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:
Whether there had been extinguishment of the commercial right
to fish; and
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
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.
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
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