FEDERAL COURT OF AUSTRALIA

Birri Gubba v State of Queensland [2003] FCA 276

NATIVE TITLE - whether the habitual engagement in unlawful activity within claim area without any action by the responsible authority to suppress that activity sufficient to show that the person’s interests may be affected by a determination of native title so as to entitle the person to be a party to the native title determination proceeding.

FISHING - whether s 62(1) the Nature Conservation Act 1992 (Qld) prohibits commercial fishing under licences issued under the Fisheries Act 1994 (Qld) in Queensland national parks

Native Title Act 1993 (Cth) ss 84 and 253

Nature Conservation Act 1992 (Qld) ss 57, 62 and 175

Acts Interpretation Act 1954 (Qld) s 11(b), 33 and 35E

Fisheries Regulation 1995 (Qld) ss 30, 40, 52 and 54

Nature Conservation Regulation 1994 (Qld) ss 23, 27, Sch 2 Pt 2 and Ch 2 Pt 1

Members of the Yorta Yorta Aboriginal Community v State of Victoria (1996) 1 AILR 402

Re Gunai People (1997) 2 AILR 265

Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1

Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2002] FCA 730

BIRRI GUBBA (CAPE UPSTART CLAIM) v STATE OF QUEENSLAND AND OTHERS

QG 6249 OF 1998

DRUMMOND J

28 MARCH 2003

BRISBANE

THE COURT ORDERS THAT:

1.                  AF Griggs and WG Porter be joined as parties to these proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     By notice of motion Messrs Griggs and Porter seek an order joining them as respondents to a proceeding brought on behalf of the Birri Gubba for a determination that they have native title to certain lands and waters in North Queensland.

2                     The motion is brought under s 84(5) the Native Title Act 1993 (Cth) (the NTA).  It provides:

The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings.

3                     Mr Gore’s affidavit filed in support of the motion adequately explains why Griggs and Porter did not seek to be joined as parties within the period referred to in s 84(3)(b) the NTA.

4                     The interest Griggs relies on to bring him within s 84(5) is stated in this way:  he has been a commercial fisherman since 1991. He holds a commercial fisher licence and a commercial fishing boat licence referred to in ss 52 and 54 the Fisheries Regulation 1995 (Qld), both issued under s 30 of that Regulation.  These licences permit him to take the kinds of fish specified in the licences from certain Queensland waters also specified therein.  These waters include the tidal waters of Station Creek, which are within the native title claim area.  The tidal waters of Station Creek are also within the Cape Upstart National Park, an area that is a “national park” for the purposes of the Nature Conservation Act 1992 (Qld) (the NCA).

5                     Griggs says:

Over the last six years, I have fished in the waters of Station Creek at Cape Upstart about 27 times.  The waters of Station Creek from its mouth for as far inland as those waters are navigable are affected by the ebb and flow of the tide and I believe are, therefore, tidal waters in which I am entitled to fish in accordance with my commercial fishing licences.

6                     He says that, if the Court makes a determination in this proceeding in the terms sought by the native title claimant group, then “the rights I currently enjoy under my commercial fishing licences to carry out commercial fishing activities in the tidal waters of Station Creek would be affected”.  Porter states the interest he relies upon to justify his joinder in similar terms.  Their evidence is not disputed.

7                     The undisputed evidence of Mr Duncan Souter, Chief Executive Officer of the Queensland Seafood Industry Association Inc (QSIA), is that:

·                    commercial fishing is a historic and well-established use of tidal waters within the national parks of Queensland and many fishermen who now fish tidal waters within national parks are members of fishing families who have, for generations, fished those same waters.

·                    the tidal waters within Queensland national parks contain some of the important areas for seafood production along the Queensland coast

·                    a recent survey of 2000 members of QSIA identified at least twenty-eight fishermen who produce 80% to 100% of their total fish catch from tidal waters within Queensland national parks and another fifty-one fishermen who carry out, to a greater or lesser extent, their commercial fishing operations in the tidal waters of Queensland national parks.

·                    loss of access to fisheries is an important issue for the commercial fishing industry and individual commercial fishermen.  There is continuing pressure on governments by other interest groups to close or place restrictions on access to commercial fisheries near to, among others, environmentally sensitive or world heritage areas.

8                     The motion is, in truth, the vehicle selected by the QSIA, the commercial fishermen’s association of which Griggs and Porter are members, to test a conflict that has emerged between commercial fishermen and the Queensland Environmental Protection Agency (the EPA), the department which administers the national parks regime contained in the NCA.  It is a striking feature of the case that, though there has been in force since 1994 what counsel for the State of Queensland contends is a clear prohibition on commercial fishing in national parks, the Queensland Department of Primary Industries (the DPI), which administers the fisheries licensing regime, has continued to issue annual licences which, like those held by Griggs and Porter, authorise commercial fishing in some national parks.  The attitude of the DPI to the position of the EPA does not, however, appear from the evidence.

