Background The TSRSCG describes the Torres Strait as their 'bank, garden and supermarket' (see Finn J in Akiba v State of Queensland (No 2) [2010] FCA 643 at 289). Legislative Background This case required the High Court of Australia to consider whether commercial native title rights and interests had been extinguished by Commonwealth and Queensland fishing legislation. The fisheries legislation provides regulations for the control, management and exploitation of living resources within the native title area. The judges cite ss 211, 223, 227 and 238 of the Native Title Act 1993 (Cth)(the NTA), which outline that native title rights can be affected, restricted or prohibited by legislation, without the rights themselves being extinguished [24-28]. The judges relied on s 211 to conclude that the TSRSCG's connection with the waters was not severed merely because the fisheries legislation regulates commercial relationships in the native title area [54]. In their judgment, French CJ and Crennan J explored the difficulty in uncovering Parliament's clear and plain legislative intention to extinguish native title rights, given the relevant statutes were enacted prior to the recognition of native title rights in Mabo No 2 [31]. Litigation History The claim was first heard by the Federal Court of Australia in 2010 (Akiba v State of Queensland (No 2) [2010] FCA 643). In this case, Finn J held that the TSRSCG had established their native title rights to access waters and to take resources for any purpose (including commercial purposes). These rights did not confer exclusive rights to possession, occupation or use of waters. Finn J rejected submissions by the State of Queensland, that the fisheries legislation (Qld) extinguished the TSRSCG's native title rights, because the legislation did not display a clear and plain intention to do so. The Commonwealth and the State of Queensland successfully appealed the decision to the Full Court of the Federal Court (Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] 204 FCR 260). The Full Court varied the native title determination, stating that the fisheries legislation extinguished the native title holders' rights to fish and take aquatic life for commercial purposes. The Full Court noted that while the fisheries legislation does not explicitly extinguish native title, the legislation reveals Parliament's clear and plain intention to prohibit all unlicensed commercial fishing in the area. Details of the Judgment in the High Court The High Court agreed it would be unreasonable to conclude that the fisheries legislation directly prohibited the existence of the native title right to take for any purpose. In their joint judgment, French CJ and Crennan J discussed the difficulty in pinpointing Parliament's intention to extinguish native title in the fisheries legislation, because the statutes were enacted prior to native title being recognised in Mabo No 2. In their judgment, Hayne, Kiefel and Bell JJ noted that Yanner v Eaton [1999] HCA 53 set a precedent that legislation which regulates rights to take resources from land (and water) may not in itself extinguish native title rights [64, 72]. Their Honours had to consider whether the licencing regime was inconsistent with the continued existence of the TSCRSCG's native title rights to take for any purpose, and concluded that it was not [75]. The Court held the native title rights were not extinguished, as the fisheries legislation was not inconsistent with native title holders continuing to observe their traditional laws and customs [32].
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