Akiba on behalf of the Torres Strait Regional Sea Claims Group v Commonwealth [2013] HCA 33

The mob in this case were 13 distinct but interrelated Torres Strait Islander communities (comprising the Torres Strait Regional Seas Claim Group) which sought non-exclusive native title rights over portions of the sea for approximately 44,000 square kilometres. These rights included fishing rights to those waters and reciprocal rights to access and use those waters. The latter are held by a network of relationships under the law of an Indigenous nation or community. The High Court held that the fishing rights had not been extinguished by fisheries legislation, characterising the rights as encompassing commercial fishing rights. However, it concluded that reciprocal rights were not a native title right that Australian law understood—as they were personal in nature and reliant upon particular status and relationships in the community to be conferred. Furthermore, they were not a right ‘in relation to land or waters’ under s 223 of the Native Title Act 1993 (Cth). The High Court judgment has been rewritten through an Indigenous lens, inviting readers to think in a more complicated and less mercenary way about the native title regime. It challenges settler law’s compartmentalising of Country across multiple axes (owned, related, continuous, discontinuous, land, sea, extinguished, regulated) and demonstrates a failure of Australian legal systems to adequately consider the idea that First Nations are comparative jurisdictions and subject to their own logics.