Akiba v Queensland (No 3)

FEDERAL COURT OF AUSTRALIA

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

SUMMARY

FINN J

2 JULY 2010

CAIRNS

SUMMARY

1. In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court's reasons is that contained in the published reasons for judgment which will be available on the internet at together with this summary.

2. Put shortly but inexactly, the present application has been made on behalf of Torres Strait Islanders who are descendants of an extensive list of named ancestors who were themselves Torres Strait Islanders.  To prevent further delay in the hearing of the application, the original claim area has been divided into Parts A and B.  My reasons relate only to Part A.  It encompasses the greater part of the original claim area.

3. The principal respondents in this Part are the State of Queensland, the Commonwealth of Australia, a large group of people and companies collectively described as The Commercial Fishing Parties and a small number of parties from Papua New Guinea. 

4. For Native Title Act purposes, Torres Strait and the Torres Strait Islanders are distinctive in many respects.  That this is so, and the consequences of it, are markedly apparent in my reasons. 

5. The subject matter of the present proceeding is itself distinctive.  It seeks a determination of native title rights and interests in a major part of the sea area of Torres Strait.  The sea in turn is the integral presence in the lives and livelihoods of the Islander communities.  It has rightly been said that their occupation of the region has had “an essentially maritime character”. 

6. Unlike in native title claims in Aboriginal Australia, the laws and customs advanced by the communities do not reflect an overarching spiritual connection with the waters. There is no creation story. Yet there are still some, for the most part minor, traditional spiritual beliefs revealed in the evidence. In consequence, the laws and customs of present concern are informed in quite some degree by considerations of utility and practicality. This has unusual ramifications in the application of accepted Native Title Act jurisprudence. No more is this so than in relation to the “connection” requirement of s 223(1)(b) of the Native Title Act 1993 (Cth).

7. The Applicant’s evidence is likewise distinctive.  British and then Australian sovereignty over the islands of Torres Strait was acquired for the most part in progressive steps taken, first, in 1872 and then in 1879.  By these dates the grandparents of some of the indigenous witnesses were alive and were directly, or via the witness’ parents, the sources of oral traditions recounted by those witnesses.  From the time of Luis…