Akiba V Commonwealth Case: Native Rights For Torres Strait Islanders

Provide an essay which examines the history, nature and significance of the decision in Akiba v Commonwealth [2013] HCA 33.

Akiba v Commonwealth [2013] HCA 33

According to the given case study, the issue arises whether the Torres Strait Islanders can get their native rights for selling and trading fishes in the sea.

In the Akiba v Commonwealth case, Torres Strait Islander appealed to the Australian Court for their native rights. The native title rights express such common rights of native people. The Torres Strait Islander applied to the court for their rights to fishing and reciprocal rights. The judges gave their judgments as per the amended in the Commonwealth v Yarmirr (2001) 208 CLR 1 (‘Yarmirr’) where the court already gives judgments of non-exclusive rights to the sea. Therefore, it can be also stated that non-exclusive rights never include the rights of controlling across the sea.

The native rights can claim as per the Native Rights Act 1993 (Cth). The Native Rights was firstly introduced in the Mabo vs. Queensland case where the Queensland Government gives the legislature for the protections and recognitions of the traditional laws and customs. Leo Akiba claimed the native rights from the Queensland government on behalf of the Torres Strait Sea claim group. In the case of Western Australia vs. Brown, the High Court of Australia gave the judgment about the nature of the native rights that giving the rights does not include the controlling the whole powers or claiming the rights all over the property.

Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia is a famous landmark case of Australia where High Court gave their special judgment on the native rights. Native rights define the common rights of the Aboriginal peoples or Torres Strait Islanders related to the land and waters. According to the native rights, the Aboriginal peoples or Torres Strait Islanders can get their possession over the traditional law and customs on the land and waters. These people are believed that they have a good connection with the land and waters. The native rights are included in the sec- 225 of the Native Rights Act.

Mabo and Others v Queensland (No. 2) is a famous case of Australia where High Court of Australia where native title was first introduced for the Meriam People. In this case, the High Court stated the facts of the doctrine of terra nullius that was the common law where it is not applied the circumstances of the inhabitants who are uncivilized but they have the rights on the land and waters where they lived. In this case, the Supreme Court of Queensland gave the judgments according the inhabitant Meriam people. The court was described the strong relation between the island and their lands and they want to continue their traditional law and customs. Therefore, the government has the valid reason to provide them their rights on the land and waters.

Native Rights Act

The Akiba v Commonwealth of Australia case is also known as the Torres Strait Sea Claim where the court found that, the total area of the sea claim was about 44,000 square kilometers and around 37,800 square kilometers lands of sea between the Cape York Peninsula and Papua New Guinea were recognized for the Aboriginal peoples or Torres Strait Islanders. The islanders were claimed their rights to fishing and the reciprocal rights from the Queensland Government. Therefore, the Commonwealth and the Queensland State Government opposed the decision according the Western Australia vs. Ward case. In this case, it was stated that the native title establish such rights and statues of fishing regulation were the license of fishing are required and the native title will give the rights to sale and trade fishes. However the appellant argued in the court that the government has no intension to extinguish the native title and the license of fishing never prohibit the commercial fishing. Therefore, the government provides several schemes to the Torres Strait Islanders for the fishing enterprises.

The Commonwealth and the State of Queensland provides such rights where commercial purposes are established for the marine resources. The Full Federal Court also agreed with the facts of commercial fishing which is a separate incident of native title. The judges FrenchCJ and Crennan J were stated that the native title must not treated as a separate incident because it shows the broader rights of fishing. Though the High Court of Commonwealth ad Queensland legislations banned the rights of fishing and other aquatic life as a commercial purposes but they did not remove the native title rights of the Torres Strait who are depends on the resources from waters.

The appellant plead the case behalf of the 13 island communities in the Torres Strait for their native rights on the large water bodies of Torres Strait. Therefore, the Federal Court rejects the claim of the reciprocal rights according the relationship between the water and land. The appellant also cross appealed and stated that reciprocal rights never related with the native rights ad interests. However, the Commonwealth and Queensland fisheries legislation again reject the appeal of right to take fish and other aquatic life for commercial uses but again she appealed to the High Court for the native title determinations. The High Court stated that the successive statutory never allowed the commercial fishing without the license which are inconsistent native rights and take the resources in this. The reciprocal rights establish the rights or personal character dependents. Therefore, those rights are not acceptable for the commercial uses of water.

Nature of Native Title Rights

For establishing the Sec- 225 of the Native Title Act, the court needs to establish the determination of native title where it is included the determination of the existence of the native title rights and if its exist then the group of the persons must hold the common rights of native title and the nature of the rights applicable on those particular determined area. In the Mabo vs. Queensland and Western Australia vs. Brown case, the native rights are given to the native people for the protection and maintain their traditional customs and laws.

