licences, so far as it went, revealed that the licensing regimes of the various Acts were implemented but little more. I was, for example, taken to no evidence which indicated that exclusive leases or licences were granted under fisheries Acts, though they made provision for such grants. 43 The primary judge, having summarised the Queensland legislation, then summarised Queensland's contention as to its effect upon the Seas Claim Group's rights. His Honour said at [803]: 803 The State's contention is that its legislative regime, dating back to 1877, evinces a clear and plain intention to regulate and control all "fishing" in Queensland waters (both domestic and commercial). Insofar as fishing for commercial purposes is concerned, the legislation does not merely regulate such activity; it clearly abrogates or extinguishes any (otherwise existing) right - whether a native title right, or a public right - to fish for commercial purposes; and it replaces such rights with private statutory rights to engage in commercial fishing activities, which are conferred only upon those who hold the necessary licences provided for under the legislation. Like the legislation considered by the High Court in Harper and Gumana HC, as well as by the Full Court in Yarmirr FC, by Sundberg J in Neowarra and by Selway J in Gumana TJ, the legislation summarised above has, it is said, extinguished any rights to take or use the resources of the claim area for trading or commercial fishing purposes. 44 His Honour summarised the relevant Commonwealth legislation at [807] - [816]. Once again, we gratefully adopt that summary: 807 The Fisheries Act 1952 (Cth) was the first general fisheries legislation enacted by the Commonwealth. This Act remained in force until repealed by the Fisheries Management Act 1991. At the same time as the Fisheries Act 1952 was enacted, the Parliament also enacted the Pearl Fisheries Act 1952 (Cth). 808 Both Acts operated on essentially the same principles. By s 7 of the Fisheries Act 1952 and s 8 of the Pearl Fisheries Act 1952, the Governor-General could, by proclamation, "declare any Australian waters to be proclaimed waters for the purposes of this Act". "Australian waters" were originally defined as meaning "(a) Australian waters beyond territorial limits; and (b) the waters adjacent to a Territory and within territorial limits". The definition of "Australian waters" was amended by the Fisheries Act 1953 (Cth) so as to include "(c) the waters adjacent to a Territory, not being part of the Commonwealth, and beyond territorial limits ...". The Pearl Fisheries Act (No 2) 1953 (Cth) amended the definition in a like manner but also, adding in addition, "being waters that are above the continental shelf". Proclamations were issued pursuant to s 7 of the Fisheries Act 1952 on 9 December 1954, 16 February 1956, 22 August 1968, 26 September 1979 and 20 December 1990 which embraced the claim area. 809 Both Acts provided for the granting of licences to take fish or use a boat to take fish in proclaimed waters or an area of proclaimed waters, such licence being subject to the conditions specified in them. The forms of licences under the Fisheries Act 1952 were prescribed in the Fisheries Regulations, Statutory Rules 1954 (Cth), No 116. 810 The Minister was empowered to prohibit the taking of fish. Section 4 provided that "fish" includes turtles, dugong, crustacea, oysters and other shellfish but does not include any species of whales, pearl shell, trochus, bÊche-de-mer or green snail". That definition was amended by the Fisheries Act 1968 (Cth) to exclude any organism that is a sedentary organism for the purposes of the Continental Shelf (Living Natural Resources) Act 1968 (Cth). Notices prohibiting the taking of prawns, for example, and providing for seasonal closures of specified areas, including areas of the claimed area, were in fact issued under the Fisheries Act 1952. 811 The taking of fish or pearl-shell, trochus, bÊche-de-mer and green snail, or use of a boat for that purpose, in an area of proclaimed waters was prohibited without a licence: s 13. These prohibitions were not limited to the taking of fish for any particular purpose until 1973 when s 13(4) of the Fisheries Act 1952 was amended so as to create a defence to a prosecution for being in possession of fish when the taking of fish is prohibited by notice if the fish was not taken for trading or manufacturing purposes. Otherwise this scheme was essentially retained for the duration of this Act until 1985 with the introduction of managed fisheries where licences, specified to be issued for 12 month periods, were made subject to plans of management for the relevant fishery. 812 On 30 November 1954, the Governor-General issued a proclamation declaring "proclaimed waters" pursuant to s 7 of the Fisheries Act 1952. These waters completely surrounded the Australian coast but did not include waters within the territorial limits of a State. These proclamations were held to be valid in Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR 177. The "proclaimed waters" thus encompassed the waters within the claimed area. 813 The 30 November 1954 proclamation was amended and later replaced by proclamations issued by the Governor-General, and published in the Commonwealth Government Gazette on 16 February 1956 and 22 August 1968, respectively. The Fisheries Act 1952 was amended so as to provide that: In relation to proclaimed waters comprised in the declared fishing zone, this Act applies to all persons, including foreigners, and to all boats, including foreign boats. 