Analysis of Akiba v Commonwealth of Australia - Case Study Example

A Research Report Based on an Australian High Court Case: Akiba V Commonwealth of Australia[2013]HCA 25(5TH June 2013 Student’s Name Institution affiliation Date Table of Contents Introduction 2 Summary and Facts about the Case 4 Judgment Summary 6 High Court Judges who Decided the Case 7 Judges Agreement 7 The Type of Laws the Case Focused on 9 Five Cases Referred to within the Case 11 Reasons for Referring to the Cases 11 Effect of the Cases in Distinguishing the Case 12 The Principal Used from the Cases 12 References 15 Introduction Akiba v Commonwealth of Australia[2013]HCA case, heard on the 5TH June 2013, rates among the cases whose verdicts have been passed by the high court of Australia. Business Law forms the main subject matter of this high profile case, in which 13 Torres Straight Islanders presented an appeal in the Courts of the State of Australia with intent to gain rights that provide for them to fish on the Strait waters for commerce and trade1. However, this appeal was received by strong opposition from the State Government of Queensland and Commonwealth, who drew their argument from an earlier related case of Ward v Western Australia, which gives the suggestion that the native title is a group of rights which allowed activity without question, with future laws governing fishing on the Strait waters since 1850 which made it a necessity for all men involved in the fishing practice to own licenses. This legislation led to call for the island communities to present their appeal against the named legislation, as the law of licensing had brought about the extinguishing of part of the provisions of the native title, with special emphasis given to the rights providing for fishing for trade commercial purposes. On the contrary, the appellant held that the government had no such intention as extinguishment of the native title that provided for subservient fishing. Further arguments by the appellant suggested that introduction of licensing to fishing only did bring regulation to this activity, as opposed to prohibition of fishing. Citations of the instances in which the government has set up schemes intended to help the 13 island communities of Torres Strait to establish fishing business activities Summary and Facts about the Case Finn J, a member of the Australian Federal Court gave arguments for which lead to judgment for an application representing a total of thirteen Torres Strait Island communities which would help in native title determination which governs access of a large section of the Strait waters, on July the second, 20102. The determination, the Honour’s ultimate orders entailing the determination of the waters’ native title, was made on August the twenty third, 2010, in the Determination where the native titles on the waters as held by the individual communities of Torres Strait. Here, the Group Rights were adequately defined and their provisions clearly stated. The Determination, further, elaborated the native interests and rights that were listed in the fifth order of the determination, as follows. The right granting access to resources and allowing for any form of utility of these resources on the areas covered by the native title. In accordance with this provision, the Torres Strait Islanders would realize varying applications of the right, and such actions as utilizing fish resources obtained for trade or commerce. Carrying much semblance to the set native rights and interests titles, this right did not allow for exclusion. In this manner, this right did not make attempts to oversee the conduct of individuals nor conferring native rights of the title holders to related rights exclusion. This right was to be practiced under the close attention and guidelines provided by the traditional indigenous customs and laws of the natives as practiced on their land, in addition to the laws governing the Queensland State, the common law and the laws as prescribed by the Australian Commonwealth. The second provision included more of an alteration to the first right. This was as a result of the action of the majority vote of the Federal Court, made up of Mansfield J, Dowsett J and Keane CJ, with the former dissenting the move. The court is thus understood to have welcomed an appeal opposing the primary judge’s decision. According to the court Majority, the rights to access the fishery and aquatic resources for trade and commercial reasons had long been extinguished by the laws governing fisheries which had been legislated by the Parliament of Commonwealth and the Queensland State and Colonial Legislature. Therefore, an amendment by the Full Court arose with regard to The Determination’s Order 5, section b, which saw addition of the statement that the right provides not for the extended access of aquatic and fish purposely for commerce or trade3. However, a cross-appeal was dismissed by the Full Court. This appeal had been presented by an appellant in an attempt to oppose the primary judge’s finding. The primary judge had earlier supposed that interests and rights based on reciprocity and which subsist among the Torres Strait Islanders did not include the native interests and rights as provided for in section 223 in the 1993 Native Title Act. The third and last right, the appellant was specially granted permission to present his appeal to oppose the decision made by the Full Court, which did comprise of Kiefel JJ, Crennan and French CJ. This appeal ought to be with regard to question of extinguishment, and rights of reciprocity were applied in its dismissal. Judgment Summary The Australian High Court did find for the appellant by unanimously agreeing upon a decision which was handed down following two judgments4. This unanimous agreement was reached as a result of references made in prior cases, including the Eaton v Yanner case and the Commonwealth v Yammir case. It was the High Court’s stand that, according to the Queensland Fisheries Act of 1887 and the Commonwealth Fisheries Act of 1952, the Islanders possessed licenses in order to carry out fishing trade activities. The High Court further held that these Acts in no way did they try to extinguish the people’s connection to their land nor did they seek to extinguish the provisions of the bundle of native title rights. The two initial judgments handled by Crennan J and French