Australian Indigenous Law Reporter
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Indigenous Law Reporter |
|
Court of Appeal of Queensland (McMurdo P and Fryberg J and McPherson JA dissenting)
24 February 2006
Fisheries Act 1994 (Qld) — Application of s 211 Native Title Act 1993 (Cth) — interpretation of word ‘Aborigine’ — interpretation of ‘Aboriginal tradition’ under s 14 of the Fisheries Act.
Riccardo Durante Yasso, a Darumbal man, was charged with possession of a commercial fishing apparatus, namely a monofilament net with dimensions greater than prescribed under the relevant regulation, which was forbidden by s 84 of the Fisheries Act 1994 (Qld) (‘Fisheries Act’). Mr Yasso was successfully prosecuted in the District Court, and appealed on several grounds.
Mr Yasso contended that the District Court lacked jurisdiction to prosecute the charge because he is one of a number of claimants in an undetermined native title claim under the Native Title Act 1993 (Cth) (‘Native Title Act’). He argued the Federal Court should therefore have determined the issue.
Mr Yasso also contended that the primary judge erred in concluding that s 14 of the Fisheries Act has no application to a charge under s 84. Section 14 provides for the use of fisheries resources and habitats by Aboriginal people under Aboriginal tradition. This case, he argued, clearly fell within the ambit of s 14. On evidence from Aboriginal elders, the use of the monofilament net was consistent with the traditional use of nets. Fishing with the net in the manner subject to the charge was therefore said to be an Aboriginal tradition, adapted to take advantage of contemporary technology.
1. A pending native title claim under the Native Title Act in the Federal Court does not prevent the lawful prosecution of an offence under the Fisheries Act. Section 211 of the Native Title Act can only apply to those who are actual native title holders under s 224 of the Native Title Act: [5], [111], [155].
2. Section 14 of the Fisheries Act may serve as a defence to an offence under s 84. This was clearly intended by the terms of the Fisheries Act and explanatory notes to that Act: [12], [14], [37], [124]–[125], [128].
3. The word ‘Aborigine’ is to be given its ordinary meaning subject to the assistance in s 36 of the Acts Interpretation Act 1954 (Qld) and relevant judicial interpretation: [13], [133]. It does not require an ethnological inquiry of a scientific, historical or scholarly character: Muramats v Commonwealth Electoral Officer (WA) [1923] HCA 41; (1923) 32 CLR 500 at [506]–[507]; Ofu-Koloi v The Queen [1956] HCA 64; (1956) 96 CLR 172 at [175]. Pertinent considerations are whether the person said to be an Aborigine is of Aboriginal descent, identifies himself or herself as an Aborigine and is recognised in the Aboriginal community as being an Aborigine: [38], Gibbs v Capewell [1995] FCA 1048; (1995) 54 FCR 503 at [507]–[508]; Shaw v Wolf (1998) 83 FCR 113 at [118]–[122], [137].
4. The definition of an ‘Aboriginal tradition’ is subject to s 36 of the Acts Interpretation Act 1954 (Qld) and refers to ‘the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people’. Such words carry the notion that there has been a handing down from generation to generation in accordance with the understanding of Aboriginal teachings and practice: [47], [143]–[144], Chapman v Luminis Pty Ltd (No 4) [2001] FCA 1106. It does not require the establishment of native title under the common law as described in Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1: [47], [152].
5. Aboriginal people are entitled to exercise traditional rights in a contemporary manner: [49], [142], Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [244].
6. The burden is placed on the appellant in proving on the balance of probabilities that he or she is an Aborigine acting under Aboriginal tradition: [94]–[97], [148]–[149], Madsen v Western Interstate Pty Ltd [1963] Qd R 434, Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594 at [600]–[601].