814 Subsequently, by a proclamation under s 7 of the Fisheries Act 1952, the Commonwealth established a fishing zone with an outer limit of 200 nm with effect from 1 November 1979. The Fisheries Act 1952 was amended in consequence so as to define the "Australian fishing zone" (AFZ) as the waters adjacent to Australia between the baselines and 200 nm seaward from the baselines, but excluding waters that were not "proclaimed waters" or that were "excepted waters" pursuant to a declaration under s 7A. Further, s 5B was inserted providing that: ... The Continental Shelf (Living Natural Resources) Act 1968 (Cth) 815 The Pearl Fisheries Act 1952 was repealed by the Continental Shelf (Living Natural Resources) Act 1968 (Cth). The primary purpose of the latter Act was said in the Commonwealth, Parliamentary Debates, House of Representatives, 21 November 1968, 3136 "to enable the fullest possible protection to be given to the living sedentary resources of the continental shelves of Australia and the external Territories". 816 By s 7, the Governor-General was empowered to declare a marine organism to be a sedentary organism to which the Act applied when satisfied that it fell within the sedentary species covered by the Convention on the Continental Shelf done at Geneva on 29 April 1958. The relevant provisions of the Act related to areas of the continental shelf declared to be "controlled areas" under s 11 of the Continental Shelf Act 1968. Section 15 prohibited the taking, and the use of a ship for searching for or taking, of sedentary organisms in a controlled area without a licence although it was a defence if the search or taking was not for "a commercial purpose". In addition, the taking of specified species or use of certain equipment and other activities in a controlled area, could be prohibited by notice. Various proclamations concerning marine and sedimentary organisms, and defining the controlled areas have been issued. 45 The primary judge reviewed the Torres Strait Fisheries Acts 1984 (Cth), which had "its provenance in the PNG Treaty" at [828] and the territorial application of which is to the Protected Zone to any adjacent area to the south of the Zone that has been declared by proclamation at [829]. At [831] - [838] his Honour went on to summarise the provisions of that Act which were relevant to the case at hand, saying: 831 The provisions of the Act do not apply in relation to fishing activities carried on for private purposes with the use of an Australian boat: s 7 ("private purposes" being defined as "not including references to activities carried on in the course of traditional fishing": s 3(5). 832 Parts III, IV and V are of principal concern in this proceeding. Part III deals with regulation of fishing. There are three categories of fishing for the purposes of the Act: s 3. The first, "commercial fishing" means fishing for commercial purposes, "but does not include traditional fishing"; the second, "community fishing" means commercial fishing carried on by a person (or persons) who is (or are) a traditional inhabitant and an Australian citizen but who is not, in so doing, acting for, etc. another person who is not both an Australian citizen and a traditional inhabitant within the definition in the Treaty ("traditional inhabitant" requires no further elaboration here: Art 1 and the Act, s 3(3)); and, thirdly, "traditional fishing" has the same meaning as in the Treaty: Art 1. … 833 Part III enables the Minister to require the masters of boats and licensees engaged in commercial fishing (other than community fishing) in any area of Australian jurisdiction, to provide specified information relating to fishing: s 14. Catch report requirement notices made under this section are in evidence. I would also note in passing that the Torres Strait Fisheries Regulations 1985 authorised the Minister to require log books to be kept "in pursuit of the objectives of the Act" recording the taking of kinds of fish, areas etc: regs 10, 11. Notices made under these regulations are in evidence. 834 Section 15 as noted above, permits Proclamations to be made in relation to fishing in adjacent near areas. Under s 15A the Minister may, by legislative instrument, determine a plan of management for a fishery in an area of Australian jurisdiction. The objectives of such plans and the multitude of matters those may address - eg determining the fishing capacity of the area and its measure (s 15A(4)), licensing etc (s 15A(5)), the allocation of units of fishing capacity to boats (s 15A(6)) etc - are detailed at some length. Section 15(9) requires that while a management plan is in force, the performance of functions and exercise of powers under the Act in relation to the fishery "must be in accordance with the plan of management, and not otherwise". 835 Section 16 outlines seventeen different and diverse subjects relating to fishing that the Minister may, by legislative instrument, prohibit. The section permits exemptions to be made. 836 A significant number of prohibitions (with or without exemptions) were tendered covering subjects as diverse as taking dugong and turtle, the equipment used in taking fish, rock lobster etc, the creation of sanctuaries, size and area restrictions for particular species, take and carry limits for specified fish species etc. A common form of exemption related to taking "in the course of traditional fishing". The following is provided purely for illustrative purposes. It is a Fisheries Management Notice made under s 16: PROHIBITIONS (GENERAL) 6.1 Pursuant to paragraph 16(1)(a) of the Act, the taking, processing or carrying of live pearl shell of the species Pinctada maxima or any other pearl shell species whether alive or dead, is prohibited. 