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

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

Parties: LEO AKIBA AND GEORGE MYE ON BEHALF OF THE TORRES STRAIT ISLANDERS OF THE REGIONAL SEA CLAIM GROUP v STATE OF QUEENSLAND

File number: QUD 6040 of 2001

Judge: FINN J

Date of judgment: 2 July 2010

Corrigendum: 9 August 2010

Catchwords: NATIVE TITLE – "society" – Torres Strait Island communities – 1, 4 or 13 societies – significance to be attributed to perceptible differences between particular laws and customs acknowledged and observed by the communities. NATIVE TITLE – sovereignty – sovereignty acquired over different geographical areas at differing times commencing in 1872 – whether sovereignty is over an area or over a person as well – whether new native title rights and interests can be acquired after 1872 in respect of areas not then subject to British sovereignty – whether "sovereign rights" under Seas and Submerged Lands Act 1973 (Cth) to be distinguished from "sovereignty" for Native Title Act purposes. INTERNATIONAL LAW – status of Exclusive Economic Zone – sovereign rights – whether native title in EEZ able to be recognised – application of Native Title Act 1993 (Cth), s 6. 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. NATIVE TITLE – recognition of right to take marine resources for commercial purposes – whether recognised – "water" – right to take recognised. 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 – extinguishment – "public work" and "adjacent waters" – area necessary for, or incidental to, operation and maintenance of aids to navigation – NT Act, s 253 and s 251D. FIXTURES – NT Act, s 253 – "fixture" – aids to navigation attached to the seabed – criteria for determining fixtures in NT Act settings. NATIVE TITLE – Future act/non-extinguishment principle – s 24NA future act in off-shore place – periodic maintenance of aids to navigation – whether access for maintenance a distinct future act or part of a future act that subsists for the life of the aid – s 238, NT Act. NATIVE TITLE – consent land determinations – significance of as a judgment in rem. NATIVE TITLE – determination application – not authorised as required by s 61 and s 251B – whether, despite defect in authorisation, it is in the interests of justice for application to be determined – further authorisation not required. NATIVE TITLE – parties – Papua New Guinea parties – joined because interests might be affected by a determination: s 84(5), NT Act – exclusive rights no longer claimed by Applicant – whether PNG parties no longer had the "requisite interest" – order under s 84(8) that they cease to be parties.