9                     As I understand the argument put forward on behalf of the State of Queensland, it was not suggested that the DPI was acting unlawfully or beyond its statutory powers under the Fisheries Act 1994 (Qld) in issuing licences containing permission to fish commercially in the waters of some national parks.  Rather is the argument that, if holders of such licences seek to exercise the right to fish commercially in national parks conferred by those fisheries licences, they will contravene the prohibition contained in the NCA.  The State’s primary submission is that the term “interests” in s 84(3) and (5) the NTA comprehends only “lawful interests”.  Since Griggs and Porter will, despite holding their commercial fishing licences, infringe s 62(1) the NCA if they commercially fish in Station Creek, it follows, so the State contends, that any rights asserted by them to commercially fish in the tidal waters of the Cape Upstart National Park can only be unlawful and thus not capable of constituting interests within s 84(3) or (5) the NTA.  The native title claimants have made submissions supporting this contention.

10                  A legal right to fish within the native title claim area under a commercial fishing licence issued by a government department under legislation requiring the holding of such a licence before a person can lawfully fish in that part of the State can readily constitute an affected interest within s 84(5).  The Birri Gubba seek a determination that their native title includes “the right to access and the right to determine the access of others to country”.  If the native title claim is established in those terms, then even if Griggs and Porter hold fishing licences that confer on them a legal right to fish commercially in the tidal waters of Station Creek, they may still be required to obtain the permission of the native title holders before being able to exercise their rights under the licences.  That is enough to show that each has interests within s 84(5) that may be affected by the determination sought by the Birri Gubba claimants.

11                  Licences of the kind held by Griggs and Porter issued under s 30 the Fisheries Regulation are typically issued only for periods of one year at a time.  They are “authorities” for the purpose of Div 3 of Pt 5 of the Fisheries Act - see the “dictionary” scheduled to the Act.  As such, they are renewable under ss 56 and 58 the Fisheries Act.  A commercial fisherman like Griggs or Porter has an expectation, if not an enforceable entitlement, that his licence will be renewed from time to time.  Commercial fishing could not exist as an industry if persons regularly participating in it could not expect such renewal.  If it be necessary for Griggs or Porter to hold a lawful entitlement to fish for commercial purposes in Station Creek and their licences do confer such a lawful entitlement, the annual licences they have held and can expect to hold in the future are sufficient to give each an interest of the kind referred to in s 84(3) and (5) the NTA.  Contrary to the submission of the native title claimants, each annual licence, either by itself or in the context of a series of licences issued in the past and anticipated to be issued in the future to a particular fisherman, is not too transitory an entitlement to constitute such an interest.

12                  The central question raised by the motion to which the parties directed their attention is whether Griggs and Porter in fact have, by force of their fishing licences, the lawful right to take fish for commercial purposes from Station Creek, part of a national park, on which they rely to found their “interest” under s 84(5).  The State and the applicants contend that they do not.  They say that, if they were to take fish from Station Creek, that would constitute the offence created by s 62 the NCA notwithstanding possession by them of fishing licences that are not challenged as being in any way invalid or beyond the power conferred on the chief executive of DPI by ss 30 and 40 the Fisheries Regulation to issue such licences.

13                  In my opinion, Griggs and Porter do not infringe s 62 the NCA by engaging in commercial fishing in the tidal waters of Station Creek:  they are exempt from the prohibition in s 62(1) so long as they comply with the conditions referred to in s 27(2) the Nature Conservation Regulation 1994 (Qld).  So long as they do that and fish in accordance with the conditions of their fisheries licences, they have a lawful right to fish commercially in the waters in question though they are within a national park.

14                  I also think that, even if Griggs and Porter would contravene s 62 the NCA by fishing commercially in Station Creek, though fishing there in compliance with the conditions of their fishing licences, they would still be entitled in the circumstances of this case to be parties to the Birri Gubba native title claim.

Do Griggs and Porter have, by force of their commercial fishing licences, the legal right to fish commercially in the Station Creek waters, notwithstanding s 62 the NCA?

15                  Section 62 the NCA provides:

(1)        A person, other than an authorised person, must not take, use, keep or interfere with a cultural or natural resource of a protected area, other than under—

(a)        the interim or declared management intent for the area; or

(b)        any conservation agreement or covenant applicable to the area; or

(c)        a lease, agreement, licence, permit or other authority granted, made, issued or given—

(i)         by the chief executive under sections 34 to 38; or

(ii)        under the Forestry Act 1959 or Mineral Resources Act 1989; or

(iii)       under another Act by the Governor in Council, or someone else with the consent of the Minister or chief executive; or

(d)        a licence, permit or other authority issued or given under a regulation; or

(e)        if the area is a conservation park, resources reserve, nature refuge, coordinated conservation area, wilderness area, World Heritage management area or international agreement area—an exemption under a regulation.

Maximum penalty—3 000 penalty units or 2 years imprisonment.

…

(4)        Despite subsection (1) and section 15,but subject to the conditions prescribed under a regulation, a person may take—

(a)        a fish in a prescribed place; or

(b)        an invertebrate animal in a prescribed place for use as bait to take fish under paragraph (a); or

(c)        a mud crab (Scylla serrata) in a prescribed place.