6.2 Pursuant to paragraph 16(1)(a) of the Act, the taking, processing or carrying of dead pearl shell of the species Pinctada maxima is prohibited. EXEMPTIONS FROM PROHIBITIONS 7. Pursuant to paragraph 16(1A)(d) of the Act, the following persons are exempt from the prohibitions in paragraph 6.1: (a) a person holding a licence granted under either subsection 19(2) or 19(3) of the Act that entitles the person to take, process or carry pearl shell; (b) a person using a boat and who holds a licence that was issued under the law of Papua New Guinea that is endorsed by Australia under section 20 of the Act, authorising the boat to be used to take pearl shell in the area of Australian jurisdiction; (c) a person holding a licence granted under the Queensland Fisheries Act 1994 that entitles that person to engage in pearl shell farming; (d) a person using a boat, that does not exceed 6 metres in length, in the course of community fishing; and (e) a person using a boat in the course of traditional fishing. 837 Part IV deals with licences. Section 17 indicates the licences that may be required for taking fish in the course of community fishing. … Finally, s 45 creates fourteen offences relating to commercial fishing and community fishing. These relate, in the main, to fishing etc or being in charge of, or on, a boat without the prescribed licence, or to failing to comply with a condition of a licence. 838 Part V deals with the establishment, functions, arrangements for, etc of the Protected Zone Joint Authority. There is in evidence a copy of the current "arrangement" the Commonwealth has made with Queensland under s 31 to have management of the Protected Zone and adjacent near areas as a "fishery". It was published on 19 March 1999…. 46 The primary judge then stated the contention of the Commonwealth at [840] - [841]: 840 The Commonwealth's contentions draw upon both the State's and its own legislation. It is said that the seas adjacent to Queensland have since at least 1877 been the subject of legislative fisheries management and control. The analysis of the legislative regimes for fisheries in the claim area demonstrates that, by increasingly comprehensive management regimes, the Crown has retained exclusively for itself and its agencies the capacity to manage seas which include those in the claim area. In effect, it has "covered the field" so far as control rights over fishing are concerned. 841 In all the legislation since 1877 licences have been required to fish for commercial purposes. The powers to close off areas to fishing and to limit fishing activities and methods in particular areas or generally have, it is said, been conferred with respect to commercial fishing. From the outset, fisheries management has tended to focus upon commercial fishing. This focus has been indicative of the treatment of fisheries in the sea as a public resource and reflects concerns about the long term development and sustainability of the fishing industry. Commercial fishing potentially involves the greatest threat of over-exploitation and damage to the marine environment. In any event it is clear that the Torres Strait Fisheries Act would be inconsistent with any native title right to fish for commercial purposes. 47 His Honour set out the Seas Claim Group's contention at [842]: 842 The Applicant has contended that the relevant native title right is a right to access and take marine resources, not a differentiated right to take resources for a trade or commercial purposes. The native title holders' rights to access and take have not been extinguished in any respect by the regulatory regimes for offshore resources under Queensland or Commonwealth legislation. That legislation "merely regulates the enjoyment of native title or creates [a] regime of control that is consistent with the continued enjoyment of native title": Mabo [No 2] at 64. Limited prohibitions that are part of a wider scheme of regulation are not inconsistent with characterising the scheme as regulatory. A legislative scheme imposing a requirement to obtain a licence before a prohibited act is done is, by its nature, a scheme of regulation rather than a prohibition. The case law on extinguishing the public right to fish (which is "freely amenable to abrogation": Harper, at 330: Arnhem Land Aboriginal Land Trust, at [19]-[29]), applies a different legal criteria for extinguishment to that to be applied to native title. 