economic development of Indigenous communities’. ofIndigenous development economic the to integral they are because but rights traditional are Indigenous people of , notonly because they stated: ‘[c]ommercialfishingrightsare essentialtothe Commissioner MickGooda Justice Islander Social Strait rights in the .AsAboriginalandTorres High Courtunanimouslyupheldcommercialfishing Therights. native title commercial of Court High the by after thefirstrecognition falls just Indigenous Rights’ editionon‘Businessand thatthisthematic isfitting It High Court: the right to fish for commercial purposes High Court:the righttofishforcommercial purposes Two issueswereappealedbytheSeasClaimGroupto the were notclaimingcontrolofaccess overthearea. the SeasClaimGroup meant that rights non-exclusive rights totheseacouldbe granted. (‘YarmirrCLR 1 208 only non-exclusive held that which ’) the HighCourtdecision ofCommonwealthvYarmirr (2001) was amended following lodged onanexclusivebasis,this square kilometres. 800 37 approximately to rights title native recognised around theislandsofTorres Straitandthetrialdecision water mark square kilometres seawardofthehigh 000 44 approximately was Claim Sea ofthe area Claim’).The (‘Sea knownastheTorres claim title to anative StraitSeaClaim of Australia[2013]HCA 33 relates B litigation since theclaimwaslodgedin2001. litigation Claim Group’)forperseveringthroughthree‘rounds’of of theTorres StraitRegionalSeasClaimGroup(‘Seas fishing ishistoric,andtestamenttothedetermination commercial to rights title ofnative The recognition development not only in the Straits, but acrossAustralia.development not onlyintheStraits, andcommercial governance Indigenous sea rights, integrating about discussions promote to opportunity are limited, the outcomeofcasesignalsanexciting some may argue thatthe immediate practicalimplications while for theclaimants, More importantly perspective. title law native from adoctrinal test forextinguishment Court decisionleavesunansweredquestionsaboutthe ackground C v iba Ak 3 AlthoughtheSeaClaimwasinitially Unfinished BusinessintheS ommo 4 Essentially, claiming l ea nw 2 TheHigh

by Lauren Butterly by Lauren ia l stra Au f o h t 1

fishing wasaseparate‘incident’ ofnativetitle. in the Full Federal Court agreed and held thatcommercial and customs. take resources forany purpose in andusetheirmaritimeterritoriestoaccess Group enjoyednon-exclusiverightstoaccess,remain was not challenged. Justice Finn held thatthe Seas Claim determined byFinn JoftheFederal Courtin2010and right totakemarineresources’. was a‘discreteandseverablecharacteristicofgeneral submitted thatthe righttotake for commercial purposes The CommonwealthandtheStateofQueensland Wh claim arighttofish for commercial purposes. Interestingly, the Seas Claim Groupdid not explicitly C reciprocal rights. rights tocommercialfishinganddismissedtheclaim of French CJandCrennanJ.Bothjudgmentsupheld of Hayne,KiefelandBellJJtheseparatejudgment judgments intheHighCourt:majorityjudgment it isimportanttonotethatthereweretwoseparate Before we consider these two issues in more detail, in theFull Federal Court. claim forsuchrightsandthiswasupheldbyalljudges With respecttoreciprocalrights,Finn Jdismissedthe that theyhadbeenextinguishedbylegislativeregimes. Finn J’sdeterminationoncommercialrightsandheld Court, themajority(Keane CJandDowsettJ)overturned commercial purposes.OnappealtotheFull Federal and ‘reciprocalrights’. notion. encompass thatuse. Finn Jheld that the broader claim made tofishing would CJ andCrennan Jaddressedwaswhetherthis rightwas the caseandgroundsforappeal, thefirstissueFrench It istellingthat,aftersettingout theproceduralhistoryof ommercial fishing at isth e relevant righ 6

The phrase ‘for any purpose’ included anypurpose’ ‘for The phrase 8 This,initself, becameacontested :traits [2013] 33 HCA 5 MostoftheSeaClaimwas