…
123. I confess at once to experiencing some difficulty with the language in which the judge’s first finding is phrased. Section 14 is not in terms expressed to ‘apply’ to anything. Using that word in its ordinary sense, however, one could fairly say that the section applies to aborigines and Torres Strait Islanders. One could probably also say that it applies to fisheries resources and fish habitats. One might even stretch the language to say that it applies to aboriginal tradition and island custom. I do not think that one could say that it ‘applies’ (or that it does not apply) to s 84. That observation is not purely a piece of pedantry. It is a trite proposition that the answer to many an issue of law depends upon the terms in which the issue is stated. Expressed at its broadest, the real question in the context of this case was in my view whether, notwithstanding proof of the elements of s 84 against him, Mr Yasso could be convicted under that section if at the time of the possession he was an aborigine and his possession was an incident of taking fish under aboriginal tradition. The answer to that question depends upon the interpretation of the Act.
124. Section 14 is the last of five sections in a division entitled ‘Operation of Act’. Section 10 provides that the Act binds all persons, including the State. Presumably that has the effect of negating the operation of s 13 of the Acts Interpretation Act 1954 in relation to the Crown in right of Queensland. It is however expressed in terms which are wider than would be required simply to achieve that effect. It seems to be intended to bind the Crown in all its other capacities (including the Commonwealth and the other states) (subject, of course, to s 9 of the Acts Interpretation Act 1954) and any foreign sovereign. The section therefore seems intended to extend the operation which the Act would have in its absence. Section 11(1) defines geographical areas within which the Act is to operate. It might also be argued that the subsection limits the application of the Act to persons, things, acts and omissions, although it is not easy to see what wider category there might be to which it might otherwise apply. Section 11(2) then specifies a number of exceptions defined by reference to various activities having a relationship with Commonwealth law. Section 11(3) extends the application of the Act to certain activities in the Australian fishing zone (ie outside the area specified in s 11(1)) and s 11(4) and s 11(5) provide exceptions to this. Section 12 excludes the application of the Act to certain unintentional activities and certain activities incidental to fishing. Section 13 provides for the making of a regulation to exempt a person from the Act or a provision of it. Section 14 confers certain rights (or privileges or liberties or immunities – whatever they may be called) upon aborigines and Torres Strait Islanders. By implication it excludes the application of the Act to conduct involving the exercise of those rights.
125. In my judgment the remainder of the Act must be read in the light of, and subject to, the provisions of this division. All of those provisions are concerned to define the ambit of operation of the succeeding provisions. A fortiori, they define the ambit of operation of the Regulation. For example, a gaff is not among the fishing apparatus which may be used by a recreational fisher under sch 8 of the Regulation. It is therefore commercial fishing apparatus under sch 17. Under the terms of s 68 of the Regulation, it follows that it may be used only if the user holds an authority allowing its use and may be possessed only if the person possessing it holds an authority allowing him to do so. Section 12(d) of the Act provides that the Act does not apply to the use of a gaff to secure fish taken by other fishing apparatus. In my view that must mean that in the circumstances therein described, the prohibitions on use in s 68(1) of the Regulation and s 84(1) of the Act have no application. Similarly in my judgment, those prohibitions have no application to the use of fishing apparatus in the exercise of the right conferred by s 14.
126. Of course s 84(1) of the Act is also concerned with the possession of fishing apparatus. Whatever methods of taking fish may have existed under gypsy tradition, I cannot imagine that the Act intended it to be unlawful to possess fishing apparatus as an incident of using it in circumstances to which the Act did not apply. In my judgment neither s 68(3) of the Regulation nor s 84(1) of the Act makes unlawful the possession of a gaff for use as described in s 12(d) of the Act; nor do they make unlawful possession of other fishing apparatus as an incident of exercising the right conferred by s 14. To my mind any other construction would inhibit the operation of s 12 and s 14 to the point of rendering them dysfunctional.
