Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Judge: French CJ,Crennan J,Hayne,Kiefel,Bell JJ
• Judgment Date: 07 August 2013
• Neutral Citation: 2013-0807 HCA A,[2013] HCA 33
• Court: High Court
• Docket Number: B58/2012
• Date: 07 August 2013

[2013] HCA 33

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Kiefel and Bell JJ

B58/2012

Leo Akiba On Behalf Of The Torres Strait Regional Seas Claim Group

Appellant

and

Commonwealth Of Australia & Ors

Respondents

Representation

B W Walker SC with R W Blowes SC, T P Keely and S A Hamilton for the appellant (instructed by Torres Strait Regional Authority)

J T Gleeson SC Acting Solicitor-General of the Commonwealth with R J Webb QC and N Kidson for the first respondent (instructed by Australian Government Solicitor)

M A Perry QC with H P Bowskill for the second respondent (instructed by Crown Solicitor (Qld))

P L Gore for the third to thirty-first, thirty-third, forty-third and forty-fifth to forty-seventh respondents (instructed by Gore & Associates)

Submitting appearance for the second respondent in both matters

No appearance for the thirty-fifth to forty-second, forty-fourth, forty-eighth and forty-ninth respondents

Intervener

G R Donaldson SC, Solicitor-General for the State of Western Australia for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

Native Title Act 1993 (Cth), ss 10, 11, 211, 223, 225–227, 238.

Akiba on behalf of the Torres Strait Regional Seas Claim Groupv Commonwealth of Australia

Native title — Native title rights in relation to waters — Determination made in relation to waters in Torres Strait — Determination included native title right to access and take for any purpose resources in native title areas — Successive Commonwealth and Queensland legislative regimes prohibited taking fish and other aquatic life for commercial purposes without licence — Whether legislative regimes inconsistent with continued existence of native title right — Whether right to access and take resources in native title areas partially extinguished where resources taken for commercial purposes.

Native title — Native title rights in relation to waters — Certain reciprocal access and use rights recognised in Islander society — Reciprocal rights arose out of personal relationships — Whether reciprocal rights ‘native title rights and interests’ within meaning of s 223(1) of Native Title Act 1993 (Cth).

Words and phrases — ‘extinguishment’, ‘inconsistent with the continued existence of a native title right’, ‘native title rights and interests’, ‘reciprocal rights’.

ORDER

Appeal allowed in part.

Set aside paragraph 1 of the order of the Full Court of the Federal Court of Australia made on 14 March 2012 and, in its place, order that the appeal to that Court is dismissed.

The first and second respondents pay the appellant's costs of the appeal to this Court.

Appeal otherwise dismissed.

French CJ and Crennan J.

Introduction

1 On 2 July 2010, a Judge of the Federal Court of Australia (Finn J) delivered reasons for judgment in an application made on behalf of 13 island communities in the Torres Strait for a determination of native title over a large part of the waters of the Strait 1. His Honour made final orders on 23 August 2010 which took the form of a native title determination over the waters (‘the Determination’). The Determination defined ‘group rights’ comprising the native title held by each of the communities. The native title rights and interests, set out in Order 5 of the Determination, included 2:

‘the right to access resources and to take for any purpose resources in the native title areas.’

The native title right so framed could be exercised in a variety of ways, including by taking fish for commercial or trading purposes. Like each of the native title rights and interests set out in the Determination, it was not exclusive. That is to say, it did not confer rights on the native title holders to the exclusion of others, nor any right to control the conduct of others 3. It was a right to be exercised in accordance with the traditional laws and customs of the native title holders, the laws of the State of Queensland and the Commonwealth of Australia and the common law 4.

2 On 14 March 2012, the Full Court of the Federal Court, by majority (Keane CJ and Dowsett J, Mansfield J dissenting), allowed an appeal against the decision of the primary judge 5. The majority held that successive fisheries legislation enacted by colonial and State legislatures in Queensland and by the Commonwealth Parliament had extinguished any right to take fish and other aquatic life for commercial purposes. The Full Court varied Order 5(b) of the Determination by adding after it the words 6:

‘This right does not, however, extend to taking fish and other aquatic life for sale or trade.’

The Full Court dismissed a cross-appeal by the appellant against a finding by the primary judge that reciprocity-based rights and interests subsisting between members of Torres Strait Island communities did not constitute native title rights and interests within the meaning of s 223 of the Native Title Act 1993 (Cth) (‘the NT Act’).

3 On 5 October 2012, this Court (French CJ, Crennan and Kiefel JJ) granted the appellant special leave to appeal against the decision of the Full Court 7. The appeal should be allowed in relation to the extinguishment issue. The appeal should be dismissed in relation to the reciprocal rights issue.

The issues

4 The grant of special leave was limited to the following grounds set out in the notice of appeal:

‘… the majority of the Full Court erred in holding that notwithstanding the overall purpose of the Commonwealth and Queensland fisheries legislation is the regulation of taking certain fish and other aquatic resources for commercial purposes, a native title right to engage in such taking is extinguished by a specific provision of such legislation which prohibits all taking of such resources for commercial purposes save pursuant to a licence granted under the legislation;

… the majority of the Full Court erred in holding that the native title right to take fish and other aquatic life for trade or sale is extinguished in all or any part of the native title area by applicable Queensland and Commonwealth fisheries legislation;

… the Full Court erred in holding that rights held under traditional laws and customs on the basis of a “reciprocal relationship” with a holder of “occupation based rights” are not native title rights or interests within the meaning of s 223(1) of the Native Title Act 1993 (Cth).’

5 The first two grounds assume the existence, under the traditional laws and customs of the group represented by the appellant, of a native title right to take fish and other aquatic life for trade or sale. That assumption was examined in the

course of argument against the alternative proposition that the taking of such marine resources for a commercial purpose was no more than a particular mode of enjoyment of the right ‘to take for any purpose resources in the native title areas.’ For the reasons that follow it should be treated as such. The Determination of native title by the primary judge did not include a native title right of the kind found by the Full Court to have been extinguished. The appeal should be allowed on the first two grounds in the notice of appeal.

6 The third ground raised the question whether intramural reciprocal relationships between members of different island communities give rise to obligations relating to access to and use of resources which are ‘rights and interests … in relation to land or waters’ within the meaning of s 223 of the NT Act. The answer to that question is in the negative.

7 Before considering these issues and the way they were dealt with at first instance and in the Full Court, it is necessary to refer first to the definition of ‘native title rights and interests’ in s 223 of the NT Act and also to the Determination made by the primary judge.

Definition of ‘native title rights and interests’

8 Section 223 of the NT Act relevantly provides:

‘Native title

Common law rights and interests

• (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

  • (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

  • (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

  • (c) the rights and interests are recognised by the common law of Australia.

  Hunting, gathering and fishing covered

• (2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.’ 8

9 Section 223 defines the rights and interests which can be the subject of a determination of native title made under s 225 of the NT Act. They include usufructuary rights of the kind set out in s 223(2). It is a necessary condition of their inclusion in a determination that the rights and interests are recognised by the common law of Australia. That condition flows from s 223(1)(c). ‘Recognise’ in this context means that the common law ‘will, by the ordinary processes of law and equity, give remedies in support of the relevant rights and interests to those who hold them’ 9.

10 Extinguishment is the obverse of recognition. It does not mean that native title rights and interests are extinguished for the purposes of the traditional laws acknowledged and customs observed by the native title holders. By way of example apposite to this case, the plurality pointed out in Yanner v Eaton10 that to tell a group of Aboriginal people that they may not hunt or fish without a permit 11:

‘does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests...