FEDERAL COURT OF AUSTRALIA Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25 Citation: Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25 Appeal from: Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643 Parties: COMMONWEALTH OF AUSTRALIA v LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP AND OTHERS; LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP; COMMONWEALTH OF AUSTRALIA AND OTHERS File number: QUD 387 of 2010 Judges: KEANE CJ, MANSFIELD, DOWSETT JJ Date of judgment: 14 March 2012 Corrigendum: 26 April 2012 Catchwords: NATIVE TITLE – extinguishment – right to take marine resources for commercial purposes – 130 years of legislation controlling commercial fishing – whether simply regulatory in character or prohibitory. STATUTORY INTERPRETATION – construction of legislation claimed to abrogate native title rights – requirement of a clear and plain intention so to do. NATIVE TITLE – rights and interests – reciprocity based rights founded on a relationship to a person – whether content of rights include a right or interest "in relation to land or waters": s 223(1), NT Act. NATIVE TITLE – extent of determination area – criteria for determining "boundaries" of several marine estates – whether gaps between, or unused areas – "connection" to waters. NATIVE TITLE – extent of determination area – definition of outer boundaries of the claim area – whether native title proved in whole area – whether connection to all of marine estate established. Legislation: Continental Shelf (Living Natural Resources) Act 1968 (Cth) 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 1952 (Cth) Fisheries Act 1957 (Qld) Fisheries Act 1976 (Qld) Fisheries Act 1994 (Qld) Fisheries Amendment Act 1981 (Qld) Fisheries Legislation Amendment Act 1985 (Cth) Fisheries Management Act 1991 (Cth) Fisheries Regulations 2008 (Qld) Native Title Act 1993 (Cth) Oyster Act 1886 (Qld) Pearl Fisheries Act 1952 (Cth) Pearl-shell and Beche-de-mer Fishery Act 1881 (Qld) Queensland Fisheries Act 1887 (Qld) Racial Discrimination Act 1975 (Cth) Torres Strait Fisheries Act 1984 (Cth) Torres Strait Islanders Act 1939 (Qld) 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 Date of hearing: 16-18 May 2011 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 237 Counsel for the Appellant: Ms R Webb QC Solicitor for the Appellant: Australian Government Solicitor Counsel for the State of Queensland: Mr G Hiley QC, Mr J Waters and Ms H Bowskill Solicitor for the State of Queensland: Crown Law Counsel for the Respondent: Mr R Blowes SC and Mr T Keeley Solicitor for the Respondent: Torres Strait Regional Authority Solicitor for the Respondent Fishing Parties: Mr P Gore FEDERAL COURT OF AUSTRALIA Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25 CORRIGENDUM 1. On the cover page of the Judgment, Orders and Reasons for Judgment, in the column next to "Parties", the words "Commonwealth of Australia v Leo Akiba and George Mye on behalf of the Torres Strait Regional Seas Claim Group and others; Leo Akiba and George Mye on behalf of the Torres Strait Regional Seas Claim Group; Commonwealth of Australia and others" should read "Commonwealth of Australia v Leo Akiba and George Mye on behalf of the Torres Strait Regional Seas Claim Group and others named in the schedule; Leo Akiba and George Mye on behalf of the Torres Strait Regional Seas Claim Group; Commonwealth of Australia and others named in the schedule". 2. The notice of appeal contained several parties who had ceased to be parties pursuant to the Orders of Finn J dated 23 August 2010. These have not been included in the schedule. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Keane CJ, Mansfield and Dowsett JJ. Associate: Dated: 26 April 2012 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 387 of 2010 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: COMMONWEALTH OF AUSTRALIA Appellant LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP Cross-Appellant AND: LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP AND OTHERS Respondent COMMONWEALTH OF AUSTRALIA AND OTHERS Cross-Respondent JUDGES: KEANE CJ, MANSFIELD, DOWSETT JJ DATE OF ORDER: 14 March 2012 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. the appeal be allowed, and that the determination of native title made on 23 August 2010 be varied by adding after clause 5(b): "This right does not, however, extend to taking fish and other aquatic life for sale or trade"; and 2. the cross-appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 387 of 2010 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: COMMONWEALTH OF AUSTRALIA Appellant LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP Cross-Appellant AND: LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP AND OTHERS Respondent COMMONWEALTH OF AUSTRALIA AND OTHERS Cross-Respondent JUDGES: KEANE CJ, MANSFIELD, DOWSETT JJ DATE: 14 March 2012 PLACE: BRISBANE REASONS FOR JUDGMENT 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. GEOGRAPHY 18 It is convenient at this point to describe the geography of the claim area. That can best be done by reference to the primary judge's reasons. His Honour said at [18]-[22]: 18 The wide, plateau-like, land bridge between Australia and PNG [Papua New Guinea] was almost entirely inundated by rising sea levels between 6,000 and 9,000 years ago. The rocky islands which characterise the western and eastern islands of the Strait once were hills on the bridge. The sea-bed after inundation was relatively flat and shallow ranging from about 30-50 metres in depth in the east and 10-15 metres in the west (now the eastern and western continental shelves) to about 10 metres across the centre. Seasonal and daily fluctuations in wind, rain, tide and current create, as the geographer Nietschmann observed (1985, 134-135), "a kaleidoscopic variety of environmental conditions". For the Islanders, in consequence, "[s]ea knowledge and sea territory are reciprocals". The conditions, moreover, are often treacherous. Matthew Flinders observed in A Voyage to Terra Australis, (1814): "[P]erhaps no space of 3½ degrees in length represents more dangers than Torres Strait." To illustrate this by reference simply to the tides, Nietschmann observed (1989, 67-68): Torres Strait is a 150-km wide vortex between the Indian and Pacific oceans. Strong tidal currents sweep through the Strait, causing the sea level to fluctuate daily and alternatingly exposing and covering island margins and shallow reefs. Tidal influence is accentuated due to the shallow shelf and the funneling effects of the bordering mainlands and the further constrictions of reef and island. Tidal currents are exceptionally strong due to the vortex-caused acceleration of moving tides. Current speed averages two to three knots, but during spring tides and in the reef channels the tidal current may exceed seven knots. The tidal current changes direction every six hours; twice daily the current is from the west, and twice daily it is from the east. 19 The islands – over 120 in number – are dispersed, in the main, in a broad arc beginning immediately to the west of the tip of Cape York, running north to the PNG coastline and then south easterly to the northern end of the Barrier Reef. Coral reefs and sand cays abound, particularly to the north and more distantly, to the north-east of Cape York. To provide some appreciation of the dimensions of the Strait, the distance between Cape York and the southern PNG coastline is 165 kilometres; and that between the easternmost and westernmost inhabited islands (Mer and Badu) is 215 kilometres. 20 Of the islands themselves, there are four distinct geomorphological types. They have markedly different ecological conditions, hence potential for human habitation and utilisation. The western group of islands contains the largest islands in the Strait. They are constituted by granite and volcanic rock dating back 300 million years and are a geological extension of Cape York. Though relatively infertile, they could sustain limited gardening for food. Marine life – turtle, dugong, fish and shell fish – is abundant on the reefs which surround the islands or which are accessible by boats (previously canoes: see below). The second island group is opposite the PNG coastline. Two of the three islands, Boigu and Saibai, are formed of the accumulated sediments brought down from nearby PNG rivers. Both have large areas of swamps and extensive mangrove areas which contain significant marine life as also waterfowl. Boigu is prone to flooding by sea water and has little arable land. Seagrass beds, which provide the main food eaten by dugongs lie close to both of the mud islands. The third island of this group, Dauan, is a high, rocky, remnant of the landbridge. It has only a small arable area but a permanent fresh water supply which the people from its near neighbour, Saibai, used during dry seasons. Its permanent population has been characteristically small. 21 The third island group, the eastern islands, near the north of the Barrier Reef, are basaltic rocks which may have formed within the last two million years. The islands are relatively fertile and densely vegetated. Extensive horticulture has been practised on them. There is abundant shell fish in close proximity to them. The three now inhabited islands, Mer, Erub and Ugar, have stone fish traps on their fringing reefs. Mer and Erub sustain relatively large populations by Torres Strait standards. 22 The central region of Torres Strait contains some high rocky islets, but low sandy islets predominate. The sandy islands are infertile and provide little by way of land-based food resources. Water is scarce in the dry season. Four sandy islets remain inhabited: Iama, Masig, Poruma and Warraber. There is abundant marine life, especially around the numerous reefs which lie to the north, north-west, east and south of these islands. 19 It is also useful to refer to the map referred to by the primary judge at Reasons [60]. 