127. On this issue the District Court judge held:
It seems to me that there is merit in the argument that s 14 does not have any application in relation to a charge of an offence under s 84. In my view the appellant’s argument on this point is well made. Section 14 is expressed to apply to the taking, use or keeping of fisheries resources or use of fish habitats. The gravamen of the offence created by s 84(1) is the possession of fishing apparatus of a particular type. The type of fishing apparatus which is caught by s 84 is what may be generally described as ‘commercial fishing apparatus’ and the explanatory notes to the Bill make it clear that clause 14 is not intended to allow Aboriginal or Torres Strait Islander persons to exploit fisheries resources in a commercial manner without compliance in all respects with the Bill.
I do not agree that the gravamen of the offence created by s 84(1) is the possession of fishing apparatus of a particular type. The terms of the section do not support such an interpretation: ‘A person must not unlawfully use or possess fishing apparatus.’ The section is equally applicable to a person who unlawfully possesses non-commercial fishing apparatus. Such possession would be unlawful if the person were neither a recreational fisher (as would be the case if the person took fish for trade or commerce with non-commercial fishing apparatus, or possessed such apparatus without taking or possessing fish at all …), nor the holder of any other justification for possession of the apparatus. In my judgment s 84 should not be read as limited to, or even as primarily intended to deal with, cases involving commercial fishing apparatus.
128. Counsel for the respondent referred us to the explanatory notes to the Act relating to this section. They provided:
Clause 14 protects the rights of Aboriginal and Torres Strait Islander persons to take, use or keep fisheries resources or use fish habitat under Aboriginal tradition or Island custom.
A regulation or management plan which affects traditional or customary use of fisheries may be made, after consultation with Aborigines or Torres Strait Islanders. Conservation, environmental or sustainability concerns are examples of the circumstances in which this provision might be used. The clause does not allow Aboriginal or Torres Strait Islander persons to exploit the resource in a commercial manner without compliance in all respects with the Bill. The clause is intended to preserve the traditional and customary rights within the framework of proper resource management.
That note may be used in the circumstances set out in s 14B(1) of the Acts Interpretation Act 1954. This is not a case where either para (a) or para (b) of that provision applies; as to para (c), the note does nothing relevant to confirm the interpretation conveyed by the ordinary meaning of s 14(1) of the Act. To my mind that section is intended (among other things) to allow aborigines and Torres Strait Islanders to take fisheries resources in trade or commerce or ‘in a commercial manner’ without compliance in all respects with the Act, although it should be noted that this was not what Mr Yasso was doing. … If it were part of an aboriginal tradition to take fish in commercial quantities for sale or barter to another tribe (say, an inland tribe), I see no reason why that tradition would not be included under ‘Aboriginal tradition’ in s 14(1). If in the interests of proper management of the resource it were necessary to control such activities, that could be achieved by making a regulation or management plan under s 14(2). The Minister recognised this in his second reading speech when he said, ‘Within these arrangements, it is also possible to develop management plans for particular fisheries of interest to aboriginal and Torres Strait Islander groups.’ The note does not assist in the proper interpretation of the section.
It follows that in my judgment, notwithstanding proof of the elements of s 84 against him, Mr Yasso could not be convicted under that section if at the time of the possession, he was an aborigine and his possession of the net was incidental to taking fish under aboriginal tradition.
…
134. An element of s 14 is that the taking of fish be ‘under Aboriginal tradition’. I would reserve the interpretation of ‘under’ in that expression for consideration in a case in which it is strictly necessary to decide the point. As McPherson JA points out the expression may mean ‘by virtue of’; but it may also mean ‘in accordance with’, and other meanings are possible. It is unnecessary to resolve the possibilities in this application. It is also unnecessary to discuss a related topic which has arisen in other contexts: the mental element if any connoted by those words. There was no suggestion that Mr Yasso’s state of knowledge of tradition or his intention took him outside the scope of s 14.
