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Lofgren, Neil; Kilduff, Peter --- "Native Title Fishing Rights in Coastal Waters and Territorial Seas" [1996] AboriginalLawB 40; (1996) 3(81) Aboriginal Law Bulletin 16


Native Title Fishing Rights in Coastal Waters and Territorial Seas

by Peter Kilduff and Neil Lofgren

Native title is capable of existing in coastal waters by virtue of s4(1) of the Coastal Waters (State Title) Act 1990 (Cth), which vests in each State the same rights and title to property in the seabed beneath the coastal waters of the State, and the same rights in respect of the space above the seabed, as would belong to the State if that seabed were within the limits of the State. Within the State, the State's radical title is qualified by any subsisting native title. Accordingly, within coastal waters the grant of title pursuant to the aforementioned provision of the Coastal Waters (State Title) Act is similarly qualified by any native title rights or interests which exist in relation to coastal waters.

Native title fishing rights

Native title claimants may assert rights and interests which include communal rights to the use, possession and occupation of coastal waters. There is no requirement that such use, possession and occupation should be exclusive (Mason v Tritton)[1]. Consequently, native title may exist in coastal waters in the form of an exclusive or non-exclusive right to take resources; such as fishing, which involves taking or extracting living natural resources from water. Communal rights, such as hunting rights or practices, provide evidence of a wider proprietary interest, which may become the subject of an Aboriginal community's native title claim[2]. Such claimants could also assert that their communal proprietary right or interest was, and still is (albeit having undergone some change since the Crown acquired sovereignty)[3], a right or interest which is commercial in nature.[4]

Communal proprietary rights or interests may consist of bartering between different Aboriginal communities, that is, rights of trading with fish.[5] The customs of a number of Queensland Aboriginal communities may be characterised as commercial, in that invitations were extended to other communities to participate in bountiful sea-resourced harvests, such as the running of the mullet or at good barramundi fishing holes or turtle harvests. These invitations would be reciprocated by coastal communities accessing inland food resources when these were in abundance. This sharing of abundance may be characterised as a commercial exchange. Such contemporary communal proprietary rights or interests in fishing are commercial in character, and may define the scope of these rights and interests at the present time. These rights and interests were given statutory recognition and protection under ss10 and 223 of the Native Title Act 1993 (Cth) ('the NTA').

Statutory preservation

The general effect of s211 of the NTA is to preserve from the operation of Commonwealth, State and Territory regulatory laws, native title rights and interests involving the carrying on of certain classes of activities, defined in s211(3) as 'hunting', 'fishing', 'gathering', 'a cultural or spiritual activity', or any other kinds of prescribed activities. Where a law requires that a class of activity of the kind just mentioned can only be carried on with a licence or permit, and the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders, native title holders are not required to obtain a licence or permit to carry on the activity. However, this waiver of the requirement only applies where they perform the activity in exercise or enjoyment of their native title rights and interests, and to satisfy domestic or non-commercial needs.

Because of the sui generis nature of Aboriginal rights[6], prior legislation and government policies are incapable of delineating these rights or indeed describing the contents of Aboriginal rights[7]. Hence, government regulations restricting the right of Aboriginal peoples to fish 'for food purposes' could neither define nor, otherwise than in the absence of a clear intention, extinguish a wider right: the wider right being a communal proprietary right to fish commercially.

Even though the Commonwealth and Queensland Parliaments have the power to extinguish, modify or regulate such title, provisions of the Great Barrier Reef Marine Park Authority Act 1975 (Cth) and State Fisheries Acts or Regulations do not reveal a clear and plain intention to extinguish native title as such.[8] Thus, native title is not extinguished by any express manifestation of Parliament's wil[9].

The regulatory effect of s211 of the NTA, the Great Barrier Reef Marine Park Act 1975 (Cth), and the Queensland Fisheries Acts establish a regime of control of Queensland fisheries in a manner amounting to a stringent regulation, but not extinguishment, of any otherwise established proprietary right[10]. These native title rights and interests are likely to be regulated to a greater or lesser extent by the provisions of these Acts. The stringency of the regulation would be a question of fact; however native title claimants could assert that the regulatory effect of s211 of the NTA is that native title holders are not required to obtain a licence or permit for non-commercial needs. The claimants could further assert that government regulations restricting the right of these claimants to fish 'for non commercial purposes' could neither define the right to fish nor, in the absence of a clear intention to extinguish the Aboriginal right, extinguish the wider right to fish commercially. Section 211 does not expressly or by implication regulate or extinguish the claimants' right to fish commercially.

A reference in any legislative scheme to one or several rights in a parcel of rights is not a limitation or restriction or qualification upon the operation of any or all of the remaining rights in that parcel[11]. For example, s14 of the Fisheries Act 1994 (Qld) provides a right of access to fisheries resources and fish habitats in line with Aboriginal tradition or Island custom. This right is subject to regulation, however the principle outlined in R v Sparrow[12] would apply in the context of native title claimants' right to fish commercially.

