Editors --- "Rodney Scott Dillon v Clive Davies - Case Summary" [1999] AUIndigLawRpr 17; (1999) 4(2) Australian Indigenous Law Reporter 53

Rodney Scott Dillon v Clive Davies

Supreme Court of Tasmania (Underwood J)

20 May 1998

(1998) 156 ALR 142

Native Title - taking abalone in breach of Sea Fisheries Regulations 1962 (Tas) - traditional laws and customs - customary rights recognised in common law - Native Title Act 1993 (Cth) ss 211 and 223.

Facts:

The applicant was convicted by a Magistrate of five breaches of the Sea Fisheries Regulations 1962 related to taking 81 undersized abalone from waters in the D'Entrecasteaux Channel near Verona Sands in Tasmania. The applicant gave evidence that he, his parents and grandparents had taken abalone from the same spot at Ninepin Point all their lives and that he took abalone for his family and for cultural events.

The applicant sought a review of the convictions on the ground argued before the magistrate that his taking of the abalone was not unlawful by reason of:

• his native title rights under the Native Title Act 1993 (Cth);
• alternatively, a common law customary right; and/or
• alternatively, his cultural rights as an Aboriginal, protected under art 27 of the United Nations Convention on Civil and Political Rights.

The applicant conceded that he could not succeed on the third basis unless he also succeeded on the first or second basis. The magistrate found that:

• A right to fish based on traditional laws and customs is a recognisable form of common law native title, following Mason v Tritton (1994) 34 NSWLR 572.
• The applicant is a biological descendent of an 'original' north-east tribe of Aborigines.
• Taking and eating abalone is a traditional Aboriginal activity of the tribe from whom the applicant is descended.
• There was no evidence that the taking of abalone was in exercise of any traditional law or custom or an uninterrupted observance of the same, traced from the applicant to his ancestors at a time immediately prior to white settlement.
• The custom of taking abalone cannot be shown, on the evidence, to relate to the specific location of Ninepin Point from time immemorial.

Held:

1. There was no evidence that since time immemorial, fishing for abalone had been a central and significant part of Aboriginal custom in the sense that it was an element of a custom integral to the distinctive culture of a group of Aborigines to which the ancestors of the applicant belonged: relying on Lamer CJ's dicta in Van der Peet v R [1996] 2 SCR 507,529.

1. There was no evidence of the nature and extent of any traditional law or custom pursuant to which the applicant claimed the right to take abalone. The evidence established no more than that the taking of abalone was something that had been done by Aborigines for a long time.

1. There was no evidence of any confines on the area in respect of the custom, nor the persons entitled to the benefit of it. A custom in such general terms cannot be acknowledged by the common law.

Underwood J:

At the outset of these reasons for judgment, it is appropriate to acknowledge the considerable assistance I have received from the logical, carefully reasoned and scholarly judgment of the learned magistrate.

The applicant was charged with five breaches of the Sea Fisheries Regulations 1962. The charges related to the applicant taking 81 undersize abalone on 14 April 1995 from waters in the D'Entrecasteaux Channel near Verona Sands. On 24 August 1997, the magistrate sitting in a Court of Petty Sessions at Hobart found all the charges proved. The question of penalty was adjourned. The applicant seeks a review of the determination that the matters of complaint have been proved. The applicant does not dispute that in the court below the evidence was sufficient to establish each of the elements that make up the five charges. The applicant's case in the court below was that his taking of the abalone was not unlawful by reason of:

• his native title rights and interests under the Native Title Act 1993 (Cth) (the Act);
• alternatively, a common law customary right; and
• alternatively, his cultural rights as an Aboriginal as protected under art 27 of the United Nations Convention on civil and political rights.

In the court below counsel for the applicant ultimately conceded that the applicant could not succeed on the third matter of defence unless he also succeeded on the first or second. Accordingly, it is unnecessary to consider the third point.

