French CJ, Hayne, Crennan, Kiefel, and Bell JJ
The sea is described variously by Torres Strait Islanders as their ‘bank’, ‘garden’ and ‘supermarket’.[i] The primary judge in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia and Ors (‘Torres Strait Sea Claim’) recognised that Torres Strait Islanders have traditionally exploited marine resources for commercial purposes. In February 2013 the High Court of Australia heard arguments regarding to what extent those rights had been extinguished by Commonwealth and Queensland fisheries legislation. This was the first native title case to come before the High Court in some years.[ii]
The Federal Court decision
The Torres Strait Sea Claim at first instance was handed down in the Federal Court of Australia on 2 July 2010.[iii] Justice Finn, the primary judge, found that the Torres Strait Regional Seas Claim Group (‘the Seas Claim Group’) had established their claim to approximately 37,800 square kilometres of sea between the Cape York Peninsula and Papua New Guinea. The Seas Claim Group included the descendants of the native title holders of 13 island communities within the determination area. The primary judge recognised the non-exclusive right to access and take for any purpose resources from the determination area, which by natural extension includes commercial purposes. His Honour said that the taking of marine resources for a commercial purpose was no more than a particular mode of enjoying this right.[iv]
The Full Court of the Federal Court decision
On appeal, the Full Court of the Federal Court varied the native title determination to exclude the right to take fish and other aquatic life for sale or trade on the basis that these rights had been extinguished by applicable Queensland and Commonwealth fisheries legislation.[v] The Full Court in the Torres Strait Sea Claim held that although the statutory fishing regimes do not explicitly extinguish native title, they manifest a clear intention to extinguish all common law rights.[vi] The majority decided that the prohibition is directed at all commercial fishing and an explicit reference to native title is not necessary to include native title holders within a general prohibition.[vii]
The High Court decision
On 7 August 2013 the High Court delivered its judgment on the appeal from the Full Court’s decision. The High Court was asked to consider whether the statutory fishing regimes in Queensland extinguish commercial fishing rights or merely regulate the exercise of these rights. The High Court unanimously held that the right to take fish and other aquatic life for trade or sale, supported by the native title right to take for any purpose, had not been extinguished by fisheries legislation.[viii]
Ultimately the High Court accepted the primary judge’s articulation of the right, such that the regulation of commercial fisheries is logically acceptable as mere regulation of the right to take for any purpose. Chief Justice French and Justice Crennan held that neither logic nor construction required a conclusion that a conditional prohibition on taking fish for commercial purposes was directed to the existence of native title rights.
Their Honours cited various provision of the Native Title Act 1993, including s 227, s 238 and s 211, which necessarily assume that native title rights can be affected, restricted or prohibited by legislation without that right itself being extinguished.[ix] Section 211 acknowledges that regulating particular aspects of the usufructuary relationship with traditional waters does not sever the connection of the Torres Strait Islanders with those waters, nor is it inconsistent with the continued existence of that right.[x] The joint judgment of Justices Hayne, Kiefel and Bell also emphasised that the Native Title Act 1993 lies at the core of this litigation.
The joint judgment of Chief Justice French and Justice Crennan considered the difficulty in ascertaining a clear and plain legislative intention to extinguish native title, when the applicable statutes were enacted prior to the common law recognition of native title in Mabo.[xi] Both judgments therefore turned to inconsistency of rights as the preeminent criterion for extinguishment.[xii] Put simply, native title is extinguished by the creation of rights that are inconsistent with the native title holders continuing to hold their rights and interests.[xiii]
The respondents relied on Harper v Minister for Sea Fisheries[xiv] in which the effect of the licensing regime was held to convert a public right to take abalone into the exclusive preserve of those who hold licences.[xv] The High Court clarified that Harper is not authority for the proposition that native title rights are as freely amenable to extinguishment as public rights derived from common law.[xvi] The judgment of Justices Hayne, Kiefel and Bell distinguished Harper from the Torres Strait Sea Claim, saying: ‘This case concerns the relationship between legislation prohibiting commercial fishing without a licence and rights and interests which are rooted, not in the common law, but in the traditional laws and customs observed by Torres Strait Islanders.’[xvii]
The decision of Justices Hayne, Kiefel and Bell indicated that the Full Court erroneously disregarded the precedent in Yanner on the basis that it depends upon the availability of s 211 (which only applies to exercising native title rights for non-commercial purposes). However, Yanner established that statutory regulation on the exercise of native title rights and interests, specifically the taking of resources from land and waters, does not conclusively establish extinguishment of native title rights and interests.[xviii] The relevant question is whether the statutory injunction, ‘no commercial fishing without a licence’, is inconsistent with the right to take resources for any purpose.
No distinct native title right to take fish for sale or trade was found; rather, the relevant right was a right to take resources for any purpose.[xix] Chief Justice French and Justice Crennan rejected the submission that the exercise of a general native title right for a particular purpose is a differentiated right that can be characterised as a lesser right by reference to that purpose.[xx] Likewise, Justices Hayne, Kiefel and Bell stated: ‘It was wrong to single out taking those resources for sale or trade as an “incident” of the right that has been identified.’[xxi] Focusing on the activity rather than focusing upon the relevant native title right was apt to lead to error.[xxii]
[i] Akiba v Queensland [No 2] (2010) FCA 643 at .
[ii] The last significant decision was Griffiths v Minister for Lands, Planning and Environment (2008) 167 FCR 84. Note that special leave was also granted in 2012 to appeal Dietman v Karpany & Anor  SASCFC 53.
[iii] Akiba v Queensland [No 2] (2010) FCA 643.
[iv] Ibid at .
[v] Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group  FCAFC 25.
[vii] Ibid at .
[viii] Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia and Ors  HCA 33.
[ix] Ibid at -.
[x] Ibid at , -.
[xi] Ibid at ; Wik Peoples v Queensland (1996) 187 CLR 1 at .
[xii] Ibid at , ; Western Australia v Ward on behalf of Miriuwung Gajerrong  HCA 28.
[xiii] Ibid at ; Yanner v Eaton  HCA 53 at .
[xiv]  HCA 47.
[xv] Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia and Ors  HCA 33 at .
[xvi] Ibid at .
[xvii] Ibid at .
[xviii] Ibid at .
[xix] Ibid at .
[xx] Ibid at .
[xxi] Ibid at .
[xxii] Ibid at .
Written by Gabrielle Lauder, NTRU, AIATSIS Native Title Newsletter, August 2013