20 The white lines on this map delineate the external boundaries of the combined Part A and Part B Sea Claims. The Seabed Jurisdiction line between Australia and PNG intersects with the Western and Top Western Islands; but it should be noted that 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 in Sydney on 18 December 1978 (the Treaty) established that Australia has sovereignty over some of the islands lying on the PNG side of the line. The long white line running north-east across the central area of the map represents the Seabed Jurisdiction line, with the exception of the bulbous extrusion on the line which marks an Australian island - Guchen Sandbank. The circular line around Guchen Sandbank's northern side represents the island's territorial (ie Australian) waters. Further, all of the encircled islands north of the PNG Seabed Jurisdiction Line are Australian. The circles surrounding the islands indicate their territorial seas and reflect Australia's sovereignty over the seabed around the islands. 21 There is an area, enclosed by the two vertical lines in the top centre of the map, which runs from the Seabed Jurisdiction line up to the west side of Boigu and the east side of Saibai and then joins the northern side of the two islands just short of the PNG mainland over which Australia has fisheries jurisdiction. The sea bed is under the jurisdiction of PNG, save for the territorial seas around Boigu, Buru, Dauan and Saibai. This is the area referred to as the "Top Hat". His Honour held that native title rights to the "Top Hat" area are qualified by the provisions of the Treaty. The Treaty settled the Seabed Jurisdiction line and provided for Australian fisheries jurisdiction in the area known as the "Top Hat". ISSUES IN THE APPEAL AND CROSS-APPEAL 22 The appeal raises a question of law relating to the extinguishment of native title rights in respect of fishing for commercial purposes. The appellants challenge the primary judge's conclusions that: the licensing regimes of Queensland and the Commonwealth did not create new statutory rights to fish and take marine resources for commercial purposes (Reasons [765], [859]); and the licensing regimes were not inconsistent with, and accordingly did not extinguish, any native title right to take fish and other marine resources for commercial purposes (Reasons [861]). 23 It should be noted immediately that the appellants do not challenge the primary judge's conclusion that native title subsists within the area of the Determination. The appellants' challenge is confined to his Honour's conclusion that one of the incidents of the native title which subsists is the right to take fish or other aquatic life for commercial purposes. Whether this conclusion, and the appellants' challenge to it, is of any practical significance is not readily apparent given the concession made on behalf of the Seas Claim Group that its members may not lawfully exercise their right to take fish for commercial purposes without a licence under the applicable fisheries legislation. In these circumstances, it is understandable that the primary judge referred to this issue at [845] as "a narrow and seemingly barren question". 24 The appellants argue that the right to take fish for commercial purposes is a discrete and severable aspect of a general right to take marine resources and is capable of being extinguished independently of that general right. 25 The appellants rely upon Queensland legislation, commencing with the Queensland Fisheries Act 1887 (Qld), which prohibited fishing for commercial purposes save pursuant to licences granted under the legislation. They also rely upon the Commonwealth fisheries legislation, namely the Pearl Fisheries Act 1952 (Cth) (which was repealed by the Continental Shelf (Living Natural Resources) Act 1968 (Cth)), the Fisheries Act 1952 (Cth), the Fisheries Management Act 1991 (Cth) (which replaced both the 1952 Act and the Continental Shelf/Living Natural Resources Act 1968), and the Torres Strait Fisheries Act 1984 (Cth) (which introduced a regime to the same effect in respect of waters under the jurisdiction of the Commonwealth). 26 The appellants argue that these pieces of legislation, taken severally or together, evince a clear and plain intention to extinguish all rights, including native title rights, to take fish for commercial purposes. The appellants contend that a statutory prohibition on an activity that could otherwise be carried out pursuant to a native title right is sufficient to extinguish native title. The conclusion of the primary judge that the licensing regimes did not create "a new statutory fishing right" is said to be inconsistent with the reasoning in Harper v Minister for Sea Fisheries (1989) 168 CLR 314 (Harper) at [334]-[335]. 27 On the cross-appeal the Seas Claim Group argues that the primary judge erred in failing to accord due weight to evidence of Islander use of Areas 1 to 4. It is submitted that the primary judge erred in failing to infer that the Erubam, Meriam and/or Ugarem people have used these Areas for the purposes of harvesting marine resources and travel to and from their marine estates. Further, it is argued that the primary judge erred in failing to consider that on the evidence a spiritual and/or cultural connection had been established to Areas 3 and 4. 28 The Seas Claim Group contends that the primary judge also fell into error in concluding that reciprocal rights were not native title rights and in failing to accommodate them in the order appealed from. In particular, it is said that his Honour erred in holding that reciprocal rights are not native title rights for the purposes of s 223(1) because they are not rights in relation to water. It is convenient to note here that the cross respondents assert, pursuant to a notice of contention, that the primary judge's conclusion that the reciprocal rights are not native title rights should be affirmed on the basis that reciprocal rights are not the connection with the land and waters under traditional laws and customs required by s 223(1)(b) of the NT Act. 29 Thirdly, the Seas Claim Group argues that the native title rights found by his Honour are not subordinate or inferior to the other rights referred to in paragraph 11 of the order of 23 August and so should not be said to "yield" to them. 30 We will set out the primary judge's reasons in relation to each of these issues and then consider the arguments advanced in this Court by way of challenge to his Honour's decision on each issue. Before we proceed, however, it is convenient to note the relevant provisions of the NT Act. THE NATIVE TITLE ACT 31 The jurisdiction of the Federal Court of Australia to hear and determine an application for a determination of native title is conferred by s 81 and s 213 of the NT Act. 32 In relation to the issue of extinguishment, s 211 of the NT Act provides, relevantly that: Requirements for removal of prohibition etc on native title holders (1) Subsection (2) applies if: (a) the exercise or enjoyment of native title rights and interests in relation to ... 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 ... (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 ... 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. Definition of class of activity (3) Each of the following is a separate class of activity: (a) hunting; (b) fishing; (c) gathering. 33 It may be noted that, by virtue of the terms of s 211(2)(a) of the NT Act, s 211(2) does not apply to preserve from extinguishment a native title right to fish for commercial purposes. Whether the legislation enacted by Queensland and the Commonwealth extinguished the right to fish for commercial purposes must be resolved independently of s 211(2) of the NT Act. 34 In relation to the cross-appeal, s 223 of the NT Act is relevantly as follows: (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. … (2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests. … (3) Subject to subsection (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests. 35 Section 94A of the NT Act requires the Court, when making a determination of native title, to determine the matters mentioned in s 225. Section 225 provides: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. extinguishment 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". EXTINGUISHMENT The arguments of the parties 55 The appellants submit that the distinction between commercial and non-commercial fishing is recognised in s 211 of the NT Act which provides that native title rights (including the right to fish) are preserved for non-commercial purposes. They contend that the right to take resources for commercial purposes is a discrete and severable characteristic of a general right to take marine resources which is capable of being, and was, extinguished separately and independently of the general right. 56 As to commercial fishing under Queensland legislation, it is argued that the primary judge correctly identified (at [848]) that the concern of the legislation to control commercial fishing was apparent from the time of the Queensland 1914 fisheries legislation and thereafter; but the 1887 Act (Qld) was the first Act to place a general prohibition on taking fish for sale without a statutory licence (under ss 12 and 13). The appellants contend that, as the licensing regimes expressly prohibit the exercise of the native title right to take fish for commercial purposes without a licence, they were inconsistent with the continued enjoyment of that right and thereby extinguished it. This is because an express element of the regime of control of fishing is that any person wishing to take fish for sale might do so only under the authority of a licence granted under and in accordance with the relevant legislation. 