After the applicant had taken the abalone, he was interviewed by a police officer. The applicant said to him that he had taken the abalone as part of his traditional culture. He said that he had been going to the same spot all his life, as had his parents and before them, their parents. In his evidence the applicant said that abalone was part of his diet and that he ate it regularly. He said that he provided abalone for his family and for Aboriginal cultural events. He said that on 14 April 1995 he took the abalone to feed a forthcoming gathering of his family. The applicant said that he did not have a licence to take abalone and did not think he needed one because his people had always taken abalone and had never needed a licence to do so. In the court below, evidence was given by an historian, Arthur Rayner, by Greg Lehman, an expert in the genealogy of Tasmanian Aboriginal families and by an archaeologist, Dr Collett. In order to properly understand the learned magistrate's findings, it is first necessary to set out the relevant law.

Critical to the applicant's case is the Act, s 211, which provides:

Preservation of certain native title rights and interests

Requirements for removal of prohibition etc. on native title holders

211(1). Subsection (2) applies if:

(a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subs (3));

(b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and

c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.

Removal of prohibition etc. on native title holders

(2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so:

(a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and

(b) in exercise or enjoyment of their native title rights and interests.

Definition of 'class of activity'

(3) Each of the following is a separate 'class of activity':

(a) hunting;

(b) fishing;

(c) gathering;

(d) a cultural or spiritual activity; and

(e) any other kind of activity prescribed for the purpose of this paragraph.

The learned magistrate held that the requirements of subs (1) were fulfilled and therefore s 211(2) was capable of applying to the Sea Fisheries Regulations. No complaint is made about that finding. Accordingly, the questions that her Worship had to determine arose out of subss (2)(a) and (b). The Act (s 224) relevantly defines 'native title holder' as being the person or persons who hold the native title. Section 223(1) defines native title in the following terms:

Native title

Common law rights and interests

223(1). The expression 'native title' or 'native title rights and interests' means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders;

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

First, the learned magistrate directed her mind to the issue of whether a right to fish is recognised by the common law. Her Worship referred to the judgment of Kirby P in Mason v Tritton (1994) 34 NSWLR 572 in which his Honour held that the right to fish was recognised as a usufructuary right by the common law, at least when such right was dependent upon the establishment of native title to the adjoining land. Her Worship then cited a passage from the judgment of Heenan J in Sutton v Derschaw (1995) 82 A Crim R 318 where his Honour, at 324, agreed with the view expressed by Kirby P in Mason v Tritton that, 'a right to fish based on traditional laws and customs is a recognisable form of native title defended by the common law of Australia'. However, in the end result, it was found to be unnecessary to decide whether a usufructuary right to fish, unconnected with the adjoining land, is recognised by the common law.

Her Worship then set out a critical passage from the judgment of Kirby P in Mason v Tritton which, she said, laid down the criteria that had to be satisfied before native title was established. The passage is to be found at 584:

If the exacting nature of the evidential burden established by Mabo were not immediately apparent to potential claimants before, this case will serve to make clear the point. In order to establish a successful common law claim for native title of the kind asserted here, within the rules established by Mabo, the evidence must be sufficient to demonstrate:

(1) that traditional laws and customs extending to the 'right to fish' were exercised by an Aboriginal community immediately before the Crown claimed sovereignty over the territory. For New South Wales, that time will be taken as 7 February 1788: see Castles, An Australian Legal History, (1982) Sydney, LBC, pp 24-25;

(2) that the applicant is an indigenous person and is a biological descendant of that original Aboriginal community;

(3) that the applicant and the intermediate descendants had, subject to the general propositions outlined above, continued, uninterrupted, to observe the relevant traditional laws and customs; and

(4) that the applicant's activity or conduct in fishing for abalone was an exercise of those traditional laws and customs.

