Non-exclusive native title rights recognised in Torres Strait

In July 2010, Justice Finn of the Federal Court made a determination of native title recognising non-exclusive native title rights in respect of almost 40,000 square kilometres of ocean in the Torres Strait, including the waters around the Murray Islands which were the subject of Mabo No. 2, the case which established native title in Australia.

Non-exclusive native title rights are those rights which allow native title holders to continue to exercise their native title rights and interests in accordance with traditional laws and customs, but do not allow native title holders to control access to land. Rights to hunt, fish, camp and conduct ceremonies are examples of non-exclusive native title rights.

These rights are to be distinguished from exclusive native title rights which incorporate the right to exclusive possession i.e. the right to possess and occupy an area, including the right to control access to, and use of, that area to the exclusion of all others.

The most significant findings in that determination were those in relation to the native title holders’ rights to take and use the marine resources of the area for any purpose, including commercial purposes. Those findings were subsequently appealed to both the Full Court of the Federal Court and later to the High Court.

The decision of Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33 was handed down by the High Court on 7 August 2013. Their decision upheld the original decision of Justice Finn and overturned the decision of the Full Court of the Federal Court.

The question before the High Court on appeal was whether the State and Commonwealth commercial fishing legislative regimes, which prohibit the taking of fish or other aquatic life for commercial purposes without a licence, partially extinguished the native title right to take marine resources for any purpose.

The High Court allowed the appeal holding that the legislative regimes of the State and Commonwealth did not extinguish the native title right, but rather merely regulated it.

While the decision does not present any changes to the established principles that govern when native title has been extinguished, it does confirm that those principles are to be applied in a strict fashion.

The High Court held that the regulation or constraint upon the exercise of a native title right, in this case the right to take resources, for a particular purpose is not generally sufficient to extinguish native title.

As the High Court noted, extinguishment in the context of native title refers to the cessation of rights, which is in itself a serious consequence. As such statutes should not be construed as extinguishing common law rights, like native title, unless no other conclusion is reasonably open.

Although the High Court upheld the native title holders’ rights to take resources for any purpose, it is likely to have little impact on commercial fishing operations in the Torres Strait as native title holders who wish to engage in commercial fishing must still obtain a licence.

The native title rights are also non-exclusive, which means that the native title holders do not have the right to control legitimate access to or use of the waters of the Torres Strait.

On the appeal to the High Court, Georgia Morrison, a Senior Lawyer from Crown Law’s Native Title Claims and Agreements Team, assisted Dr Melissa Perry QC, who has since been appointed to the Federal Court, and Helen Bowskill of counsel, who was recently appointed as Queen’s Counsel.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 17 December 2013

Author: Frances Cannon and Georgia Morrison