57 The appellants support the argument that licences granted under the Fisheries Act 1952 (Cth) are a "new species of statutory entitlement", which depend on the terms of the legislation by reference to Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567 at 585; and Harper at 325. In Harper it was held that the imposition of a general prohibition on taking abalone resources, followed by imposition of statutory licences for the taking of abalone, abrogated the previously existing common law right. The right to take abalone was abrogated by a prohibition on the taking of abalone coupled with permissions by way of statutory grant. In the same way, the legislation in the instant case prohibits the taking of fish for commercial purposes, and establishes statutory licences to allow the taking lawfully to occur. This regime is said to be inconsistent with the continued enjoyment of the native title rights to do the same acts. 58 The appellants argue that the primary judge erred in failing to recognise that the 1887 Act contained a general prohibition on taking fish for sale without a licence. Since 1952, Commonwealth prohibitions were placed on the unlicensed taking of fish for commercial purposes in proclaimed waters. Whatever the "protective effect" of the 1984 Act (Cth) and the Torres Strait Treaty in respect of "traditional fishing" it did not involve a revival or reinstatement of a native title right to fish for commercial purposes. Moreover, "community fishing", as regulated under the 1984 Act, although less regulated than other commercial fishing, is nonetheless subject to a licensing regime. 59 The appellants, while acknowledging that s 14 of the Fisheries Act 1994 (Qld) protects Islanders' rights to take fisheries resources in accordance with tradition, argue that it is not apt to revive or reinstate native title rights to take fish for commercial purposes in circumstances where that right was extinguished by earlier legislative regimes. 60 The Seas Claim Group contends that the primary judge was right to hold that the non-exclusive right to take marine resources for commercial purposes has not been extinguished but only regulated. The Seas Claim Group argues that the legislated licensing regimes relied on by the appellants are "regulatory" rather than "prohibitory". The common element of the legislative regimes to which the Seas Claim Group points in support of its argument is the presence of a general prohibition of commercial fishing coupled with the licensing of that very activity. The regimes include various other control mechanisms, including other kinds of "prohibitions" such as the prohibition on using explosives or poison with the intent to take any fish: Queensland Fisheries Act 1887 (Qld) s 16. The presence of different kinds of prohibitions appearing simultaneously in certain Acts is said to support the conclusion that the Acts were intended to be "regulatory" rather than "truly prohibitory" where a "prohibition" on commercial fishing appears within the scheme of Acts and is directly coupled with licence requirements, such as Queensland Fisheries Act 1887 (Qld) s 13. 61 The correct analysis is said, following Yanner v Eaton (1999) 201 CLR 351 (Yanner) at [30], to involve the identification of the character of the legislative regime as a whole and then the question whether it evinces a clear and plain intention to extinguish native title. Only if this is answered affirmatively is it necessary to consider the extinguishing effect of particular prohibitions. 62 As to Harper, the Seas Claim Group argues that, while a public right to fish may be abrogated by a prohibition coupled with a licensing regime, a native title right is not abrogated because, where native title rights are concerned, a clear and plain intention to extinguish is required. That is said to be because public and native title rights are different and not equally amenable to legislative abrogation: although a native title holder may be deprived of his or her right as a member of the public in accordance with Harper, there remains the possibility that native title rights (for example to fish) will be left intact, albeit now regulated by, and exercisable subject to, a licensing regime. EXTINGUISHMENT Consideration 63 The learned primary judge's characterisation of the licensing regimes as regulatory was based, in large part, on his view (at [771]) of the effect of the decision of the High Court in Yanner. It will be necessary to discuss this aspect of his Honour's reasons in greater detail. Before moving to that discussion, however, it is necessary to observe that his Honour's conclusion that the licensing regimes did not extinguish native title because they were merely regulatory of fishing rights sits uneasily with the orthodox approach to the issue of extinguishment whereby one looks to see whether the activity which constitutes the relevant incident of native title is consistent with competent legislation relating to that activity. While it may be correct to describe the licensing regimes as concerned, in a general way, to regulate fishing, it is necessary to observe that these regulatory schemes operate by way of a prohibition on unlicensed fishing for commercial purposes. That prohibition is not deprived of its plain effect because it is an element of a regime which can be described generally as regulatory of fishing. 64 True it is that the licensing regimes in question did not speak explicitly in terms of extinguishing native title to take fish for commercial purposes when they imposed restrictions on the manner of fishing; but they did manifest a clear intention to extinguish all common law rights and that intention inevitably comprehended native title rights as well. 65 In Fejo v Northern Territory (1998) 195 CLR 96 at [43], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said: Native title is extinguished by a grant in fee simple … because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title. 66 Likewise, the licensing regimes in question in this case do not permit of the employment by anyone other than the holder of a licence of the right to take fish from these waters for commercial purposes. The licensing regimes expressed a clear intention to extinguish the common law right to take fish for commercial purposes. No common law rights survived the legislative displacement of those rights. To accept that an expression of legislative intention to extinguish all common law rights in a particular field is not apt to extinguish native title rights recognised by the common law in the same field is to elevate native title above other rights under common law. That course is not supported by the authorities. Inconsistency of incidents 67 In Western Australia v Ward (2002) 213 CLR 1 (Ward), the High Court held that native title rights and interests are to be considered as a bundle of rights, the individual components of which may be extinguished separately. Gleeson CJ, Gaudron, Gummow and Hayne JJ said at [95]: Further, recognising that the rights and interests in relation to land which an Aboriginal community may hold under traditional law and custom are not to be understood as confined to the common lawyer's one-dimensional view of property as control over access reveals that steps taken under the sovereign authority asserted at settlement may not affect every aspect of those rights and interests. The metaphor of "bundle of rights" which is so often employed in this area is useful in two respects. It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom. Not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land. 68 Whether there is an inconsistency between two sets of rights depends on a comparison of the two sets of rights. This may be described as the "inconsistency of incidents" approach. If there is an inconsistency, then to the extent of the inconsistency between native title rights and statutory provision, the native title rights will be extinguished to the extent of the inconsistency. 69 Extinguishment leaves no room for revival, save where statute makes specific provision to that effect. In Ward, Gleeson CJ, Gaudron, Gummow and Hayne JJ said at [82]: Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment. Absent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise. 70 It is not necessary to refer again to the detail of each piece of legislation whereby the activity of fishing for commercial purposes in the Torres Strait was subject to control prior to 1975 when the Racial Discrimination Act 1975 (Cth) commenced, or prior to 1994 when the NT Act commenced. It is sufficient to note that, by the Fish and Oyster Act 1914 (Qld) and the Fisheries Act 1952 (Cth), the activity of taking fish for commercial purposes without a licence granted under the statute was prohibited. Thereafter, the activity of taking fish for commercial purposes was unlawful save where it was carried on pursuant to a licence granted under the statute. These regimes prohibit the taking of fish for commercial purposes save pursuant to a licence. There is no room for doubt that the prohibition is directed at all fishing for commercial purposes. The prohibition of all unlicensed fishing for commercial purposes 71 In Harper it was established that a licence granted under the State licensing regimes confers a right, exclusive of all other members of the public, to take quantities of a valuable public resource that needs to be conserved. Mason CJ, Deane and Gaudron JJ said at 325: 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. The right of commercial exploitation of a public resource for personal profit has become a privilege confined to those who hold commercial licences. This privilege can be compared to a profit À 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. In that context, the commercial licence fee is properly to be seen as the price exacted by the public, through its laws, for the appropriation of a limited public natural resource to the commercial exploitation of those who, by their own choice, acquire or retain commercial licences. So seen, the fee is the quid pro quo for the property which may lawfully be taken pursuant to the statutory right or privilege which a commercial licence confers upon its holder. It is not a tax. That being so, it is not a duty of excise. 72 In Harper at 329-332, Brennan J said: [T]he 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: see Attorney-General (British Columbia) v. Attorney-General (Canada)…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]. 