Court of Appeal (WA)|1999-06-23|Before: Wheeler J, Kennedy J, White J

Wilkes v Johnsen [1999] WASCA 74 (23 June 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WILKES -v- JOHNSEN [1999] WASCA 74

Native title - Fishing rights - Extinguishment and regulation - State law restricting persons from carrying on fishing activities - Whether restricted other than in accordance with a licence, permit or other instrument

Conviction for possession of totally protected fish set aside

Conviction for failing to state to a fisheries officer his name and address upheld

Respondent : Mr R J Meadows QC, Solicitor-General for Western Australia & Mr S J Wright

Appellant : Aboriginal Legal Service of Western Australia Inc

Attorney General for Canada v Attorney General for Ontario [1898] AC 700

Delgamuukw v British Columbia (1993) 104 DLR (4d) 470

Eaton v Yanner, unreported; Crt of Appeal, SCt of Qld; No 10389 of 1996; 27 February 1998

Fejo v Northern Territory [1998] HCA 58; (1998) 156 ALR 721

Minister for Primary Industry and Energy v Davey (1993) 119 ALR 108

New South Wales v Commonwealth (Seas and Submerged Lands Act Case) [1975] HCA 58; (1975) 135 CLR 337

Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513

Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680

Yarmirr v Northern Territory (1998) 156 ALR 370

1 KENNEDY J: I have had the advantage of reading the reasons for judgment to be published by Wheeler J. I am generally in agreement with those reasons and desire only to comment briefly upon the application of s 211 of the Native Title Act 1993 (Cth), which is concerned with the exercise and enjoyment of native title rights and interests with respect to the classes of activity listed in s 211(3).

2 The critical question which arises under this difficult section, for the present purposes, is whether the Fish Resources Management Act 1994 (WA), in terms of par (b) of s 211(1) of the Native Title Act, prohibits or restricts persons from carrying on a particular class of activity, other than in accordance with a licence, permit or other instrument granted or issued to them under the State Act. By s 211(3), it is provided that each of the activities set out in that subsection constitutes a separate class of activity. The presently relevant class of activity is that of fishing.

3 Section 46(b) of the Fish Resources Management Act provides, amongst other things, that "[a] person must not ... take ... [or] ... have in the person's possession ... any totally protected fish". That does not, on its face, amount to a prohibition from carrying on the activity of fishing. In my view, however, it does "restrict", in the sense of confining within limits, that activity.

4 It does not appear to me that s 211(1)(b) of the Native Title Act is purporting to set out the precise terms in which the State law must express the prohibition or restriction before it comes within that paragraph. It is, I consider, sufficient if the effect of the legislation, in the present case, is to restrict persons from fishing, other than in accordance with a licence, permit or other instrument granted or issued to them under the law. The question for decision is whether an exemption under s 7 of the Fish Resources Management Act comes within the description of an "other instrument" in s 211(1)(b) of the Native Title Act.

5 The expression "licence" is defined in s 4 of the Fish Resources Management Act to mean an aquaculture licence, a commercial fishing licence, a fishing boat licence, a fish processor's licence, a managed fishing licence, a recreational fishing licence or any other licence provided for in the regulations. "Permit" is defined in s 4 to mean an interim managed fishery permit or a permit granted under s 80 (a permit for a fish processing establishment). The expression "authorization" is defined to mean "a licence or permit", whilst "exemption" is defined in s 4 to mean "an exemption granted under section 7". In probably the majority of cases, there will be a distinction between a licence or permit, which constitutes an authority to do that which would otherwise be prohibited (or be wrongful or illegal), as to which see Edwards v O'Connor [1991] 2 NZLR 542, at 550, and an exemption, which, when granted, excludes the action in question from the scope of the prohibition. But in the Fish Resources Management Act, "a licence or permit" on the one hand, and "an exemption" on the other, have very much the same effect.

6 Under s 7 of the State Act, the Minister is empowered, by instrument in writing, to exempt a specified person or any specified class of persons from specified provisions of the Act. The Minister, unlike the Executive Director of the Department, who has a much more limited power to grant exemptions, is empowered to grant an exemption for any purpose. An application for an exemption may be made to the Minister or to the Executive Director and must be made in a form approved for that purpose by the Executive Director (s 7(4)(a) and (b)), and it must be accompanied by the prescribed fee (if any) (s 7(4)(c)). An exemption may be granted subject to such conditions as the Minister thinks fit and specifies in the instrument (s 7(5)) and the Minister may, if he or she thinks fit by further instrument in writing, vary or revoke an exemption or delete, vary or add to any conditions imposed in relation to that exemption (s 7(6)). A penalty is imposed upon any person contravening a condition of an exemption (s 7(7)).

7 In the case of a licence or permit, an application for the grant must be made to the Executive Director in a form approved for that purpose by the Executive Director, and it must be accompanied by the fee (if any) prescribed (s 135(1)). Under the various licences and permits, conditions may be imposed, deleted or varied - see, for example, s 69, s 81, s 87 and s 95. Penalties are imposed upon any person contravening a condition of a licence or permit - see, for example, s 77, s 88 and s 96.

8 In relation to the administration of the Act, licences, permits and exemptions are dealt with in the same way. Thus, in relation to the powers of fishery officers, under s 189(1)(b) a fishery officer may require any person engaged in fishing to state whether or not the person holds an authorization or exemption, and under s 190(1)(a), a fishery officer may require any person to produce for inspection any authorization or exemption which the person states that he or she holds, or in the fishery officer's opinion should be held by that person.