135. As noted earlier, the prosecutor accepted the existence of a tradition of fishing among the Darumbal people. Features of that tradition which were proved by or could be inferred from uncontradicted evidence were that only Darumbal people could fish at Dadsons Beach; that nets could be used for fishing; and that nets might be up to about 50 m long. There was some evidence relating to the manner of manipulation of nets (dragging and casting) but no suggestion that a particular method formed an essential ingredient of the tradition. Similarly there was no suggestion that a particular method of construction (multistrand or monofilament), material of construction (natural fibre or synthetic material) or mesh dimension constituted such an ingredient. Finally, there was no suggestion that the purpose of the fisher (sustenance, trade or amusement) had anything to do with the tradition. However interesting it might have been to have examined such questions had they been put in issue, the occasion for their examination did not arise because they were not in issue.
136. Counsel for the respondent (who appeared for the complainant in the District Court but not in the Magistrates Court) submitted that the formulation of the issue by the prosecutor, and consequently by the magistrate, was misconceived. He submitted that the prosecutor’s statement, ‘This whole case impinges [sic] around what’s a traditional method of taking fish’ confused ‘a method of fishing (traditional or not) with a body of traditions, customs, beliefs and observances under which the particular method of fishing occurred or is sanctioned’. He submitted, ‘In order to engage the operation of s 14 of the Act, the prohibited act must occur under that body of traditions etc. It follows that there must be evidence as to the nature of that body of traditions etc and of the content of the particular traditions, customs, beliefs and observances that together constitute the body of traditions etc’ (emphasis in original).
137. What must be proved to demonstrate the existence (or disproved to demonstrate the non-existence) of an aboriginal tradition has been the subject of considerable discussion in the cases. However, those cases have involved situations where the very existence of an aboriginal tradition, as well as its characteristics, were in issue. Some were test cases on native title. In a large native title case such questions will often be debated. It is however for the parties in any litigation to define the issues. This case involved a prosecution for a relatively minor breach of the Fisheries Act. It arose in a context where local aborigines, with the support of the Department, were trying to protect their traditional fishing ground from those whom they regarded as outsiders. … It occupied less than a day in the Rockhampton Magistrates Court. The magistrate delivered an ex-tempore decision, for which he is to be commended. The parties were under no obligation to turn the case into an expensive preview of proceedings which might be expected to take place on the hearing of the pending native title claim of the Darumbal people. They were entitled to limit the issues as they did to those which mattered for the purposes of the prosecution. They are bound by their conduct of the proceedings. This court should be astute to prevent the loser from belatedly attempting to widen the ambit of the issues, particularly when the attempt is made by fresh counsel on the basis of an error imputed to his predecessor. In my judgment there was no error; there was only a calculated decision as to the way to conduct the case. On its face it appears to have been a sensible decision. The submission should be rejected.
138. There was no doubt that the net in Mr Yasso’s possession (which was a little over 50 m in length) had recently been used for fishing – the inspectors found the fish. Mr Yasso gave evidence that he was a Darumbal person, and on that point he was strongly challenged. His evidence was not particularly impressive. His grandmother was Darumbal (and therefore his father was half Darumbal) and, putting it at its highest, he himself identified as Darumbal in addition to his identification as a South Sea Islander. Against him was the fact that he had initially described himself when intercepted by the fishing inspectors only as a South Sea Islander (although later in the conversation he described his ancestry as ‘aboriginal and South Sea Islander’; he had been accepted only as an associate member of the Aboriginal Corporation created to represent the Darumbal people, when he would have been accepted as a full member were he perceived by the Darumbal as one of themselves; and he seemed to have had little contact with the Darumbal people. As Mr Hatfield said, apparently with some vehemence:
We give people the opportunity to have a say. Now Ric, as an associate member of the organisation, he attended the meeting. He didn’t assert any Darumbal heritage that night. He just said, ‘I’m Ricco, I’m becoming an associate member.’ He told us who he was, a South Sea Islander boy, so we accepted him as an associate member. Why didn’t he say that [he was Darumbal] when he applied for membership? All of a sudden he’s caught fishing, he’s in trouble and ‘I’m a traditional owner, you know.’ So, you know, you’ve really got to get your facts in order, eh?
