Case: Harper v Minister for Sea Fisheries [1989] HCA 47 ; (1989) 168 CLR 314
Outcome: cited
The further written submissions filed in these proceedings continue: "39. In answer to both questions, however, in Attorney-General (British Columbia) v Attorney-General (Canada) Viscount Haldane LC explained that the right to navigate and the right to fish both have their origin in common practice from time immemorial to navigate the seas and to use a navigable river as a highway. Thus, in Harper v Minister for Sea Fisheries Brennan J, after reviewing the authorities, spoke of "the right of fishing in the sea and in tidal navigable rivers". 40. Hence, it is not correct to assume, as the respondents do, that a public right to fish applies wherever waters are tidal. The better view is that the geographic reach of each of the right to fish and the right to navigate is one and the same, and if a body of water is not navigable, in the sense that it not the sea or an arm of the sea, it cannot be subject to a public right of fishing. 41. When the authorities speak of a public right to fish in tidal waters of a river, the right is said to operate so far up the river as the tide in the ordinary course of things flow and reflows, and it will be a question of fact whether there is a real perceptible and sufficient ebb and flow of the tide so as to render waters tidal. If, in the ordinary course, the tide flows and reflows, that gives rise to a rebuttable presumption that the waters are navigable, and as Bayley J explained in R v Montague : The strength of this prima facie evidence arising from the flux and reflux of the tide, must depend upon the situation and nature of the channel. If it is a broad and deep channel, calculated for the purposes of commerce, it would be natural to conclude that it has been a public navigation; but if it is a petty stream, navigable only at certain periods of the tide, and then only for a very short time, and by very small boats, it is difficult to suppose that it ever has been a public navigable channel. Again, the evidence may not be conclusive as to whether any part of Timber Creek is tidal and navigable in order to decide that the common law public rights have relevance. 42. If it is possible to conclude that the common law rights of the public to fish and navigate have application in relation to any part of Timber Creek, on the authority of Commonwealth v Yarmirr the existence of those rights is inconsistent with the continuation of a right in the holders of native title to say who may enter the area where those rights have applied. 43. On that basis, a question arises as to whether s 47B requires the consequence identified in Yarmirr to be disregarded." (footnotes omitted) 768 The Northern Territory also relied upon the following passage from Gumana (No 2 ) (at [28]-[31]): "His Honour's reasoning on this topic firstly recognised that the prerogative rights of the Crown with respect to the foreshore (the area between the mean high and low water marks) were subject to the separate common law rights of the public to fish and to navigate in the water above that land (at [61]-[65]), and to the arms of the sea (at [66]). The next step was to reach the provisional view that the public rights to fish and to navigate in the foreshore and in the rivers and estuaries of Blue Mud Bay were abrogated by the land grants under the Land Rights Act [67]-[73]. However, as noted above, his Honour then felt bound by Yarmirr FC to conclude at [80]-[87] that the grants under the Land Rights Act did not abrogate the public rights to fish or to navigate. In all that discussion, his Honour recognised that the public right to fish and the public right to navigate in the foreshore and the arms of the sea were separate public rights. That is also apparent in his Honour's consideration of whether the licences under the Fisheries Act 1988 (NT) are different in nature from the public right to fish (at [90]-[92]). That being so, there is no reason to think that his Honour intended to limit the public right to fish by reference to the navigable waters of the foreshore or of the arms of the sea simply because, by definition, the public right to navigate is confined to the navigable waters of the foreshore or of the arms of the sea. I do not find in the reasons for judgment cause to conclude that the common law public right to fish in tidal waters was confined to tidal navigable waters. His Honour at [63] relied upon four authorities for the proposition that the prerogative rights of the Crown were subject to the common law public right to fish (and the common law public right to navigate). The first of those cases was Harper v Minister of Sea Fisheries [1989] HCA 47 ; (1989) 168 CLR 314 where Brennan J at 329-331 described the public right to fish as extending to tidal waters generally, although at one point his Honour used the expression 'tidal navigable waters'. His Honour's views were agreed with generally by Mason CJ, Deane and Gaudron JJ at 325, and by Dawson, Toohey and McHugh JJ generally at 336. In New South Wales v Commonwealth [1975] HCA 58 ; (1975) 135 CLR 337, Stephen J at 423 referred to Hale's De Jure Maris as stating that the shore between 'the flux and reflux of the tide' was subject to the public right of fishing, and Jacobs J at 489 also referred to the 'public rights of fishing in tidal waters'. Anderson v Alnwick District Council [1993] 1 WLR 1156 at 1166-1170 also referred to the public right to fish as extending to 'areas of tidal waters' without confining that right to navigable tidal waters. So too did Burchett J in Minister for Primary Industry and Energy v Davey (1993) 47 FCR 151 at 168. It is correct, as counsel for the applicants pointed out, that the public right to fish is said to have resembled in origin the right to navigate the sea and navigable rivers (see e.g. Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153 at 169). It is also correct to point out that his Honour in the reasons for judgment did not seek to distinguish between the extent of tidal waters affected by the public right to fish and those affected by the public right to navigate. Counsel put that, if there is a coincidence in their extent, because by definition the public right to navigate can only be in tidal navigable waters, the public right to fish was intended also equally to be so confined. However, for the reasons given, in my view the reasons for judgment indicate that the public right to fish as identified by his Honour was exercisable in the inter-tidal zone, including tidal waters, whether those waters are navigable or not. The public right to navigate is necessarily confined to tidal waters which are navigable." 777 I should perhaps add, for the sake of completeness, that contrary to the claimants' later submissions, I accept that the public right to fish in tidal waters exists as part of the common law of this country. That right appears to have been guaranteed at least since Magna Carta. See generally: New South Wales v Commonwealth [1975] HCA 58 ; (1975) 135 CLR 337 (" Seas and Submerged Lands Case ") (at 419-20, per Stephen J). I also accept that being a public, and not a proprietary right, it is amenable to abrogation or regulation by a competent legislature: Harper v Minister for Sea Fisheries [1989] HCA 47 ; (1989) 168 CLR 314 (at 330, per Brennan J).