(5)        However, subsection (4) does not authorise a person to take—

(a)        an animal for a commercial purpose; or

(b)        an animal prescribed under this Act as threatened or rare wildlife; or

(c)        an animal prescribed under a regulation for this paragraph.

(6)        Also, subsection (4) does not, in itself, authorise a person to enter a prescribed place.

(7)        In this section—

“authorised person” means a person as follows performing functions under this Act in relation to the protected area—

(a)        the chief executive;

(b)        a conservation officer, public service officer or other employee of the department acting under the chief executive’s authority.

“national park” includes a national park (Aboriginal land) or, national park (Torres Strait Islander land) or national park (recovery).

“prescribed place” means a national park, or part of a national park, prescribed under a regulation for subsection (4)(a), (b) or (c).

16                  It is common ground that Station Creek is within the boundaries of Cape Upstart National Park, that that park is a “protected area” within s 62(1) and that fish of the kind Griggs and Porter’s fishing licences authorise them to take in Station Creek are a “natural resource” within s 62(1).  Griggs and Porter are not “authorised persons” as defined in s 62(7).  The fishing activities of Griggs and Porter in Station Creek are capable of contravening s 62(1) the NCA.  They rely on s 62(1)(c)(iii) and (1)(d) to show that their activities do not come within the prohibition in s 62(1).  They do not rely on s 62(4) since that can only authorise non-commercial fishing in such a place:  see s 62(5)(a).

SECTION 62(1)(c)(iii)

17                  Griggs and Porter contend that their commercial fishermen’s licences and primary commercial fishing boat licences bring them within the exception under s 62(c)(iii) the NCA since each is a “licence … issued … under another Act by … someone else with the consent of the Minister or chief executive”.  The issue that arises is whether the phrase “the Minister or chief executive” in s 62(c)(iii) refers to the Minister or chief executive of the EPA or whether it refers to the Minister or chief executive of the government department which administers that other Act, in this case, the DPI.

18                  Even if it were possible to read s 62(1)(c)(iii) as referring to the Minister or chief executive charged with administering the other Act referred to, it might be difficult for Griggs and Porter to rely on their fishing licences to bring themselves within this provision:  their licences were issued by the chief executive of DPI himself under the Fisheries Regulation made under the Fisheries Act, not by someone who, in doing that, acted with the consent of that chief executive or of the Minister administering the Fisheries Act.  But, in my opinion, the expression in s 62(1)(c)(iii) requiring the consent of “the Minister or chief executive” must be read as referring to the Minister administering the NCA and to the chief executive of the EPA.

19                  Section 33 the Acts Interpretation Act 1954 (Qld) provides:

(2)        In a provision of an Act, a reference to “the Minister” without specifying a particular Minister by title is a reference to—

(a)        the Minister administering the provision; …

…

(11)      In a provision of an Act, a reference to the “chief executive” without specifying a particular public sector unit by name is a reference to the chief executive of—

(a)        if, for the time being, different Ministers administer the provision in relation to different matters—the public sector unit that—

(i)         deals with the relevant matter; and

(ii)        is administered by the Minister or Ministers administering the provision in relation to the matter; or

(b)        in any other case—the public sector unit that—

(i)         deals with the matters to which the provision relates; and

(ii)        is administered by the Minister or Ministers for the time being administering the provision.

20                  The statutory provision containing the reference to “the Minister” and to “the chief executive” is s 62(1)(c)(iii), ie, a provision of the NCA.  The reference to these officials is, by force of s 33(2) and (11)(b) the Acts Interpretation Act, to the Minister administering the NCA and to the chief executive of the EPA respectively.  There is nothing in the statutory context in which these expressions in s 62(1)(c)(iii) the NCA occur that contradicts this reading; the context, in my opinion, confirms that this is the correct reading.  In s 62(1)(c), a careful distinction is drawn between authorisations given by the chief executive under the NCA, authorisations given by officials under two specific Acts without any oversight by the Minister for the Environment or the chief executive under the NCA, authorisations given under other Acts by the Governor in Council without any oversight by that Minister or that particular chief executive and authorisations given by someone other than the Governor in Council under Acts other than the NCA, the Forestry Act and the Mineral Resources Act.  Unless the consent referred to in s 62(1)(c)(iii) is the consent of the Minister for the Environment or the consent of the chief executive of the EPA, there could be no purpose served by sub-par (c) drawing the distinctions I have referred to.  In particular, if the consent referred to in s 62(1)(c)(iii) refers to the consent of the Minister or chief executive administering the other Act, there would be no point in making separate provision for authorisations issued under the Forestry Act and the Mineral Resources Act as authorisations sufficient, without any approval from the Minister for the Environment or the chief executive of the EPA, to operate to exempt persons from the prohibition in s 62(1).

21                  Griggs and Porter cannot rely on s 62(1)(c)(iii) to escape the prohibition in s 62(1) the NCA.

SECTION 62(1)(d)

22                  It is not an offence under s 62(1) if a person takes a natural resource of a protected area under “a licence, permit or other authority issued or given under a regulation”:  s 62(1)(d).  The reference here to “a regulation” is to a regulation made under the NCA:  see s 35E the Acts Interpretation Act.  Section 175(1) the NCA gives the power to make regulations under that Act.

