Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643

Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643

Between: Leo Akiba and George Mye on behalf of the Torres Strait Islanders of the Regional Seas Claim Group (Applicant) and
The State of Queensland (Respondent)

Judges: Finn J

Determination

Native title exists in parts of the determination area

The claim area covers approximately 37,800 square kilometres of sea country extending between the Cape York Peninsula and Papua New Guinea.

Primarily the area lies south of Papua New Guinea's Seabed Jurisdiction Line, but the territorial seas of a number of Australian islands north of the Jurisdiction Line are also included. Sea country west of Boigu and east of Saibai, where Australia retains fisheries jurisdiction through a treaty with Papua New Guinea, is also within the area.

Finn J found that the Torres Strait Islanders Regional Seas Claim Group had established their claim, having demonstrated that they held native title rights over most of the waters of the Torres Strait under their traditional laws and customs.

The Torres Strait Islanders Regional Seas Claim Group's native title rights include:

• rights to access and remain in the claim area;
• right to use the claim area;
• rights to access and use resources within the claim area; and
• rights to take resources for any purpose (including commercial purposes).

Finn J also found that these rights:

• did not confer exclusive rights of possession, occupation or use of waters;
• were possessed in aggregate by members of the claim group; and
• were held to exist not only in Australian territorial seas but also within Australia's Exclusive, Economic Zone.

Finn J rejected submissions that State regulation of commercial fishing extinguished the Torres Strait Islanders Regional Seas Claim Group's native title rights to take fish for commercial purposes. This was because the relevant Acts regulating commercial fishing did not show a clear and plain intention to extinguish native title fishing rights.

However, Finn J held that the claimant group must comply with commercial fishing regulations within the claim area.

Significance

The decision provides commercial fishing rights, that are lauded as 'integral to the economic development of Indigenous communities' (Australian Human Rights Commission, 2010).

This is also the first decision under the Native Title Act 1993 (Cth) to consider the rights of an international party under a treaty.

The Torres Strait Treaty, between Australia and Papua New Guinea, recognises the customary rights of both nations in the Torres Strait and Papua New Guinea's rights limit the Torres Strait Islanders Regional Seas Claim Group claimed native rights. The native title rights, as determined, are non-exclusive and do not prevent the continued operation of ships, fishermen and businesses such as the PNG pipeline in the Torres Strait.

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