CJ did hold an assessment which sought to answer whether the native rights that were in application could not be practiced without repealing the rights enacted by the statute, by way of the necessary effects, and lead to extinguishment of the current and existent legal provisions. It also seeks to find out whether there is a possibility of a given application of the rights of native titles being prohibited or restricted by the set legislation without the extinguishment of that interest or right. Hayne JJ, Keifel and Bell handed down the next judgment, whose result was similar to that given by the Primary Judgment. According to this second judgment however, the question of inconsistency experienced by the native title rights and the statute was more important than the subjective manner of thinking by the makers of law, who basically had the intention of extinguishing the native title rights. The second judgment sought to answer if there is consistency between competent and standard legislation of the actions which cater for relevant application of the native title and the actions themselves. In an attempt to respond to this misunderstanding, the judgment came to realize the presence and application of the title rights which allowed the Islanders to fish. According to this, the need for accessing fishery resources was not the important factor of consideration here. This statement thus led to change of direction of attention from the need for fishing, resulting to the lower court making an error of judgment in relation to this case. The second judgment also did find out that the native rights were only regulated and never extinguished by the statutes. High Court Judges who Decided the Case The case went through three basic stages, and it was decided by varying judges at these three levels. The primary judgment decision was reached by a total of three High Court judges of Australian, namely Mansfield, Keane CJ and Dowset JJ. The case then proceeded to the first appeal stage in which it was decided upon by judges Crennan J and French CJ, and later by Hayne JJ, Keifel and Bell. Judges Agreement The High Court of Australia had its judges come to a unanimous consent with regard to the case outcome. Much of the decision of the judges in the primary judgment and in the subsequent first and second judgments made by High Court judges was with reference to a number of cases which had been decided earlier on by the High Court, with their subject matters greatly showing relevance to the Business Law. In simpler terms, the judges did agree on the fact that any fishing activity intended for trade or commerce had to be recognized with the aid of possession of a license provided by the Australian Authorities. The judges made a clarification that the government was not maliciously intending to extinguish the native title or the people’s relationship with land. Although judges from the second judgment were in agreement in terms of the decision reached by the previous judges in the past hearings, their interest was basically rested on the lack of consistency between the native title rights and the statute, as opposed to interest by the other judges in the subjectivity of thinking of the lawmakers with keen intent to extinguish the native title. The judges were in agreement with the verdict of the primary judge in which he did reject the claims of the applicant whereby the latter suggested that interests and rights of reciprocity combine to form native rights as provided for in the Act, citing from section 223 part one. However, those refer to the privileges enjoyed by individuals with personal relations based on reciprocity, and who enjoy native rights in their personal marine and land territories. The judge also identified the native rights that carry elements of right non-exclusivity of members of groups belonging to the 13 island communities in Australia, and which allow the people access and utilize the aquatic resources on their waters or on waters that they have common ownership and interests with other people of Torres Strait Island. The rights also provide for the access of the marine resources and utilize them for whatever purpose they please. However, these rights come with such conditions as paying due respect to the existing marine boundaries. This also incorporates the fact that the rights do not basically award personal ownership interests to persons with regard to community exclusion, as these rights do not in way bestow rights to give people to practice marine control over other groups. The Type of Laws the Case Focused on The case did focus on a number of laws from with the decision was based. The laws that were referred to during this case in a way did set the parameters of argument as highlighted by the primary judge. The Queensland Fisheries Act1877 was emphasized on, bringing into the fore the understanding that there had not been any attempts to bar the native people of the 13 island communities from legally possessing licenses to allow them trade in fish. This is further elaborated as the judge noted that a number of native title privileges are existent and have not been tampered with by section of 211 of Native Title Act. It was noted that the appellant successfully failed to identify the specific aquatic species which had been extinguished by law and in turn replaced by the legislative fishing as stated by the statute. This particularity of management plans has the legislative component, as cited in the 1984 Act under the section 15, and the Fisheries Management Act 1991, under the section 17 of the act, which hints on the management plans for fisheries. The initial Fisheries Act in Queensland enacted in 1877 intended to meet certain conservation and regulatory functions. It did not recognize the use of a boat for fishing if one did possess a fishing license, in case the fish obtained was for commercial purposes, as provided for in section 11. The Act also does not allow fishing with nets on specific areas on the waters if the fisherman did not hold a license, as outlined in the section 12. The legislative fishing with possession of a license demanded that the fishermen paid a specific amount of money prior to engagement in any acts of fishing. Under the conservation standards set, there were regulations determined with regard to the nets to be used for which purposes, highlighted in section 2. The