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

Category: Case Law
Binomial Name: Federal Court of Australia
Date: 2 July 2010
Sub Category:Litigated Determination
Place:Torres Strait
State/Country:Queensland, Australia
The claim area extends over the waters of the Torres Strait. Download a map of the area here.
Legal Status: Registered on the National Native Title Tribunal Register (of native title determinations)
Legal Reference: Federal Court No: QUD6040/2001; National Native Title Tribunal No: QC01/42
Alternative Names:

  • Subject Matter:Access | Fishing | Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests
    Summary Information:

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

    Between: Leo Akiba and George Mye on behalf of the Torres Strait Islanders of the Regional Seas Claim Group (APPLICANT) and
    The State of Queensland (RESPONDENT)

    Native title exists in parts of the determination area

    The claim area covers approximately 37,800 square kilometres of sea extending between the Cape York Peninsula and Papua New Guinea. It primarily consists of sea area existing south of Papua New Guinea's Seabed Jurisdiction Line, and includes the territorial seas of a number of Australian islands north of that Jurisdiction Line. It also consists of sea area west of Boigu and east of Saibai, where through a treaty with Papua New Guinea, Australia retains fisheries jurisdiction.

    Finn J found that the claimant group had established their claim. The claimant group demonstrated that they held native title rights over most of the waters of the Torres Strait under their traditional laws and customs.

    The native title rights found to exist were non-exclusive rights of members of the claimant group and include:
    - rights to access and remain in the claim area
    - right to use the claim area
    - rights to access and use resources within the claim area
    - rights to take resources for any purpose (including commercial purposes)

    Finn J also found these rights:

    • did not confer exclusive rights of possession, occupation or use of waters,
    • were held to exist not only in Australian territorial seas but also within Australia's Exclusive, Economic Zone.
    • were found to be possessed in aggregate by members of the claim group,

    Finn J rejected submissions that State regulation of commercial fishing extinguished the claimant group's native title rights to take fish for commercial purposes. This was because the relevant Acts regulating commercial fishing did not show a clear and plain intention to extinguish native title fishing rights.

    However, Finn J held that the claimant group must comply with commercial fishing regulations within the claim area.

    Detailed Information:

    The decision provides commercial fishing rights, that are lauded as important as such fishing rights are 'integral to the economic development of Indigenous communities' (see Australian Human Rights Commission extract).

    This is also the first decision to consider the rights of an international party under a treaty. The Torres Strait Treaty, between Australia and Papua New Guinea, recognises the customary rights of both nations in the Torres Strait. The established rights of the people of Papua New Guinea limit the native rights that can be claimed by the Torres Strait Islanders Regional Seas Claim Group.

    As the native title rights found to exist in the determination area are non-exclusive, they do not prevent the continued operation of ships, fishermen and businesses such as the PNG pipeline.

    Related Entries

  • State of Queensland
  • People
  • Torres Strait Islanders of the Regional Seas Claim Group
  • George Mye
  • Case Law
  • Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia (2013) HCA 33

  • References

    Media Release
    Australian Human Rights Commission (2 July 2010) Successful Torres Strait Regional Sea Claim a Cause for Celebration!

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