48 In his consideration of these competing contentions, the primary judge focused upon the impact of the Commonwealth's Fisheries Act 1952 (the 1952 Act) and Torres Strait Fisheries Act 1984 (the 1984 Act) on fishing for commercial purposes. His Honour explained his decision to focus primarily on the 1952 Act and the 1984 Act at [843]: …save for a narrow area of internal water which is subject to Queensland law and possibly the coastal waters around the islands to the north of the Seabed Jurisdiction Line, the presently applicable law in relation to fisheries in the Part A sea claim area in which I have found native title rights to exist is the Torres Strait Fisheries Act: see s 15(1) and s 31 of the 1984 Act... 49 His Honour considered that this legislation exhibited two discernable, evolving, interrelated features over time. These were "the expansion of the particular public interests" and the "changing character of the discretions given in the grant (or refusal) of leases and licences under such legislation" at [848]. His Honour focussed his consideration on the 1952 Act and the 1984 Act noting that they followed a common pattern in allowing the Minister to regulate fishing by the prohibition of certain activities and matters (at [849]). The relevant question was whether the legislation was simply extended to control commercial fishing and not to define "underlying rights": R v Sparrow (1990) 70 DLR (4th) 385 at 400-401 (at [850]). 50 His Honour framed the issue at [850] as being whether the legislative regimes "disclosed a clear and plain intent to extinguish native title" or if the legislative intent was "simply to extend the control of commercial fishing". His Honour decided at [851] that his preferred "constructional choice" was one "more favourable to the retention of the right to fish for commercial purpose" as there was not a "clear and plain intention to extinguish it". His Honour said at [851]: There are, in my view, clear "constructional choices" open here: Evans, at [68]. In these circumstances, and given (i) that the 1984 Act did not of its own force seek directly to deny Islander fishing rights for commercial purposes, hence its creation of the community fishing category (although the Act did envisage such fishing might later be subject to licensing requirements: s 17 and the Second Reading Speech below); and (ii) the s 8(a) objective of the Act to acknowledge and protect, as a management priority, the traditional way of life and livelihood of traditional inhabitants, including their rights in relation to traditional fishing - I consider the choice that is more favourable to the retention of the right to fish for commercial purpose is to be preferred, there not being a clear and plain intention to extinguish it. I would add that, in the distinctive setting of this Act, and assuming native title rights subsisted in Torres Strait at the time of its enactment (see below), it would require particularly strong indications in the Act itself that existing rights were intended to be extinguished, given the markedly beneficial and protective intent of the PNG Treaty and of this Act. 51 His Honour referred at [852] to the Minister's Second Reading Speech on the Bill for the Act (Commonwealth, Parliamentary Debates, House of Representatives, 19 October 1983, 1902-1903) that the Minister's licensing discretion was for the purposes of "fishery management". His Honour, while noting that he was taking a different view from that of Judges for whom he holds much respect, concluded at [854] that: … when the licensing discretion is considered in the context of the s 8 "management priorities" to be followed "[i]n the administration of [the] Act", it can only be characterised as a regulatory control measure "consistent with the continued enjoyment of native title": Mabo [No 2], at 64. It does not create a new statutory fishing right. 52 His Honour characterised the licensing regimes as "clearly regulatory and control mechanisms". For example, reference was made to the requirement to obtain a boat licence under Queensland's 1887 Act as being "little if anything more than an authorisation for which a fee was payable in advance before a boat could be so used" (at [856]). 53 His Honour was satisfied the Queensland legislation raised the same "constructional choices" as the Torres Strait Fisheries Act. He concluded that the native title commercial fishing right was not extinguished. He stated at [857]: …from 1877 onwards, Queensland fisheries legislation curtailed that right in relation to commercial fishing. What it did not do, is extinguish the "commercial fishing" incident of the native title right, save probably in those instances where grants were authorised to be, and were, made of particular types of exclusive lease or licence in particular areas: Fish and Oyster Act 1914, s 18; Oyster Act 1886. I have no evidence of such grants in Torres Strait. Judged against the "clear and plain" intention test, I am satisfied that such exclusive grants apart, the structure and character of the management and control scheme of Queensland's legislation was similar to that of the Torres Strait Fisheries Act, save that it did not have the same beneficial aspiration for the traditional inhabitants of the Strait. The Queensland legislation raised, and raises, the same constructional choices as the Torres Strait Fisheries Act does. That choice should be answered in the same way as for that Act. 54 Ultimately, the primary judge concluded that while the complexity of the regulatory controls evolved over time, insofar as they addressed commercial fishing, they remained regulatory and not prohibitory as they were not directed at the "underlying rights" of native title holders, nor, did they create a new statutory right to fish: the "regime of control, was, and is, consistent with the continued enjoyment of native title" (Reasons at [859]). His Honour held at [861] that the legislative regime established by the State and the Commonwealth "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".