23                  Griggs and Porter submit that s 27(2) the Nature Conservation Regulation made under s 175 the NCA gives them “authority” within s 62(1)(d) that is sufficient to exempt them from the prohibition against fishing in Station Creek in s 62(1).

24                  Section 27 the Nature Conservation Regulation provides:

(1)       This section applies to the following animals (“permitted animals”)—

(a)        fish;

(b)        invertebrate animals;

(c)        mud crabs (Scylla serrata).

(2)       A person may take a permitted animal in a prescribed area subject to the conditions stated in schedule 2, part 2.

(3)       However, an invertebrate animal may be taken only for use as bait to take fish.

(4)       A person must not take a permitted animal in a prescribed area, or part of a prescribed area, if the taking of the animal is restricted or prohibited in the area, or the part of the area, under a regulatory notice.

Maximum penalty—165 penalty units.

(5)       A person who, under this section, takes a permitted animal in a prescribed area must not remove a live permitted animal from the area.

Maximum penalty—165 penalty units.

(6)       In this section—

“prescribed area” means—

(a)        an area within a national park in schedule 2, part 1, column 2 set out opposite the national park in schedule 2, part 1, column 1; and

(b)        an area within a national park (Aboriginal land) in schedule 2, part 1, column 2 set out opposite the national park (Aboriginal land) in schedule 2, part 1, column 1; and

(c)        an area within a national park (Torres Strait Islander land) in schedule 2, part 1, column 2 set out opposite the national park (Torres Strait Islander land) in schedule 2, part 1, column 1; and

(d)        a conservation park; and

(e)        a resources reserve.

25                  The tidal waters of Station Creek are a prescribed area, as defined by s 27(6)(a).  Schedule 2 Pt 2 to the Nature Conservation Regulation referred to in s 27(2) above provides:

1.         A person must not—

(a)       take a fish, invertebrate animal or mud crab (Scylla serrata) smaller or larger than the size (if any) prescribed under the Fisheries Act 1994; or

(b)       take more fish, invertebrate animals or mud crabs than the number (if any) prescribed under the Fisheries Act 1994; or

(c)        take fish, invertebrate animals or mud crabs in a way prohibited under the Fisheries Act 1994; or

(d)       take a species of fish or invertebrate animal or mud crabs when or where the taking is prohibited under the Fisheries Act 1994; or

(e)        take fish or invertebrate animal of a species the taking of which is prohibited under the Fisheries Act 1994; or

(f)        take any species of the genus Euastacus (freshwater spiny crays) for use as bait.

26                  It was not suggested Griggs or Porter had, when they fished commercially in Station Creek in accordance with the terms of their fisheries licences, contravened any of these six conditions.

27                  In the context of s 62(1)(d), the term “issued” is apt to apply to authorisations, including licences and permits, to take resources from a national park which would otherwise infringe the prohibition in s 62(1), that are separate from the regulation made under s 175 the NCA that provides for their being issued.  The expression “given under a regulation” made under the NCA in s 62(1)(d) is apt to refer to the authorisation to do that which would otherwise be prohibited by s 62(1) which is created by the regulation itself, without there being in existence any separate licence or permit.

28                  To give the language of s 62(1)(d) what I regard as its ordinary English meaning is, in my opinion, consistent with its statutory context.  The making of regulations under the NCA providing for authorisations to do that which would otherwise be prohibited by s 62(1) is expressly contemplated by s 175(2)(h) of the Act.  Under that sub-section, a regulation may be made by the Governor in Council with respect to the “taking of animals or plants into, or out of, protected areas”.  Section 27(2) the Nature Conservation Regulation is just such an exercise of that power:  a person who would otherwise infringe the prohibition in s 62(1) is exempt from that prohibition, if, acting within the conditions set out in s 27(2), he takes fish from a national park.  So acting, he takes those fish “under a[n] … authority … given under a regulation”, ie, s 27(2) the Nature Conservation Regulation.

29                  The State of Queensland understandably does not contend that s 27 the Nature Conservation Regulation is ultra vires s 175(2)(h) or otherwise invalid.  It submits, however, that s 27 should be read as operating solely to prescribe the conditions referred to in s 62(4) the NCA as those which must be complied with before fish can be taken from a national park for non-commercial purposes.  It can be accepted that s 27 does operate to prescribe those conditions in s 62(4).  But there is, in my opinion, no justification for reading s 27 as confined to doing just that and nothing more.  The object of s 62(4), as qualified by sub-sec (5), is to create an express right for recreational fishermen to fish in national parks, subject always to their compliance with the restrictions contained in those sub-sections themselves and in any regulation applicable to such fishing.  Section 27 the Nature Conservation Regulation is one such regulation, in so far as it operates to impose the restrictions therein contained on all fishermen, including but not limited to recreational fishermen, who fish in national parks.

