Fishing and native title: what rights apply?

In October 2001 the High Court of Australia confirmed that native title may exist over Australian waters seaward of the coastline (marine waters). These waters extend from the low water mark and may include marine parks.

Native title may also exist over waters such as rivers, lakes and inter-tidal zones.

This means that certain laws and customs of the local Indigenous people who use the seas and its resources may be recognised by the court as native title rights. Some examples of these rights are the rights of the Indigenous people to fish or to gather other produce of the sea, and to access the sea, as they have done in the past.

In order to have these rights recognised, Indigenous people must lodge a claim with the Federal Court for a determination of native title.

The rights are not exclusive

The High Court made it clear that native title rights and interests over marine waters related to fishing and general access to the area are not exclusive. If native title is recognised, the native title holders do not have the right to prevent or veto other people exercising their valid rights in relation to the same waters and its resources. The validly granted rights of others who use and access the waters are unchanged by the recent High Court decision, for example:

• the right of commercial fishers to fish the waters if they have a valid licence;
• the right of the public to fish in the area;
• the right of the public to navigate through the waters;
• the right of innocent passage of vessels through Australia's maritime zones.

For most of the areas offshore where native title is shown to exist, the waters will be shared by the native title holders and other people with rights and interests in the same area. This sharing is sometimes called coexistence. It means that native title rights can exist and be exercised alongside other rights in the area.

Fishing licences and native title

Currently in most states and territories of Australia, fishing licences are required for:

• vessels;
• the type, size and numbers (bag limits) of fish that can be taken;
• where fish can be taken;
• when fish can be taken;
• commercial or some recreational purposes; and
• types of fishing equipment permitted.

Current valid licences and permits remain unchanged by the recent High Court decision.

Licences are granted, regulated and monitored by state or territory government departments. While the state or territory governments are responsible for laws about fishing, the Commonwealth Government is responsible for the Native Title Act. State or territory government departments must comply with the Native Title Act.

In some cases, Indigenous people who are involved in particular traditional fishing activities do not need a licence or permit. This may be because some fisheries legislation in Australia give certain exemptions from fisheries rules to Indigenous peoples. Also, under the Native Title Act, native title holders can exercise their rights to fish for personal, domestic or non-commercial needs without obtaining a permit or licence. However, if licences are issued only for public health, public safety, research or environmental protection purposes, then the native title holder will have to obtain such a licence.

For more information about fishing rules and regulations, contact your state or territory government department of fisheries.

Fishing as a future act

A future act is a proposed activity or development in waters or on land that may affect native title. The grant of a fishing licence may be a future act, for example, when a new commercial licence is being issued. Changes to fishing regulations may also be future acts.

If the issuing of a new commercial fishing licence is likely to affect the native title rights and interests of native title holders in the area, then the native title holders have the right to be notified of the proposal to grant the new licence, and they have the right to comment on it. They do not have the right to veto it (see above).

The state or territory governments are responsible for notifying the native title holders, or their representatives, of proposed new fishing licences or changes to existing licences and regulations in the area of their claim.

Native title holders do not have the right to negotiate over future acts in marine waters, as they do over certain future acts on land, such as the granting of mining and exploration licences. However, the recognition of native title rights over marine waters may be taken into account by state or territory governments when they are planning future use of marine areas and resources.

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This fact sheet is provided as general information only and should not be relied upon as legal advice for a particular matter.

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