9 Under s 212(1), in any proceedings for an offence against the Act, the production of a certificate purporting to be signed by the Registrar and stating that on any date and during any period a person was or was not authorized to do anything under an authorization, or was or was not exempted from the Act or specified provisions of the Act by an exemption and certain other matters relating to authorizations and exemptions are, without proof of the Registrar's signature, evidence of the facts stated in the certificate.

10 Under the Fish Resources Management Act, a licence, a permit and an exemption serve many similar purposes and, in my view, in the circumstances, an exemption can fairly be described as an "other instrument" in the description "a licence, permit or other instrument granted" in s 211(1)(b) of the Native Title Act.

11 I agree with Wheeler J that the appellant's appeal against his conviction under s 189 of the Fish Resources Management Act should be dismissed, but that his appeal against his conviction under s 46(b) of the Act should be allowed, and the matter remitted to the learned Magistrate to be further dealt with according to law.

The charges on which the appellant was convicted

12 The appellant was, on 18 December 1997, convicted in the Court of Petty Sessions at Collie of two offences under the Fish Resources Management Act 1994 ("the FRMA") namely:

(1) being in possession of totally protected fish (eight undersized marron) contrary to s 46(b) of the FRMA and Fish Resources Management Regulations ("FRMR"), re. 10, Sch 2 Pt 2 Div 5 "Marron"; and

(2) without reasonable cause, failing to give his name and address to a Fisheries Officer, contrary to FRMA s 189(2).

13 He appeals against those convictions by leave granted by Murray J on 25 February 1998 on three grounds which are set out hereunder.

The alleged existence of a native title right to fish unfettered by the FRMA

14 The appellant is an Aborigine. At the hearing at first instance, the appellant, who did not challenge the allegations of possession of undersized marron or of failing to give his name and address to a Fisheries Officer, sought to lead, in support of a defence to the charges against him, evidence tending to establish the existence of a native title right entitling the appellant to fish for marron without regard to the FRMA. The application was refused and the learned Magistrate held that the existence of the alleged native title right was irrelevant to the charges. Accordingly, no such evidence was led and, for the purposes of this appeal, it is common cause that it is necessary to assume, without making any finding to that effect, that the appellant would have led evidence establishing that a common law native title right in fact existed at the material time, lawfully entitling the appellant to have in his possession undersized marron, with the consequence that his failure to give his name and address to the Fisheries Officer was not "without reasonable excuse."

15 The respondent submits that the term "native title" seems inapposite when referring to a right to fish; it is to be understood as meaning a usufructuary and non-proprietary right recognised by the common law which has its origins in and is given its content by the traditional laws acknowledged and the traditional customs observed by the indigenous inhabitants of a territory: Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 57_,_ 58, 110; Wik Peoples v Queensland (1996) 187 CLR 1 at 84.

16 The appellant submits that where, by way of defence to a criminal prosecution, a defendant adduces sufficient evidence to raise the prospect that he has a native title right to do the thing the subject of the charge, thereby satisfying an evidentiary burden upon the defendant, it is for the prosecution to negate the native title right asserted by the defendant: Samuels v Stokes [1973] HCA 62; (1973) 130 CLR 490; Derschaw & Ors v Sutton (1996) 17 WAR 419; Dillon v Davies (1998) 156 ALR 142 at 146. Alternatively, the appellant submits, if the defendant in such a prosecution were to establish his entitlement under common law native title to hunt or fish marron, that would constitute a complete defence to the charges.

Is such native title right extinguished by the FRMA?

17 The appellant contends that if (as I think we must assume for present purposes) a native title right to fish or hunt for marron exists, it is neither extinguished, in whole or in part, nor otherwise regulated or affected by the FRMA. Legislation, both Commonwealth and State, will not extinguish a native title right unless it exhibits the "clear and plain intent" of the legislature concerned to that effect: Mabo v Oueensland (No 2) (supra); Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373; Wik Peoples v Oueensland (supra).

18 The "clear and plain intent" rule flows from the "seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interest in land" and has been described by Brennan J (as he then was) in Mabo v Queensland (No 2) (supra) at 64. The rule has been applied in the Canadian Courts dealing with the extinguishing of native title right of Indian lands in North America: see R v Sparrow [1990] 1 SCR 1075; Calder v Attorney General (1973) 34 DLR (3d) 145; Delgamuukw v British Columbia [1998] 1 CNLR 14.

19 The constitutional point which came before the Court in R v Sparrow (supra) was whether the net length restriction imposed in the Band's fishing licence was inconsistent with the provisions of s 35(1) of the Constitution Act 1982 (Canada). That sub-section provides:

"35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed."

20 Australia does not have a similar legislative provision. However, in R v Sparrow (supra) the court ruled that an aboriginal right is not extinguished merely by its being controlled in great detail by the regulations under the Fisheries Act. Accordingly, the Court recognised a distinction between the extinguishment of an aboriginal right and the regulation thereof. In my opinion, such a distinction is operative in Australia and I am not persuaded by the argument of senior counsel for the appellant to the contrary.

21 The appellant submits that there is nothing in the FRMA which exhibits a clear and plain intent on the part of the Western Australian legislature to extinguish, in whole or in part, a native title right or interest to fish. Section 6 of the FRMA exempts an Aboriginal person from obtaining a "recreational" fishing licence to catch fish for family purposes. A similar view, it is submitted, was adopted with respect to New South Wales fishing legislation: Mason v Tritton (1994) 34 NSWLR 572, per Kirby P (as he then was) at 592 (C - E).