In Mason v Tritton, the court was not concerned with the Act but with the judgment of the High Court in Mabo v State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1, but the common law as expounded in that case is reflected in the provisions of the Act. Priestley JA summarised that common law by reference to the judgments of the majority in the following terms at 598:

1. Because, if the native interest did not exist at the time when the common law became the law of the colony, the radical title, the legal estate and the beneficial estate in the relevant land all vested together and undivided at that time in the Crown, any claimed native interest can not now be recognised by the common law unless it was in existence immediately before the common law became the law of the colony: Brennan (at 59-60, 69-70), Deane, Gaudron (at 86) and Toohey JJ (at 184-187).

2. The native interest must be a recognisable part of a system of rules observed by an identifiable group of people connected with a particular locality: Brennan (at 58, 70), Deane, Gaudron (at 86, 88, 108) and Toohey JJ (at 186-187, 188).

3. A person asserting entitlement to enjoyment of the interest at the present day, must show biological descent from the group which was observing the system of rules of which the interest was part; that is show biological descent dating back to just before the establishment of the common law: Brennan J(at 70); implicit in Deane, Gaudron and Toohey JJ in the references given in 2 above.

4. A person asserting such entitlement must also show that the biological descendants of the pre-common law group have continued and are continuing to observe the system at the time the claim is asserted. (References as for 3 above).

5. Such claims to common law recognition of native interests can only apply to certain kinds of unalienated Crown land: Brennan (at 69-70), Deane, Gaudron (at 89-90, 110) and Toohey JJ (at 196).

Before turning to consider the evidence in the case, her Worship correctly set out that it was not necessary for the applicant to establish a defence upon the balance of probabilities and held that, although the applicant carried an evidentiary burden, once that had been satisfied, the onus rested on the prosecution to establish guilt beyond reasonable doubt.

Her Worship found as a fact that the applicant is an Aboriginal person and turned to the question of whether the applicant is a biological descendant of an 'original' Aboriginal community which exercised traditional laws and customs extending to the right to fish. Her Worship found that the applicant's family can be traced to a north-east tribe of Aborigines and although the precise boundaries of their territory are not known, it was within an area of a line drawn from Low Head to Chain of Lagoons and the South Esk River. Her Worship accepted the evidence of Mr Rayner and Dr Collett and found that abalone was a significant part of the diet of Tasmanian Aboriginal people before white settlement, and that the taking and eating of abalone was a widespread practice among Aboriginal groups living in coastal areas. No complaint is made about any of that.

The learned Magistrate then considered whether the applicant and his intermediate descendants had continued without interruption to engage in the traditional activity of taking abalone. In this respect, the learned magistrate referred to the evidence of Mr Rayner. For present purposes, it is not necessary to detail all of this evidence. It suffices to state that the learned magistrate found that:

... by taking and eating abalone the defendant carried out an activity which was handed down from generations since white settlement. This activity can be traced back to Mrs Smith [the daughter of a tribal Aboriginal woman of the Tralwoolway band of the North East tribe from whom the applicant is directly descended]. Further, I find that diving and taking abalone for the purposes of providing food is a traditional Aboriginal activity. In a general sense the purpose of the defendant's conduct was consistent with those of his ancestors in that he was taking abalone for the purposes of obtaining food for his family.

Her Worship went on to correctly observe that the above finding was not sufficient to ground a claim of native title to fish either under the Act or at common law. She referred to the principles enunciated by Kirby P in Mason v Tritton in the passage set out above, and held that the applicant's activity or conduct in fishing for abalone must have been done in the exercise of traditional laws and customs and, further, that there must have been an uninterrupted observance of those traditional laws and customs which can be traced from the applicant back to his ancestors at a time immediately before white settlement. Quite properly, no complaint is made about any of those observations.

The learned magistrate then held that there was 'a lack of evidence regarding traditional laws and customs having a bearing on a right to take abalone'. She rhetorically asked, 'what are the traditional laws and customs that [the applicant] was observing by taking abalone?' The learned magistrate then held that there was no evidence that the taking was in the exercise of any traditional law and custom. The applicant's motion to review, ground one, complains that this finding is an error.