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); Attorney-General (Canada) v. Attorney-General (Quebec). The public right of fishing in tidal waters is not limited by the need to preserve the capacity of a fishery to sustain itself. The management of a fishery to prevent its depletion by the public must be provided for, if at all, by statute. … The Regulations prescribe a management regime for the abalone fishery in State fishing waters. … In addition to the prohibition against the taking of abalone contained in reg. 17A of the Regulations, reg. 17B provides, inter alia: (1) Subject to regulation 17AA and this regulation, no person shall in State fishing waters take by diving or swimming under water— (b) any abalone, except pursuant to— (i) a subsisting commercial abalone licence; or (ii) a subsisting non-commercial diving licence issued for that purpose under this regulation. Regulation 44(1)(o) prohibits any person from taking in State fishing waters more than ten abalone in any one day unless he is the holder of a subsisting commercial abalone licence; and reg. 44(1)(ra) prohibits the holder of a commercial abalone licence to take in State fishing waters more than the quantity of abalone specified as the quantity that may be taken by the holder of the licence. That quantity is specified in the licence in accordance with reg. 19ab. Regulation 44(3) makes any failure to comply with the Regulations an offence. The public right of fishing for abalone in State fishing waters is thus abrogated and private statutory rights to take abalone in limited quantities are conferred on the holders of commercial and non-commercial abalone licences. The Regulations thus control the exploitation of a finite resource in order to preserve its existence. They seek to achieve this end by imposing a general prohibition on exploitation followed by the grant of licences for the taking of limited quantities of abalone. The only compensation, if compensation it be, derived by the public for loss of the right of fishing for abalone consists in the amounts required to be paid by holders to obtain abalone licences under the Regulations. (Footnotes omitted). 73 In our respectful opinion, it is not permissible to reason that a more explicit expression of an intention to extinguish all rights to fish for commercial purposes was required to extinguish native title rights than was contained in the licensing regimes. As in Harper, the terms of the legislation were apt to apply to all persons by whom the activity of commercial fishing might be conducted. As the primary judge himself observed at [776], "[t]here are no degrees of inconsistency. The rights are inconsistent or they are not". If a statutory right is inconsistent with the right to fish for commercial purposes derived from the common law, it will also be inconsistent with a right to fish for commercial purposes derived from native title interests recognised by the common law. That is the case, even though the law does not single out, in express terms, the native title right. It should also be noted that there is no support in authority for the view that an explicit reference to native title rights is necessary to include them within a general prohibition. Indeed, such a view is quite inconsistent with the "inconsistency of incidents" approach supported by Ward. Regulation and prohibition 74 Neither Yanner, nor any other decision, supports the general proposition that a law which prohibits an activity, save pursuant to a licence, is not, in truth, a prohibition of the unlicensed activity. In Yanner it was the operation of s 211 of the NT Act upon the Queensland legislation which denied effect to the prohibition which would otherwise have applied to the activity. 75 Because of the importance of the decision in Yanner to the argument of the Seas Claim Group, it is necessary to set out in detail the facts of the case and to review the conclusions of the High Court. In that case, Yanner, an Aboriginal person, caught two juvenile estuarine crocodiles on his traditional land using traditional means. The Fauna Conservation Act 1974 (Qld) prohibited a person from taking fauna of any kind "unless he is the holder of a licence, permit, certificate or other authority granted and issued under this Act". Yanner did not hold such a licence, but s 211 operated to prevent the prohibition from taking effect because the activity in question came within s 211(2) and (3) of the NT Act. Further, s 7(1) of the Act made all fauna to be the property of the Crown and under the control of the Fauna Authority, save that lawfully taken during open season. 76 Gleeson CJ and Gaudron, Kirby, and Hayne JJ held at [30] that "property" created by the legislation was no more than the aggregate of the various rights of control by the Executive and, that the rights in question were less than full or beneficial ownership. Their Honours said at [28], quoting Toomer v Witsell 3 (1948) 34 US 385 at 402 per Vinson CJ, that the statutory vesting of property in this was nothing more than: "…a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an importance resource" [sic]. 77 The Seas Claim Group emphasised what their Honours said at [37]: 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. (Emphasis added.) See also per Gummow J at [115]. 78 The reasons of Gleeson, Gaudron, Kirby and Hayne JJ make it clear, however, that their decision turned upon the operation of s 211 of the NT Act in relation to the prohibition on unlicensed hunting in the Queensland legislation, the vesting of title of fauna in the Crown having been regarded as consistent with the continued subsistence of native title. In order to appreciate this point, it is necessary to read the relevant passage of their Honours' reasons in full. Their Honours said at [30]-[41]: 30 The "property" which the Fauna Act and its predecessors vested in the Crown was therefore no more than the aggregate of the various rights of control by the Executive that the legislation created. So far as now relevant those were rights to limit what fauna might be taken and how it might be taken (ss 24, 24A, 25, 27, 30, 60), rights to possession of fauna that had been reduced to possession (ss 71(2), 83(3)), and rights to receive royalty in respect of fauna that was taken (s 67) (all coupled with, or supported by, a prohibition against taking or keeping fauna except in accordance with the Act (s 54(1)(a)). Those rights are less than the rights of full beneficial, or absolute, ownership. Taken as a whole the effect of the Fauna Act was to establish a regime forbidding the taking or keeping of fauna except pursuant to licence granted by or under the Act. 31 The respondent expressly disclaimed a contention that the enactment of legislation forbidding the taking or keeping of fauna except pursuant to licence would be sufficient to extinguish the rights and interests relied on by the appellant. This concession was rightly made and it follows, therefore, from what we have said about the meaning and effect of the Fauna Act (and, in particular, the vesting of property in some fauna in the Crown) that the Act did not extinguish those rights and interests. It is as well, however, to examine why the respondent's concession was right. That examination must begin from a consideration of what is meant by native title rights and interests. Native title rights and interests 32 Section 223 of the Native Title Act provides (in part): "(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. (2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests." 33 The hunting and fishing rights and interests upon which the appellant relied (and which the Magistrate found to exist) were rights and interests "possessed under the traditional laws acknowledged, and the traditional customs observed", by the clan and tribe of which the appellant was a member. The Magistrate found that by those laws and customs, the appellant's clan and tribe had a connection with the land and waters where the crocodiles were taken. At least until the passing of the Fauna Act those rights and interests were recognised by the common law of Australia. 34 The respondent's contention was that the Fauna Act "extinguished" these rights and interests. This led to debate about what was referred to as the "partial extinguishment of native title" and what was meant by that term. It is unnecessary, however, to examine that debate in this case. 35 It is clear that native title in land is extinguished by a grant in fee simple of that land. As was said in the joint judgment in Fejo v Northern Territory "it is extinguished because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title". That is, native title is extinguished by the creation of rights that are inconsistent with the native title holders continuing to hold their rights and interests. The extinguishment of such rights must, by conventional theory, be clearly established. 36 The critical contention of the respondent was that the Fauna Act created a legal regime that was inconsistent with native title holders in Queensland (and, in particular, the group of which the appellant is a member) continuing to hold one of the rights and interests (the right and interest in hunting and fishing) that made up the native title the Magistrate found to exist. That inconsistency was said to lie in the creation of property rights in the Crown that were inconsistent with the continued existence of the native title rights and interests. 37 It is unnecessary to decide whether the creation of property rights of the kind that the respondent contended had been created by the Fauna Act would be inconsistent with the continued existence of native title rights. 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. (The Racial Discrimination Act and the Native Title Act will, of course, have to be considered where the question concerns the effect of steps taken after the enactment of those Acts.) But in deciding whether an alleged inconsistency is made out, it will usually 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. As Brennan J said in R v Toohey; Ex parte Meneling Station Pty Ltd, "Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights" but "[t]raditional Aboriginal land is not used or enjoyed only by those who have primary spiritual responsibility for it. Other Aboriginals or Aboriginal groups may have a spiritual responsibility for the same land or may be entitled to exercise some usufructuary right with respect to it". 