Commonwealth v Akiba

Case [2012] FCAFC 25

FEDERAL COURT OF AUSTRALIA

Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25

Citation: Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25
Appeal from: Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643
Parties: COMMONWEALTH OF AUSTRALIA v LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP AND OTHERS; LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP; COMMONWEALTH OF AUSTRALIA AND OTHERS
File number(s): QUD 387 of 2010
Judges: KEANE CJ, MANSFIELD, DOWSETT JJ
Date of judgment: 14 March 2012
Corrigendum: 26 April 2012
Catchwords:

NATIVE TITLE – extinguishment – right to take marine resources for commercial purposes – 130 years of legislation controlling commercial fishing – whether simply regulatory in character or prohibitory. 

STATUTORY INTERPRETATION – construction of legislation claimed to abrogate native title rights – requirement of a clear and plain intention so to do.

NATIVE TITLE – rights and interests – reciprocity based rights founded on a relationship to a person – whether content of rights include a right or interest “in relation to land or waters”: s 223(1), NT Act.

NATIVE TITLE – extent of determination area – criteria for determining “boundaries” of several marine estates – whether gaps between, or unused areas – “connection” to waters.

NATIVE TITLE – extent of determination area – definition of outer boundaries of the claim area – whether native title proved in whole area – whether connection to all of marine estate established.
Legislation:  Continental Shelf (Living Natural Resources) Act 1968 (Cth)
Fauna Conservation Act 1974 (Qld)
Fish and Oyster Act 1914 (Qld)
Fish and Oyster Acts Amendment Act 1955 (Qld)
Fisheries Act 1887 (Qld)
Fisheries Act 1952 (Cth)
Fisheries Act 1957 (Qld)
Fisheries Act 1976 (Qld)
Fisheries Act 1994 (Qld)
Fisheries Amendment Act 1981 (Qld)
Fisheries Legislation Amendment Act 1985 (Cth)
Fisheries Management Act 1991 (Cth)
Fisheries Regulations 2008 (Qld)
Native Title Act 1993 (Cth)
Oyster Act 1886 (Qld)
Pearl Fisheries Act 1952 (Cth)
Pearl-shell and Beche-de-mer Fishery Act 1881 (Qld)
Queensland Fisheries Act 1887 (Qld)
Racial Discrimination Act 1975 (Cth)
Torres Strait Fisheries Act 1984 (Cth)
Torres Strait Islanders Act 1939 (Qld)
Cases cited:

 Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) (2010) 270 ALR 564 referred to

Akiba v Queensland (unreported, FCA, 23 August 2010, Finn J) referred to

Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567 cited
Branir Pty Ltd v Owston Nominees (No 2)Pty Ltd (2001) 117 FCR 424 cited
Commonwealth of Australia v Yarmirr and Others (2001) 208 CLR 1 discussed
Commonwealth v Yarmirr (1999) 101 FCR 171 discussed
Fejo v Northern Territory (1998) 195 CLR 96 applied
Gumana v Northern Territory (2005) 141…

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Commonwealth v Akiba [2012] FCAFC 25
Case
[2012] FCAFC 25
Decision Date

CaseChat Overview and Summary

In the matter of Commonwealth v Akiba, the Federal Court was tasked with resolving a dispute over native title rights concerning the taking of marine resources for commercial purposes. The Akiba people sought to establish native title over a marine area, arguing that their rights included the ability to commercially exploit marine resources. The Commonwealth opposed this claim, asserting that extensive legislation regulating commercial fishing over the past 130 years had extinguished such rights.

The court needed to determine whether the statutory regime governing commercial fishing was merely regulatory or had a prohibitory effect on native title rights. This involved interpreting the relevant legislation to ascertain if there was a clear and plain intention to abrogate native title rights. Additionally, the court had to consider the nature of the Akiba people's rights under native title law, specifically whether these rights included a commercial interest in marine resources. The court also examined the criteria for determining the boundaries of the marine estate and whether the Akiba people's connection to the waters was sufficiently established to support their claim over the entire area.

The court held that the legislation was sufficiently prohibitive to extinguish the Akiba people's right to commercially exploit marine resources. It found that the statutory framework demonstrated a clear and plain intention to abrogate such rights. Furthermore, the court clarified that the native title rights claimed were not of a commercial nature but rather related to traditional activities. The determination of native title was varied to exclude the right to take fish and other aquatic life for sale or trade. The cross-appeal by the Akiba people was dismissed.

The final orders included allowing the appeal and varying the native title determination to specify that the right did not extend to taking fish and other aquatic life for sale or trade. The cross-appeal was dismissed, and the matter was concluded in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. the appeal be allowed, and that the determination of native title made on 23 August 2010 be varied by adding after clause 5(b): “This right does not, however, extend to taking fish and other aquatic life for sale or trade”; and

2. the cross-appeal be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KEANE CJ

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Ratio Decidendi

Legal Principle Established

Established by: KEANE CJ

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