30                  That s 27 the Nature Conservation Regulation cannot be given the restricted operation suggested by counsel for the State of Queensland is, in my opinion, apparent from its terms and its context.  It is framed in words of general application, ie, as a general authorisation to take fish from national parks subject only to the conditions set out in s 27(2), (3) and (4).  It appears in Pt 1 of Ch 2 the Nature Conservation Regulation.  As such, it is a provision enacted to give effect to the purpose of that Chapter of the Regulation, viz, the purpose of managing the way people may use a national park under the management principles for the area:  see s 23.  The note to s 23 the Nature Conservation Regulation states that the “management principles are given in sections 16 to 26” of the NCA.  Nothing in ss 16 to 26 can, however, be read as creating an unqualified prohibition against the taking of resources, including fish, from national parks:  s 62(1)(a), (b), (c) and (d) of the Act, as well as s 175(2)(h), are inconsistent with reading anything in ss 16 to 26 in that way.  These management principles in ss 16 to 26 were never intended to be inviolable:  the Minister, in her second reading speech on the Nature Conservation Amendment Bill 1994, said:

The Bill has incorporated additional provisions to deal with uses on national parks which do not conform to the management principles for national parks.

31                  In my opinion, s 27, and in particular sub-section (2) the Nature Conservation Regulation, confers a general authority on all persons to take fish from national parks subject to compliance with the conditions contained in s 27.  None of those conditions limits the taking of fish from national parks for non-commercial purposes only.

32                  The legislative history of the NCA and in particular of s 62 does not support the notion that s 27 should not be read as permitting commercial fishing in those national parks listed in s 27(6).  When the NCA was first enacted in 1992, it was intended that management plans, or conservation plans as they were then known, would be the principal mechanism for ensuring the protection of national parks and other protected areas in accordance with the management principles of s 17 of that Act.  The Minister, in the second reading speech on 28 April 1992 on the Nature Conservation Bill, said at 4583 and 4590:

“The legislation alone will not provide for the security of nature.  It will provide the legal authority and mechanisms.  …  The public and other agencies need to have a full understanding of natural processes and access to information on protecting nature.  Education will be a key feature of the program which will implement the legislation.  This will be done through involving the community in the preparation of conservation plans.  Where other land and water uses are proposed or practised—for example, agriculture, grazing, fishing and forestry—and these areas have high nature conservation values, the Department of Environment and Heritage will work with the other agencies and management groups responsible to ensure that principles established in their Acts or in associated policies and practices are recognised and promote protection of nature.  For example, the Queensland Department of Primary Industries, the Queensland Fish Management Authority and the Queensland Forest Service will also have responsibilities under their Acts for the protection of wildlife, and they also provide access to nature for certain purposes such as recreation, commercial use and scientific study.  Consequently, this legislation will not seek to duplicate or override the management responsibilities or functions embodied in the primary legislation of such other agencies.

It is not our intention that the Nature Conservation Bill will override the existing commercial fisheries management policies and plans under the fisheries legislation of this State provided that the conservation of these natural resources is ensured in accordance with existing legislative obligations.  When a protected species or protected area is listed under this Act and another Act, then simple administrative arrangements will be established between departments to avoid duplication of permits, approvals, fees and similar administrative needs.

…

Other Departments and landholders will also have an interest in the preparation of conservation plans.  Examples are the Department of Lands, QDPI and the Department of Resource Industries.  Plans will recognise the skills and resources that landholders and these Departments have in regard to managing the protected areas where they have an interest or where protected species or their habitat are involved.  The plan may authorise other Departments to issue permits and other authorities under their legislation providing that this is consistent with the conservation plan and the management principles for the wildlife or the protected area.  (emphasis added)

33                  What is now s 62 the NCA originally appeared as s 57 in the legislation as enacted in 1992.  Consistently with the Minister’s second reading speech in 1992, s 57 did not require the consent of the Minister or the chief executive administering the NCA to a licence issued or given under another Act.  Section 57 originally provided:

(1)        A person must not take, use, keep or interfere with a cultural or natural resource of a protected area, other than under—

(a)        the interim or declared management intent for the area; or

(b)        any conservation agreement or covenant applicable to the area; or

(c)        the conservation plan for the area; or

(d)        a licence, permit or other authority issued or given under a regulation or another Act.

34                  Section 57(2) provided defences of no present relevance.

35                  Pursuant to s 57(1)(d), a licence issued under the Fisheries Act authorising commercial fishing in waters within national parks was the only authority a fisherman needed to engage in that activity.  Such a fisherman would not contravene the prohibition in s 57(1).

36                  It is apparent from research carried out on behalf of the applicants that, though the State of Queensland suggested the contrary, s 57 in this form did come into operation prior to the September 1994 amendments to the NCA.  By a proclamation of 11 February 1993, 12 February was fixed as the day on which, inter alia, Div 7 of Pt 4 the NCA 1992 was to commence.  Section 57 was in Div 7.  It follows that, consistently with the Minister’s second reading speech of 28 April 1992 on the Nature Conservation Bill, the NCA as in force between February 1993 and September 1994 did not purport to restrict fishermen who held licences authorising them to fish commercially in waters within national parks from exercising that right.

