Australia: High Court confirms that native title rights and interests can be exercised for commercial purposes

Native Title Alert: 12 August 2013

Last week, the High Court allowed an appeal by the native title holders for the Torres Strait Regional Sea Claim, confirming the original trial judge's decision their native title right to access and take the resources could be exercised for commercial purposes subject to compliance with any applicable laws of the State and the Commonwealth.

There were two issues on appeal before the High Court:

  1. Whether there had been extinguishment of the commercial right to fish; and
  2. Whether a system of reciprocity-based rights and interests between members of Torres Strait Islander communities amounted to native title rights and interests under the Native Title Act 1993.

Extinguishment of the commercial right to fish

In 2010, Justice Finn of the Federal Court made a determination that native title was held by the Torres Strait Regional Sea Claim native title claim group over a large part of the waters in the Torres Strait. The native title rights and interests recognised included the right to access resources and to take for any purposes resources in the native title areas. Those native title rights and interest were exercisable subject to compliance with any valid laws of the State and the Commonwealth.

The State of Queensland and the Commonwealth of Australia appealed this decision to the Full Court of the Federal Court, arguing that successive fisheries legislation enacted by colonial and State legislatures in Queensland and by the Commonwealth had extinguished any right to take marine resources for a commercial purpose. The Full Court allowed the appeal, and varied the native title determination by specifying that the right to access natural resources did not extend to taking fish or other aquatic life for sale or trade.

The High Court overturned the Full Court's decision, finding that the Full Court made an error in not differentiating between the extinguishment of a native title right and regulation of the exercise of that right for a particular purpose.

In the Torres Strait, the relevant fisheries legislation prohibited any person taking fish and other aquatic life for commercial purposes without a licence. The High Court found that while this regulated the taking of fish or other aquatic life for commercial purposes, it did not extinguish the broader native title right to take resources for any purpose.

Reciprocity rights

The native title group also sought inclusion in the determination certain reciprocal access and use rights between members of the different island communities in the Torres Strait. The High Court did not allow this ground of appeal, agreeing with Justice Finn that these reciprocal rights could not amount to native title rights, as they were only personal rights with no connection to land or waters.


Although the recognition of an unlimited right to use resources (including for commercial purposes) will be dependent on the existence of evidence demonstrating exercise of such rights at sovereignty, the High Court's decision confirms that such native title rights with a commercial aspect can be recognised in Australia. However, where such rights are regulated by legislation, native title holders will be required to comply with that legislation in order to exercise use of resources for commercial purposes.

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