The Primary judges' findings and conclusions 88 In relation to the claimed area, the primary judge found that a "tenure blanket" covers the Torres Strait and that no gaps between marine estate exist. His Honour said at [640]: … save for the extremities of the claim area, a "tenure blanket" covers Torres Strait. Under the Islanders' laws and customs, a community's estate extends outwards until it meets the estate of another community in what characteristically is a shared area. I have referred to various indicia that are used to identify the boundaries of marine estates and will not repeat them here. I accept the expert evidence, which was supported by some Islander evidence, that there are no "gaps" between marine estates. Everything is considered to be owned. There is no "commons" open to all, although certain areas may be widely shared, be this shared ownership or, more commonly, shared use by a number of communities. I would, for example, instance the sharing of their respective open waters in the Top Western area by Boigu, Dauan and Saibai and the extensive sharing of often distant areas by the Central Islands and by Masig and Erub and Mer. 89 His Honour noted at [642] that overlapping or shared rights were more easily recognised further from the shore: I am satisfied that the Island communities have had, and do have, differential regard for the areas of their marine estates as they radiate outwards. To paraphrase Professor Scott, the nearer one is to the shore, the greater the intensity of feeling about defending one's estate, the further from it, the easier the acceptance of comingling and of having overlapping or shared rights with neighbouring communities. This varying intensity is reflected (a) in Professor Beckett's acceptance that the area to the horizon was, historically, a policed protected zone; (b) in the evidence I have referred to relating to the domestic use made of inner areas and the reservation of them for the community's own purposes; (c) in the more ready allowance of permissive use of more distant areas; and (d) in the sharing of ownership in the areas where the waters of two communities meet. 90 As to whether a connection with the claim area was established, a number of types of "knowledge" were said to be potent indicators of a connection. His Honour explained at [649] - [650]: 649 Islander knowledge of areas, when coupled with the deep and transmitted sea knowledge that many of them possess, is itself a potent indicator of connection, and continuing connection at that, to their marine estates - the more so because under their laws and customs they have, and do exercise, traditional rights to use and forage there (see Ward FC, at [243]), albeit they do not do so in all parts of it. As this seems to be the State's point, I will return to it below. A community's ownership of the resources of its area is limited to what is within, or is caught within, that area. There was much evidence relating to this, to the obligation of gud pasin that can arise if a dugong or fish is taken in another's area, and to obligations not to waste, and to conserve, marine resources. As to the last of these, for example, Bully Saylor observed: To protect them thing in the sea, you've got to think about our future generation, got to look after it for their sake. 650 Even more compelling, knowledge of the boundaries of one's estate and knowledge of the areas of shared ownership or use with others marks out where one can go as of right and where one needs permission. The laws and customs on permission and, relatedly, on ailan pasin in its marine aspects, connect Islanders directly to their own estates and, in the case of permission, constitutes an acknowledgement of what is required if another's community's estate is to be used in accordance with laws and customs. The observance of these laws and customs involves "the continuing internal and external assertion by [the claimant community] of its traditional relationship to the country defined by its laws and customs": Sampi TJ, [1079]. 91 His Honour rejected the contention advanced by the State of Queensland that the evidence did not support the argument that the connection required by s 223(1) of the NT Act extended to distant areas. His Honour found that there was "a very significant body of evidence of use of areas quite distant from inhabited islands but within what are claimed to be owned or shared areas" ([653]). 92 His Honour held at [656] that the relevant connection exists in relation to the main area of the claim and that the requirements of s 223(1)(b) of the NTA had been satisfied in respect of that area. Difficulties arose however, in defining the extent of the coverage of the rights and interests at the extremities of the claim. The primary judge ultimately held that the "connection" required by s 223(1)(b) of the NT Act was not established in relation to Areas 1 to 4. 