37                  In September 1994, s 57 the NCA was amended to take pretty much the form that s 62 now takes.  Section 57(1)(c) and (d) was repealed and the provisions now found in s 62(1)(c), (d) and (e) substituted in its place.  New sub-sections (4) and (5) were inserted in s 57.  They read:

(4)        Despite subsection (1) and section 15 (Management of protected areas), a person may take fish (other than for a commercial purpose) in a National Park prescribed by regulation subject to the conditions prescribed by regulation.

(5)        Subsection (4) and this subsection expire on 31 December 1999.

38                  The insertion in 1994 of sub-section (4) in s 57, with its sunset clause in sub-section (5), is explained in the Explanatory Memorandum in this way:

Clause 11 amends section 57 of the Act in relation to taking, or interference with, the cultural or natural resources of a protected area.  Further, this amendment inserts a new subsection (4) which provides that recreational fishing may be permitted in some National Parks (that are prescribed in a regulation) until the end of 1999.

39                  (The sunset clause, sub-section (5), was repealed in 1997.)  Pressure from recreational fishing interests was sufficient to cause the government to make provision, by the amendments to s 57(4) and (5) made in 1994, for such fishing in national parks.  The NCA as originally enacted in 1992, by s 57, imposed a blanket prohibition on recreational fishing in national parks:  there was, as I understand it, no legislation requiring recreational fishermen to be licensed and thus no legislation providing for the issue of permits or licences to recreational fishermen which, by force of s 57(1)(d) as originally enacted, would have exempted them from the prohibition against fishing in national parks.

40                  The Explanatory Memorandum accompanying the Nature Conservation Amendment Bill 1994 does not explain why the original s 57(1)(d) was repealed and the current provisions now found in s 62(1)(c)(iii) and (d) inserted in its place.  Nor did the Minister in her second reading speech on the Nature Conservation Amendment Bill on 28 April 1994 explain that.  It is noteworthy that, though the Minister in introducing the Bill that became the 1992 Act, expressly stated that it would not “override the existing commercial fisheries management policies and plans under the fisheries legislation of” the State and though, in her speech on the Amendment Bill in 1994 the new Minister expressly referred to the amending provisions enabling “the department [of Environment and Heritage] to authorise and regulate recreational fishing on certain specified national parks”, she made no mention at all of commercial fishing in national parks and, in particular, no mention of any intention to prohibit such commercial fishing even if carried out under the authority of licences issued under the Fisheries Act.  Against the background of s 57(1)(d) as originally enacted in 1992, its being in force from February 1993 to September 1994, and against the background of the undisputed evidence as to the long standing and widespread practice of commercial fishermen being permitted by their licences issued under the Fisheries Act to fish in the waters of certain national parks, the absence of any explicit statement by the Minister in her 1994 second reading speech to the legislative intent of the 1994 amendments being to ban commercial fishing in national parks, there is good reason to read the legislative scheme for managing national parks that has been in effect since 1994 and which includes s 27 the Nature Conservation Regulation as permitting commercial fishing in national parks subject to the conditions contained in s 27 and subject to commercial fishermen holding such other authorisations as may be required by the legislative regime governing fisheries to permit them to engage in that particular activity.  The Parliamentary materials contain no basis, in my opinion, for reading what is now s 62 the NCA as prohibiting commercial fishing in national parks even though that is done under the authority of a licence issued under the Fisheries Act.

41                  That s 27 the Nature Conservation Regulation itself operates to permit fishing, including commercial fishing in some national parks, does not mean that a person who acts within its constraints is free to take fish from a national park.  If restrictions are imposed on a person fishing in a park by other legislative provisions, including provisions of the Fisheries Act additional to those incorporated in s 27(2) the Nature Conservation Regulation via Sch 2 Pt 2 to that Regulation, then those restrictions must also be complied with for the taking of fish to be lawful.  Though Griggs and Porter can rely on s 27 to authorise their fishing activities in Station Creek, restrictions are imposed by the Fisheries Act and the Fisheries Regulation on their activities there, as well as on their fishing activities in other waters covered by their licences.  If they are to take fish lawfully from Station Creek, they must therefore comply not only with the conditions to which the authorisation created by s 27(2) the Nature Conservation Regulation is subject, but also with the requirements of the fisheries legislation applicable to their fisheries licences.

42                  I reject the submission by the State of Queensland that, if s 27 is interpreted as authorising commercial fishing in a national park, it would be inconsistent with the specific statutory prohibition contained in s 62(5) against taking fish from national parks for commercial purposes.  Section 62(5) is not a general prohibition against commercial fishing in national parks.  It is expressly limited to qualifying the permission contained in s 62(4) to take fish from national parks.  Section 62(5) has no operation on any other provision in s 62 and, in particular, it does not purport to qualify the various authorisations to take fish from national parks that may be found in any of the instruments, agreements or authorities referred to in s 62(1)(a) to (e).  The legislative history to which I have referred suggests that s 62(4) and (5) should be read as confined to preserving the right of recreational fishermen to fish in certain national parks first conferred by the 1994 amendments to the old s 57.