subject totraditional laws 9 t? Onappeal,themajority 7 However, 10

3 INDIGENOUS LAW BULLETIN September / October 2013, ILB Volume 8, Issue 8 4 INDIGENOUS LAW BULLETIN September / October 2013, ILB Volume 8, Issue 8 commercial fishingunlessthatpersonholdsalicence. prohibits apersonfrom engagingina provisionthat legislative schemescangenerallybedescribedashaving and isadistinctionwhichcommonlymade. rights remains ‘acharacteristic of the fisheries legislation’ Finn specificallynotedthattheseparationofcommercial treated separatelyinrelationtoextinguishment.Justice High Courtjudgmentsclearlyprovidethatitcouldbe not adistinctincidentofnativetitle,Finn Jand both Although therighttotakeforcommercialpurposeswas separate incident inthisway was flawed and led toerror. judgment alsoagreedthatthepremiseofanalysing rights unless no other construction is reasonablyopen’. unless nootherconstruction rights law property common as extinguishing to beconstrued emphasising thegeneralprinciplethat‘astatuteoughtnot Chief Justice French and JusticeCrennan began by Clear and pl them) appliedtothewholedeterminationarea. and Commonwealthfisherieslegislation(between to fishing and licensing. The relevant Queensland relating regimes bystatutory extinguished been had rights Court wasthenrequiredtoconsiderwhetherthose Once therelevantrighthadbeenidentified,High Extinguish the Full Courttohavebeenextinguished’. ‘did notincludeanativetitlerightofthekindfoundby stated, theoriginaldeterminationofnativetitleright part ofthebroaderrighttofish.Therefore,theirHonours be treated as a separate incident of native title, but as not ‘all encompassing’.TheirHonoursheldthatitshould are nowprecludedfromdoingso’. commercial purposesunderthesuccessiveregimesor been precludedfromapplyingforlicencesto fish for nothing tosuggest...thatnativetitleholdershadever Frenchand, as ‘[t]here was noted, J andCrennan CJ they requiredlicencestofishforcommercialpurposes been extinguished.TheSeasClaimGroupacceptedthat the righttotakemarineresourcesmoregenerallyhad trade andcommercialpurposes.Theydidnotarguethat legislation extinguishedtherighttotakeresourcesfor The Commonwealth and Queensland argued thatthe to extinguish. was required and plainintention a clear that was Court 2] and MabovQueensland 166 CLR186 [No 1](1988) Their Honours then stated thatin judgments diverge,butonlyslightly, asexplainedbelow. rights werenotextinguished.Itisatthispointthatthe High Courtunanimouslyheldthatcommercialfishing ), the approach of theHigh CLR 1(‘Mabo ), theapproach 175 (1992) men 18 ain in However, their Honours explain that t b y legis ten tio atio n 15 n

11 The majority Themajority 16 13 The The [No 14 17 12

analysis’. examples of the High Court applying ‘[i]nconsistency Justice French and Justice Crennanthenoutlinedsome The relevantquestionisoneofinconsistency...’. it isimportantthatthisexpressionnotbemisunderstood. intention’ toextinguishnativetitlemustbedemonstrated, noted that‘whileitisoftensaida‘clearandplain plain intention]anditslinkstodemandsofequality’. not deny the significance ofthe requirement [of clear and Ward, ‘[s]uch acaveat has...always been accepted butdoes legislation and recognition ofanativetitleright. this case,theanalysisarosedue toinconsistencybetween of the‘inconsistencyanalysis’. Itwasemphasisedthat,in Both judgmentsofferedarelatively succinctapplication In extinguishment. has producedmurkywaterswithrespecttothetestfor The mostimportantnativetitlecaseofthepastdecade confirm thatthecorrecttestinthiscaseisinconsistency. the ‘clearandplainintentiontest’;rathertheysimply do notseemtogoasfarexcludetheoperationof Thejudgments position. clear than inaless test’ intention Ironically, andplain ‘clear the leaves judgment this depends. propositions uponwhich‘resolution’ofextinguishment The majorityjudgmentbeganbyoutliningfour alleged tohaveextinguishednativetitlewereirrelevant’. that ‘thesubjectivestateofmindthosewhoseactswere against misunderstanding clear and plainintention, in (2002) 213CLR1(‘Ward’ warned ), where‘theplurality’ was reiteratedinWesternextinguishment’ AustraliavWard the ‘pre-eminence of inconsistency asthe criterion of inconsistency asthecriterionofextinguishment’. Peoples v Queensland (1996)187CLR1(‘Wik a statutewasenactedpriortoMabo,‘theCourt’inWik due tothedifficultiesofstatutoryconstructionwhere as appearedinthejudgment]. at theheartofanyquestionextinguishment’[emphasis importance tothiscase’:that‘inconsistencyofrightslies irrelevant. is intention tothefactthatsubjective judgments by both Attention was brought area thathadbeenabit‘messy’. suggesting thatthisjudgmentismerelyclearingupan ‘the Court’inWik from clearandplainintentiontoinconsistencyback of ‘clearandplainintention’.Certainly, tracingtheshift French CJandCrennanJ(briefly)chronicledthehistory It may be thatthere issomething tobe said aboutthe way con n siste 22 20 25 Thefourthofthesewassaidtobe‘critical TheirHonoursconcludedbystatingthat As noted by Richard Bartlett in the context of of context inthe Bartlett byRichard noted As cy o givesitasenseofhistoricallegitimacy; f righ ts 23 TheirHonourssimply ’) ‘focusedon 27 19 24

