Akiba on Behalf of the Torres Strait v Australia

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Hayne,Crennan,Kiefel,Bell JJ
• Judgment Date: 07 August 2013

([2013] HCA 33)

Australia, High Court.

(French CJ; Hayne, Crennan, Kiefel and Bell JJ)

Akiba on Behalf of the Torres Strait Regional Seas Claim Group

and

Commonwealth of Australia and Others 1

Sea — Native title — Native title rights in relation to waters including accessing and taking resources for any purpose — Native Title Act 1993 (Cth) — Whether successive legislation which prohibited taking fish and other aquatic life for commercial purposes without licence inconsistent with that right — Extinguishment

Sea — Territorial sea — Reciprocal access and use rights recognized in Islander society arising out of personal relationships — Whether reciprocal rights “native title rights and interests” — The law of Australia

Summary:2The facts:—Thirteen island communities located in the Torres Strait applied to the Federal Court of Australia for a determination of native title over a large part of the waters of the Torres Strait. The Federal Court issued that determination under Section 225 of the Native Title Act 1993 (Cth) (“the Act”). The determination identified certain native title rights and interests as “group rights” including “the right to access resources and to take for any purpose resources in the native title areas”.

The Full Court of the Federal Court, by majority, allowed an appeal, holding that successive fisheries legislation enacted by colonial and State legislatures in Queensland and by the Parliament of the Commonwealth of

Australia had extinguished any right to take fish and other aquatic life for commercial purposes. The Full Court accordingly varied the determination that the native title holders had “the right to access resources and to take for any purpose resources in the native title areas” by adding that this right “does not, however, extend to taking fish and other aquatic life for sale or trade”.3 The Full Court also dismissed a challenge to the finding 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 Section 223 of the Act.4 These reciprocal rights of access and use recognized in Islander society were held by each person or group who had a reciprocal relationship based on kinship or of another kind. The appellant appealed.

Held (unanimously):—The appeal was allowed in relation to the extinguishment issue and dismissed in relation to the reciprocal rights issue.

Per French CJ and Crennan J: (1) The rights and interests which could be the subject of a determination of native title made under Section 225 of the Act were defined in Section 223. A necessary condition of their inclusion in a determination which flowed from Section 223(1)(c) was that the rights and interests were recognized by Australian common law. “Extinguishment” meant that the native title rights and interests ceased to be recognized by the common law (paras. 9 and 10).

(2) The extinguishment of rights in whole or in part was not a logical consequence of a legislative constraint upon their exercise for a particular purpose, unless the legislation, properly construed, had that effect. Furthermore, a statute ought not to be construed as extinguishing common law property rights unless no other construction was reasonably open. A particular use of a native title right could be restricted or prohibited by legislation without that right or interest itself being extinguished. A statute purporting to affect the exercise of a native title right or interest for a particular purpose or in a particular way could be construed as doing no more than that, and not as extinguishing an underlying right, or an incident thereof, and should be so construed (paras. 24, 26 and 29).

(3) No inconsistency existed between past or present laws relating to the territorial sea and recognition by the common law of Australia of native title rights and interests in relation to the seas and seabeds in that area.5 However, there was an inconsistency between native title rights to exclusive possession and common law public rights to navigate and to fish and the international

right of innocent passage recognized by Australia. In this case the right to access and take the resources of the native title area was not an exclusive right (para. 34).

(4) The submission that successive colonial, State and Commonwealth fisheries laws were inconsistent with a right to take fish or aquatic life for commercial purposes was rejected. The characterization of the exercise, for a particular purpose, of a general native title right as the exercise of a lesser right defined by reference to that purpose was not a logical necessity or necessary for legal coherence. Rejection was consistent with maintaining a proper distinction between proprietary or usufructuary rights and their exercise in particular ways or for particular purposes (para. 39).

Per Hayne, Kiefel and Bell JJ: (1) Resolution of the extinguishment issue depended upon four propositions, three of which derived from the plurality reasons in Western Australia v. Ward.6 First, the Act governed the claims made and rights defined under that Act. Secondly, the Act provided for the partial extinguishment or suspension of native title rights. Thirdly, questions of extinguishment first required identifying the native title rights and interests that were alleged to exist. Fourthly, inconsistency of rights lay at the heart of any question of extinguishment (paras. 51–2).

(2) Focusing upon the activity described as “taking fish and other aquatic life for sale or trade”, rather than focusing upon the relevant native title right, led the Full Federal Court to error. The question determinative of extinguishment was inferentially reframed as being whether the statutory prohibition against fishing for a particular purpose without a licence was inconsistent with the continued existence of a native title right to fish for that purpose. But here the relevant native title right was a right to take resources for any purpose and no distinct or separate native title right to take fish for sale or trade was found. The prohibition of taking fish for sale or trade without a licence regulated the exercise of the native title right by prohibiting its exercise for some, but not all, purposes without a licence. It did not extinguish the right to any extent (para. 67).

(3) Extinguishment of native title rights and interests was not to be determined by asking whether the federal or State legislature had asserted control, or dominion, over a particular activity, and then concluding that the relevant native title right no longer included the right to pursue that form of activity. The extinguishment question was to be answered by deciding whether the legislation was inconsistent with the relevant native title right or interest; it was not determined by observing only that there was legislation which governed or affected the exercise of the right. The repeated statutory injunction, “no commercial fishing without a licence”, was not inconsistent

with the continued existence of relevant native title rights and interests (paras. 68 and 75).

(4) The primary judge correctly characterized the reciprocal rights as rights of a personal character dependent upon status and relationship-based rather than rights “in relation to” waters within the meaning of Section 223(1) of the Act (paras. 45 and 47).

The text of the judgment of Hayne, Kiefel and Bell JJ commences at p. 412. The following is the text of the judgment of French CJ and Crennan J:

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...