As I understand the submissions made on behalf of the applicant, it is asserted that the gathering of abalone for food has been from time immemorial and still is, an important part of the cultural life of the Aboriginal people and therefore, or ipso facto, such gathering or fishing is a traditional law and custom. The learned magistrate impliedly rejected this submission, for she held that there was no evidence of such laws and customs, for example, who may exercise the right to take the fish, what, if any, restrictions are imposed by the traditional law on that right to fish, and so on. The applicant does not contend that there was any such evidence. His case is that the traditional activity is itself a traditional law and custom. This immediately raises the question, what is a traditional law and custom? Priestley JA in Mason v Tritton at 598, summarising the effect of the majority in Mabo [No 2], described it as 'a recognisable set of rules observed by an identifiable group of people connected with a particular locality'.

The definition of native title in the Act, s 223(1), echoing the majority judgments in Mabo [No 2], refers to rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples. The existence of a right is not sufficient per se to establish native title. It must be possessed by those who claim to have the relevant right, pursuant to the authority of a traditional law and custom. This is apparent from the opening words of that part of Brennan J's (as he then was) judgment in Mabo [No 2] at 58 under the heading, 'The Nature and Incidents of Native Title'. His Honour said:

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. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.

A little further on, his Honour said, at 59:

The common law cannot enforce as a proprietary interest the rights of a putative alienee whose title is not created either under a law which was enforceable against the putative alienor at the time of the alienation and thereafter until the change of sovereignty or under the common law.

At 60, his Honour concluded:

Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so).

The learned magistrate directed herself correctly when she said it was necessary to identify the claimed right to fish, pursuant to some traditional law and custom. The question is whether she was right in holding that there was no evidence of such law and custom.

In support of his argument, counsel for the applicant, Mr Derkley, relied upon two Canadian cases; R v Sparrow [1990] 1 SCR 1075 and Van der Peet v R [1996] 2 SCR 507. Both cases dealt with the constitutional question of whether certain legislation was inconsistent with the Constitution, s 35(1), which provides that '[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed'.

The principal issue in Sparrow was whether the Musqueam Indians' right to fish for salmon had been extinguished by regulations made under the Fisheries Act. It appeared from the evidence that the salmon were not only an important source of food for the Musqueam Indians but they also played an important part in their system of belief and in their ceremonies. The salmon were held to be a race of beings that had, in 'myth times', established a bond with human beings requiring the salmon to come each year to give their bodies to humans who, in turn, treated them with respect, shown by performance of the proper ritual. What constituted an aboriginal right was discussed in passing but the case is of little assistance because, 'the existence of the right ... was not the subject of serious dispute' (1095).

In Van der Peet, the appellant, a native Indian, claimed that selling 10 salmon contrary to statutory prohibition was protected by the Constitution, s 35(1). The case was decided by a Bench of nine justices. The judgment of the majority was delivered by the Chief Justice. There were two dissenting judgments. All the judgments considered at length the incidents of an aboriginal right, for definition of an aboriginal right was central to the issue the court had to resolve. Lamer CJ referred, at 525, to Mabo [No 2] and noted differences between the Australian Aboriginal law and the Canadian aboriginal law but observed at 526 with respect to the judgment of Brennan J (as he then was):

This position [in Australia] is the same as that being adopted here. 'Traditional laws' and 'traditional customs' are those things passed down, and arising, from the pre-existing culture and customs of aboriginal peoples. The very meaning of the word 'tradition' - that which is 'handed down [from ancestors] to posterity', The Concise Oxford Dictionary (9th ed 1995) - implies these origins for the customs and laws that the Australian High Court in Mabo is asserting to be relevant for the determination of the existence of Aboriginal title. To base Aboriginal title in traditional laws and customs, as was done in Mabo, is, therefore, to base that title in the pre-existing societies of Aboriginal peoples. This is the same basis as that asserted here for aboriginal rights.