22 Accordingly, the appellant submits, the conclusion that the FRMA does not either wholly abrogate or partly abridge any native title right or interest to fish or hunt marron which may be proved to exist at common law is irresistible.

23 It does not appear that the New South Wales legislation contained a provision similar to that of s 6 of the FRMA, referring expressly to Aboriginal persons.

24 In my opinion, s 6 of the FRMA does raise a problem in relation to the appellant's argument. That section provides:

An Aboriginal person is not required to hold a recreational fishing licence to the extent that the person takes fish from any waters in accordance with continuing Aboriginal tradition if the fish are taken for the purposes of the person or his or her family and not for a commercial purpose."

25 The problem to which I refer is, of course, that the only provision of the FRMA which is expressed to be not applicable to an Aboriginal person is the requirement to hold a recreational fishing licence for the purpose stated. Applying the principle of statutory construction embodied within the maxim "inclusio unius est exclusio alterius", it seems reasonable to construe the FRMA as otherwise applying to Aboriginal persons. The stated exemption seems limited, therefore, in its overt context to a fiscal operation and says nothing as to any entitlement to possession of fish taken.

26 The stated object of the FRMA is set out in s 3 as follows:

(1) The objects of this Act are to conserve, develop and share the fish resources of the State for the benefit of present and future generations.

(2) In particular, this Act has the following objects -

(a) to conserve fish and to protect their environment;

(b) to ensure that the exploitation of fish resources is carried out in a sustainable manner;

(d) to foster the development of commercial and recreational fishing and aquaculture;

(e) to achieve the optimum economic, social and other benefits from the use of fish resources;

(f) to enable the allocation of fish resources between users of those resources;

(g) to provide for the control of foreign interests in fishing, aquaculture and associated industries;

(h) to enable the management of fish habitat protection areas and the Abrolhos Islands reserve."

27 Senior counsel for the respondent submitted that the learned Magistrate correctly held, adopting the words of Kirby P in Mason v Tritton (supra), that "the control and regulation of fishing activity [by the FRMA and FRMR] applies to all those who fish, regardless of the nature of the fishing right which they severally purport to exercise".

28 The exercise of an alleged right to take fish of any size and in any quantity, regardless of the effects upon the fish resources themselves would, in my opinion, be inconsistent with the stated objects of the FRMA. Those objects are not inconsistent with a right to fish as such. All persons have that right (subject in the case of non-Aboriginal persons to the possession of the appropriate fishing licence under the FRMA). In my opinion, the clear and plain intent of the FRMA is to extinguish any right to fish to the extent that its exercise would defeat the stated objects of the FRMA. That is not to suggest that the FRMA extinguishes absolutely any native title right to fish which may be established. The right to fish endures, subject to its regulation by the provisions of the FRMA.

29 In Mason v Tritton (supra), Kirby P (as he then was) said at 592-593:

1. Neither the provisions of the Fisheries and Oyster Farms (General) Regulation 1989 nor the Fisheries and Oyster Farms Act 1935 reveal a clear and plain intention to extinguish native title as such. Thus, native title is not extinguished by any express manifestation of parliament's will.

2. The application of the Regulation to the appellant is not such that, as a matter of practical effect, the Regulation is so inconsistent with the appellant's continued enjoyment of his native title that the Regulation would necessarily be deemed to have extinguished his native title. Indeed, the practical effect of the Regulation is merely to regulate the activities of all those who fish the waters of New South Wales in an equal manner. This aspect is further discussed below. Hence, without more, the practical operation of the Regulation does not, by implication, extinguish native title or rights derived from such title.

3. Upon this view, the Regulation merely regulates the enjoyment of native title. The Regulation was made pursuant to s 4N of the Fisheries and Oyster Farms Act 1935. That section provides that regulations may be made 'for the management of the fishery' (s 4N(l)(a)). The Regulation in question limited the permissible catch of, among other ocean dwelling creatures, abalone. It prohibited the shucking of abalone adjacent to the waters. In R v Sparrow (1990) 70 DLR (4th) 385, the Supreme Court of Canada considered a claim similar to that made in the present case. In Sparrow, the accused was charged under s 61(1) of the Fisheries Act 1970 (Can) of a contravention of the regulations made pursuant to that Act. The accused had used a longer than permissible drift-net. Section 34(a) of that Act bestowed on the Governor in Council broad powers to make regulations, including 'for the proper management and control of the seacoast and inland fisheries'. Dickson CJC and La Forest J said (at 400-401): 'At bottom, the respondent's argument confuses regulation with extinguishment. That the right is controlled in great detail by the regulations does not mean that the right is thereby extinguished.' The same distinction would, in my view, be applicable in the present case. The history of the Fisheries and Oyster Farms Act 1935 and its accompanying Regulation establishes a regime of control of the New South Wales fisheries in a manner amounting to stringent regulation, but not extinguishment, of any otherwise established proprietary right. No doubt stringent regulation may reach the point where the ordinary rights and privileges associated with property are so curtailed that proprietary rights can no longer be enjoyed. Whether that is the case is ultimately a question of fact. It is not, in my opinion, the case here. In the ordinary case, control and regulation of the rights and privileges associated with property ownership is consistent with continued property ownership. Indeed, civilised societies demand that proprietary rights and interests be highly regulated. I do not take it to be the intent of the High Court in Mabo that successful claimants to a form of native title should then be able to remove themselves from the ordinary regulatory mechanisms of Australian society. In the particular context of this case, the control and the regulation of fishing activity applies to all those who fish, regardless of the nature of the fishing right which they severally purport to exercise."

