Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33

Nature of the Case

Appeal to the High Court of Australia for the recognition of native title rights to access resources (fish) for commercial purposes in native title areas.

Summary

The State of Queensland and the Commonwealth alleged that successive legislative regimes since 1877 (for Queensland) and the 1950s (for the Commonwealth) had extinguished Torres Strait communities’ rights to fish for commercial purposes, by regulating “control, management and exploitation of the living resources” within  “native title areas”.

On the appeal, the High Court held that such statutes were consistent with the continuing recognition of native title rights to fish for commercial purposes.

Enforcement of the Decision and Outcomes

According to Butterly, “this judgment does not require either the Commonwealth or Queensland to reallocate  commercial fishing licences, nor does is mandate that native title claimants should be granted a certain number of licences. Practically, the only  immediate impact is that rights in relation to commercial fishing will now be subject to the limited future act processes in the Native Title Act 1993 (Cth) (‘NTA’). However, such issues should be negotiated rather than viewed in the narrow legal framework of native title. Further, it must be recognised that there is already a very active Indigenous commercial fishery in the Torres Strait. The practical questions raised by this judgment present a valuable opportunity to open up discussions and also to showcase the successful commercial fishing by traditional owners that is already taking place in the Strait.” (Butterly, ILB, 2013)

Significance of the Case

Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda declared in 2013 that “[c]ommercial fishing rights are essential to the Indigenous people of Australia, not only because they are traditional rights but because they are integral to the economic development of Indigenous communities” (Australian Human Rights Commission, 2013). The decision, which was issued after more than a decade of litigation, marks the recognition for the first time of commercial native title rights by the High Court (Timebase, August 8, 2013). It also creates “an exciting opportunity to promote discussions about integrating sea rights, Indigenous governance and commercial development not only in the Straits, but across Australia.” (Butterly, ILB, 2013)