Successive Commonwealth and Queensland legislative
regimes that prohibited commercial fishing without a licence were
not inconsistent with, and therefore did not extinguish, the native
title rights to take resources from defined areas of
In a reminder for proponents conducting activities in maritime
areas to be more aware of compliance with their native title
obligations, the High Court handed down a decision on 7 August 2013
recognising that native title rights to the sea, including rights
to fish commercially, are not extinguished by a legislative regime
that otherwise requires a permit for commercial fishing (Leo Akiba
on behalf of the Torres Strait Regional Seas Claim Group v
Commonwealth of Australia  HCA 33).
In 2001, the Torres Strait Regional Seas Claim Group filed an
application in the Federal Court for the determination of native
title rights and interest in a large part of the Torres Strait sea
area. The native title rights claimed included occupation of the
region for maritime purposes, particularly the taking of fish and
other maritime resources for commercial purposes.
A native title determination was handed down in August 2010
recognising these rights. The native title rights were held to be
non-exclusive – not creating any right to control the conduct
of others and yielding to other rights and interests over the
native title area where inconsistency arose.
Full Federal Court decision
In March 2012, the Full Federal Court allowed an appeal against
the decision of the primary judge and held that the native title
rights to take fish for commercial purposes had been extinguished
by successive Commonwealth and State fisheries legislation. The
original native title determination was amended accordingly.
High Court decision
On appeal from the Full Federal Court, the High Court was
confronted with two main issues:
whether native title rights to commercial fishing had been
extinguished by Commonwealth and Queensland legislation that
prohibited commercial fishing without a licence; and
were reciprocal rights arising out of personal relationships in
Islander society rights in relation to land or waters that could be
recognised as native title rights (this notion had been rejected by
the primary judge).
On 7 August 2013, the High Court handed down its decision. In
respect of the two main issues before it:
the Court held that the successive Commonwealth and Queensland
legislative regimes that prohibited commercial fishing without a
licence were not inconsistent with, and therefore did not
extinguish, the native title rights to take resources from defined
areas of water. Rather than conflicting with native title rights to
access and take for any purpose resources in the native title
areas, the statutory regimes co-existed with such native title
the High Court further held that the reciprocal rights in
question between members of the communities were rights of a
personal character dependent upon status and were not native title
rights in relation to the waters the subject of the native title
Esoteric as these findings might appear, they serve as a
reminder to proponents that native title does need to be kept in
mind when conducting project development activities within waters
that are regarded as "onshore places" for the purposes of
the Native Title Act 1993 (Cth) – that is, those that lie
within the territorial limits of each State and Territory
(stretching, in each case, from the low water mark for 3 nautical
Future acts to be done in waters beyond this limit, to the 200
nautical mile mark (the exclusive economic zone), will be acts
affecting "offshore places" for Native Title Act purposes
and, under Part 2, Division 3, Subdivision N of the Act, will be
valid without the need for any native title procedure (although
note that compensation for such acts could still become
However, proponents conducting activities such as dredging or
port construction in "onshore" seas should remain alive
to the possibility of native title rights continuing to exist
(whether or not such areas are covered by a native title claim or
determination). This is particularly important where the validity
of future acts for a project, to the extent that they affect native
title, require the conduct of a right to negotiate procedure or the
registration of an Indigenous land use agreement.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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