38 Native title rights and interests must be understood as what has been called "a perception of socially constituted fact" as well as "comprising various assortments of artificially defined jural right". 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 that Aboriginal law and custom recognises them as possessing. 39 Not only did the respondent not contend that such a law severed that connection, s 211 of the Native Title Act assumes that it does not. Section 211 provides that a law which "prohibits or restricts persons" from hunting or fishing "other than in accordance with a licence, permit or other instrument granted or issued to them under the law", does not prohibit or restrict the pursuit of that activity in certain circumstances where native title exists. By doing so, the section necessarily assumes that a conditional prohibition of the kind described does not affect the existence of the native title rights and interests in relation to which the activity is pursued. 40 The Fauna Act did not extinguish the rights and interests upon which the appellant relied. Accordingly, by operation of s 211(2) of the Native Title Act and s 109 of the Constitution, the Fauna Act did not prohibit or restrict the appellant, as a native title holder, from hunting or fishing for the crocodiles he took for the purpose of satisfying personal, domestic or non-commercial communal needs. The Magistrate was right to dismiss the information. 41 For completeness it is as well to note two further matters. First, although the respondent referred to the earlier decision of this Court in Walden v Hensler it must be recalled that the issues discussed in that case were radically different from those that arise in the present, not least because they arose before the passing of the Native Title Act. Secondly, a number of submissions were made in the course of argument that touched upon questions much broader than those that must be decided in this proceeding. It is neither necessary nor desirable to express any view about them when this case can be decided on the narrow question whether the Fauna Act should be given the construction for which the respondent and the Commonwealth contended. It should not be given that construction. (Footnotes omitted). 79 It is necessary to note especially the observations made in [38] to [40] of the passage cited. It is also important to note that in their Honours' reasons at [36]-[37], the only relevant "regulation" of the way native title rights might have been extinguished was the vesting of title in fauna in the Crown, not an earlier prohibition on the unlicensed taking of fauna. 80 That the decision in Yanner turned upon the availability and operation of s 211(2) of the NT Act upon the prohibition on unlicensed hunting also appears from the reasons of Gummow J at [121]-[123]: 121 The appellant's conduct in hunting and killing the estuarine crocodiles was a "class of activity" for the purposes of s 211(2) of the Native Title Act. Further, s 54(1)(a) of the Fauna Act was a State law which fell within the terms of s 211(1)(b). It prohibited or restricted persons from carrying on the relevant class of activity at stake in this case, namely hunting, other than in accordance with a licence, permit or other instrument granted or issued to them under the Fauna Act. Equally, s 54(1)(a) of the Fauna Act answered the criteria in s 211(1)(c). 122 The respondent's principal contention was that the appellant's conduct did not fall within the definition of "native title" or "native title rights and interests" in s 223, because the condition in par (c) of s 223(1) that "the rights and interests are recognised by the common law of Australia" could not have been satisfied. The existence of a native title right, which was not extinguished prior to the enactment of s 211, is assumed. Section 211, in conjunction with s 109 of the Constitution, operates to remove prohibitions or restrictions in Commonwealth, State or Territory laws which might otherwise extinguish the relevant native title right. 123 However, the common law native title right, or incident, to hunt estuarine crocodiles exercised by the appellant was not extinguished by the Fauna Act prior to the "taking" of the two estuarine crocodiles at Cliffdale Creek. Therefore the "native title right" was "recognised by the common law of Australia" within the meaning of par (c) of s 223(1), at the time when the appellant was alleged to have committed the offence against s 54(1) of the Fauna Act. 81 It may also be noted that the High Court in Yanner did not decide, or suggest by way of obiter dicta, that only legislation which expressly purported to extinguish native title rights in those terms would be effective to foreclose the continued recognition by the common law of those rights. Nothing in Yanner denies that legislation which was necessarily inconsistent with the continued enjoyment of native title rights extinguished those rights. The contrary view is difficult to reconcile with the approach taken in Ward. 82 The Seas Claim Group's argument is flawed by the failure to appreciate that Yanner does not support the general proposition that a legislated prohibition upon an activity, save subject to a licence, is to be understood as having effect merely to regulate the exercise of an underlying right to carry out that activity. In Yanner, the provisions of the Queensland legislation which ex facie purported to prohibit the activity of taking native fauna without a licence were denied that effect by s 211(2) of the NT Act. 83 Section 211 of the NT Act was of central importance to the view of the High Court in Yanner that the Queensland legislation was regulatory of the activity of taking native fauna, because the effect of s 211 upon the Queensland legislation was to obviate the requirement for a permit as a condition of a lawful taking of fauna. So modified by s 211 of the NT Act, the Queensland legislation could not be said to prohibit the taking of fauna without a permit at the time when the alleged offence was committed. Section 211(2) of the NT Act does not operate to modify the legal effect of the legislative prohibitions on the unlicensed taking of fish for commercial purposes which took effect well before the enactment of the Racial Discrimination Act 1975 (Cth) and the NT Act. Once the native title right to take fish for commercial purposes was extinguished, it could not be revived by invoking s 211 of the NT Act. Section 211 of the NT Act alters the current effect of existing legislation: it does not purport to deny the past effect of legislation. And in any event, s 211 of the NT Act has no application in relation to an activity undertaken for commercial purposes. To say that rights subsist but may not be exercised without obtaining a licence required by statute in order to render lawful conduct that would otherwise be unlawful is to draw a distinction which has no practical or legal significance. Further, to say that the purpose of the legislation of Queensland and the Commonwealth was to regulate commercial fishing, rather than to extinguish native title rights, is to fail to attend to the evident legislative purpose of conserving fish stocks against uncontrolled exploitation. That purpose was achieved by a blanket prohibition on the activity of commercial fishing save pursuant to a licence. Conclusion on the issue of extinguishment 84 To say that the overall purpose of a piece of legislation is the regulation of commercial fishing is distinctly not to say that specific provisions which are, in terms, inconsistent with anyone being at liberty to engage in commercial fishing save pursuant to a licence granted under the legislation, not apt to extinguish native title. If these specific provisions are not given effect then the general conservation objectives of the legislation could be easily defeated by the expedient of traders buying fish in commercial quantities from native title holders. An intention to allow the conservation objectives of the legislation to be so easily defeated cannot reasonably be attributed to the legislature. 85 It is presumably in an effort to avoid this difficulty that the Seas Claim Group, in denying the evident intention that the prohibition on the unlicensed taking of fish for commercial purposes should apply to all persons who might engage in that activity, makes the concession that native title holders must obtain a licence under the legislation in order lawfully to engage in commercial fishing. But that concession only serves to point up the incoherence of the Seas Claim Group's argument on this point. The concession acknowledges that the legislative prohibition on fishing for commercial purposes without a licence is indeed directed at everyone who might otherwise be engaged in taking fish for commercial purposes. Once it is accepted that the statutory prohibition includes those who engage in that activity pursuant to native title, it becomes impossible to contend that this incident of native title is consistent with the statute. It makes little sense to speak of a right to engage in an activity which it is accepted is prohibited by law. In any event, the grant of a licence confers a right to fish for commercial purposes upon the individual licensee; it does not authorise the exercise of a group right. 86 It may also be noted that this conclusion does not involve a new departure in the interpretation of the NT Act. The primary judge acknowledged at [847] that his conclusion on this issue is one which has not previously commended itself to the judges of this Court who have had occasion to advert to the issue: Commonwealth v Yarmirr & Ors (2000) 101 FCR 171 at [255] (Yarmirr); Gumana v Northern Territory (2005) 141 FCR 457 at [247(b)]; Neowarra v Western Australia [2003] FCA 1402 at [779]. 