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An essay on the importance of the Akiba trial...

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III

THE AKIBA CASE

In Akiba the High Court of Australia confirmed the recognition of a native title right to take fish for commercial purposes in the waters of the Torres Strait. The background facts of the case are quite simple. Leo Akiba, on behalf of the Torres Strait Sea claim group, filled a native title claim over approximately 37,800 square kilometres of sea between the Cape York Peninsula and Papua New Guinea. Justice Finn held that the Torres Strait Sea claim group did have a ‘deep and historically laden knowledge’ of the area they were claiming and well as finding that the community sold marine resources for money and as ‘the sea provided their ‘income’- and after the advent of the marine industries, for some number of the Islanders, this was done regularly and systematically’ which was ‘positively encouraged by the Queensland Government.’ 1

The Commonwealth and Queensland State government opposed this citing Western Australia v Ward, and claimed that due to the fact that native title is seen as a “bundle of rights”, it was to be overruled by statute, specifically the fishing regulations over the water in which Akiba was claiming. 2 Akiba counter argued based upon two different issues; the right to fish for commercial purposes and ‘reciprocal rights.’

3

Justice Finn dissented that the Torres Strait Sea claim group

should enjoy non-exclusive rights to access to the waters for any purpose with respect to traditional laws and customs.4 The phrase ‘for any purpose’ was also deemed to be inclusive of commercial purposes, however this was overturned by a majority decision by the Full Federal Court. Instead it was held that the legislation in place had extinguished any commercial rights based upon traditional/customary law. Pertaining to reciprocal rights, Finn J first defined them as ‘rights and

1

Akiba v Queensland (No. 2) [2010] FCA 643 (2 July 2010) at [528]

2

Western Australia v Ward [2002] HCA 28; 213 CLR 1.

Lauren Butterly, ‘Unfinished Business in the Straits: Akiba v Commonwealth of Australia [2013] HCA’ (2013) 8(8) Indigenous Law Bulletin 3 3

4

Akiba v Queensland (No. 3) (2010) 204 FCR 1,21 [11]

obligations recognised and expected to be honoured or discharged under Islander laws and customers.’5 He, however, dismissed any claim for reciprocal rights, and this decision was further upheld by all the Full Federal Court judges. The Queensland and Federal governments successfully appeal the decision made by Finn J and it was found in the Full Federal Court that fisheries legislation had extinguished any right to take aquatic creatures.! ! This was then appealed to the High Court by Akiba. Once again, the Federal and Queensland government argued that legislation overrules traditional/customary law and the prohibition on taking fish without a permit for commercial purposes would extend to any person. However, the High Court unanimously disagreed with this view and held that the native title right was to take fish and any other aquatic creatures by the Torres Strait community for any reason. Two seperate judgments lead to the development of two seperate tests: the first being by French CJ and Crennan J who posed the question “if the native title right being used cannot be exercised without abrogating the statutory right, “then by necessary implication, the statute extinguishes the existing right.” 6 but also found that “that a particular use of a native title right can be restricted or prohibited by legislation without that right or interest itself being extinguished. 7 While Bell, Keifel and Hayne JJ reached the same conclusion, they focuses upon the inconsistencies between the legislation and the native title rights. Their test asked “whether the activity which constitutes the relevant incident of native title is consistent with competent legislation relating to that activity.” 8 Ultimately, the High Court unanimously held that statutory regulations do not superset the rights recognised under native title and therefore Akiba and the Torres Strait Sea claim group were free to continue using the

5 6

Akiba v Queensland (No. 3) (2010) 204 FCR 1, 130 [508] Akiba v Commonwealth [2013] HCA 33; 250 CLR 209 at [31]

7

Akiba v Commonwealth [2013] HCA 33; 250 CLR 209 at [26]

8

Akiba v Commonwealth [2013] HCA 33; 250 CLR 209 at [65]

waters however they deem fit, however they must also be in accordance with relevant legislation and would only be allowed to fish for commercial purposes subject to them holding a permit 9

Due to the fact that this was the first time that commercial native title rights and interests had been actively litigated, this case is highly significant. 10 Prior to this, cases such as Saibai v Queensland, 11 and Mabuiag People v Queensland,12 had solely dealt with the right to trade with respect to traditional/customary law and the outcomes reached through the mutual agreement of all the involved parties. However, as stated by Sean Brennan in Commercial Native Title Fishing Rights in the Torres Strait and the Question of Regulation versus Extinguishment, ! ! Yet both the Commonwealth and Queensland persist in seeking to defeat this already legally contained right. In 2013, the High Court can maintain the measured principle expressed in Yanner or once more it can exacerbate the harshness of Australian extinguishment law, making it even more difficult to eke out something beyond symbolic value from the contemporary recognition of native title.

McDonnell’s Law, AKIBA DECISION CONFIRMS NATIVE TITLE RIGHTS REGARDING COMMERCIAL FISHING ACTIVITIES, August 2013, < https://macdonnells.com.au/app/uploads/ assets/eAlerts/August-2013-Akiba-Decision-confirms-NT-rightst.pdf> 9

Allens, FOCUS: CLEARER WATERS – COMMERCIAL NATIVE TITLE FISHING RIGHTS, < http://www.allens.com.au/pubs/nat/fonat20aug13.htm> 10

11

Saibai People v State of Queensland [1999] FCA 158 (12 February 1999)

12

Mabuiag people v State of Queensland [2000] FCA 1065...