"Any larger and bolder argument of the limits of the power of the New South Wales Parliament to make laws sustaining the Regulation affecting native title cannot be entertained in this Court. It may indeed be the case that Aboriginal law itself, properly understood, might not accept the power of the New South Wales Parliament to make such laws supporting such a Regulation. But this Court is bound to apply the law made by parliament or laws made under such a law. It cannot instead choose to obey an inconsistent law of Aboriginal society. In the end this obligation of the Court comes down to a question of the de facto power which sustains the de jure claims to valid law making of the New South Wales and Federal Parliaments in Australia. To the extent that a claim was made by the appellant that the Regulation was invalid when it purported to limit his entitlements under native title, the answer must be given by the courts of this country that his claim to the extent that it is founded in Aboriginal law only secures its force within the Australian legal system because that system itself grants it recognition. The advent of Mabo vividly demonstrates that reality."

31 It seems to me, with respect, that those remarks, mutatis mutandis, are applicable to the effect of the FRMA in this State. The appellant pointed out that Kirby J's dicta in the passage cited above were obiter. I am prepared to adopt them as correctly stating the position so far as Western Australia is concerned. The appellant contends that his Honour's comments "effectively deny the holder of a native title right to fish in Western Australia the power to exercise that common law right". I do not agree. In my opinion, the FRMA does not deny any person the right to fish in Western Australia - it regulates the exercise of that right and does so in the interests of all persons in the State. The appellant argues that the "clear and plain intent" rule applies equally to the application of regulatory statutory provisions as to provisions which extinguish native title rights. For the reasons I have already indicated, I am of the view that the FRMA evinces a clear and plain intent to regulate the exercise of the right to fish, from whatever source that right may be derived.

The effect of the Native Title Act 1993 (Cth), s 211

32 Section 211 of the Native Title Act 1993 (Cth), ("the NTA") provides:

"211 Preservation of certain native title rights and interests

Requirements for removal of prohibition etc. on native title holders

(a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and

(b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and

(ba) the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and

(c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.

Removal of prohibition etc. on native title holders

(2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so:

(a) for the purpose of satisfying their personal, domestic or noncommercial communal needs; and

(b) in exercise or enjoyment of their native title rights and interests.

Note: In carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application.

(3) Each of the following is a separate class of activity:

(e) any other kind of activity prescribed for the purpose of this paragraph."

33 The appellant submits that the terms of s 211(1) are satisfied in the present case. He contends that the exercise or enjoyment of native title rights and interests in relation to land or waters includes carrying on the activities of hunting or fishing, which are classes of activity referred to in s 211(3) of the NTA. He submits that the FRMA prohibits or restricts persons from carrying on fishing other than in accordance with a licence, permit or other instrument granted or issued to them under the law. The basis of that submission is that, while the appellant is prohibited from carrying on the fishing of a certain size of marron, that activity may be permitted if an instrument of exemption is granted by the Minister for Fisheries or the Executive Director of the Department of Fisheries appointed under s 10 of the FRMA.

34 Although the provisions of par 211(1)(ba) came into effect only after the appellant's conviction, the appellant submits that the criteria contained in that paragraph have in any event been met, in that exemption may be granted for purposes other than research, environmental protection, public health or public safety purposes.

35 Finally, in this connection, the appellant points out that the FRMA plainly does not confer rights and interests only on Aboriginal people or Torres Straits Islanders but on the community at large.

36 Accordingly, the appellant submits, the criteria set out in s 211(1) are established and that section, by its express terms is intended to override a State law of a certain kind and accordingly prevails over the regulation provided in s 46 of the FRMA which, by virtue of s 109 of the Commonwealth Constitution, is inoperative.

37 The respondent submits that s 211 of the NTA has no application to s 46 of the FRMA as the latter does not prohibit or restrict persons from being in possession of undersized marron other than in accordance with a licence, permit or other authority - the absence of a licence, permit or other authority is not an element of the offence. The existence of a Ministerial discretion to grant exemption from specified provisions of the FRMA is not to the point, it is submitted, and s 46(b) does not prohibit persons from being in possession of undersized marron "other than in accordance with" an exemption under s 7. The effect of an exemption under s 7 is to remove any prohibition and any requirement for a licence, permit or other instrument altogether and that same applies to the discretion of the Executive Director in s 7(1) and s 7(3). In any event, the respondent points out, the Executive Director could not have exempted the appellant from s 46(b) given the purpose for which the appellant was in possession of undersized marron.

38 I would uphold these submissions by the respondent and hold, therefore, that s 211 of the INTA is not relevant in the present appeal.

40 At the date on which the appellant was convicted, the NTA contained s 235 and s 236 which sections were repealed by the Native Title Amendment Act 1998 (Cth), assented to on 27 July 1998.

235.(1) This section defines 'permissible future act'.

(2) A future act in relation to an onshore place is a 'permissible future act' if it is the making, amendment or repeal of legislation and:

(a) the act applies in the same way to the native title holders concerned as it would if they instead held ordinary title to the land (or to the land adjoining, or surrounding, the waters) affected; or

(b) the effect of the act on the native title in relation to the land or the waters is not such as to cause the native title holders to be in a more disadvantageous position at law than they would be if they instead held ordinary title to the land (or to the land adjoining, or surrounding, the waters).

Example for purposes of paragraph (2)(a) - equally affecting all title

(3) An example of a future act covered by paragraph (2)(a) is the making of legislation that permits mining on land in respect of which there is either native title or ordinary title.