43                  Since it is common ground that Griggs and Porter hold fishing licences validly issued under the Fisheries Act and Fisheries Regulation that authorised them to take the species of fish they do take from the waters of Station Creek, s 27 the Nature Conservation Regulation, so long as they comply with it, operates by force of s 62(1)(d) to exempt them from the prohibition contained in s 62(1).  They thus have a conditional lawful right to fish commercially in Station Creek.

Even if Griggs and Porter would contravene s 62 the NCA by fishing in Station Creek, are they nevertheless entitled to be joined as parties to the native title claim?

44                  There was once a view that the right of a person to be a party to a native title claim brought under the NTA depended upon possession of an “interest” as defined in s 253 of the Act, ie, the term “interests” in the expression in s 84(3) and (5):  “the person’s interests may be affected by” the determination of the claim referred only to a legal or equitable interest in the land or waters within the claim area.  In Members of the Yorta Yorta Aboriginal Community v State of Victoria (1996) 1 AILR 402, Olney J held that the definition of “interest” in s 253 did not provide the meaning for the expression “the person’s interests may be affected by” a determination of a native title claim application, within the meaning of those words in s 84(3) and (5).  His Honour said, at 405:

… A person may habitually use and/or enjoy land or waters without necessarily having any right or title to do so (e.g. by the mere acquiescence or licence of the title holder) but could be prevented from so doing should it be determined that the native title holders are entitled to the use and enjoyment of the land or waters to the exclusion of all others.  As a matter of ordinary language, it can readily be said that the interests of an habitual user of land or waters may be affected if the native title holders insist on exercising exclusive use or enjoyment of the land or waters. …

It will be a question of fact in each case whether or not a person’s interests may be affected by a determination of native title.

45                  Olney J’s view has prevailed.  French J, sitting as President of the National Native Title Tribunal, followed it in Re Gunai People (1997) 2 AILR 265 in preference to his earlier opinion that s 253 controlled the meaning of “interests” in the provision of the NTA then in force and to the same effect as s 84(3).  It was a little later approved as a correct statement of the law by the Full Court in Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1.  That case considered the meaning of “interests” in relation to joining parties to an application before the Native Title Tribunal under s 68(2)(a) the NTA as then in force; however, the comments about that provision have equal application to the meaning of “interests” in s 84(3) and (5):  see Black CJ at 4.

46                  The Byron Environment Centre case shows that, though it is not necessary that a person have a legal or equitable interest in the land the subject of the native title claim, if the person is to have a sufficient interest to entitle him or her to be joined as a party to the claim under s 84, a mere emotional, conscientious, ideological or intellectual interest in the subject matter of the native title claim will not suffice; the kind of interest which will entitle a person to be made a party to a native title claim are interests that are not indirect, remote or lacking substance, capable of clear definition and of such a character that may be affected in a demonstrable way by a determination in relation to the application (per Black CJ).  The interests must be not remote, indirect or fanciful, they must be above that of an ordinary member of the public and not there of a mere intermeddler or busybody (per Lockhart J).  Interests that will suffice are those that may be genuinely, demonstrably and not indirectly affected by a determination of native title, that are not remote or so insubstantial that the effect of the determination will be merely speculative and they must be able to be defined with reasonable certainty and be readily ascertainable (per Merkel J).

47                  Why the Full Court took the view that the “interests” which could be affected by a determination in relation to an application for native title and thus entitle the person to become a party to the native title application are not confined to those legal or equitable interests in land or waters referred to in s 253 the NTA appears from the statement of Black CJ at 7 - 8:

There is, however, no reason to conclude from the subject matter, scope and purpose of the Act that the interests need be proprietary or even legal or equitable in nature.  Whilst the interests must be genuine and not indirect, remote or lacking substance, there is no indication that, for example, a person who has a special, well-established non-proprietary connection with land or waters which is of significance to that person is not to be regarded as having interests that may be affected by a determination.  To the contrary, the consensual objects of the Act would seem to be advanced if a person with genuine interests of that nature that might or would be affected did have the rights of involvement in the process of native title determination given by the Act to a person who is a party.  Each case will of course turn on its own facts and whether or not interests will or may be affected will depend upon an assessment of the interaction between the interests asserted by a person who wants to be a party and the nature and extent of the native title rights and interests claimed.

48                  And from the statement by Lockhart J at 16:

The objects of the Act include the achievement of what is described as reconciliation between Aboriginal and non-Aboriginal Australians.

The preamble to the Act states:

“A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by reconciliation, and, if not, in a manner that has due regard to their unique character.”

Also, in the final paragraph of the preamble the following appears:

“The law, together with initiatives announced at the time of its introduction and others agreed on by the Parliament from time to time, is intended … to be a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders, and is intended to further advance the process of reconciliation among all Australians.”

Various provisions of the Act are designed to achieve reconciliation through mediation processes:  for example, s 72.