Chief Justice French and Justice Crennan stated in this case that there are no any regulations of the native rights where it is constitute the extinguishment rights but in the case of Western Australia vs. Ward never rely the degrees of inconsistency between rights or any statutory that will suspension the rights in favor of another. The court also describe the decisions of the case Yanner v Eaton where the regulations of native rights and interest never constitute the extinguishments of those rights.

However, the High Court accept the claim of the appellant and defines the facts that native title rights are the common rights of take fish and aquatic life and not for any particular purposes. The purposes can hold the rights which simply a “circumstance attending its exercise”.

Conclusion 

According to the case study, at first the Federal Court not accepting the case for claiming the native rights by the Torres Strait Islander because they thought it may be failed to satisfy to establish the facts but when the appellant again plead to the High Court of Queensland, it stated the facts that the native title rights are the most common rights of the Torres Strait Islanders for take fish and aquatic life and never use for any particular rights. Therefore, the court finds that the reciprocal rights were never related with the relations of land and waters as per the sec- 223 of the Native Title Act. However, this case was not successfully established the relevant laws. 

According to the case study, the facts that arise here, that Albert who owns his house in Groomsdale in Queensland, which was free of debts from any financial liability. He was offered by his father to support him financially if he need to. Now Albert owns a shoe store, which was closed down due to poor sale, and therefore he accepts his father’s offer. Albert appointed Carmichael, who was a solicitor, for preparing the loan agreement and mortgage for provided to Berry and transferred the loan amount to his son. Now Albert again applied for another loan by using the money as a security property.

High Court Judgments

However, the security money was insufficient to get the loan. Now he again gets the loan. Edward who was the paralegal uses the documents of Albert’s loan, copied his signature, and entered into a verbal contract with the Farah Pty Ltd. for selling the property. Later, it was proved that the signatures are false. Now Berry, father of Albert got the letter from Farah Pty Ltd. for transferring the certificate of Title for the registration according the Edward’s contract.  

Therefore, it is case of subcontract between the parties. there is standard form in a subcontract. This contract actually controls the capacity of limits where the party assigns the benefits of the contract for controlling the subcontract in the work by the contractor. The subcontract always has the provision of conditions, which required a list of proposed subcontractors by the tender. The Clause 9.1 defines the consent where party may assign the contract with the benefits of interest. Monadelphous Engineering v Wiggins Island Coal Export Terminal is a case where the concept of subcontract defines that it is not a trade contractor or not an employee but working as a contractor. South Seas Drilling Co v Esso Australia Ltd [1988] case, the Full Court of Victorian Supreme Court considered the terms of subcontractor which establish such facts that a contract or several contracts can be carrying out a previous contract or part of it.

In subcontract, the contractor never allows a subcontractor to assign the work without the written approval. The request approval must include those works, which the work has subcontracted, and details of the proposed subcontractor, and other information requested by the Superintendent. The Superintend has to give responds within 14 days by granted approvals. However, the approval of the subcontract never relieves the contractor from the liabilities or obligations as per the contract.

Therefore, in the another case, White Industries v Piling Contractors (1989) , the head contract give the permission of subcontracting in a contract. In this case, it was stated that a subcontractor would not bound by a term where it establish the agreement and include the terms of head contract which is incorporated.  The scope of the ability of subcontract always depends as per the terms of the head contract. It will provide the provisions of subcontract, which have no limitations between the principals and subcontractors.

As per the case study, Edward who works under Carmichael who is the solicitor has no right to use the properties of his client without the permission of the solicitor. However, he used the documents of the clients without the permission and misused such documents. Here, Edward have made a contract with Farah Pty Ltd without the consideration of Albert and also copied his signature but the Farah Pty Ltd have no knowledge about that incidents.

Commercial Fishing

There is always a relationship establish between the principal and subcontractor. The subcontractor always secures the payment according the performance of the works. Here the main equipments of payment always delivered as per the requirement but not paid for. When any negligence takes place of liability always arises for the subcontractor where the principal argues it. According the Actron Investments v DDS Project Management and Woolcock Street Investments v CDG case, the principals can seek for recovery if they faced any economic loss. The Construction Law always establishes the express written collateral by the principal. In Chadmax Plastics Pty Limited v Hansen and Yuncken (SA) Pty Ltd case, the principal not uses the power for varying the head contract as the effects of subcontracts. The court found in this case that the subcontract was breached because the principal was satisfied to vary the requirement for wall finishing in the head contract. In this head contract, it was also found that a virtue cancellation of the head contract would always subcontract with the wall-finished contractor as per the repudiation of the subcontract.

As per the case study, the solicitor was breached the contract with Albert and failed to keep the Certificate of Title of the property. The obligations of the breach lie upon the solicitor because his paralegal misuses his client’s documents and without the authorization, the paralegal made a contract with Farah Pty Ltd for selling the property.

