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Torres Strait winning on resources

Torres Strait Islanders got a win in the High Court this week: their native title right “to take [resources] for any purpose” – including commercial purposes – was found not to be extinguished.

The case basically means the Islanders can keep on fishing as part of native title, but if they do want to sell it, they will have to get a licence like anyone else.

The case was a bit of a rerun of Yanner where Mr Yanner was charged for taking a croc without a licence. The High Court said that was fine for a bit of family tucker.

This week’s case probably doesn’t change much for the Islanders, but it does reaffirm the principle that native title could include a commercial element and the courts will only find that native title is extinguished in very clear cases.

Lauren Butterly thinks such a decision should give Indigenous people a broader say in marine governance.

This got me thinking about carbon rights, which is generally a right to benefit from the carbon on the land. It’s another kind of resource right with a modern commercial take.

The difference with carbon rights is that nothing in the Federal scheme says you have to have a special carbon right registered to play (unlike Qld fishing law) – you just have to have the right to the carbon however so. For example, you could just have a freehold. Or you could have exclusive possession native title.

This week’s decision might make it easier for native title holders to assert rights to carbon on their land. And this might help to get a bigger say on land governance. Not to mention a few more dollars from managing land for carbon.

There are a few issues to play out on Indigenous land and carbon projects, but the Torres Strait case keeps things moving in a positive direction.


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