Native Title Essay Example

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The History, Nature and Significance of the Decision in Akiba v Commonwealth


On 23rd November 2001, a native title claim was filed for the Torres Strait Sea claim group by Leo Akiba with regard to the Torres Strait’s waters. Basically, the claim covered roughly 37,800 km2 of sea between Papua New Guinea and the Cape York Peninsula. The case was filed for 13 communities living in the Torres Strait. As ruled by the, Federal Court in 2010, there existed a non-exclusive native title rights suite with regard to the claimed area. Such rights were basically acknowledged both in Australian territorial seas as well in the Exclusive Economic Zone of Australia waters. Relationship between Torres Strait Islanders’ and their respective marine areas as established by Justice Finn was a spiritual affair and also involved a historically laden and unfathomable knowledge of their marine environments. The objective of this piece is to examine the history, nature and significance of the decision in Akiba v Commonwealth [2013].


As mentioned by Butterly (3), the Akiba v Commonwealth case is associated with a native title claim recognised as Sea Claim. The area of the Sea Claim was roughly 44 000 km2 seaward. In the case, it was established that the native title rights was roughly 37 800 km2. Even though the Sea Claim was at first filed on the basis of exclusive rights, it was amended after the Commonwealth v Yarmirr (2001) ruling where it was ruled by the High Court that just non-exclusive rights could be granted. Exactly two issues were appealed to the High Court; the reciprocal rights as well as the right to fish for trade and commercial-related reasons. The Seas Claim Group, according to Justice Finn, was enjoying non-exclusive rights to access their maritime territories as well as taking resources for all purposes dependent on customary customs and laws. However, when the ruling was appeal, Finn J’s ruling on commercial rights was overturned by the majority (Dowsett J as well as Keane CJ). All judges in the Full Federal Court upheld Finn J dismissal of the reciprocal rights claim. Although both judgments dismissed the claim to reciprocal rights, they all upheld rights to commercial fishing.

The Torres Strait is legally, culturally, and geographically a unique part of Australia. According to Butterly (238), the sovereignty acquisition in the Torres Strait did not connote that the Torres Strait Islanders would lose their ability to access seas and lands. The sea is an important part of the Torres Strait Islanders livelihoods and lives. Besides that, how the Islanders relate with the sea is clued-up by practicality and utility instead of a spiritual connection and overarching creation story. The Torres Strait Treaty between Australia and Papua New Guinea offers the maritime boundary between the two countries. The rights claimed by the Sea Claim Group at the trial can be categorised into three groups: rights to access and take resources for livelihood; rights to enter, remain, utilise as well as enjoy the sea; and rights to protect important places, habitat and resources. Without a doubt, there exists some in the relationship to waters, or land of the right to protect knowledge about the culture as well as the reciprocal rights. The Bodney v Bennell case seems to have a direct connection with this case, whereby the judgment acknowledged that the customs and laws envisage or presuppose a direct relationship with waters or land or would, if recognized and seen, connect the members of the community to the waters or land in a multifaceted of relationships. Therefore, it can be argued that the reciprocity’s customs and laws connect certain members of the Torres Strait society to their waters and lands (Butterly, 251).

The ruling was significant since it was the first time interests and rights of the commercial native title had been acknowledged within a context that was actively litigated. Even though the native title right trade was previously acknowledged by the Federal in terms of traditional customs and laws applicable to the Torres Strait’s land areas,such determinations were realised with the approval of every concerned party. Still, the decision’s practical implications were less significant. Particularly, decision by Justice Finn that rights as well as interests of the native title are vulnerable to regulation was confirmed by the High Court. In this regard ,the relevant fisheries legislation are regulating the exercising of the ‘commercial’ native title rights considering that exercising the right beyond the reach of section 211 of the Act can be a violation of the law. Furthermore, the decision of High Court would result in greater inclusion for native title holders in Torres Strait, especially in the fisheries management (Allens).


In conclusion, this piece has examined the history, nature and significance of the decision in Akiba v Commonwealth [2013]. It has been observed that the decision of the high court means that proponents and operators in the Torres Strait would easily apply the right to seize aquatic life or fish or for trade purposes.

Works Cited

Allens. Focus: Clearer waters – commercial native title fishing rights . 20 August 2013. 5 June 2017. <>.

Butterly, Lauren. «Before the High Court Clear Choices in Murky Waters: Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia.» Sydney Law Review 35 (2013): 237-252.

—. «Unfinished business in the straits: Akiba v Commonwealth of Australia [2013] HCA 33.» Indigenous Law Bulletin 8.8 (2013): 3-6.