Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia and Ors

The applicants, Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group, sought declarations and injunctions against the Commonwealth of Australia and the State of Queensland concerning native title rights and interests in the waters of the Torres Strait. The dispute centred on the extent to which native title rights and interests, recognised under the *Native Title Act 1993* (Cth), were extinguished by the grant of various interests in the seabed and waters, including pastoral leases, mining leases, and fisheries legislation. The matter was heard by the High Court of Australia.

The primary legal issues before the High Court were whether the grant of certain interests in the seabed and waters of the Torres Strait had extinguished native title rights and interests, and if so, to what extent. Specifically, the court had to consider the effect of the grant of exclusive possession native title rights and interests, such as pastoral leases, and the effect of legislative regimes that regulated the use of the waters and seabed, such as fisheries legislation. The court was also required to determine the nature and scope of the native title rights and interests claimed by the Torres Strait Regional Seas Claim Group.

The High Court applied the principles established in *Mabo v Queensland (No 2)* and subsequent native title jurisprudence, particularly concerning the extinguishment of native title. The court affirmed that native title can be extinguished by the grant of interests in land or waters that are wholly inconsistent with the continued existence of native title rights and interests. The court examined each category of asserted extinguishment, distinguishing between grants that conferred exclusive possession and those that did not. For instance, the court found that the grant of pastoral leases, which conferred exclusive possession, had extinguished native title rights and interests in the seabed to the extent of that inconsistency. However, the court also considered the effect of non-exclusive interests and legislative regulation, determining that such grants and regimes did not necessarily extinguish native title entirely but could limit or affect the exercise of native title rights. The court emphasised the need for a careful, factual analysis of the nature of the rights granted and the native title rights claimed in each instance.

The High Court made declarations regarding the extinguishment of native title rights and interests in the Torres Strait, clarifying the extent to which various grants and legislative regimes had affected those rights. The court dismissed the applicants' claims for injunctions.