Also, as a native title application proceeds through the Tribunal and its processes of mediation with a view to encouraging discussion between the claimants and interested persons, it is natural that widely framed claims may be honed down to what the applicants really want.  Persons who may not have a right or interest in the land in a proprietary sense, but nevertheless have an interest in a broader sense, will be entitled to have a say in the matter and be able to negotiate some arrangement to accommodate their interests if they are parties to the application, which is the question arising in this case.

To shut people out from participating in a claim because they do not have a proprietary interest in the land or waters could operate to create ill feelings and achieve antagonism, not reconciliation.

49                  As appears from the Yorta Yorta case, the Gunai People case and Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2002] FCA 730, persons engaged with some frequency in activities in relation to the area the subject of the native title claim, such as recreational fishing, hunting, camping and water-skiing and boating activities and commercial entities claiming to be dependent for their livelihood upon continuing recreational use of the area by local persons and visitors, have all been accepted as having sufficient interests to entitle them to be joined as parties under s 84(3) and (5) the NTA in proceedings for the determination of native title.  In Combined Mandingalbay Yidinji-Gunggandji Claim at par [16], Dowsett J said:

The principal issue is whether or not the recreational users have interests which may be affected by a determination that native title exists.  They presently have the right to use these islands for recreational purposes, or at least such use is tolerated.  This situation has continued for many years.  The native title claim is to exclusive possession.  There can be no doubt that this would exclude continued use of these islands for recreational purposes save to the extent that the native title holders might choose to permit it to continue.  The recreational users are not simply members of the public who might choose to use the land or have done so occasionally in the past.

50                  There is no reason to limit interests sufficient for the purposes of s 84(3) and (5) to non-commercial interests only in cases where the persons seeking to become parties are not relying on any legal or equitable rights.  As Olney J observed in Yorta Yorta, whether a “person’s interests may be affected by” a determination of native title so as to permit the person to be joined as a party in the native title claim is a question of fact governed by the circumstances of the particular case.  His Honour accepted that habitual use of land or waters without any legal right to do so, but by “the mere acquiescence” of the title holder may, according to the circumstances, be sufficient to give rise to an interest within s 84(3) and (5).  His Honour here is speaking about acquiescence in a non-technical, practical sense, not acquiescence in the technical legal sense, which creates legally enforceable rights by way of estoppel.  Dowsett J, in the Combined Mandingalbay Yidinji-Gunggandji Claim, consistently with this approach, accepted that habitual use without any legal right in circumstances where the title holder has tolerated that use, may also, according to the circumstances, be sufficient to give rise to an interest within s 84 the NTA.

51                  That each of Griggs and Porter has held a series of licences issued under the Fisheries Act purporting on their face to authorise each of them to engage in that activity in Station Creek is an important part of the relevant factual circumstances that show, in my opinion, that each does have an interest sufficient for the purposes of s 84(3) and (5).  The undisputed evidence of Griggs, Porter and Souter also establishes that, for many years, fishermen, including commercial fishermen like Griggs and Porter, have fished waters within national parks.  I do not think it possible to infer, in the face of this evidence, that the national parks authorities charged with enforcing s 62 the NCA have remained, since 1994, in a state of ignorance about what Griggs, Porter and Souter say are quite widespread and regular activities by commercial fishermen.  Though at least since the coming into force of s 62 the NCA, there has been in place what the State contends is a prohibition against that activity, a prohibition reinforced by criminal sanctions, there is no suggestion in the material before me that there has been a single prosecution of a fisherman claiming the right to fish national park waters by force of a fisheries licence, which on its face gives him that right.  The entire absence, so far as the evidence before me reveals, of any action by the EPA to enforce s 62 the NCA over the past eight years against licence holders commercially fishing in national parks against the background of Souter’s evidence and the views expressed by the Minister responsible for the administration of the NCA in the Queensland Parliament as to just what fishing should be permitted within national parks suggests that a deliberate policy of non-enforcement of s 62 against commercial fishermen has to date been adopted, at least by the EPA.  That this is the proper inference is supported by the failure on the part of the State of Queensland to contradict the explicit evidence of Souter that commercial fishing by persons holding licences under the Fisheries Act in national parks is widespread and of long standing.  It is reinforced by the fact that failure has occurred in the context of a proceeding which has been treated by QSIA, which is backing Griggs and Porter, and by the State of Queensland as a test case for determining whether fishermen can fish commercially in national parks provided they hold fisheries licences authorising that activity.  The EPA, the authority with responsibility for enforcing s 62 the NCA, has, on the evidence before me, for a long while tolerated commercial fishing in national parks, if, contrary to my view, s 62 is in fact a prohibition against the activities of Griggs and Porter and of many other commercial fishermen that are here in question.

52                  These circumstances are sufficient, in my opinion, to show that even if they do not have a lawful right to fish commercially in the waters in question, Griggs and Porter still have interests by reason of their fishing activities in those waters sufficient to entitle them to be joined as parties to the Birri Gubba native title claim under s 84(5) the NTA.

Associate:

Dated:              28 March 2003