87 In conclusion on this issue, the Seas Claim Group enjoy rights to take marine resources other than fish – sea water and rocks were mentioned in argument – but it is the activity of commercial fishing which is the incident of native title which was in issue on the appeal. Paragraph 5 of the order of 23 August must be varied to give effect to our conclusion on this issue, while at the same time, recognising the continued subsistence of the native title rights to take other marine resources. The right to take fish for commercial purposes cannot survive the enactment of laws which prohibit the unlicensed taking of fish for commercial purposes. THE Extremities of the Sea Claim area 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 EXTREMITIES OF THE SEA CLAIM AREA The arguments of the Seas Claim Group 101 The Seas Claim Group puts forward a number of general propositions as to why a sufficient connection was established in relation to Areas 1 – 4. They rely on the primary judge's finding at [605] that the Torres Strait Islanders are a maritime people who "have long been exceptional navigators" and on the evidence showing use of, and visitation to, areas a long way outside of the nearest community islands. They also say that the evidence shows fishing and gathering of marine resources on long boat trips, lasting over a day, in deep waters away from reefs. 102 The primary judge is also said to have made particular errors in excluding Areas 1 to 4 from the Determination. As to Area 1 it is submitted that the primary judge referred to, and apparently accepted, evidence about Stephen Islanders' (and, with their permission, other Islanders) using Pearce Cay for fishing and catching mackerel by trawling. On this basis, that the primary judge erred in failing to find that Stephen Islanders used Area 1 for the purposes of harvesting marine resources and that the right to harvest was in accordance with traditional laws and customs. 103 The Seas Claim Group say that evidence in support of their Area 1 claim is also relevant to Area 2, with evidence of the Stephen Islanders fishing in deeper waters for marine resources (such as turtles and dugong). Further, as the nearest part of Area 2 could be reached by boat from the Stephen Island community, the exclusion of Area 2 is argued to be inconsistent with his Honour's acceptance of the concept of marine territory radiating out from a community's islands (Reasons at [594] and [595]). Additionally, the location of the eastern boundary of Area 2 is said to be in error because travel from Stephen Island to Black Rocks or Bramble Cay, or the waters surrounding them in which native title has been determined to subsist could necessitate a traverse of Area 2. 104 As to Area 3, the evidence is said to show Islander use of the area on the basis of Erub Islanders use of Bramble Cay and Black Rocks (Rebes), and the waters surrounding Bramble Cay, for harvesting marine resources. Ugar members (with close connections to Erub and Mer) also gave evidence of fishing around Bramble Cay. Additionally, it is said that Black Rocks and Bramble Cay and, the associated nearby site of Paiwer, were places of spiritual or cultural importance evidenced by songs and tales exemplifying the spiritual and culture importance of the area. Moreover, they argue that the primary judge made no mention of the proposed pipeline from New Guinea to Cape York, in the vicinity of Bramble Cay and Black Rocks; but the people of Erub claim to have been entitled to decide whether the pipeline would pass through Bramble Cay thus evincing a claim to ownership of the area within 'the bubble'. 105 In relation to Area 4 evidence was given by Erub families as to use of the waters around Anchor Cay and East Cay. It is submitted that East Cay should not be viewed as a place at the margins of the marine estates of Erub and Mer but rather as a place of spiritual and/or cultural importance. Once again, stories telling of stones which were taken from East Cay to Erub and Mer are said to be powerful and important to those Islander peoples and there is an Islander song in relation to East Cay. the extremities of the sea claim areas Consideration 106 The learned primary judge included in the Determination such area of sea around the features of concern in Areas 1, 3 and 4 as he judged to be reasonable to enable the exploitation of marine resources in the seas around those features. That approach was in conformity with his Honour's general view that the Torres Strait Islanders are a maritime people who "have long been exceptional navigators". But his Honour had to draw the line somewhere, and this general finding does not suggest that his honour erred in his decision as to where to draw the line. 107 It may be accepted that the Islanders are and have been a maritime people and have visited or used places a long way from their homes. But where the evidence shows journeys to a given geographic feature, the feature has been included in the Determination. For example, Kapua Gutchen's evidence of camping on Bramble Cay is a reference to the island itself and not to the waters some distance to the north of it. 108 As to Area 1, the evidence shows use of the Island, Guchen Sandbank, itself and routes taken by the Stephen Islanders to other areas in the sea claim. There is no evidence of actual "use" of the waters surrounding Guchen Sandbank in the area excluded by his Honour. 109 As regards Area 2, while there is evidence of use of the waters around Ugar, that use was not in respect of areas close to the northern boundary of the sea claim. While there was evidence of travel by some Stephen Islanders to Daru and Parama, there was no evidence of the route or routes that Stephen Islanders took (or take), nor was there evidence that travel to the locations involved crossing Area 2. Further, it may be doubted whether evidence of travel by an individual is sufficient to establish a connection at the community level for the purposes of s223(1)(b). As to the spiritual or cultural connection of the Seas Claim Group to Areas 3 and 4, the stories and songs relied upon do not relate to Areas 3 and 4, being areas of sea to the north of the geographic features which are the subjects of the songs and stories. 110 In relation to Area 3 the evidence is not at all clear that the pipeline would traverse Area 3 as distinct from an area of marine estate within the Determination. 111 In relation to Area 4, there is evidence in relation to the use of Anchor Cay and East Cay, and of a story about stones being taken from East Cay. But none of this evidence is of use, or connection with, the northern part of the territorial sea surrounding Anchor Cay and East Cay which constitutes Area 3 which was excluded from the Determination. 112 There is no specific evidence of deep sea fishing in or around the four excluded areas. The conjecture that "Areas 1, 3 and 4 could be reached by boat" from nearby islands does not support an inference that trawl through, or deepwater fishing, occurred in these areas beyond the areas included in the Determination. 113 At the extremities of the claim area, the marine estates of each inhabited island have no apparent geographic limits. The primary judge's approach to the delimitation of the claim area, adumbrated, for example, at [684], was not to include the areas north of uninhabited islands within the relevant marine estate, save for that area of water "which is reasonable for the use and enjoyment of the waters around the…[uninhabited] islands themselves". The Seas Claim Group are not able to point to evidence which demonstrates that his Honour's judgment in this regard was so unreasonable as to evince error. The evidence on which the Seas Claim Group relies is simply not of such particularity as to demonstrate that his Honour's assessment of the northern extent of water reasonably necessary for the use and enjoyment by Islanders of the waters around uninhabited islands (or in the case of Area 2, of Erub itself) was not reasonably open to him. 114 In this regard, in Yarmirr at [78]-[79] Gleeson CJ, Gaudron, Gummow and Hayne JJ explained that a judge trying a native title claim does not err in fixing "a reasonable representation of the limit to which the sea in an area would have been used", and that "there can be no doubt that the primary judge was in a much better position to assess [the evidence of claimant witnesses]…than an appellate court". We are not persuaded that the Seas Claim Group has demonstrated error on the part of the primary judge: Minister for Immigration, Local Government and Ethnic Affairs v Hamsher and Others (1992) 35 FCR 359 at p 369; relied on in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [14]. RECIPROCITY BASED RIGHTS The primary judge's findings and conclusions 115 To appreciate the Seas Claim Group's reciprocity based rights argument it is useful to set out what they call their "customary marine tenure model". Essentially, there are two types of rights in this model. The first were said to be "ancestral occupation based rights" or "emplacement based rights". Rights of this kind were called by the primary judge "occupation based rights" and are said at [69] to have the following characteristics. They: (a) are held by people (a local descent group) who are descendants (usually patrilineal) of the socially recognised prior occupying ancestors (whether themselves members of a family, clan, "community" or a group of people of or from more than one "community") and the wives of members of the group; (b) are rights because they are enforceable by appeal to the socially recognised history of prior occupation and to the law or custom that makes that the basis for the existence of the rights; and (c) are "communal" or "group" rights. 116 The second type of rights were described as "reciprocal rights". Rights of this kind (at [70]): (a) are held by each person who has, or each group of persons who have, a relevant reciprocal relationship (whether based in kinship or of another kind, such as tebud/thubud (for example hereditary trade friendships)) with an ancestral occupation based rights holder or group of such rights holders; (b) can be called rights or interests because they are enforceable and sanctioned by appeal to the law or custom that associates the reciprocal obligation with the relationship and the law or custom that sanctions consequences for denial of the reciprocal obligation; and (c) are "group" or "individual" rights. 