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WAFIC NATIVE TITLE
NATIVE TITLE TO SEA – LEGAL ISSUES
As noted above, WAFIC\'s primary involvement in relation to native title claims is in relation to waters seaward of the Highest Astronomical Tide Mark, and inland tidal waters (such as the Swan River and Peel Inlet).
In 1992, the High Court in a case called Mabo decided that Australian law recognised native title. subsequently, the Federal Parliament enacted the Native Title Act 1993 (Cth) which set out mechanisms by which native title could be claimed and awarded to indigenous people in Australia.
The law in relation to native title is still somewhat uncertain. There are questions that have yet to be dealt with by the High Court and the Parliament as to what native title really is and where it can exist.
However, last year the High Court delivered a decision in a case which is known as the Croker Island case, which clarified two things:
1. Native Title rights can include fishing rights in the sea; and
2. Those rights cannot be exclusive.
This means that:
1. any existing fishing licences are valid; and
2. aboriginal people who hold native title rights to sea cannot use those rights to exclude other people, including fishermen, from any area of sea.
This does not mean that native title does not affect (actually or potentially) the fishing industry.
There are two key aspects as to how native title can affect commercial fishing rights in the short or long term.
Future Acts and Renewals
Under the Native Title Act 1993 (Cth), acts that are done that affect native title are known as future acts. They can only be done in accordance with the provisions of the Native Title Act. It is possible that the grant of new licences and renewal of existing licences may presently be or become future acts.
The Impact of Native Title Fishing Rights on Fisheries Management
All fisheries are managed by control of take from the fishery. Management therefore involves balancing the interests and rights of users of the fishery. Until recently that has involved balancing the rights of commercial fishers and recreational fishers. Now the interests of native title fishing right holders have to be taken into account. Obviously, this could have an effect on commercial fishing rights in the long term. WAFIC\\\'s role in this regard is threefold.
Limiting the areas of sea over which native title is held to exist limits the potential for this to become an issue. Part of WAFIC\\\'s role is to ensure that native title rights to sea are only granted where they are justified to exist.
First, it is concerned to ensure that the native title fishing right holders are defined as precisely as possible (to eliminate confusion about how many indigenous people hold those rights).
Second, as noted above, it seeks to ensure that native title rights to sea are only granted where the evidence justifies their existence.
Third, the decision in the Croker Island case does not rule out the possibility that in another case a judge could find that indigenous fishing rights include rights of a commercial character. WAFIC’s view is that all native title rights to fish are properly characterised as non-commercial. Obviously, recognition of commercial rights to fish under native title will have significant impact on regulation of fishing and compensation for any rights that have been expropriated from native title holders (ie be the licensing of commercial fishing rights).
Also, the State Government is conducting two reviews at the moment which have relevance to dealing with the fishing aspirations of indigenous people. WAFIC is participating in those reviews to ensure that recognition of aboriginal fishing rights and their integration is undertaken in a manner which is not disruptive or which is minimally disruptive to existing commercial rights.\\\"