At 527, Lamer CJ said:

... in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right.

The Chief Justice then examined that proposition in great detail and said, at 529:

To satisfy the integral to a distinctive culture test the aboriginal claimant must do more than demonstrate that a practice, custom or tradition was an aspect of, or took place in, the aboriginal society of which he or she is a part. The claimant must demonstrate that the practice, custom or tradition was a central and significant part of the society's distinctive culture. He or she must demonstrate, in other words, that the practice, custom or tradition was one of the things which made the culture of the society distinctive - that it was one of the things that truly made the society what it was. [Original emphasis]

It may be, as Lamer CJ observed, that the aboriginal rights protected by the Canadian Constitution and Aboriginal native title preserved by the Act in this country, share a common basal origin. Prior to the enactment of the Constitution Act 1982 (Canada) s 35(1), the Canadian common law recognised native title: see Calder v Attorney-General of British Columbia [1973] SCR 313. Although the majority in Van der Peet approached the task at hand as an exercise of statutory construction applying the purposive test, it may be that the views of the majority with respect to the essential elements of an Aboriginal right will find a place in the common law of Australia. However, it is unnecessary for me to consider this further because application of the principles expressed in both Mabo [No 2] and Van der Peet demonstrate that the learned magistrate's conclusion was correct that there was no evidence that the taking of abalone was in the exercise of a right possessed under a traditional law and custom. There was no evidence that since time immemorial, fishing for abalone had been a central and significant part of Aboriginal custom in the sense that it was an element of a custom integral to the distinctive culture of a group of Aborigines to which the ancestors of the applicant belonged. There was evidence that since time immemorial, fishing for abalone had been an aspect of Aboriginal life, but that is not sufficient to establish native title as defined by the Act, s 223(1). Further, there was no evidence of the nature and extent of any traditional law or custom pursuant to which the applicant claimed the right to take abalone. On behalf of the applicant, Mr Derkley submitted that 'the taking of abalone was an important part of the sustenance of the Aboriginal people and for that reason alone it was part of their culture.' That submission is rejected, for it does not accord with the tests laid down in either Mabo [No 2] or Van der Peet. The evidence established no more than that the taking of abalone was something that had been done by Aborigines for a very long time. Such evidence alone is insufficient to discharge the evidentiary onus the applicant carried to cast onto the prosecution the burden of establishing beyond reasonable doubt that he did not take abalone in the exercise of his native title right. Ground one of the motion to review is not made out.

With respect to the claim that the applicant was acting in the exercise of a common law customary right, the learned magistrate first set out the following passage from Halsbury's Laws of England, 4th edition, Vol 12, para 406 concerning the essential attributes of a customary right at common law:

Essential attributes. To be valid a custom must have four essential attributes:

1) it must be immemorial;

2) it must be reasonable;

3) it must be certain in respect of its nature generally, as well as in respect of the locality where it is alleged to obtain, and the persons whom it is alleged to affect; and

4) it must have continued without interruption since its immemorial origin.

These characteristics are the necessary corollaries of the definition of a custom as being local common law and they serve a practical purpose as rules of evidence when the existence of a custom is to be established or refuted.

A custom is a particular practice that has existed in a defined locality since before living memory. It assumes the force of common law even though it might be contrary to the general common law. It can, like all common law, be displaced by statute. The reports of cases which considered claims that a local custom existed recount events far removed from those encountered in the day to day life of the Aboriginal peoples before white settlement of this country. See, for example, Lockwood v Wood [1843-1860] All ER 415; Wyld v Silver [1963] Ch 243. However, like her Worship, I can see no reason why an Aboriginal custom which has the attributes that make a custom part of the common law, should not be recognised in exactly the same way as any other custom that is recognised by the common law. To hold otherwise would be contrary to one of the principles underpinning Mabo [No 2].