There are also a relation establishes between the principal and nominated contractor. The terms of a principal sometime includes the management, control or selection of subcontractors in a contract. A head contract only allows the appointment of nominated subcontractors. However, the nomination never formed any privity of contract in between the principal and nominated contractor. Here the head contract can allow for the direct payment by the principal to a nominated subcontractor.  They have some condition regarding the nominations. The contractor never objects to the nominated subcontractors but should provide with a list before the call of tenders. They may allow according the sound and reasonable reasons. The nominated subcontractor should have interest to work for the contractor. The nominated subcontractor always satisfied with the work to the contractor and the superintendent. However, nominated subcontractors are bound to indemnify the contractor if they breach any terms. They must recover the amount for loss or damage due to non-performance by the subcontractor.

As per the case study, Farah Pty Ltd can claim the recovery for the damages. They are very unaware about the false signature of Albert while making the contract for selling the property. When they transferred to the Titles Office Land Title Registry for registration as per Edward's plane landed in the Caribbean, Albert can terminate the contract with Farah Pty Ltd because indirectly he was not liable for any damages.

Therefore, a provisional sum can be claimed. It is a sum, which represent an estimate of the cost of any item of work, which included in the Contract Sum. It is also representing the cost, which was not provided by the builders in a definite price. This contract always includes a process for valuing the builder's entitlement to the work, according the elects to proceed with the work as per the principle of the contract. Post Cost Item is also supplied according a construction agreement and materially stated a price. Prime Cost Item and Prime Cost Item both are Both provisional sums and prime cost items will form part of contracts where specialist work or the supply of items is to be undertaken by subcontractors. The head contractor will be entitled to be paid the costs incurred under the subcontract’s works or items supplied after an judgment of the amount specified in the contract to reflect the difference (up or down) between the provisional or prime cost amount and the actual amount payable under the subcontract. The major standard form contracts specify how the amounts are to be determined (Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd). A principal (or head contractor) may require security from a contractor to provide a backstop for the performance of contractual obligations. The security may be called upon if the contractor defaults under the construction contract.

Therefore as per the case study there are different kinds of parties are involved with each other’s and represents every theory according the Construction Law. 

Reference 

Actron Investments v DDS Project Management [2016] QSC 306

Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33; 250 CLR 209 (7 August 2013)

Bailey, Julian. Construction Law. Crc Press, 2014.

Bartlett, Richard. "The requirement of a clear and plain intention and its relationship to equality and the inconsistency test in the extinguishment of native title:'Akiba, Brown and Congoo'." Australian Resources and Energy Law Journal 34.2 (2015): 109.

Bartlett, Richard. "The requirement of a clear and plain intention and its relationship to equality and the inconsistency test in the extinguishment of native title:'Akiba, Brown and Congoo'." Australian Resources and Energy Law Journal 34.2 (2015): 109.

Butera, John. "Connection to country: review of the Native Title Act 1993: final report." (2015).

Chadmax Plastics Pty Limited v Hansen and Yuncken (SA) Pty Ltd (1984) 1 BCL 52

Clough, Alan R., et al. "Alcohol management plans in Aboriginal and Torres Strait Islander (Indigenous) Australian communities in Queensland: community residents have experienced favourable impacts but also suffered unfavourable ones." BMC Public Health 17.1 (2017): 55.

Coggins, Jeremy, Bianca Teng, and Raufdeen Rameezdeen. "Construction insolvency in Australia: reining in the beast." Construction Economics and Building 16.3 (2016): 38-56.

Godden, Lee. "Connection to country: Review of the'Native Title Act'1993 (CTH)." Native Title Newsletter Aug 2015 (2015): 15.

Mabo and Others v Queensland (No. 2) (1992) 175 CLR 1 HCA 23

Monadelphous Engineering v Wiggins Island Coal Export Terminal [2015] QCA 290

Perez, David, Jason Gray, and Martin Skitmore. "Perceptions of risk allocation methods and equitable risk distribution: a study of medium to large Southeast Queensland commercial construction projects." International Journal of Construction Management (2016): 1-11.

Price, Kaye. Aboriginal and Torres Strait Islander education: An introduction for the teaching profession. Cambridge University Press, 2015.

South Seas Drilling Co v Esso Australia Ltd [1988] VicSC 498

Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52.

Thomas, Gary. "The right to be human: Aboriginal and Torres Strait Islander peoples and human rights." Knowledge of Life: Aboriginal and Torres Strait Islander Australia (2015): 203.

White Industries v Piling Contractors (1989) 2 BCL 353

 Woolcock Street Investments v CDG [2004] HCA 16

Yanner v Eaton [1999] HCA 53.