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 http://www.fedcourt.gov.au/ together with this summary.
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 Baez de Torres’ passage through the Strait in 1606, Islander contact with Europeans was the subject of recorded account and observation. Notable amongst these after Cook’s rediscovery of Torres Strait were the writings of British naval officers and other mariners.
8 In 1864 a joint Imperial-colonial outpost was established at Somerset on the eastern tip of Cape York. At much the same time colonial occupation commenced in the Strait. It related initially to the establishment of bêche-de-mer shore fishing stations. In 1868 the pearl shell industry commenced. In 1871 the evangelisation of the Strait began with the advent of the London Missionary Society. In consequence a significant pre- and early sovereignty literature was generated and is in evidence. The most significant body of works in this are the six volumes of reports of the Cambridge Anthropological Expedition to Torres Strait. These were based largely on observations made in the Strait in 1898 by A.C. Haddon (a former zoologist) and six others. The main purpose of the Expedition was to assemble a picture of life before colonisation from the memories of the older men.
9 Unlike with so much of Aboriginal Australia, the acquisition of sovereignty over the islands of the Strait did not lead to the Islanders being dispossessed of their lands or sea domains, or deprived of their traditional means of livelihood. Their continuing presence in the Strait is self-evident as are their detailed knowledge of, and exploitation of the marine resources of, the Strait.
10 As is now well known, native title was first accepted and recognised in relation to the Murray Islands in Torres Strait in the decision of Mabo v Queensland [No 2] (1992) 175 CLR 1. That decision and the twenty-two Consent Determinations since made under the subsequently enacted Native Title Act have resulted in the recognition of native title in all of the presently inhabited islands of interest in this proceeding and in most of the uninhabited islands. Characteristically the native title holders in these Determinations were found to be members of single island communities. In several instances, though, the title is shared by members of several island communities.
11 Though the land Determinations are of some contextual importance in this proceeding, it is to be emphasised that the present application relates to sea water areas. Because of its present importance, I should emphasise that the NT Act defines “waters” to include not only “sea … a tidal inlet, a bay, an estuary” but also “the bed or subsoil under … any waters” and “the shore, or subsoil under … the shore, between high water and low water”: s 253. The term is used with this meaning in my reasons. It also requires emphasis that, to the Islanders, land and sea are seamlessly and culturally associated: there is no “sea-land dichotomy”.
12 I have concluded that the Applicant has, for the most part, established its claim. There is a single Torres Strait Islander society to which the native title claim group belongs. Under that society’s traditional laws acknowledged and traditional customs observed, the claim group in aggregate holds native title rights and interests in the waters of Torres Strait with which I am presently concerned, save in those parts specified in my reasons. As the present proceeding does not involve the entirety of the native title claim area, it is inappropriate that I make a finding that the claim group alone constitutes the relevant society. It may be the case – and I express no view on this – that when the balance of the claim is heard and determined in relation to those areas where it overlaps other claims, the evidence may establish that one or both of the Kaurareg and Gudang peoples also belongs to the society for NT Act purposes.
13 I have rejected the State of Queensland’s contention that there were multiple societies (thirteen in number) each constituted by the Islanders of an inhabited island. I likewise have rejected the Commonwealth’s contention that there were four societies each of which was made up of a regional cluster group of islands, eg the Eastern Islands. There is an irony in all of this. The issue of authorisation apart, the answer to the question of native title rights and interests in the waters of Torres Strait – which is, after all, the concern of the present application and of the NT Act – would in all probability have been largely, if not exactly, the same whether my conclusion had been one, or four, or thirteen, societies.
14 I have rejected the Applicant’s claim insofar as it asserted that what it called reciprocity based rights and interests constitute native title for the purposes of s 223(1) of the Act. Put inexactly, those are rights based upon reciprocal personal relationships with persons who have native title rights in their own land and marine territories. The native title rights I have found are the non-exclusive rights of the group members of the respective inhabited island communities first, to access, to remain in and to use their own marine territories or territories shared with another, or other, communities; and, secondly; to access resources and to take for any purpose resources in those territories. In exercising these rights the group members are expected to respect their marine territories and what is in them. Importantly, and this requires emphasis, none of these rights confer possession, occupation, or use of the waters to the exclusion of others. Nor do they confer any right to control the conduct of others.
15 The rights will be recognised by the common law beyond Australia’s territorial seas in its Exclusive Economic Zone. The possibility that native title might exist in such an area was contemplated by the Australian Parliament in s 6 of the NT Act. In the northern part of the claim area known colloquially as the “Top Hat”, the native title rights are qualified by the provisions of Australia’s Treaty with Papua New Guinea which came into effect in 1985. It settled the Seabed Boundary Lines between the two countries and provided for Australian “fisheries jurisdiction” in the “Top Hat”.
16 I have found that the right to take resources includes the right to take marine resources for trading or commercial purposes and that such use of them would be recognised by the common law. I have rejected the contentions of the State and of the Commonwealth that the ever expanding regulatory controls placed upon commercial fishing by legislation extinguished any native title right to take fish for commercial purposes. Those legislative controls were not directed at the underlying rights of the native title holders who were obliged to comply with the regulatory measures imposed on them if they were to enjoy their native title rights. The various Acts severally or together did not, and do not, evince a clear and plain intention to extinguish native title rights to take fish for commercial purposes in the Part A Claim Area. Having said this, it needs to be emphasised that, to the extent that those legislative regimes regulate the manner in which, and the conditions subject to which, commercial fishing can be conducted in a fishery in the native title holders’ marine estates, or prohibit qualifiedly or absolutely particular activities in relation to commercial fishing in the fishery in those estates, the native title holders must, in enjoying their native title rights, observe the law of the land. This is their obligation as Australian citizens. Complying with those regimes provides them with the opportunity – qualified it may be – to exercise their native title rights.
17 A distinct part of my reasons deals with the extent to which the construction, operation and maintenance by the Australian Maritime Safety Authority under Commonwealth legislation of aids to navigation in Torres Strait waters have extinguished or otherwise affected the enjoyment of native title in the areas of, or adjacent to, such aids. My conclusions on these matters are contained in my reasons. All I need note here is that, while I have reached conclusions in relation to ten of these aids, I have not in relation to another four. In consequence I have given the parties liberty to apply for the purposes of establishing the boundaries of the areas at each of the four sites where native title has been extinguished.
18 While I have found that the Application made in this matter was not in fact authorised as required by the Native Title Act, I am satisfied that, for the purposes of s 84D of the Act, it is in the interests of justice that the Application be determined despite the defect in authorisation.
19 Finally, there are seven PNG parties to this proceeding. In the case of five of them, I will order that they cease to continue as parties to the proceedings. In relation to the remaining two, I will declare that they are not members of the native title claim group.
20 I have been requested by the parties to provide them with the opportunity to make submissions on the form of the Determination of Native Title to be made. This is entirely appropriate.
21 I will direct that:
(1) An agreed Draft Determination giving effect to these reasons be filed and served on or before Friday, 23 July 2010;
(2) In default of agreement:
(a) a Draft Determination be filed and served by the Applicant on or before Friday, 23 July 2010; and
(b) the Respondents file and serve such submissions as they may wish to make on or before Friday, 23 July 2010.
(3) The proceeding be adjourned to Brisbane on Friday, 30 July 2010 at 9.30 am for the making of final orders.
