Available at: http://www.timebase.com.au/news/2013/AT565-article.html
Thursday 8 August 2013 @ 9.21 a.m.
The High Court has handed down its decision in the case of Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33, holding unanimously that Commonwealth and Queensland legislation prohibiting taking fish for commercial purposes did not extinguish the native title right of certain Torres Strait communities to take resources from defined areas.
The appellant appeared on behalf of a group of island communities in the Torres Strait, who had been fighting since 2001 for a determination of native title over an area of water in that area. The communities have sought to assert their fishing rights in order to build an economic base for their people.
Proceedings
In 2010, the Federal Court of Australia made a native title determination which defined the native title rights held by each of the communities. The Court rejected the appellant's claim that certain reciprocal rights were rights in relation to land or waters and were therefore native title rights. However, the Court did include the native title right to access resources in the native title areas, which encompassed the right to take fish for commercial purposes. The appellant accepted at this time that commercial fishing would require the obtaining of statutory licences.
The first respondent appealed the decision to the Full Court in relation to the native title right to take fish. The appellant cross-appealed in relation to the conclusion that reciprocal rights were not native title rights and interests.
The Full Court allowed the first respondent's appeal, finding that Commonwealth and Queensland statutory regimes had extinguished any native title right to take fish for commercial purposes. The appellant's cross-appeal was rejected.
The appellant appealed by special leave to the High Court.
High Court Proceedings
The High Court held that the legislation prohibiting commercial fishing without a licence was consistent with the continued existence of the native title right to take fish in the native title areas.
The Court also found that the reciprocal rights claimed by the appellant were rights of a personal character dependent upon status, and not rights in relation to the waters the subject of the native title determination.
The High Court decision comes as a landmark victory for the Torres Strait Islander groups, marking the first time commercial native title rights have been recognised at this level.
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