Example for purposes of paragraph (2)(b) - bringing native title into line with ordinary title

(4) An example of a future act covered by paragraph (2)(b) is the amendment of legislation that permits mining on land that is subject to ordinary title so that it will also permit mining, on the same terms, on land in relation to which native title exists.

Non-legislative acts in relation to onshore places

(5) A future act in relation to an onshore place is also a 'permissible future act' if:

(a) it is an act other than the making, amendment or repeal of legislation; and

(i) the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it; or

(ii) the act could be done in relation to the waters concerned if the native title holders concerned held ordinary title to the land adjoining, or surrounding, the waters.

(6) An example of a future act covered by subsection (5) is the grant of a mining lease over land in relation to which there is native title when a mining lease would also be able to be granted over the land if the native title holders instead held ordinary title to it.

Renewals, re-grants or extensions of certain leases

(7) A future act is also a 'permissible future act' if:

of a commercial, agricultural, pastoral or residential lease; and

(b) the renewal, re-grant or extension takes effect at the end of the term of the lease, or at the time of any earlier termination of the lease; and

(i) create a proprietary interest where the lease previously created only a non-proprietary interest; or

(ii) create a larger proprietary interest than was previously created by the lease; and

(d) if the lease contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders -the renewed, re-granted or extended lease contains the same reservation or condition.

(8) Any of the following is also a 'permissible future act':

236. An 'impermissible future act' is any future act that is not a permissible future act."

42 The enactment of the FRMA was the making of legislation and it applies in the same way to any native title holders concerned as it would if they instead held ordinary title to the land (or to the land adjoining, or surrounding, the waters) affected; and the effect of the FRMA on any native title in relation to the land is not such as to cause the native title holders to be in a more disadvantageous position at law than they would be if they instead held ordinary title to the land (or to the land adjoining, or surrounding, the waters).

43 The respondent submits that the enactment of the FRMA was a permissible future act and, therefore, valid. The appellant, in the course of what his senior counsel described as a "torturous statutory construction" submits that it was not a future act at all. However, assuming for the moment that the FRMA was a permissible future act, s 23(2) of the NTA validates it and s 23(4) of the NTA applies. That subsection addresses the issue of an entitlement to compensation. This appeal is not concerned however with any question of compensation and it is unnecessary, in my opinion, to advert further to this aspect of the appellant's submissions.

44 The non-extinguishment principle is dealt with in s 238 which provides, in relevant part:

(1) This section sets out the effect of a reference to the non-extinguishment principle applying to an act.

(2) If the act affects any native title in relation to the land or waters concerned, the native title is nevertheless not extinguished, either wholly or partly.

(4) If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency."

"10. Thus, if the court were to hold that the State provision validly regulates (even though it does not extinguish in part or in whole) the native title right to fish then the State provision would not in any way be inconsistent with the continued existence, enjoyment or exercise of the native title right and interest in question. (It is indeed on that basis that we contend below that the State provision is not a 'future act' as defined.)

11. But if the Court takes the view that the State provision validly regulates the exercise of the native title right to fish, by affecting the enjoyment or exercise of the native title right to fish (and so 'affect' native title rights and interests in the sense provided for in section 227 of the NT Act) then there would appear to be inconsistency and the 'non-extinguishment principle' referred to in section 238(4) would appear to apply."

46 I confess that I have had difficulty in following the submission in par 10 above. If, as I take to be the position, the FRMA validly regulates the native title right to fish, without extinguishing it, and is accordingly inconsistent with any native title right to possess undersized marron, then the effect of s 238(4) is that the native title right to possess undersized marron has no effect in relation to the regulatory effect of the FRMA. As I understand it, therefore, a native title right to possess undersized marron cannot prevail against the prohibition in the FRMA of such possession.

47 It follows, in my opinion, that the enactment of the FRMA was a permissible future act within the meaning of the repealed sections. By the operation of s 23 of the NTA, (it not being suggested that s 24 or s 25 of the NTA apply) that permissible future act is valid.

48 Accordingly, the existence of a native title right as described above would not afford any defence to the charges against the appellant and would therefore be irrelevant to the proceedings.

49 The appellant then submitted that, in any event, the regulation contained in s 46 of the FRMA comprises an enactment which contravenes s 10 of the Racial Discrimination Act 1975 (Cth) ("the RDA"). By reason of apparent conflict, the State law is inconsistent and thus inoperative by virtue of s 109 of the Commonwealth Constitution.

50 Section 10(1) and (2) of the RDA provide as follows:

10(1) [Lack of equality before law] If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race. colour or national or ethnic origin.

10(2) [Right] A reference in sub-section (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention."

51 The appellant's argument in relation to the RDA was developed by asserting that genuine equality before the law requires that regard be had to the particular effect of the law in order to determine whether there is a denial or abridgement of a protected right. It is not enough to apply the same principles without regard to their effect: Mabo (No 1) (1988) 166 CLR 189; Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 and Gerhardy v Brown (1985) 159 CLR 70 at 129, per Brennan J, citing a passage from the writings of Judge Tanaka in the South West Africa Cases (Second Phase) [1966] ICJR 3 at 305-306, including:

"We can say accordingly that the principle of equality before the law does not mean the absolute equality, namely equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely to treat equally what are equal and unequally what are unequal....

Briefly, a different treatment is permitted when it can be justified by the criterion of justice. One may replace justice by the concept of reasonableness generally referred to by the Anglo-American school of law.