The regulation of the mere right to fish (as distinct from a right to fish based on a proprietary ownership) is certainly within the statutory competence of the State legislature.[13] The common law native title rights and interests as expressed in s223(1) of the NTA, which also include hunting, fishing and gathering in s223(2), may only be extinguished by the NTA or regulated by valid Commonwealth or State laws. Section 221 removes any effect of any regulatory prohibition on native title holders in relation to non-commercial communal needs. This regulation does not expressly or by implication necessarily regulate the exercise of native title common law rights and interests under the NTA and as such, because communal proprietary fishing rights and interests are commercial in nature, they are recognised and protected by s10 of the NTA, and are only extinguished by ss14,15, and 19 of the NTA. The effect of s211 is not to control the exercise of State legislative power, but to exclude laws made in the exercise of that power, inter alia, from affecting the freedom of native title holders to enjoy the usufructuary rights referred to in s211 of the Native Title Act 1973[14].

Concluding observations

The NTA gives statutory recognition and protection to native title, and the NTA extends to an offshore place (defined by s253 of the NTA as meaning any land or waters to which the NTA extends, other than land or waters in an onshore place). It is clear that s6 of the NTA extended the legislation to every external territory, to the coastal sea of Australia and of each external territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Land Act 1973 (Cth). By proclamation on 20 November 1990, under s7 of the Seas and Submerged Land Act 1973, Australia extended the outer limits of its territorial sea from 3 to 12 nautical miles from the territorial sea baselines. Therefore, if the application of the NTA applies or extends to waters over which Australia asserts its sovereign rights under the Seas and Submerged Land Act 1973 (Cth), it would follow that any native title rights and interests under s223(2) of the NTA would burden the Commonwealth's radical title in relation to the territorial sea. That being the case, the communal proprietary rights asserted by native title claimants, which are commercial in nature, would apply to the territorial sea between the 3 and 12 nautical mile limits. The extension of Australia's territorial limit from 12 to 200 nautical miles, as provided by the entry into force in Australia on 16 November 1994 of the United Nations Convention on the Law of the Sea[15], constitutes a permissible future act for the purposes of s235(8) of the Native Title Act. Consequently, native title rights in Australia's coastal waters and territorial seas now extend between 3 and 200 nautical miles from the territorial sea baselines.


[1] (1994) 34 NSWLR 572 at 581.

[2] Mason v Tritton (1994) 34 NSWLR 572 at 582; and Mabo v Queensland (No.2) (1992) 175 CLR I at 51-52, 86, and 187-188.

[3] Mabo v Queensland (No2) (1992)175 CLR 1 at 70.

[4] United States v Michigan 471 F Supp 192 (1979) at 260 (affirmed [1981] USCA6 680; 653 F 2d 277 (1981)); United States v Washington 384 F Supp 312 (1974) (affirmed [1975] USCA9 362; (1975) 520 F 2d 676); Attorney-General for Ontario v Bear Island Foundation (1985) 15 DLR (4th) 321; R v Van Der Pat (1991) 58 BCLR (2d) 392 (reversing (1991] 3 CNLR 155); R v Sparrow (1990) 70 DLR (4th) 385; Simon v R [1986124 DLR (4th) 390; R v Horseman (1990) 55 CCC (3d) 353; Ministry of Agriculture and Fisheries v Love [1988] DCR 370; Ngai Tabu Maori Trust Board v the Attorney-General (unreported, High Court of New Zealand, Greig J, 2 November 1987); and Ministry of Agriculture and Fisheries v Campbell [19891 OCR 254.

[5] Ngai Tahu Maori Trust Board v the Attorney-General (unreported, High Court of New Zealand, Greig J, 2 November 1987); and Ministry of Agriculture and Fisheries v Love [1988] DCR 370.

[6] Casimel v Insurance Corporation of British Columbia (1993) 106 DLR (4th) 720 at 726.

[7] R v Sparrow [19901 1 SCR 1075 at 1099-1101.

[8] See 'Onus of Proof for Native Title', R Bartlett, Vol 3, 75 Aboriginal Law Bulletin 8.

[9] Mason v Tritton (1994) 34 NSWLR 572 at 592.

[10] Mason v Tritton (1994) 34 NSWLR 572 at 592

[11] R v Sparrow [1990] 1 SCR 1075.

[12] R v Sparrow [1990] 1 SCR 1075.

[13] Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314 at 330 and 334; and Port MacDonnell Professional Fishermen's Association Inc v South Australia [1989] HCA 49; (1989) 168 CLR 340 at 369-373.

[14] Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at 474-475.

[15] (1994) ATS 31.


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