The learned magistrate overruled a submission put to her that any customary right had been extinguished by the fisheries legislation enacted in the State and defined the claimed custom as 'taking abalone from the wild in order that the person taking abalone can obtain food for himself and his family' (reasons for judgment at 27). She then said at 28:

In defining the custom it must be remembered that one of the essential attributes is that the custom must have existed from since time immemorial. The evidence does not allow the custom in this case to be defined with reference to the location of Ninepin Point [the place near Verona Sands from where the applicant took the abalone]. The practice of taking abalone from there cannot be traced back from time immemorial or even the time of white settlement. The defendant and his family have had a long association with Ninepin Point and that association can be traced back to Mrs Enid Dillon's childhood but that is not enough. I conclude that the custom cannot be shown to relate to a specific location from time immemorial.

Mr Derkley submitted that error attended that passage in her Worship's reasons for judgment in that 'she adopted an erroneous test by confining the relevant custom to one enjoyed by the applicant and his family when it should have been defined by reference to Aborigines living in the D'Entrecastreaux Channel area' (ground two). I rejected that submission at the time it was made. It is quite clear that her Worship's reference to the applicant and his family is a reference to the only evidence of abalone being taken from the area of Ninepin Point and such evidence did not amount to evidence of a custom since time immemorial. There was no other evidence tending to establish the length of time over which abalone had been taken from that locality. Mr Derkley then pointed to Dr Collett's evidence that mutton fish or abalone had been eaten by Aborigines in south east Tasmania for thousands of years. Dr Collett defined the south east as 'the Derwent estuary from Cockle Creek through to the beginning of the Tasman Peninsula up as far as Hobart'. With respect to the area of Ninepin Point, Dr Collett said that it had not been surveyed and he was unable to say whether Aborigines had taken mutton fish from that area. My rejection of ground two led Mr Derkley to apply for and obtain an order amending the grounds of appeal to add a further ground, viz 'her Worship erred in law in defining the relevant locality for the custom as Ninepin Point'.

Mr Derkley conceded that there is authority for the proposition that an essential attribute of a custom recognised by the common law is that it must have existed in a certain defined place. See Lockwood v Wood (supra) at 418; Beresford v Bacon (1685) 2 Lut 1317: 122 ER 728. Edwards v Jenkins [1896] 1 Ch 308 is a case that illustrates the importance of the attribute that the claimed custom must be confined to an ascertainable area and a defined ascertainable group of persons before it will become part of the common law. At 313, Kekewich J said that there must be some division of the county defined and known to the law to which it is said that the custom applies. It may be that in Australia that test requires adaptation, for local Aboriginal law and custom prior to white settlement was quite different from that in England. Perhaps it would be sufficient if the area in which a local custom is said to exist is defined by reference to tribal groups or bands and the territory that those bands 'owned' as described by Mr Raynor in his evidence. However, it is not necessary for me to explore this idea further, for there was no evidence of any confines on the area in respect of which the claimed custom was said to exist nor the persons who were said to be entitled to the benefit of it. The learned magistrate was quite correct when she said at 29-30:

In this case the custom is general and its limits unknown. There is no certainty about the ambit of the custom under aboriginal customary law to take abalone. It is not known who had the right to take abalone, whether it is limited, or in which location the right may be exercised. While I agree with defence counsel's submission that there is no requirement for any particular ritual or ceremony to be attached to the custom, and in fact, the custom could be quite an ordinary activity, the custom must be capable of definition. The nature of the custom must be known.

The custom asserted by the defendant would appear to apply to all Tasmanian aboriginals [sic] to take abalone from the wild [I would interpolate 'from anywhere in the wild'] for the purpose of providing food for themselves and their families. A custom in such general terms cannot be acknowledged by the common law.

The correctness of the above passage disposes of ground three of the motion to review.

The motion is dismissed.

Counsel for the Applicant: H J Derkley

Solicitor for the Applicant: Beeton & Mansell

Counsel for the Respondent: M P Shirley

Solicitor for the Respondent: Director of Public Prosecutions