On 14 March 2012, the Full Federal Court handed down its decision in relation to appeals and cross-appeals that had been made following Justice Finn’s 2010 decision (Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2)  FCA 643).
The Full Court’s decision, handed down on 14 March 2012, is reported as Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group  FCAFC 25. The appeal was directed to (at ):
• whether the Commonwealth and State licensing regimes for commercial fishing extinguished the native title right to take fish or other marine life for commercial or trading purposes;
• the geographic boundaries to the area of sea in which any native title rights and interests subsist;
• the nature and extent of subsisting native title rights and interests.
The first question was raised by the Commonwealth, State and fishing interests, and the remainder by the Torres Strait Islanders. This short note addresses the commercial fishing issue only.
There was no general challenge to the finding that native title was held, beyond the alleged extinguishment of any “commercial fishing rights” (refererd to in the judgment as the native title right to take fish and other aquatic life for commercial purposes). Finn J had determined at first instance that such native title rights continued to exist.
The Full Court split over the answer to this question (2:1). In summary, a majority of the Full Court (Keane CJ and Dowsett J) found that the native title right to fish commercially had been extinguished, by the passage of State and Commonwealth legislation which had the effect of prohibiting commercial fishing in the area without a licence. In coming to this conclusion, the Full Court closely examined the operation of section 211 of the Native Title Act 1993, which may have relevance for other native title proceedings and native title holders.
The minority of the Full Court (Mansfield J) favoured the approach and conclusions of the trial judge.
It is likely that the Torres Strait Islanders will appeal the Full Court’s decision to the High Court of Australia ( http://www.torresnews.com.au/index.php?option=com_content&view=article&id=1939:commercial-sea-claim-overturned&catid=3:news)
Uploaded: Monday, 16 April 2012