Justice or reasonableness as a criterion for the different treatment logically excludes arbitrariness."

52 His Honour also referred to the observation of Ray CJ in Kerala v Thomas [1975] INSC 224; [1976] 1 SCR 906 (a decision of the Supreme Court of India):

"Equality of opportunity for unequals can only mean aggravation of inequality."

53 The appellant referred to Henry v Boehm [1973] HCA 32; (1973) 128 CLR 482 at 502 where Stephen J said:

"I regard it as incorrect to say of a disadvantage that because it is the consequence of a requirement of universal application that disadvantage is equally applicable to all; if the discriminating factor relates to the personal attributes of individuals some only of whom possess those attributes then, while the requirement may be said to apply equally to all, the disadvantage will apply unequally for it will apply only to those who do not possess those attributes."

54 That statement was approved in Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461. See also Mabo (No 1) (supra).

55 The appellant submitted that in this case, he would seek to establish by evidence that he is entitled to exercise the native title right to fish recognised by the common law that inheres in him and other persons who are entitled by traditional law of an Aboriginal people or group to exercise that right. The effect of s 46 of FRMA and the prior prescription of certain classes of fish as "totally protected fish" for the purposes of the Act under s 45, he submitted, is to "single out" the Aboriginal holders of native title for a loss which no other race could suffer. While other persons in the community may also suffer an inability to take or possess fish affected by the s 45 prescription, persons other than native title holders did not have any pre-existing common law right to take fish according to traditional Aboriginal laws and customs.

56 The difficulty which I have with this submission is that, prior to any legislation regulating the right to take and possess fish, every member of the community had and was entitled to enjoy the right to take and possess fish without limitation. It follows, in my opinion, that there is no "singling out" of members of the Aboriginal race in the introduction of legislation which applies to everyone and which is for the benefit of everyone. In Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314 at 325, Mason CJ, Deane and Gaudron JJ said:

"The licensing system which the Fisheries Act 1959 (Tas.) and the Sea Fisheries Regulations 1962 (Tas.) establish in relation to abalone fisheries in Tasmanian waters is not a mere device for tax collecting. Its basis lies in environmental and conservational considerations which require that exploitation, particularly commercial exploitation, of limited public natural resources be carefully monitored and legislatively curtailed if their existence is to be preserved. Under that licensing system, the general public is deprived of the right of unfettered exploitation of the Tasmanian abalone fisheries. What was formerly in the public domain is converted into the exclusive but controlled preserve of those who hold licences ... This privilege can be compared to a profit a prendre. In truth, however, it is an entitlement of a new kind created as part of a system for preserving a limited public natural resource in a society which is coming to recognize that, in so far as such resources are concerned, to fail to protect may destroy and to preserve the right of everyone to take what he or she will may eventually deprive that right of all content."

57 In my respectful opinion, those remarks are equally applicable, mutatis mutandis, to the protection and control of marron fishing in this State. While, in express terms, the FRMA exempts Aborigines from the need to have a licence, in my view the prohibition against possessing undersized marrons applies equally to all persons in the State. The native title right to fish is, I consider, save for its source, indistinguishable from the pre-existing right to fish possessed by all persons in the State.

58 In Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, the High Court was concerned with a case in which s 54(1)(a) of the Fauna Conservation Act (Queensland) prohibited the keeping of fauna by an unlicensed person. An Aborigine was found in possession of a partly-plucked plain turkey and a live turkey chick. He had shot the turkey in the bush for food and was keeping the chick as a pet. He had no licence. He believed at the relevant time that he was entitled, in accordance with Aboriginal custom and his own practice of a lifetime, that he was entitled to take the turkeys as "bush tucker" and that he was committing no offence by so doing. Deane J held that the claim that the acts had been done in the honest exercise of traditional hunting rights amounted to no more than an assertion that the accused was unaware that the criminal law had outlawed the particular exercise of those rights. Dawson J held that s 54(1)(a) imposed a prohibition against the keeping of fauna which was of general application irrespective of any proprietary or lesser right in the fauna and so afforded no scope for the exercise of a claim of right. The accused's conviction was upheld.

"(1) This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975."

60 The appellant submits that the effect of that subsection is that the RDA applies in respect of a "permissible future act" so that, despite s 23(2) of the NTA, a permissible future act may still be found to be inconsistent with the RDA. With respect, that submission is, in my view, untenable. The effect of s 7(1) of the RDA cannot, in my opinion, be to render invalid what the NTA declares to be valid. Its effect is expressly limited by the provisions of s 7(2) of the NTA, which provides:

(a) the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and exercise of powers conferred by or authorised by this Act; and

(b) to construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity."

61 I turn now to the specific grounds of appeal. These are:

"(a) that the learned Magistrate erred at Law in finding that the Fish Resources Management Act 1994 (WA) ('the Act') and the Regulations made there under (sic) constitute a regulatory scheme which applies equally to all citizens and that as a matter of Law native title rights and interests cannot prevail, and are subject to, the provisions of the Act and the Regulations.

(b) that the learned Magistrate erred in Law in finding that there was no inconsistency between the Fish Resources Management Act 1994 (WA) and the Regulations made there under (sic) and the Native Title Act 1993 (Cth) and/or the Racial Discrimination Act 1975 (Cth) and/or the continued recognition at Common Law of the Applicant's native title rights and interests.