117 Reciprocity was also relied upon by the Seas Claim Group (Reasons at [187]) as an informing principle of the laws and customs as "obligations that are associated with various kinds of relationships between members of the native title claim group" which were said by the Seas Claim Group in their submissions at trial to be "closely linked to descent (including by adoption), kinship, marriage and affinal relationships and 'emplacement'". 118 The primary judge held at [493] that reciprocity based rights, in the context of the Seas Claim Group's "Customary Marine Tenure Model", differed from "occupation based rights" and, that the "relevant reciprocal relationships" were to be treated generically rather than differentially. In his Honour's opinion: The defining characteristics of reciprocity rights are, to reiterate in the words of the Tenure Model, that they: (a) are held by each person who has or each group of persons who have a relevant reciprocal relationship (whether based in kinship or of another kind, such as tebud/thubud) with an ancestral occupation based rights holder or group of such rights holders; and (b) can be called rights or interests because they are enforceable and sanctioned by appeal to the law or custom that associates the reciprocal obligation with the relationship and the law or custom that sanctions consequences for denial of the reciprocal obligation; (c) are "group" or "individual" rights; (d) cover the area covered by the rights held by the person or group upon whom the right depends (but ultimately subject to regulation by that person or group or by the descent group of ancestral occupation based rights holders for that area); (e) the content of the rights is reciprocal shared access and use which permits the same activities as may be done by the person or group upon whom the right depends but does not include territorial control or livelihood and the exercise of the right is subject ultimately to control by ancestral occupation based rights holders. (Emphasis in original.) 119 His Honour noted at [497] that the rights and interests contemplated by s 223(1) of the NT Act often do not accord with notions of "property" and that neither the use of the word "title" nor the fact that the rights and interests be "in relation to" land and waters should be seen as requiring identification of the rights and interests as items of "real property". 120 The primary judge made relevant findings of fact at [504]-[507]: 504 By way of preface, I should note that much of the discussion and, for that matter, obfuscation concerning these rights centred upon Professor Scott's triple-typology of "primary, secondary and tertiary" rights and upon how the latter two were properly to be conceptualised – as "rights", "interests", "expectations", or "privileges". Earlier in these reasons ("Reciprocity and Exchange (a) An Informing Principle), I referred to both Professor Scott's 2008 Report and his oral evidence to expose his views on reciprocity and reciprocity rights. I will not repeat here what was considered there other than to note the following. First, Professor Scott agreed with me that reciprocal relationships are status based – affinal, tebud, etc – and that to deny the rights and obligations arising out of those relationships is to deny the relationship. Secondly, reciprocity takes various forms, depending on the closeness of relationship of the people involved. Thirdly, as I understood his evidence, his secondary and tertiary rights were more than interests. They were rights and they gave access to the land and waters of another. 505 I have already accepted that the Islanders' society does have a body of laws and customs founded upon the principle of reciprocity and exchange and that that principle is dominant and pervasive in relationships in general. I am of the view the principle expresses in particular contexts and in varying degrees, notions of respect, generosity and sharing, social and economic obligations and the personal nature of relationships – notions, in short, which inform the Islanders' way or "ailan pasin". 506 There have been some quite number of examples in the Islander evidence of the rights and obligations of reciprocal relationships in practice: to provide an assured welcome, accommodation and sustenance to a visiting friend: eg Lizzie Lui; Lillian Bosun, ("I always give them a place to sleep"); to go fishing with, to share with, him or her: Walter Nona; to be provided with something you need: Kapua Gutchen; or to provide something to your friend if requested: Patrick Whap. The matter I would emphasise is that the reciprocal obligations assumed are situational in the sense of requiring the appropriate response to the friend's requirements of the moment – "If a person asks his thubud for help, then that person must help": Mebai Warusam; George Mye – and are multi-faceted, ie they are not limited, for example, to permitting the friend to fish, usually in the host's company, on the family's or community's marine estate. 507 For my own part I am satisfied that there are, under Islander laws and customs, status based relationships, for example, of an affine or thebud with a person having occupation based rights, which give rise to rights and obligations that are reciprocal in character in the sense that they will be enjoyed and discharged by one or other of the parties as the situation requires. What each party properly can expect of the other depends "on the closeness of the relationship of the people involved": cf Scott, 2008 at [223]-[224]. The relationships and the rights and obligations that arise in them are personal in that the discharge of the performance obligation is the responsibility, for example, of the Islander host (in the case of a tebud relationship) or relative and not of the island community and this is mutually understood by the parties to the relationship and is acknowledged by the members of the Island community. The relationship can be passed down generations. And a partner in reciprocity "can be denied" for reasons which "are valid and legitimate": Scott. As Kris Billy noted: "Thubud are like family; you can't say no to them, unless you have a very good reason." 121 Having made those findings of fact, the primary judge went on to conclude at [508]-[510]: 508 In short, the parties to such status-based relationships have what properly are to be described as rights and obligations that are recognised and are expected to be honoured or discharged under Islander laws and customs. They are not privileges, interests, etc. So to describe them confuses the benefit or burden imposed with the possible forms or manner in which the rights may in a given circumstance be satisfied or the obligations discharged. I agree with Professor Scott, save only that the rights in question are not rights in relation to land or waters. They are rights in relation to persons. The corresponding obligations are likewise social and personal and can be quite intense in character. This emerges clearly in the Islander evidence, the predominant emphases being on helping, sharing, being hospitable. To suggest that because, in a tebud relationship, the rights provide a "passport" to the host, partner's island and, with permission, will allow fishing in the community waters of the host, simply diverts attention from the personal nature and the relationship-sustaining purpose of the rights themselves. I would add that merely because rights are to be satisfied in the host's island's areas does not mean that the rights themselves are ones in relation to those areas. I do not accept "a relation to" land or waters conceptualisation of reciprocity based rights as such. Neither does it resonate in the Islanders' evidence. 509 Accordingly, as the "real relationship, or connection" is between the right and a person (Ward HC at [577]), I find that reciprocity based rights as such are not native title rights for the purposes of s 223(1) of the NT Act. This conclusion does not deny such rights their character as rights under the Islanders' traditional laws and customs. 510 I should add that if, contrary to my view, reciprocity based rights could plausibly be said to be ones "in relation to" land or waters, there would, as the Commonwealth contends, be considerable difficulties involved in accommodating a conclusion to that effect within the scheme of the NT Act. I need say no more about that. 122 Turning his mind to the position which he would have obtained had he found that reciprocity based rights were native title rights at [541], the primary judge noted that an issue would have arisen as to whether such native title rights would be characterised, as communal, group or individual rights. 123 His Honour held that the Seas Claim Group did not hold the rights and interests communally. He said at [542]: The consequence of my findings is that while all of the claim group members are, in aggregate, the holders of all of the native title rights in the Part A claim area, they do not communally hold those rights and interests. It may be convenient to describe their claim to all of the native title rights and interests in Torres Strait as a communal claim (see Bodney FC, at [149]). It is, in my respectful view, inaccurate and not required by the terms of the NT Act to describe the rights claimed as the "communal rights" of the claim group. The inference of communal ownership of those native title rights derived from the Islander society's laws and customs is unsustainable: cf Bodney FC at [152]. Those laws and customs, as I have found, determine which "sub-sets" of the wider Islander society "[have] interests in particular ... areas": see De Rose (No 2) at [39]; Bodney FC at [144]-[146]; and by those laws and customs, those "sub-sets" have a connection to their own respective areas: cf Bodney FC at [178]. 