Mr Yasso denied going to the meeting and denied that conversation. An adverse finding would not have been surprising. But the magistrate did not find adversely to Mr Yasso. He believed him. Mr Yasso was entitled to the benefit of that finding on the appeal to the District Court. Had counsel for the complainant consented to the reopening of evidence, Mr Yasso might have been further cross-examined and it would have been open to the judge to make his own finding on credibility. A letter which Mr Yasso wrote, which Mr Jones tendered to the District Court, suggested that Mr Yasso belonged to the Wakka Wakka people and made no mention of the Darumbal. There would have been ample material to make a finding against Mr Yasso. But that did not happen. Mr Yasso’s application to give further evidence himself and to call another witness was refused. There is no suggestion that the case falls into that unusual category where an appellate court may reverse a finding made at first instance based on an assessment of credibility [see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118]. In my judgment his Honour was wrong to go behind the magistrate’s decision on this point.
139. It is therefore strictly unnecessary for me to discuss in detail the meaning of ‘Aboriginal tradition’. However, during the hearing of the application I detained Mr Preston (who appeared on behalf of the respondent) for some time on the issue of how tradition should be defined in this context. In deference to his submissions I should say something about them. Mr Preston submitted that one could not prove the existence of an aboriginal tradition of fishing in particular waters simply by proving that traditionally aborigines fished in those waters. He referred to the definition of the term ‘Aboriginal tradition’ in [s 36 of] the Acts Interpretation Act 1954; it
means the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships.
He submitted that this definition required the existence of some form of right exercised pursuant to a system of rules which constituted the body of traditions, observances, customs and beliefs. In support of that submission he referred to a passage in the judgment of Gleeson CJ in Mason v Tritton [(1994) 34 NSWLR 572 at p 574]:
Fishing is an activity which is so natural to people who occupy, or visit, coastal regions, that some care needs to be exercised in passing from an observation that people have engaged in that activity to an assertion that they are members of a class who have exercised some form of right pursuant to a system of rules recognised by the common law.
Consequently it was not sufficient to prove that an activity was carried out in accordance with tradition. It was necessary to show that the activity was carried out in accordance with a body of rules which sanction the tradition.
140. I am unable to accept that submission. In my judgment it incorrectly assumes that what had to be proved by the plaintiff in Mason v Tritton is what must be proved in order to establish an aboriginal tradition within the meaning of the Acts Interpretation Act 1954. Mason v Tritton was a case in which the plaintiff asserted and relied upon the existence of a right of the type recognised by the High Court in Mabo v State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1. Priestley JA, with whom Gleeson CJ agreed, summarised the High Court’s statement of the law concerning the survival of native rights and interests. The first two paragraphs of his summary [at 598] are pertinent to the present discussion:
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 …
2. The native interest must be a recognisable part of the system of rules observed by an identifiable group of people connected with a particular locality …
The matter being discussed in Mason v Tritton was, what must be proved at common law to establish a right or interest which survived the advent of the common law in Australia. (Later authority suggests that it was the imposition of British sovereignty rather than the advent of the common law which was the critical event, but that is immaterial for present purposes: Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422.) Tradition was but one element in the establishment of the right or interest. (The same applies to the decision of the Supreme Court of Western Australia in Derschaw v Sutton (1997) 17 WAR 419.) That is very different from what must be established to satisfy the elements of s 36 of the Acts Interpretation Act 1954. The tradition referred to in that section need not find its expression in or be sanctioned by rules; need not be traced back to any particular year (whether 1788 or 1828); and, most importantly, need not give rise to a right or interest or any kindred concept, or even be recognised by the common law. Were it otherwise, the definition in s 36 would resemble that in s 223 of the Native Title Act 1993. I reject Mr Preston’s submission.
141. Nothing is to be gained by attempting here an a priori enumeration of what must be proved to establish the tradition defined in s 36. Indeed, any such attempt must carry a high risk of error. The matter is best worked out in the context of actual cases.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2006/24.html