Aboriginal Law Bulletin
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by Michael Hogan
Unlike other land rights legislation in Australia, New South Wales Aboriginal Land Rights Act (1983) contains provisions dealing specifically with hunting, fishing and gathering. However, it deals with them in a most inadequate manner; the opportunity for legal recognition in statute of effective, general and secure rights for Aboriginal people to hunt, fish and gather has gone begging. Aboriginal demands have been ignored, their rights denied and interests compromised. The Wran Government and its bureaucracy appear unwilling or at least too frightened to go the whole way in this issue of Aboriginal rights.
While the inclusion of Part VIII (the sections concerned with hunting, fishing and gathering) may imply legal recognition or rights to hunt, fish and gather in substance and operation, the provisions deny such rights. Aboriginal practices have not been accommodated in their own right in the legislation. The legitimacy of this aspect of Aboriginal socio-economic patterns remains unaccepted by the political and legal systems in NSW.
The consequences are obviously unsatisfactory for Aboriginal people in NSW. The provisions are also a disturbing precedent to possible legislative action on the issue of hunting, fishing and gathering elsewhere in Australia. The provisions are supposedly based on the recommendations of the Keane Select Committee, yet in fact step back from the limited though express acknowledgement of such rights in that report.
This critique of the legislation accepts that Aboriginal people have such rights notwithstanding their uncertain legal status. These rights arise out of their exercise for 40,000 years or more. The activities of hunting, fishing and gathering were fundamental to the social and economic patterns of Aboriginal societies. They remain of importance today, notwithstanding changed conditions and varying degrees of modification.
In Australia, there has never been full legal recognition of rights of Aboriginal people to hunt, fish and gather, either at common law or in legislation. In fact, there has hitherto been no direct or thorough judicial consideration of the existence of such rights at common law in Australian courts. Early cases[1] asserting the exclusive application of English laws from colonisation, and the rejection of the notion of "traditional native title" in the Gove land rights case,[2] gave rise indirectly to the assumption that such rights were not recognised at common law.
Fortunately, this is to be put to the test, in an action in the High Court by the Miriam people of the Murray Island area in the Torres Strait. The action is brought against the Queensland and Commonwealth Governments over the proposed abolition of the reserves and their being handed over to land councils by way of a "deed in trust". Part of the claim asserts wrongful interference or extinguishment of rights to hunt, fish and gather. The probable bases used to establish such rights at common law will be as beneficial incidents to "traditional native title" and "customary ownership"; and as usufructuary rights, which include (legal) "local custom" and "profits a prendre". It is argued that these were then given statutory recognition by the reservation of the islands to the Miriam people.
Part VIII or the NSW Act provides that a Local Aboriginal Land Council may negotiate agreements with the owner, occupier or person in control of any land to permit access to any land to hunt, fish and gather. If access if refused then the local land council can apply to the Land and Environment Court for a permit for access to "land traditionally used for" hunting, fishing and gathering of "traditional foods for domestic purposes", or to "land giving access to land so used". The court must take into account objections of the owner etc., and can hear applications for the revocation of a permit. Finally it is an offence for a person to refuse access to any person in accordance with a permit.
The provisions contain significant inadequacies and anomalies, most important however is that they provide for acquiring access to land and do not provide any statutory embodiment of hunting, fishing and gathering rights.
The subject land is that "traditionally used" rather than any land. This does not accord with the realities of Aboriginal experience since white colonization, especially the reserve system with its relatively small areas, instances of forced removal to, from and between reserves, the large number of revocations and alterations to reserves, or the mobility between communities of Aboriginal people.
As well, court permits are restricted to "traditional foods for domestic purposes", excluding from its ambit the gathering of water, firewood, etc., necessary for food preparation, and the taking of wild species (e.g. rabbits) introduced since white colonisation.
No attempt has been made to define the meaning or parameters of "traditional"; rather, a narrow, static notion appears to have been adopted by default. What is clear is that Aboriginal claimants face a potentially onerous evidential burden. Further, there are no presumptions that refusal by an owner, etc., must be reasonable and necessary, or in favour of the granting of permits. The court is given no guidelines as to the matters which need to be taken into account, e.g. resources, land use, conservation, methods, safety.
[1] Such as Cooper v Stuart (1889] 14 AC 286.
[2] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1983/24.html