Native title has been held to exist in the seas of the Torres Strait. In an important decision handed down on 2 July 2010, the Torres Strait Islanders succeeded in establishing native title over a large area of the waters of the Torres Strait.
Justice Finn, in a lengthy decision, ruled that the native title was held by a single society. The Court also held that the nature of connection of the Torres Strait Islanders was materially different to that commonly existing on the mainland, being primarily an issue of occupation and usage rather than a spiritual connection. The native title does not confer any exclusive rights to the sea but, subject to compliance with fishing laws, does include a right to fish commercially.
In terms of native title law, the decision has implications for the determination of the relevant 'society', the nature of connection, the potential of native title to confer commercial rights, and for the application of s.84D of the Native Title Act in the authorisation of claims.
The judgment is available at: http://www.austlii.edu.au/au/cases/cth/FCA/2010/643.html