The Native Title Right To Take Resources For Any Purpose – A Summary Of Key Legal Principles

The native title right to take resources for any purpose – a summary of key legal principles

The native title right to take resources for any purposes is sometimes described as an ‘unrestricted’ native title right, or a ‘commercial right’. The native title right to take resources for any purpose is different to the establishment of exclusive native title rights, or the issue of extinguishment of rights. The right to take resources for any purpose, if pressed by a claim group, can sometimes be disputed by respondents. If recognised, the right to take resources for any purposes can be a significant outcome for a native title claim group.

This commentary summarises the key legal principles in relation to the right to take resources for any purpose.

What are the key legal principles?

The relevant inquiry is whether the right exists in accordance with traditional law and custom. The relevant inquiry is not whether the right is exercised, although such evidence can help to establish the right exists.

In State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186; 239 FCR 175, the Court held that ‘the mere fact that a right had not been exercised previously in a particular way did not entail that the right itself did not include the actual capacity to do so in that way.’[1]

In Isaac (obh of Rrumburriya Borroloola Group) v Northern Territory of Australia [2016] FCA 776, Mansfield J noted that ‘the existence of a right under traditional laws and customs is logically separate from the fact of its exercise’.[2]

In Rainbow on behalf of the Kurtjar People v State of Queensland (No 2) [2021] FCA 1251 (Rainbow), in which Rares J opined:

‘that the traditional laws and customs that regulate the right are distinct from the right itself’;[3] and
that ‘it is not the purpose of s 225(b) for the Court to set out, in effect, the whole of the constraints or limitations on the circumstances governing the exercise or enjoyment of a native title right or interest, recognised by the common law, that may be placed on it by traditional laws and customs’.[4]

In Rainbow Rares J accepted evidence of the following nature was sufficient to establish the right to take resources, without limitation:

“I can take what I want as long as I don’t break the laws of my country – my people” and “I have the right to take those resources… as long as I don’t break my laws in doing that… That’s my resource. That’s my country”.[5]

These authorities build on previous decisions of the High Court , which establish that native title takes its content from the laws and customs observed by the Native Title Holders:

“Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory”.[6]

These cases demonstrate that although determining whether the right exists requires ‘careful consideration of the whole of the evidence’ and the nature and quality of that evidence,[7] it is not strictly necessary to provide evidence of a particular activity to establish that a right to undertake those activities exists under traditional law and custom.[8] The relevant question is whether the evidence as a whole has established that the right exists.

What could the evidence to establish the existence of the right look like?

Evidence of the exercise of a right to take resources for any purpose will be relevant to the question of the existence of that right.[9] It is not however, determinative, or the only consideration that regard is to be had to when considering whether the right exists.

Still, evidence like witness statements that demonstrate the existence of the right are likely to assist in reaching an agreement about the right.

Evidence could include, for example:

Describing an unrestricted right because it is their Country, in accordance with traditional law and custom.
A broad and contemporary use of resources, without limitations other than complying with traditional law and custom.
Historic knowledge of or actual participation in trading or gifting resources in accordance with traditional law and custom.

There are several examples of the right to take resources for any purpose being recognised, including in relation to fishing in the Torres Strait.[10]

This is general commentary only and is not legal advice. If you are unsure how this commentary applies to your circumstances, you should seek legal advice.

For more information, contact us.

[1] [36]-[37], [44] (Dowsett J), [99]-[100] (Jagot J) and as characterised in Rainbow on behalf of the Kurtjar People v State of Queensland (No 2) [2021] FCA 1251 at [312] (Rares J).

[2] Isaac (obh of Rrumburriya Borroloola Group) v Northern Territory of Australia [2016] FCA 776; 339 ALR 98, Mansfield J at [110]. See also Willis on behalf of the Pilki People v State of Western Australia [2014] FCA 714, North J at [118].

[3] [317].

[4] [317]

[5] [35].

[6] Mabo v Queensland (No 2) (1992) 175 CLR 1 at [58]-[61]; Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at [452]; Fejo v Northern Territory (1998) 195 CLR 96 at 128; Yanner v Eaton (1999) 201 CLR 351 at 382-383; Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at 439; Yunupingu v Commonwealth of Australia (2025) HCA 56 at [59], [136].

[7] Isaac (obh of Rrumburriya Borroloola Group) v Northern Territory of Australia [2016] FCA 776; 339 ALR 98, Mansfield J at [128], [131].

[8] Willis on behalf of the Pilki People v State of Western Australia [2014] FCA 714 per North J at [118].

[9] Isaac (obh of Rrumburriya Borroloola Group) v Northern Territory of Australia [2016] FCA 776; 339 ALR 98, Mansfield J at [128], [131].

[10] See Akiba obh of Torres Strait Regional Seas Claim Group v Commonwealth of Australia (2013) 250 CLR 209; (2013) 300 ALR 1; (2013) 87 ALJR 916; [2013] HCA 33; BC201311628. See, also, David obh of Torres Strait Regional Seas Claim v State of Queensland [2022] FCA 1430; BC202216286; Coleman on behalf of the Wagiman and Jawoyn Bolmo, Matjba and Wurrkbarbar Groups v Northern Territory of Australia [2019] FCA 477; Morrison obh of Kunapa, Kangawarla, Kanturrpa, Marntikara, Ngarrka and Pirrtangu Groups v Northern Territory of Australia (Banka Banka West Pastoral Lease Proceeding) [2020] FCA 1549.