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

Category: Case Law
Binomial Name: Federal Court of Australia
Date: 2 July 2010
Sub Category:Litigated Determination
Place:Torres Strait
State/Country:Queensland, Australia
The claim area extends over the waters of the Torres Strait. Seea map of the area in Schedule 7 of the determination below under documents.
Legal Status: Registered on the National Native Title Tribunal Register
Legal Reference: Federal Court No: QUD6040/2001; National Native Title Tribunal No: QC01/42
Alternative Names:

  • Subject Matter:Access | Fishing | Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests
    URL: http://www.austlii.edu.au/au/cases/cth/FCA/2010/643.html
    Summary Information:

    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 Grouphad 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 arelauded 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.

    Detailed Information:



    Related Entries

    Organisation
  • State of Queensland
  • Malu Lamar (Torres Strait Islander) Corporation RNTBC
  • People
  • Torres Strait Islanders of the Regional Seas Claim Group
  • George Mye
  • Case Law
  • Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia (2013) HCA 33

  • References

    Media Release
    Australian Human Rights Commission (2 July 2010) Successful Torres Strait Regional Sea Claim a Cause for Celebration!

    Documents

    Document
    Extract from the National Native Title Register for QCD2010/003 as at 25/2/22 (Torres Strait Regional Sea Claim) - ( PDF | PDF | PDF | PDF)