Thirteen Torres Strait Island communities applied to the courts to establish a right to fish within the waters of the Strait for commercial purposes under the Native Title Act 1993 (Cth). A license for fishing with the intention of trade and sale is required under both the Fisheries Act 1952 (Cth) and the Fisheries Act 1887 (Qld).
The Commonwealth and Queensland government argued that native title was a bundle of rights that had accrued over successive generations and had not extended to include to right to fish with the intention of trade and sale. Additionally, the Commonwealth and Queensland argued that a native title claim doesn’t extinguish the requirement of a fishing license.
The Court ruled in favour of the government and held that the legislative prohibition on commercial fishing without a license is not extinguished by relevant native title rights and interests.
French CJ and Crennan J found that the native title rights and interests surrounding fishing for the purposes of trade and sale, cease to be native title rights within the meaning of s 223 of the Native Title Act 1993 (Cth).
Hayne, Keifel and Bell JJ found that there was no distinct separate native title right to take fish for commercial purposes. The prohibition of commercial fishing without a license merely regulates the exercise of the native title right, it does not extinguish it.