Commercial rights

Previous position on commercial rights

Historically, native title was thought of as a ‘bundle’ of specific rights. It was also believed to be generally non-commercial in nature, meaning native title holders couldn’t make money from their native title rights. This is because no-one had yet been successful in claiming commercial rights, and the High Court suggested in Commonwealth v Yarmirr [1999] FCA 1668 that commercial rights couldn’t be part of non-exclusive native title, which makes up the majority of native title land. Most determinations, including consent determinations (where the native title holders and government come to an agreement) that recognised native title said that the native title rights could be only used for ‘personal, domestic and non-commercial communal purposes’.  

Commercial rights following Akiba

Recently, however, the courts have recognised more broadly-defined native title rights which include commercial rights. In Akiba on behalf of the Torres Strait Regional Seas Claim Group v Cth (2013) 250 CLR 209 (Akiba), a group of Torres Strait Islanders were successful in claiming a right ‘to take for any purpose resources in the native title areas’. These purposes could be commercial or non-commercial. In Akiba it was easier to prove the existence of a right to take resources for any purpose than a specific right to trade. The Court said that the group didn’t have to prove that the right had actually been used for every possible purpose, so they didn’t have to prove they had used the right for commercial purposes before. A right to take ‘for any purpose’ is also less likely to be extinguished than a right to trade, because government legislation has to be completely inconsistent (unable to co-exist) with the native title right to extinguish it.

A number of later determinations have recognised similar rights including Western Australia v Willis on behalf of the Pilki People (2015) 329 ALR 562, BP (deceased) on behalf of the Birriliburu People v Western Australia [2014] FCA 715 and Manado v Western Australia [2018] FCAFC 238. Although many consent determinations continued to limit native title rights to ‘non-commercial purposes’, ‘Akiba’ rights have increasingly been included. For example, commercial rights were recognised in the 2018 consent determinations of Forrest v Western Australia [2018] FCA 289Muir v Western Australia [2018] FCA 1388Wiggan v Western Australia [2018] FCA 1485Wavehill v Northern Territory [2018] FCA 1602Sturt v Western Australia [2018] FCA 1923 and Street v Western Australia [2018] FCA 2019.

In some cases, recognition of commercial rights may not be that useful for native title holders, because government legislation has regulated (controlled) the right when it is used commercially. For example, in Akiba, a Queensland law said that you couldn’t fish commercially without a licence. Because the Torres Strait Islander peoples’ right to take resources in the native title areas for any purpose was very broad, the law didn’t extinguish that right. But, if they wanted to sell or trade their fish, they still had to get a licence.

Section 13 of the Native Title Act 1993 (Cth) (NTA) says that a native title determination can be changed if it is no longer correct because of things that have happened since, or it is in the interests of justice (NTA s 13(5)). Because Akiba changed the law on commercial rights, it could be used to change past determinations to include commercial rights, if those rights are part of the native title holders’ traditional laws and customs.  

Further resources