93 An outer boundary could not be clearly defined. As his Honour explained at [659]: The problem … with the extremities of the claim is that neither the notion of rough equidistance between inhabited islands nor that of "no gaps" could be used to provide an outer boundary to a community's claim and this for want of a further-out owned or shared island. The evidence suggests that it was at the extremities that the animating "principle of utility" in relation to use of areas and the Islanders' connection by their laws and customs to their waters, work together. 94 The evidence of marine estates in Areas 1 to 4 was said by his Honour (at [621]) to be "sparse". His Honour discussed each region separately. In relation to the northern areas the primary judge noted that there were two areas of concern. These are Areas 1 and 2. His Honour said at [684] in respect of the areas: They are, first, the area north of Ugar up to the northern boundary of the sea claim area and, secondly, the area within Australia's territorial waters above Guchen Sandbank. 95 In respect of Area 1, his Honour noted (at [684]): Tom Ned Stephen's evidence is that it stands on the route Ugarem Le use when going to Warrior Reef and to the Top Western islands. The waters surrounding it are used to fish for mackerel, crayfish and other fish. There is no evidence to suggest that that fishing area extends to the limits of the territorial sea. 96 In relation to Area 2, the primary judge said (at [684]): There is some evidence that the people of Ugar use Maizab Kaur and Rebes: Tom Ned Stephen. There is no other evidence of their use of waters to the north further west than that crossed to travel to those two islands. Guchen Sandbank is the subject of a consent land determination: Stephen v Queensland [2004] FCA 1574. 97 His Honour said (at [684]) that: For the purposes of determining the northern boundaries of Ugar's marine estates, I would not include sea areas in the claim area above Ugar and Guchen Sandbank, save both for that which is reasonable for the use and enjoyment of the waters around the two islands themselves and that between Ugar and Erub's marine area (which is within the claim area) and which is traversed for the purposes of entering Erub's marine estate. These savings apart, there is no evidence of use of, or connection to, those areas I have not included. 98 As to Areas 3 and 4, the primary judge summarised the relevant facts and evidence at [661]: 661 Maizab Kaur (Bramble Cay) and Rebes. These lie to the north of Erub beyond the Seabed Jurisdiction Line. They are about five kilometres apart; are part of Australian territory; and have their own territorial sea having a three mile limit under the PNG Treaty: see Article 3. They have been the subject of a native title consent land determination in favour of the Erubam Le People: Mye v Queensland [2004] FCA 1573. While there is clear evidence of people from Erub using those areas and their waters - and it is both historic (Haddon, 1935, 150) and contemporary (Kapua Gutchen) - the evidence of Islander witnesses was that Maizab Kaur was used primarily for collecting the eggs of turtles and various bird species (Mareko Kebisu, Tom Stephen, Patrick Whap, Kapua Gutchen and Bully Saylor). These references were made in relation to the land mass rather than the waters. There is evidence of use of the reef and waters around Maizab Kaur. The reef was a good source of trochus shell, black lip pearl shell crayfish and bÊche-de-mer (Kapua Gutchen and Bully Saylor). Witnesses gave evidence that turtles were taken from around Maizab Kaur (Bully Saylor and Mareko Kebisu). Tom Stephen indicated that the waters around the island were fished for mackerel and George Mye indicated that they were used to dive for trochus shell. The evidence of use of Rebes was scant. However, Kapua Gutchen indicated that the waters around Rebes were trawled for dabor (mackerel) and malowap (tuna). George Mye also explained that the area around Rebes was used to dive for trochus shell. 99 Area 4 included the islands of Garboi and Misnare which "are two islands at the top of the Barrier Reef to the north of Mer. They are beyond the Seabed Jurisdiction line and are in Australian territory under the PNG Treaty having the English language names of Anchor Cay and East Cay" at [662]. His Honour said that the cays: … were annexed in 1879. The Islander evidence of to whom each belongs is mixed. Kapua Gutchen's view is that they are shared by Erub and Mer because "the Meuram at Murray and Meuram at Erub have a special role in relation to those two places". Wolfgang Laade's account (1969, at 37) is to like effect, although he attributes the Meuram interest to Maizab Kaur as well. George Mye's view is that they belong to Erub because it is "closer" to them but "we all use it". And Bully Saylor, that Erub has Garboi. Mer, seemingly, has it and Misnare as well, though it is used by Ugar. Each gave evidence of having worked around them. Such evidence given of resource extraction from their waters related only to harvesting trochus. Given the location of these two islands relative to both Erub and Mer and that they are located within PNG waters (ie in the direction from which the Eastern Islands were settled), it is reasonable to infer that they were used by both Erub and Mer prior to annexation. While there is some evidence of early Eastern Island involvement in the pearling industry in the decade prior to annexation (Mullins 2008, [170]-[178]), and gathering the trochus shells was part of this industry (Beckett, 1987, 33-35) and while archaeological evidence has revealed the existence of trochus shells in middens at Mer and Dauar, it is not possible to conclude that either island was being used for pearl shelling prior to 1879. 