15 Aug 2013

High Court case clouds the waters for proponents as Native Title rights to the sea recognised

by Mark Geritz, Tosin Aro, Prue Warner

Successive Commonwealth and Queensland legislative regimes that prohibited commercial fishing without a licence were not inconsistent with, and therefore did not extinguish, the native title rights to take resources from defined areas of water.

In a reminder for proponents conducting activities in maritime areas to be more aware of compliance with their native title obligations, the High Court handed down a decision on 7 August 2013 recognising that native title rights to the sea, including rights to fish commercially, are not extinguished by a legislative regime that otherwise requires a permit for commercial fishing (Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33).

Original determination

In 2001, the Torres Strait Regional Seas Claim Group filed an application in the Federal Court for the determination of native title rights and interest in a large part of the Torres Strait sea area. The native title rights claimed included occupation of the region for maritime purposes, particularly the taking of fish and other maritime resources for commercial purposes.

A native title determination was handed down in August 2010 recognising these rights. The native title rights were held to be non-exclusive – not creating any right to control the conduct of others and yielding to other rights and interests over the native title area where inconsistency arose.

Full Federal Court decision

In March 2012, the Full Federal Court allowed an appeal against the decision of the primary judge and held that the native title rights to take fish for commercial purposes had been extinguished by successive Commonwealth and State fisheries legislation. The original native title determination was amended accordingly.

High Court decision

On appeal from the Full Federal Court, the High Court was confronted with two main issues:

  • whether native title rights to commercial fishing had been extinguished by Commonwealth and Queensland legislation that prohibited commercial fishing without a licence; and
  • were reciprocal rights arising out of personal relationships in Islander society rights in relation to land or waters that could be recognised as native title rights (this notion had been rejected by the primary judge).

On 7 August 2013, the High Court handed down its decision. In respect of the two main issues before it:

  • the Court held that the successive Commonwealth and Queensland legislative regimes that prohibited commercial fishing without a licence were not inconsistent with, and therefore did not extinguish, the native title rights to take resources from defined areas of water. Rather than conflicting with native title rights to access and take for any purpose resources in the native title areas, the statutory regimes co-existed with such native title rights; and
  • the High Court further held that the reciprocal rights in question between members of the communities were rights of a personal character dependent upon status and were not native title rights in relation to the waters the subject of the native title determination.

Practical consequences

Esoteric as these findings might appear, they serve as a reminder to proponents that native title does need to be kept in mind when conducting project development activities within waters that are regarded as "onshore places" for the purposes of the Native Title Act 1993 (Cth) – that is, those that lie within the territorial limits of each State and Territory (stretching, in each case, from the low water mark for 3 nautical miles).

Future acts to be done in waters beyond this limit, to the 200 nautical mile mark (the exclusive economic zone), will be acts affecting "offshore places" for Native Title Act purposes and, under Part 2, Division 3, Subdivision N of the Act, will be valid without the need for any native title procedure (although note that compensation for such acts could still become payable).

However, proponents conducting activities such as dredging or port construction in "onshore" seas should remain alive to the possibility of native title rights continuing to exist (whether or not such areas are covered by a native title claim or determination). This is particularly important where the validity of future acts for a project, to the extent that they affect native title, require the conduct of a right to negotiate procedure or the registration of an Indigenous land use agreement.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.