Harper v Minister for Sea Fisheries

Harper v Minister for Sea Fisheries - [1989] HCA 47 - HCA 1989 case summary — Zoe

[47]

Since the decision of the House of Lords in Malcolmson [Malcomson] v. O'Dea [2] , it has been unquestioned law that since Magna Charta no new exclusive fishery could be created by Royal grant in tidal waters, and that no public right of fishing in such waters, then existing, can be taken away without competent legislation. This is now part of the law of England, and their Lordships entertain no doubt that it is part of the law of British Columbia. And [3] : In the tidal waters, whether on the foreshore or in creeks, estuaries, and tidal rivers, the public have the right to fish, and by reason of the provisions of Magna Charta no restriction can be put upon that right of the public by an exercise of the prerogative in the form of a grant or otherwise. It was assumed throughout the hearing, no doubt correctly, that the waters in which the Tasmanian abalone fishery was situated were tidal waters. Accordingly, the right of the owner of the soil over which the waters flow (whether the owner be the Crown or not) to enjoy the exclusive right of fishing in those waters or to grant such a right to another as a profit à prendre is qualified by the paramount right to fish vested in the public: seeAttorney-General (British Columbia) v. Attorney-General (Canada) [4] . In Malcomson v. O'Dea [5] , it was held that, after Magna Charta, the Crown, in whom the title to the bed of tidal navigable rivers was vested, was precluded from granting a private right of fishery, the right of fishery being in the public. The law so stated was followed in Neill v. Duke of Devonshire [6] . And in Lord Fitzhardinge v. Purcell [7] , although Parker J. held that the Crown might grant title to the bed of the sea or of a tidal navigable river to a subject, his Lordship held that no such grant can operate to the detriment of the public right of fishing [8] . The existence of a public right to fish in tidal waters was accepted by Stephen and Jacobs JJ. in New South Wales v. The Commonwealth [Seas and Submerged Lands Case] [9] . But the right of fishing in the sea and in tidal navigable rivers, being a public not a proprietary right, is freely amenable to abrogation or regulation by a competent legislature: see Attorney-General (British Columbia) v. Attorney-General (Canada) [10] ; Attorney-General (Canada) v. Attorney-General (Quebec) [11] . Although there is authority for the view that the public right of fishing is sustained by the Crown's title to the sub-soil (Mayor, &c. of Carlisle v. Graham [12] ) the competence of a State legislature to make laws regulating a right of fishing in such waters is not dependent upon the State's possession of a proprietary right in the bed of the seas or rivers over which such waters flow. Lord Herschell pointed out that "there is a broad distinction between proprietary rights and legislative jurisdiction": Attorney-General (Canada) v. Attorney-Generals (Ontario, Quebec, and Nova Scotia) [13] . 1. [1914] A.C. 153, at p. 170. 2. (1863) 10 H.L. Cas. 593 [11 E.R. 1155]. 3. [1914] A.C., at p. 171. 4. [1914] A.C., at pp. 167-168. 5. (1863) 10 H.L. Cas., at p. 618 [11 E.R., at pp. 1165-1166]. 6. (1882) 8 App. Cas. 135, at pp. 138-139, 178, 179. 7. [1908] 2 Ch. 139. 8. [1908] 2 Ch., at pp. 166-167. 9. (1975) 135 C.L.R. 337, at pp. 419, 421, 423, 489. 10. [1914] A.C., at pp. 170, 172. 11. [1921] 1 A.C. 413, at pp. 421-422, 427. 12. (1869) L.R. 4 Exch. 361, at pp. 367-368. 13. [1898] A.C. 700, at p. 709.

[61]

The defendants deny that the amounts required to be paid to obtain a licence are duties of excise. Several arguments are raised in support of that submission. The principal argument starts with the proposition that abalone have such a degree of attachment to and dependence on the seabed that they should be regarded as part of it in the same way that mussels were said to be part of the bed of the river Clyde in Parker v. Lord Advocate [20] . (Though it may be doubted whether the ratio of that decision was that the mussels in the mussel scalps were part of the soil: [21] .) Then it was said that the Coastal Waters (State Title) Act 1980 Cth had vested in Tasmania the same right and title to the property in the seabed beneath the coastal waters of that State as would belong to Tasmania if that seabed were beneath waters of the sea within the limits of Tasmania: see s. 4(1) of that Act. Arguing that under that Act Tasmania became the owner of the abalone attached to the seabed beneath coastal waters and that Tasmania already was the owner of the abalone attached to the seabed beneath waters within the limits of the State, the defendants submit that the amount required to be paid to obtain a licence to take the abalone is a royalty. A royalty, in the sense of a payment made to the owner of land for the right to take away things which are part of or naturally attached to the soil (Stanton v. Federal Commissioner of Taxation [22] ), is not a tax and, not being a tax, cannot be a duty of excise. Alternatively, the amount required to be paid to obtain a licence is said to be paid for a profit à prendre - for the right to take abalone rather than for the abalone taken: see Halsbury's Laws of England, 4th ed., vol. 18, p. 254, par. 601. It is immaterial to this argument whether the abalone are part of the seabed or are merely found on the seabed: Beckett (Alfred F.) Ltd. v. Lyons [23] . The payments required to be made under reg. 17A, so the argument runs, are in the nature of a royalty and are neither a tax nor a duty of excise. The plaintiff meets these arguments by challenging the proposition that abalone or the right to take abalone belonged to the owner of the seabed and by challenging both the validity of the Coastal Waters (State Title) Act and its efficacy to vest in Tasmania ownership of the seabed beneath the coastal waters of the State. To the extent that the defendants' case depends upon Tasmania's ownership of the seabed beneath the coastal waters and the waters within the limits of the State, it is but a partial answer to the plaintiff's argument. The State fishing waters include waters in the Australian fishing zone adjacent to the coastal waters of Tasmania and no suggestion was made that Tasmania has any proprietary rights in the seabed beneath the waters in the Australian fishing zone.

[65]

As we have seen, the Act and the Regulations abrogate the public right to fish for abalone in the State fishing waters and confer private statutory rights on the several licence holders, commercial and non-commercial, to take limited quantities of abalone. Although any member of the public may apply for and be granted a non-commercial licence, not every member of the public is a licence holder, and those who may lawfully take abalone do so not in exercise of a public right to fish but in exercise of the statutory right of a licensee. As licensees under the Act are the only persons who enjoy the right to take abalone from the Tasmanian fishery, the public being excluded, the right they enjoy is similar to the common of piscary - a right of fishing in another's waters to the exclusion of the public. Such a common law right is a profit à prendre (see Halsbury's Laws of England, 4th ed., vol. 6, p. 215, pars 581, 582) but at common law it is not available in tidal waters. When a natural resource is limited so that it is liable to damage, exhaustion or destruction by uncontrolled exploitation by the public, a statute which prohibits the public from exercising a common law right to exploit the resource and confers statutory rights on licensees to exploit the resource to a limited extent confers on those licensees a privilege analogous to a profit à prendre in or over the property of another. A limited natural resource which is otherwise available for exploitation by the public can be said truly to be public property whether or not the Crown has the radical or freehold title to the resource. A fee paid to obtain such a privilege is analogous to the price of a profit à prendre; it is a charge for the acquisition of a right akin to property. Such a fee may be distinguished from a fee exacted for a licence merely to do some act which is otherwise prohibited (for example, a fee for a licence to sell liquor) where there is no resource to which a right of access is obtained by payment of the fee.

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