(i) any native title rights and interests in fishing held by the Applicant which were capable of recognition at Common Law;

(ii) the provisions of the Native Title Act 1993 (Cth); and/or

(iii) the provisions of the Racial Discrimination 1975 (Cth),

were irrelevant to the Applicant's defence and that evidence in respect of those matters was therefore inadmissible."

62 For the reasons which I have set out above, I have come to the conclusion that the FRMA and the FRMR do constitute a regulatory scheme which applies equally to all citizens and that they validly regulate the exercise of the right to fish which is enjoyed by all, including any native title right to take and possess fish. Accordingly, in my opinion, the first ground of appeal has not been made out by the appellant.The second ground

63 In my opinion, for the reasons expressed above, the learned Magistrate correctly held that there is no inconsistency between the FRMA and the FRMR on the one hand and either the NTA or the RDA on the other hand.

64 If, as I have concluded, the FRMA validly operated so as to regulate the exercise of the appellant's rights to take and possess fish, with the result that any native title right to possess undersized marron would be of no effect in relation to the FRMA and FRMR, the decision of the learned Magistrate that such native title right was irrelevant to the charges against the appellant must have been correct.

65 In my opinion, the appeal fails for the aforegoing reasons and I would dismiss it accordingly.

66 It is common ground in this appeal that the appellant was found in possession of eight "undersized" marron; that is, marron which, by reason of their falling short of the prescribed minimum size, were deemed "totally protected fish" within the meaning of the Fish Resources Management Act 1994 ("the FRMA") s 46(b) and regulations.

67 It is also common ground that, when approached by a fisheries officer concerning the eight marron, the appellant was asked to state his name and address and refused to do so.

68 The appellant was convicted on two complaints alleging that he:

"... had in his possession totally protected fish, namely 8 marron of length less than 76 mm, contrary to Section 46(b), 52 and 222 of the [FRMA];" and

"... without reasonable excuse failed to comply with a requirement made by a fisheries officer under Section 189(1)(a)(i) of the [FRMA, namely to state his name and address]."69 At his trial, he had sought to lead evidence tending to establish that he was an Aboriginal person exercising his native title rights, which included certain fishing rights. The learned Magistrate, however, upheld an objection on behalf of the complainant that such evidence would be irrelevant to the prosecution or defence of the charges against the appellant.

70 The issues raised by the appellant on this appeal are:

(a) the proper construction of the FRMA, it being submitted that a native title right to fish for marron cannot be regulated or affected by the FRMA unless there can be discerned a 'clear and plain intention' to achieve that effect;

(b) section 211 of the Native Title Act 1993 ("NTA") with which s 46(b) FRMA is said to be inconsistent, in its application to the appellant;

(c) the Racial Discrimination Act 1975, s 10, with which s 46 FRMA is said to be inconsistent to the extent that the latter purports to affect native title rights to fish; and

(d) the proper construction of s 189(1) FRMA, it being submitted that where a person has a native title right to fish, any requirement that a fisheries officer may make of the person would not be for the purposes of the Act.

71 The parties to the appeal are agreed that it is not necessary to consider questions of onus or standard of proof. While varying views have been expressed in the cases (eg Derschaw v Sutton (1996) 17 WAR 419; Mason v Tritton (1994) 34 NSWLR 572; Dillon v Davies (1998) 156 ALR 142), the court is invited to assume, for the purposes of this appeal, that the appellant's evidence would have been directed either to discharging an "evidentiary burden" obliging the complainant to negative native title, or to affirmatively establishing a native title right, whichever be the appropriate standard.

72 No question of extinguishment of native title rights to fish arises, it not being suggested by either party that the FRMA extinguished native title. As to regulation, in my view, neither principle nor authority requires or supports the conclusion that native title rights will only be regulated by legislation which reveals a "clear and plain" intention to do so.

73 Turning first to issues of principle, in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 ("Mabo No 2"), Brennan J (with whom Mason CJ and McHugh J agreed) explained that the requirement that the exercise of power to extinguish native title must reveal a clear and plain intention to do so flowed "from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in the land." (at 64).

74 Deane and Gaudron JJ took the view that the requirement for clear and unambiguous language to effect an extinguishment followed from the ordinary rules of statutory interpretation, which require that "clear and unambiguous words be used before there will be imputed to the Legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation" (at 111). Similarly, Toohey J regarded traditional title as in no different position from other forms of title to property, for the purposes of the rule that an intention to take the property of a subject without compensation is not imputed to the Legislature unless the intention is expressed in "unequivocal terms" (at 195).

75 Looking first to the reason given by Brennan J, the consequences of regulation will vary, depending upon the type of regulatory regime. Regulation may effect a substantial practical restriction upon the enjoyment of native title rights, or it may affect those rights in only minor and trivial ways. Regulation may also have the effect of enhancing enjoyment of native title rights; if, for example, regulations conserve fish stocks, native title rights to fish may be enjoyed over a longer term than might otherwise be the case. It is not possible, therefore, to suggest that the consequences of regulation are invariably, or usually, so serious as to require any special considerations to govern the construction of regulatory laws as they affect native title.

76 It is a feature of native title that, unlike most other forms of property, it is capable of being lost by disuse; that is, by loss of connexion with the land and cessation of observance of traditional customs (Mabo No 2 per Brennan J at 70). It is conceivable that very restrictive regulation of a number of aspects of native title may eventually lead to extinguishment of title, although it is to be noted that only the "general nature of the connexion" must be maintained, and the customs must be observed "so far as practicable" (ibid). It may on some future occasion be necessary to consider whether legislation which is in form regulatory will really effect an extinguishment. However, that is not this case. The FRMA is directed to sustainable exploitation of fish resources rather than to prohibition of all, or most, fishing (s 3 sets out its objects) and it expressly acknowledges Aboriginal traditional fishing for some purposes (s 6).

