Last Friday, 18 years and one month to the day after the High Court of Australia recognised the existence of the native title rights of Australian aboriginal and Torres Strait islanders in the landmark Mabo case, Justice Paul Finn of the Federal Court handed down his decision in the Torres Strait Regional Seas case in a rainy Cairns courthouse packed with Eddie Mabo’s countrymen and descendants.

While of immense importance to the Torres Strait islanders, for a number of reasons the trial dubbed Akiba’s case is unlikely to substantially affect native title jurisprudence on mainland Australia. There are, however, some bittersweet ironies and clear legal distinctions between it and mainland native title cases.

Firstly, Eddie Mabo’s case was inherently concerned with the closely held rights to the use and enjoyment of the land on Mer Island in the Torres Strait. Mabo’s case established the communal nature of aboriginal and Torres Strait islander land rights and interests across Australia — whereas Akiba concerns the very localised, and non-communal, governance of rights and interests in the sea.

Secondly, whereas Australian native title jurisprudence, and the Native Title Act that regulates its acceptance in broader Australian law, is predicated on a claimant’s spiritual rights to land (and the sea), Akiba’s case is distinct in that, as Justice Finn noted:

“The laws and customs advanced by the communities do not reflect an overarching spiritual connection with the waters. There is no creation story. Yet there are still some, for the most part minor, traditional spiritual beliefs revealed in the evidence.”

Justice Finn noted the nature of the rights and interests of the claimants were based less on spiritual connections — usually manifested by mainland aboriginals as named ‘dreaming’ tracks and places and connections with ancestral spirit beings — and more on practicality and utility.

Further differences concern the area of the claim — 40,000 square kilometres of open waters that cover international boundaries — and the distinct characteristics of Torres Strait society. And, while Torres Strait islanders have a long and justifiably proud history as commercial fishers in the area, and have also had many confrontations with non-islander commercial fishers exploiting what they have claimed as their sovereign resources, Akiba’s case grants them non-exclusive rights to the sea and the resources therein. As the ruling states:

I am satisfied that the group members of the respective individual island communities have the following traditional rights in their owned or their shared marine territories:

(i) the rights to access, to remain in and to use those areas; and

(ii) the right to access resources and to take for any purpose resources in those areas.

In exercising those rights, the group members are expected to respect their marine territories and what is in them. Importantly, none of these rights confer possession, occupation or use of the waters to the exclusion of others nor do they confer any rights to control the conduct of others.”

Previous native title and Aboriginal Land Rights Act sea-related claims — notably Yarmirr and the Blue Mud Bay cases — concerned claims by Northern Territory aboriginal people based on their spiritual connections to named and known places in sea and sea-bed Akiba’s case is very distinct in that the occupants sought rights characterised by Justice Finn as “ancestral occupation based rights” and “reciprocal relationship based rights” or “reciprocity based rights”

Notwithstanding the claimed interests and rights in this case, the Torres Strait is an immensely complex administrative and legal domain. As Brian Keon-Cohen, a long-time commentator on native title issues and barrister in Mabo’s case told the ABC:

“…the Torres Strait is a very sensitive area by reason of defence, customs, immigration, commercial fishing, natural resources. It is an area the subject of layer upon layer of legislative control, and indeed an international treaty between Australia and Papua New Guinea.”

This connection with Papua New Guinea raised a further point of interest in Akiba’s case. Seven Papuans were joined in the action as respondents but, for various reasons, Justice Finn determined their claims be withdrawn, notwithstanding his findings that:

“…the evidence in this matter ha[s] demonstrated [a] long-standing and deep trading relationships between Islanders and coastal PNG peoples, albeit these have weakened in modern times; (b) inter-marriage commencing prior to annexation; (c) use made by PNG people of the waters of the Strait for fishing (but particularly outside the claim area); and (d) particular PNG-Island connections, notably with Iama.

“The Applicant does not, and could not, deny that some PNG nationals may have, or may have had, customary rights in the claim area. Nor does it deny the numerous interactions over generations between Islanders and coastal Papuans.”

Crikey understands that, in common with the connections to land and sea held by mainland aboriginal Australians, Papuan interests in the claim area could be characterised as being of a more inherently religious and spiritual nature — as inferred by Justice Finn’s comments — than those of the claimant Torres Strait islander’s. From Crikey’s own (very limited) experience with these matters in the Torres Strait it appears many of the ‘dreaming tracks’ and ancestral creation stories that arise in Papua and travel through the Torres Strait to Cape York and beyond — and vice versa — have inherently religious and spiritual foundations not found in Torres Strait societies, whose ritual and religious practices reveal their historic links to Pacific Island cultures.

Akiba’s case is tremendously complex and Justice Finn has done an admirable job of unpicking many of these issues. Justice Finn is a highly regarded jurist with a strong background in commercial and native title law and jursiprudence. He will soon return to Cambridge, where he studied for his PhD and has been appointed the Arthur Goodhart Professor of Legal Science for 2010 and 2011.

Peter Fray

Get your first 12 weeks of Crikey for $12.

Without subscribers, Crikey can’t do what it does. Fortunately, our support base is growing.

Every day, Crikey aims to bring new and challenging insights into politics, business, national affairs, media and society. We lift up the rocks that other news media largely ignore. Without your support, more of those rocks – and the secrets beneath them — will remain lodged in the dirt.

Join today and get your first 12 weeks of Crikey for just $12.

 

Peter Fray
Editor-in-chief of Crikey

JOIN NOW