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Brienne, Jacqueline --- "Further Recognition of Traditional Fishing Rights: Wilkes v Johnsen" [2000] IndigLawB 6; (2000) 4(26) Indigenous Law Bulletin 18

Further Recognition of Traditional Fishing Rights:
Wilkes v Johnsen

Wilkes v Johnsen

Supreme Court of WA


Kennedy, Wheeler and White JJ

Appeal from Court of Petty Sessions

23 June 1999

By Jacqueline Brienne

Wilkes v Johnson (‘Wilkes’) deals with a somewhat similar fact situation to the recently decided High Court case of Yanner v Eaton (‘Yanner’).[1] In Yanner, a traditional owner was charged with taking fauna, namely two estuarine crocodiles, in contravention of the Queensland Fauna Conservation Act 1954. The High Court decided in favour of the traditional owner, on the basis that s 211 Native Title Act 1993 (Cth) (‘the NTA’) applied. Wilkes concerns the interaction of the Fish Resources Management Act 1994 (WA) (‘the FRMA’) and s 211 NTA. It confirms that the operation of s 211 extends to the possession of fauna as well as to the act of taking and confirms that an exemption power under a statute comes within the section. The Western Australian legislation, insofar as it purported to restrict the exercise of native title rights which were protected under s 211 NTA, was held to be inoperative.

The Decision

On 18 December 1997 the appellant, Wilkes, was convicted of two offences under the FRMA: (1) being in possession of undersized marron and (2) failing to give his name and address to a Fisheries Officer.

At trial, the appellant sought to lead evidence that he was an Aboriginal person exercising native title rights which entitled him to fish for marron without regard to the FRMA. The Magistrate refused to hear this evidence holding that it was irrelevant to the charges against the appellant.

The Western Australian Supreme Court upheld the appeal in part. The appellant successfully established that he was entitled to lead evidence as to the existence of a native title right in support of his defence to the charges. The court dismissed the appeal against his conviction for failing to give his name and address. The matter was remitted to the Magistrate to decide whether, on the evidence, he or she is satisfied that the appellant has a native title right to fish for undersized marron. The hearing has been set down for 20 March 2000.

The legislative provisions in issue

Section 46(b) of the FRMA provides that a person must not take, have in their possession, sell, purchase, consign or bring into the State, any protected fish. Undersized marron is a protected fish. Section 7 of the FRMA, however, provides that the Minister or Executive Director may exempt a person or class of persons from specified provisions of the Act.

Section 211 of the NTA preserves native title holders’ rights to carry out certain classes of activities, such as fishing, which are otherwise prohibited under Commonwealth, State or Territory laws. The section applies where ‘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’. To gain protection under s 211, the activity must be in exercise or enjoyment of the native title holders’ native title rights and ‘for the purpose of satisfying their personal, domestic or non commercial communal needs’.[2]

Does the State law need a ‘clear and plain intention’ to regulate a native title right to fish?

The appellant submitted that the FRMA cannot regulate a native title right to fish unless it discloses a clear and plain intention to that effect. Justices Wheeler and Kennedy rejected that submission. Native title rights can be regulated without any ‘clear and plain intention’ to do so. Section 46 of the FRMA does apply to native title holders exercising native title rights.

Does an ‘exemption’ constitute a ‘licence, permit or other instrument’ for the purposes of s 211(1)(b) NTA?

The appellant pointed out that whilst s 46 FRMA prohibits the taking or possession of undersized marron, s 7 of that Act gives the Minister a discretion to grant an exemption which would allow such activities. Would such an exemption constitute a ‘licence, permit or other instrument’ within the meaning of s 211(1)(b) NTA? Justice Wheeler considered that an ‘exemption’ could be viewed as a species of licence. Justice Kennedy in contrast considered that an exemption comes within the meaning of the phrase ‘other instrument’ in s 211(1)(b). The majority confirmed that s 211 NTA has the effect of permitting fishing by native title holders contrary to s 46 FRMA, provided that it is ‘in exercise or enjoyment of their native title rights’ and ‘for the purpose of satisfying their personal, domestic or non commercial communal needs’.

Does s 211 NTA extend to the ‘possession’ of fish

The charges faced by Mr Wilkes concerned his possession of prohibited fish. Justice Wheeler accepted that the FRMA distinguishes between the concepts of catching fish and possessing fish. If the prohibition of possession under that Act were given its full effect, any native title right to fish would be inoperative. Section 211 NTA, in contrast, does not distinguish between the acts of fishing and possessing fish. She concluded that the term ‘class of activity’ in s 211 NTA must refer to the obtaining of fish or fauna and keeping them in possession. The State and Commonwealth laws were thus inconsistent. To the extent that the FRMA purports to prohibit possession of fish caught pursuant to s 211 NTA, the State law is inconsistent and to that extent inoperative by virtue of s 109 of the Commonwealth Constitution.

Failure to give name and address

The appellant was also convicted under s 189(1)(a)(i) FRMA which provides that ‘A fisheries officer may, for the purposes of this Act.... require any person whom the fisheries officer suspects, on reasonable grounds, of having committed an offence against this Act state the person's name, principal place of residence and date of birth.’ The appellant had refused to state his name and address when asked to do so. He argued that if he was entitled to possess marron pursuant to his native title right, he could not be guilty of an offence under s 189(1)(a)(i). Justice Wheeler noted that the section only requires suspicion on reasonable grounds. A suspicion could be reasonable notwithstanding the existence of a good defence. The Fisheries Officer’s request was lawful in the circumstances.

Jacqueline Brienne is a Legal Officer at the Aboriginal Legal Service of Western Australia .

[1] [1999] HCA 53, 7 October 1999

[2] Section 211(2)

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