77 If one looks to other forms of property ownership for guidance concerning the construction of legislation affecting native title, as Deane, Gaudron and Toohey JJ did in Mabo No 2, there is no reason to find that any special rule of construction should apply to regulatory laws. It was said by Kirby P, in this context, in words which I would respectfully adopt, that "in the ordinary case, control and regulation of the rights and privileges associated with property ownership is consistent with continued property ownership. Indeed, civilised societies demand that proprietary rights and interests be highly regulated" (Mason v Tritton (1994) 34 NSWLR 572 at 593).

78 There is no binding authority supporting the appellant's submissions concerning construction of regulatory legislation. Although it was unnecessary to deal with the issue in detail in Mabo No 2, what observations were made were to the contrary of the respondent's submissions. Brennan J distinguished between extinguishment and regulation in the following passage, which suggests that no special principle applies to the latter:

"A clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control that is consistent with native title" (at 64).

79 The reference by Deane and Gaudron JJ to the "ordinary rules of statutory interpretation" (at 111) is not consistent with any special rule relating to regulatory legislation. Although this passage suggests that clear words are required for legislation which will "extinguish or diminish" rights, the word "diminish" appears to me in that context to suggest a permanent impairment, rather than regulation.

80 There are decisions of persuasive force in other jurisdictions which have dealt with the question of regulation of native title rights. These too are contrary to the contentions of the appellant. In Mason v Tritton, dealing with fisheries legislation, Kirby P observed:

"I do not take it to be the intent of the High Court in Mabo [No 2] that successful claimants to a form of native title should then be able to remove themselves from the ordinary regulatory mechanisms of Australian society." (at 593: the other members of the Court of Appeal did not find it necessary to consider this issue).

81 In R v Sparrow [1990] 1 SCR 1075, the Supreme Court of Canada considered in detail the history of regulation of fishing in British Columbia and concluded that the very detailed regulation there in question (which the Court appeared to assume did apply to native title holders) did not have the effect of extinguishing native title fishing rights, since it did not demonstrate the necessary "clear and plain" intention to extinguish native title. While the question raised by the appellant was not directly addressed in that case, it is clear that the court considered regulation and extinguishment to be quite distinct concepts. There was no suggestion that a "clear and plain" test should apply to the former, probably because regulation was seen as "simply a manner of controlling the fisheries, not defining underlying rights" (at 1099). That distinction was again adopted in R v Gladstone (1996) 137 DLR (4th) 648.

82 The appellant suggested that some analogy should be drawn between s 46 FRMA and s 91 of the Crown Lands Alienation Act 1876 (Qld), which Brennan J in Mabo No 2 construed as "not directed to indigenous inhabitants ... in occupation of land by virtue of their unextinguished native title" (at 66, and see Wik Peoples v Queensland (1996) 187 CLR 1 at 71, per Brennan CJ and 190-5 per Gummow J). These observations were in the context of considering whether native title had been extinguished and, for the purpose of that consideration, determining the meaning of expressions relating to "Crown Land" in various Queensland statutes. There is nothing in any of the discussion of these issues to suggest that these passages would assist in the construction of regulatory legislation. Indeed, if the Queensland provision had been construed to apply to native title holders, it would have had the result that they "could lawfully have been driven into the sea" (Mabo No 2 at 66), an extreme result by any standards. By contrast, nothing in s 46 FRMA and its associated regulations suggest that, if applied to native title holders, it would result in a complete loss of the right to take fish.

83 Applying the ordinary rules of statutory construction, it is my view that s 46 FRMA must extend to Aboriginal people exercising native title fishing rights. Looking to the nature of the legislation, it is legislation which, as well as setting up a variety of management regimes, creates offences and imposes penalties. The "general rule" that an enactment "applies to all persons ... within the territory to which it extends", which applies with "added force" in the case of the criminal law, will therefore be relevant (Walker v State of NSW [1994] HCA 64; (1994) 182 CLR 45 at 49-50, per Mason CJ).

84 Even without reference to such a principle, two circumstances combine to compel the conclusion that s 46 applies to native title holders. The first is the language of s 46 itself; "a person" is on its face inclusive language, unconcerned with any questions of status or title. The second is that s6 of the FRMA expressly provides that "an Aboriginal person is not required to hold a recreational fishing licence to the extent that the person takes fish ... in accordance with continuing Aboriginal tradition ..." This provision suggests that the Legislature, in enacting the FRMA (subsequent to Mabo No 2) expressly adverted to the position of a group which would clearly include possible native title holders and exempted them from regulation to this limited extent only.

Section 211 Native Title Act

85 It is desirable to set out the provisions of s 211 of the NTA, as it was when the events the subject of the complaint occurred.

"Requirements for removal of prohibitions etc. on native title holders

(a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and

(c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal people or Torres Strait Islanders.

Removal of prohibition etc. on native title holders

(2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so:

(a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and

(b) in exercise or enjoyment of their native title rights and interests.

(3) Each of the following is a separate 'class of activity':

(e) any other kind of activity prescribed for the purpose of this paragraph."

Wilkes v Johnsen [1999] WASCA 74

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (236 paragraphs)

Wilkes v Johnsen [1999] WASCA 74 (23 June 1999)

Parties

Legislation Cited (10)

Cases Cited (23)