Franklin, Wallwork and Murray JJ
The case involved an appeal against a trial decision where the Kooriata (or Kariara) and Ngmal Ngmal (Njamal Njamal) people were found to be fishing within their authority based on traditional law and custom, after they were charged for fishing within a gazetted prohibited area. At trial the Magistrate found that the Fisheries Act 1905 (WA) had not extinguished their native title rights to fish and the Fisheries Department of Western Australia sought to appeal the decision. On appeal Heenan J found that the Kooriata and Ngmal Ngmal had not discharged the evidentiary burden of establishing the nature and extend of their native title rights and interests. The current issue with the full court was whether it was open to the Magistrate to find that the appellants had acted pursuant to a native title right to fish.
Franklyn, Wallwork and Murray JJ found that a right to fish based on traditional law and custom is a recognised form of native title. They also noted that the evidentiary burden would be discharged, where sufficient evidence is produced to establish a native title defence, amd that this evidence raises a reasonable doubt as to their guilt. Accordingly the appeak was dismissed.
Wallwork J dissented and found that the appellants needed to raise a reasonable doubt about the existence of native title rather than establish the detail of the system of native title.