net needed to regulate the fish size and prohibition of use of substances for fishing, provided in the sections 4 and 8 respectively. The Pearl-shell & Bêche-de-mer Fishery Act 1881(Qld)5 was another vital law that was given reference to. Its control measures were somehow stringent, as it specifically gave conditions for collection, preparation, storage and transportation of pearl oysters and shells in section 1. Section 3 defines that all boats or ships that are transporting these products must have been licensed. Sections 4 5 and 6 define it as an offence to therefore use unlicensed boats or ships to carry the items in question for commercial purposes. The extension of the regime of licensing marine commercial activities involving bêche-de-mer, pearl and shell fishery occurred in 1891 amendments. Section 11 thus standardized the product type and size, while section 13 did define the prohibition from access of such resources in particular areas. The Queensland Fisheries Act(1887) and the Commonwealth Fisheries Act(1952) basically required the possession of licenses by the Native People of Torres Strait Island in order for them to bale to carry out fishing for trade6. These laws however were not found to be carrying any subjective measures of extinguishing the Native Title. Five Cases Referred to within the Case There are several precedent cases referred to within this case. The main ones include the case of Mabo vs Queensland, Lacey vs Attorney (Qld), Wik Peoples vs Queensland, Yanner Vs Eaton, Commonwealth Vs Yarmir and Western Australia Vs Ward. Reasons for Referring to the Cases In explain about the issue of inconsistency, the case of Yanner V Eaton was hereby referred. It this case, it was held to regulate the way in which the interests and rights are exercised in contentment with the natives continued existence. Further, Gummow J unfolded, in a separate judgment, that the necessity of a native to be licensed under Fauna Conservation Act (1974) to do hunting does not abolish the rights of a native for hunting. Further, in Mabo V Queensland7, the Court’s approach was aimed at determining whether the legislative or executive action has extinguished the title rights of a native. In order to establish existence of an executive or legislative action, there is a dire need to plainly and clearly extinguish the rights of the native. The case of Lacey Vs Attorney-General (Qld) stated that the assigned legislative intentions has been, and still is, a matter whose construction is inherent in the statute. In Wik Peoples Vs Queensland8, his Honour Gummow J pointed out on the need to establish inconsistency and to apply it as a tool for extinguishment, especially considering the fact that there we competing rights in the case, that is, the title rights of the native and the statutory rights. According to Fejo Vs Norhtern Territory and similar to Yanner Vs Eaton, the doctrine of plurality held that land grant for fee extinguished the underlying native title due to inconsistency of the two sets of rights. Effect of the Cases in Distinguishing the Case The past precedent or the decision arrived at by inferior courts form a basis upon the current case is substantiating the effect of inconsistency between statutory rights and the rights of the title rights of the native to fish for any purpose. Therefore, through the inferences to these cases, the issues of different judgment will not arise for the past, current and future cases that apply similar axioms or pieces of legislations. Through the cases, the aspect of commercial rights of the natives within Aboriginal and Torres is highlighted and their traditional rights restored, since they form part and parcel of their economic development. The discussing of the cases, further, hints towards discussing similar conflicts on matters to do with sea rights, indigenous governance and commercial developments. The Principal Used from the Cases The main principle applied from the cases is that of extinguishing the rights of the natives as opposed to the existing inconsistency as a result of statutory rights. In other words, while the statute holds that natives have got to pay for license to acquire fishing titles for commercial purposes, the rights of the natives hold differently Other cases where this case has been followed The case of Karpany v Dietman[2013] HCA47 makes some inferences to Akiba V Commonwealth[2013]9 Conclusion This report provides a detailed examination of a business related law case, decided by the Australian High Court over the past five years. Discussed herein is the summary of the facts and the judgment, the High Court Judges who decided the case, the agreement of the judges, the laws the case referred to within the case, the type of law the case emphasized and focus on the principle applied from the cases referred. This report highlights that the native’s title right to fish for any reason has not been extinguished by the licensing legislation. Therefore, the High Court was unanimous that both the Commonwealth and Queensland legislation that prohibit unlicensed commercial fishing is inconsistent with the existence of a native’s continued right to fish from some defined areas. The agreement restored Finn J’s findings that the title of a native extends to exploiting fishing for any reason. The case holds a lot of significance to the people of Aboriginal and Torres in the sense that commercial fishing rights are important to them by not only restoring their traditional rights but also forming an integral part of their economic development. For the first time after over decade litigation, the HCA marked the rights of the natives. This also offers an exciting opportunity of bring about discussion aimed at integrating indigenous governance, sea rights, and commercial development with Straits and across the Australian territory. References Akiba v Queensland(No 3) [2010]FCA 643; (2010)204 FCR 1. BUTTERLY, L. (2014). 'For the reasons given in Akiba...': Karpany v Dietman [2013] HCA 47. Indigenous Law Bulletin. 8, 23-26. Commonwealth v Akiba[2012] FCAFC 25; (2012)204 FCR260. Pearl-shell & Bêche-de-mer Fishery Act 1881(Q) Queensland Fisheries Act 1877(Q) Mabo v Queensland[No 1](1988) 166CLR 186 Wik Peoples v Queensland(1996) 187CLR 1 (2010). Akiba on Behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2). Australian Indigenous Law Review. 14, 120-121. Read More