Clear Choices in Murky Waters: Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia

Abstract

Those who have travelled between the islands in the Torres Strait will know that much of the water is crystal clear.1 However, the �clear constructional choices� presented in the Torres Strait Regional Seas native title claim have led to murky waters. Twenty-one years after Mabo, 2 the Torres Strait Islander people again find themselves before the High Court. Given the narrow grounds of appeal, this case is not, in any sense, �the Mabo of the sea�. Nonetheless, the appeal presents the High Court with an opportunity to recognise and clarify native title rights. Two distinct issues are before the High Court: whether native title rights to commercial fishing have been extinguished and whether reciprocal native title rights can be recognised. Regarding whether native title rights to commercial fishing have been extinguished, the author argues that the trial judge was correct to identify the �clear constructional choices� involved and that the majority in the Full Federal Court should not be so emphatic in their statement of the �orthodox approach� to extinguishment. The lack of clarity regarding the content of reciprocal rights has made it hard for the Torres Strait Regional Seas Claim Group to succeed on the second issue, but there is no authority to prevent the High Court from recognising such rights.