Chief

26 21

over aparticularactivity’. whether the...legislaturehasassertedcontrol,ordominion, be determinedbyasking to is ‘not for extinguishment test did not extinguishtheright,majoritynoted that prohibition ontakingfishforsaleortrade withoutalicence that purpose’. defined by referenceto the ‘exerciseofalesserright as of theright as they rest uponthewrongcharacterisation Commonwealth andQueenslandshouldnotbeaccepted abruptly, thatthesubmissionsofinconsistency of inconsistencyanalysisbeforeconcluding,almost discussed above, the judgment demonstrated examples and interests’. the continued existence oftherelevantnativetitlerights with a licence’wasnot,andisnotinconsistent without fishing commercial ‘no injunction, statutory ‘repeated the processes in the Native inthe Titleprocesses Act (‘ 1993 (Cth) fishing willnowbesubjecttothelimitedfutureact in relationtocommercial immediate impactisthatrights granted acertainnumberoflicences.Practically, theonly should be title claimants native nor doesismandatethat or Queenslandtoreallocatecommercialfishinglicences, Commonwealth the either require doesnot judgment This operating, areheldbynativetitleholders? currently as licences, what is: first The questions. practical in short,itdid nothave tobe. However, itraises real because, judgments Court’s of theHigh a focus was not This purposes. for commercial fish required licencesto they As notedabove,theSeasClaimGroupacceptedthat Th extinguishment. establish conclusively doesnot prohibition’ ‘statutory a and that waters the with connection the sever does not regulation (1999) 201CLR351(‘Yanner ’) asauthorityforthefactthat In particular, they focussed onthe case of The majorityjudgmentwasslightlymoredescriptive. aright’. such asextinguishing it beconstrued on takingfishforcommercialpurposesrequiresthat of aconditionalprohibition that ‘nothinginthecharacter Chief Justice French and Justice Crennan beganby stating owners thatisalready takingplaceintheStrait. showcase thesuccessfulcommercial fishingbytraditional and alsoto valuable opportunitytoopen up discussions The practicalquestionsraised by this judgmentpresenta active Indigenous commercial fishery inthe Torres Strait. Further, itmustbe recognised thatthereis already a very title.viewed inthenarrowlegalframeworkofnative However,than suchissuesshouldbenegotiatedrather commercial fish e repeated stat utor 29 32

ing with 31 They concluded by stating that Theyconcludedbystatingthat 30 y injun After the that confirming o ut alicence’ ctio n: ‘No Yanner v Eaton

33 NTA’). 28 As As 34 35

any event'. sever [reciprocal rights] from the traditional system in years, theHighCourtjudgment‘cannotandwillnot solicitorontheSeaClaimformany was theinstructing the HighCourt, assummarised by David Saylor, who Although thisaspectofthecasewasnotsuccessfulin Full Federal by Courtandunanimously the HighCourt. 223(1) was requiredbysection as to ‘landandwaters’ relation FinnJustice in were not rights the reciprocal held that with aholderofnativetitlerightsinparticulararea. areas. laws and customs determined who had rightsin particular members did notholdtherightscommunally. Rather, the intheTorres‘society’ was viewed as onesociety, Strait all the although is that these rights of understanding aspect discharged under Islander laws and customs’. laws and discharged underIslander obligations recognisedandexpected to be honoured or Justice Finn describedreciprocalrightsas‘rightsand The SeasClaimGroupalsoclaimedreciprocalrights. issue beforetheCourt. there wasanother fishing rights, Whilst theHighCourtdecisionfocussedoncommercial Rights Reciprocal 2 1 remain theresponsibilityofauthor. Any errors Madeleine Hartley forcommentsonanearlier draft. PudovskisBartlett, Matthew Richard thank like to would and UNSW and Member, theUWA Oceans Institute. Theauthor Centre, Law Associate oftheIndigenous (‘UNSW’), aCentre Facultyin theLaw attheUniversityofNewSouth Wales of Western Australia(‘UWA’). is also a PhDCandidate Lauren Faculty intheLaw ButterlyisaLecturer Lauren attheUniversity title rightstofishingisonlyjustbeginning. interpreting, discussing and negotiating commercial native yet beengiven.Thejourneyof has lead tonegotiations government, no indication of how thisdecision may period ofthenew came down,andnowtothesettling-in election caretaker mode inplace when the judgment Commonwealth the Dueto andplainintention. clear to themurkywaterssurrounding arguably contributed will also godowninhistoryastheshortest.Itsbrevityhas The mostimportantnativetitlecaseofthelastdecade C onclusion Australia [2013]HCA33(7 August 2013). v Akiba(2012)204FCR260 and FCR1, Commonwealth Akiba vQueensland[No3](2010)204 strait-islanders>. humanrights.gov.au/news/stories/fishing-rights-affirmed-torres- for Torres StraitIslanders Australian Human RightsCommission,Fishing rightsaffirmed 37 Reciprocal rights were heldduetoarelationship Reciprocalrights NTA 38

. This was upheld by all three judges in the judges in three upheld byall was . This (7August2013). and-Communications/Newsletters/Talking-Native-Title/Pages/ recognised (2July2010) and Applications-And-Determinations/Search-Applications/ Strait Regional SeaClaim. Finfish (Reef Line)Fishery