124 The primary judge's Determination reflects his opinion at [543] that the rights were best described as group rights and interests. The group in respect of an area was described as being comprised of "the claim group members of the island community – or communities in the case of shared areas – which has emplacement based rights in that area". RECIPROCITY BASED RIGHTS The arguments of the Seas Claim Group 125 The Seas Claim Group argues that the reciprocal rights they propounded should have been characterised as rights "in relation to" land or waters as they were the same rights, having the same content, as the rights the subject of the Determination which had already been determined to be "in relation to" land or waters. It is said that there is no warrant for discriminating between the holders of rights on the basis of the origins of the rights. It is said that there should have been no consideration of whether other rights and the claimed rights have a different generative basis. 126 The Seas Claim Group argues that the primary judge erred in contrasting rights "in relation to land or waters" and rights "in relation to persons". It is said that s 223(1) of the NT Act only requires the rights, and not the laws and customs under which the rights are possessed, to be "in relation to" land or waters. That the rights may be "personal" is no barrier to classification of the rights as "in relation to land or waters". By way of example, a bare licence to pass across land satisfies the "in relation to land …" characterisation. RECIPROCITY BASED RIGHTS Consideration 127 The primary judge's findings of fact at [504]-[507] of his Honour's reasons are sufficient to support his Honour's conclusion at [508]-[509]. 128 It does not avail the Seas Claim Group to emphasise the broad scope of the connection conveyed by the words "in relation to" in s 223(1) of the NTA. Section 223(1) of the NT Act defines native title rights and interests in relation to land and waters where those rights and interests: (a) are possessed by the native title holders; and (b) the native title holders are connected by those laws and customs with the land and waters in question. 129 When s 223(1) of the NT Act speaks of "rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters", the relationship referred to is the relationship described in s 223(1)(a) and (b). The relationship so described is one subsisting directly between the peoples who possess those rights and the land and waters to which they are connected by the laws and customs under which their rights are possessed. As Gummow J said in Yanner at [72]: It is the relationship between a community of indigenous people and the land, defined by that community's traditional laws and customs, which is the bridgehead to the common law. 130 Section 223(1) does not contemplate rights and interests which are, in some general or indirect way, related to land and waters, but dependent on the permission of other native title holders for their enjoyment. Such rights cannot be said to be possessed by the claimants themselves, so far as they relate to land and waters: such rights are not held by reason of the putative holders' own connection under their laws and customs with the land and waters in question but are held mediately through a personal relationship with a native title holder who does have the requisite connection; as Gleeson CJ, Gaudron, Gummow and Hayne JJ emphasised in Commonwealth of Australia v Yarmirr and Others (2001) 208 CLR 1 at [9] "those peoples, by those laws and customs must have a 'connection' with the land or waters". 131 The primary judge's use of the term "status based" relationships was derived from evidence of Professor Scott, who was called to give evidence as an expert on behalf of the Seas Claim Group. Professor Scott drew a distinction between "secondary" and "tertiary" rights which were essentially "status related" (the reciprocal rights), and "primary" rights which derived from "descent" relationships (Reasons [190]). Status based reciprocal rights are rights in relation to the land and waters of another person. This is to be contrasted with occupation based rights to access and use land and water by reason of laws and customs, such as those concerning descent from an original occupier of the area. As the primary judge observed, descent is an "indispensable element of a person's identity" (at [183]). Native title rights in conformity with s 223(1)(a) and (b) of the NT Act exist by virtue of the identity of the native title holder: they arise by reason of "who you are". The reciprocal rights propounded by the Seas Claim Group arise by reason of "who you know". 132 Reciprocal rights persist only as long as a personal relationship with a native title holder continues. An occupation based holder accesses and uses land, and water and resources, as of right (subject to any overarching law or custom), whereas a reciprocal rights holder has no right to engage in any activity without "permission" or some form of a "license" from a particular person with whom he or she has a personal relationship. On the argument of the Seas Claim Group, native title rights would depend on the vagaries of that relationship. 133 History does not support the Seas Claim Group's argument in that there have been 22 determinations of native title since Mabo v States of Queensland (No 2) (1992) 175 CLR 1 (Mabo [No 2]) in relation to land in the Torres Strait. All of these determinations, which related to land above the high water mark, concern exclusive native title held by one or more island communities on the basis of descent from particular ancestors who occupied the respective estates at sovereignty. If the Seas Claim Group's argument were to be accepted, then practical inconsistencies would arise in that native title in an island community's marine estate would be held not only by the members of the community but by other unidentified individuals on the basis of their relationships from time to time with one or more persons in the relevant community. Relationship with public rights 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]. Relationship with public rights The arguments of the Seas Claim Group 138 The Seas Claim Group argues that the public rights, the customary rights and, the native title rights, all being non-exclusive and none being statutory, are on equal footing and exercisable on a "first come, first served basis". The Seas Claim Group argues that the relationship between the two sets of rights should have been described as requiring the respective rights to be "exercised reasonably". It is also argued that the primary judge should have distinguished between statutory rights on the one hand and public and customary rights on the other. Relationship with public rights Consideration 139 To accept the contention of the Seas Claim Group that paragraph 11 of the order of 23 August 2010 should be varied to state that the interests referred to in paragraphs (2), (3) and (10) in Schedule 6 do not prevail over the native title rights and any exercise of those rights would be to leave open the possibility of a practical collision between the two sets of rights. If the Seas Claim Group's proposed order is affirmed, there will be a failure to ensure "clarity or certainty" in the relationship between the native title rights and interests and other interests. That would be an odd exercise of the judicial function: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at [83]. More importantly, the Seas Claim Group's contention sits uneasily with the requirements of s 225(d) of the NT Act which is predicated upon the possibility of the practical inconsistency of rights and is directed to resolving such inconsistencies. 140 Placing native title rights, public rights and customary rights, on an equal footing which are exercisable on a "first come, first serve" basis, does not meet the requirement of s 225 (d) of the NT Act. The Seas Claim Group's argument fails to recognise that, even between public rights, the law establishes priorities. For example, the public right of navigation is accorded priority over the public right of fishing: (R v Lord (1864) 1 P.E.I. 245, 249-250. Original Hartlepool Collieries Company v Gibb (1877) 5 Ch D 713, 724, Lord Advocate v Wemyss (1899) 2 F (H.L.) 1, 8-9.) 141 As to whether native title rights must yield to other rights, it is well settled that native title rights do not diminish the enjoyment of rights enjoyed under statute: Wik Peoples v The State of Queensland and others (1996) 187 CLR 1 at 133. 142 The right to fish, "of whatever nature" is limited by the public right to navigation: R v Lord (1864) 1 P.E.I. 245 at 249-250. 143 The customary rights set out in Schedule 6(10) of the Treaty are recognised by Australian law insofar as the Torres Strait Fisheries Act 1984 (Cth) implemented the Treaty provisions relating to fisheries management into Australian domestic law. Therefore, these customary rights have statutory force. Accordingly, in the event of any inconsistency, or conflict, between the exercise of the two types of rights, the statutory rights must have priority. 144 For these reasons, we have concluded that the terms of paragraph 11 of the order of 23 August 2010 conform with the requirements of s 225(d) of the NT Act. Orders 145 We would order that the appeal be allowed, and that the determination of native title made on 23 August 2010 be varied by adding after clause 5(b): "This right does not, however, extend to taking fish and other aquatic life for sale or trade". 146 We would order that the cross-appeal be dismissed. I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Keane and Justice Dowsett. Associate: Dated: 14 March 2012 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 387 of 2010 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: COMMONWEALTH OF AUSTRALIA Appellant LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP Seas Claim Group AND: LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP AND OTHERS Respondent COMMONWEALTH OF AUSTRALIA AND OTHERS Commonwealth JUDGES: KEANE CJ, MANSFIELD, DOWSETT JJ DATE: 14 March 2012 PLACE: BRISBANE REASONS FOR JUDGMENT MANSFIELD J 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. Associate: Dated: 14 March 2012 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