100 Again, the primary judge found that the evidence was insufficient to lead to a finding in favour of a sufficient connection with the Seas Claim Group stating at [664]: While the sea area claimed for both sets of island are their respective territorial waters, no basis for such a claim has been advanced. I accept that the near waters surrounding the area between each of the two sets of islands and the waters to the south of them were part of the marine estates of Erub (Maizab Kaur and Rebes) and of Erub and Mer (Garboi and Misnare). I am not satisfied that the waters to the north of the near waters of any of the islands is part of the marine estates of Erub or Mer. There is no evidence of use there, nor of connection to those waters. These findings will be reflected in my conclusions on the Geography issue.

The primary judge's findings and conclusions 134 The primary judge considered (at [750]) the public right to fish, holding that Islanders have both the public right to fish and their native title rights. Similarly, the public right to navigate was held to co-exist with native title rights. On these issues his Honour stated at [749]-[750] that: …I should comment briefly on the consistency or otherwise between the rights of group members of an island community to access, remain in and use their own marine areas and to take marine resources therefrom, and the common law's public rights to navigate and to fish in those areas. I emphasise the group members' "own marine areas" because that is the only domain in which they have their native title rights under the Islander society's laws and customs. Beyond their own areas, ie in other parts of the claim area, under their traditional laws and customs, they may formally require permission to enter and take resources. Such permission requirement, though, will not be recognised by the common law as it is clearly inconsistent with the Islanders' rights, as members of the Australian public, to exercise their public rights to navigate and to fish in those other areas: Gumana FC at [170]. It is unnecessary for present purposes to determine whether, after sovereignty, the public right to fish has in fact been abrogated by legislation: cf Northern Territory v Arnhem Land Aboriginal Land Trust [2008] HCA 29; (2008) 236 CLR 24 ("Arnhem Land Aboriginal Land Trust"). 750 In their own areas as well, the Islanders have those public rights, but they also have their native title rights. The incidents of the public rights, so far as they go, are quite consistent with the native title rights and interests. The public rights give access and passage and a right, albeit a particular one, to take. Subject to what is said below, there is no inconsistency such as would deny the claimed rights recognition. 135 Similarly, his Honour discussed the public right to navigate at [520]: The traditional laws and customs that gave these rights clearly envisaged the rights would be exclusive - hence the permission requirement, the past assertion of a right positively to defend one's territory, and the acute contemporary appreciation of one's own marine area and that of others. As I will indicate below, exclusivity would not be recognised by the common law, nor is it claimed in the determination sought. Nonetheless, as will be seen, the rights of group members to access, traverse and use their own marine territory will be recognised as they are not inconsistent with the common law's public right to navigate so far as it goes. 136 As to customary rights, the primary judge held that "save for shared land and waters, the laws and customs under which native title rights and interests have their application is at the level of the individual island communities" at [455]. Moreover, the primary judge found at [540] that although each of the individual island communities, in their shared marine territories, had native title rights these did not confer exclusive possession or occupation. It was recognised at [614] that shared ownership existed "where the marine areas of two or more communities meet up, or in areas distant from inhabited islands". The primary judge found that "commercial activity apart, the receiving of 'permission' when taking resources from another Island community's land or waters is the accepted commonplace for Islanders across Torres Strait": (at [295]). 137 It may be noted that the primary judge held that the PNG parties in this case could not establish that they had any customary rights and interests in the claim area: [952], [985], [986], [999] - [1000].

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