Akiba v Commonwealth

This case concerned an appeal to the High Court of Australia by the appellant, representing native title holders in the Torres Strait, against a decision of the Full Court of the Federal Court of Australia. The dispute centred on the extent to which native title rights to access and take resources from waters in the Torres Strait had been extinguished by successive Commonwealth and Queensland legislative regimes that regulated the taking of fish and other aquatic life for commercial purposes. A secondary issue involved whether certain reciprocal access and use rights recognised in Islander society, arising from personal relationships, constituted "native title rights and interests" under the *Native Title Act 1993* (Cth).

The High Court was required to determine two principal legal issues. Firstly, whether the continued existence of a native title right to take resources for any purpose was inconsistent with legislative prohibitions on taking fish and other aquatic life for commercial purposes without a licence, and if so, whether this inconsistency had partially extinguished that native title right. Secondly, the Court had to consider whether reciprocal rights, which were dependent on personal relationships and status within Islander society rather than a direct connection to the land and waters, qualified as "native title rights and interests" as defined by section 223(1) of the *Native Title Act 1993* (Cth).

The High Court allowed the appeal in part, finding that the legislative regimes had not extinguished the native title right to take resources for any purpose. The Court reasoned that the statutory prohibitions, which required licences for commercial fishing, did not necessarily render the native title right to take resources for any purpose irreconcilable with the continued existence of that right. The Court held that the right to take resources for any purpose was not extinguished by the licensing regimes, as the regimes did not prohibit all taking of resources, but rather regulated commercial taking. However, the Court dismissed the appeal concerning the reciprocal rights, affirming the Full Court's finding that these rights were personal in nature and dependent on status, and therefore did not constitute native title rights and interests under the *Native Title Act 1993* (Cth).

Consequently, the High Court allowed the appeal in part, setting aside the order of the Full Court of the Federal Court that had varied the native title determination to exclude commercial taking of fish and other aquatic life. The Court ordered that the appeal to the Full Court be dismissed in this respect, restoring the primary judge's determination. The appellant was awarded costs of the appeal to the High Court, and the appeal was otherwise dismissed.