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Ritter, David --- "Native Title and the Fisheries Act 1905 (WA) - Sutton v Derschaw, Clifton & Murphy" [1995] AboriginalLawB 64; (1995) 3(78) Aboriginal Law Bulletin 18


Native Title and the Fisheries Act 1905 (WA) -
Sutton v Derschaw, Clifton & Murphy

Sutton v Derschaw, Clifton & Murphy

Supreme Court of Western Australia, Heenan J

Unreported, 15 August 1995

Appeal SJA1175-1177 of 1994

by David Ritter*

The respondents were charged with being in possession of fish caught in contravention of a notice issued under s9(1) of the Fisheries Act 1905 (WA). The notice prohibited all unspecified persons from fishing in an area known as Six Mile Creek near Port Hedland. The matter was heard at first instance in the West Australian Court of Petty Sessions.

The respondents admitted to having caught the fish in Six Mile Creek, but it was argued on their behalf that the notice did not apply to them because they had been exercising a native title right to fish. The Magistrate accepted that it was open to the respondents to assert such a defence. The Court then heard evidence from Mr Derschaw that various Aboriginal peoples, including the Kooriata, had the traditional right to fish in the Six Mile Creek area. In cross-examination he claimed that he was exercising the right to fish held by the Kooriata people. Mr Clifton, whose father was an elder of the Kooriata people, also testified that he had been exercising the traditional right of those people to fish in the Six Mile Creek area. Mr Murphy endorsed the evidence of his co-defendants and stated that he had been fishing in Six Mile Creek since he was a child. On the basis of this evidence, His Worship held that the defence had been discharged to his satisfaction.

On appeal before the West Australian Supreme Court, Justice Heenan (at page 12) adopted the view expressed by Kirby P in Mason v Tritton ((1994) 34 NSWLR 572), that a right to fish could be a recognisable form of native title under the principles outlined in Mabo v Queensland [No. 2] ((1992) [1992] HCA 23; 175 CLR 1). However, Heenan J also agreed with Justice Kirby's description of the exacting nature of the evidentiary burden for proving a native title right to fish (at pages 12-13). Such a burden included showing that:

(a) traditional laws and customs, including the right to fish, were enjoyed by an Aboriginal community over the area in question immediately before the Crown claimed sovereignty;
(b) the claimant was a biological descendant of the original Aboriginal community;
(c) the claimant and his or her intermediate descendants had continued to observe the relevant laws and customs; and
(d) the claimant's activity in fishing for the fish in question was an exercise of those traditional laws and customs.

Heenan J concluded that this onerous evidentiary burden had not been discharged, because the respondents had not testified to the extent of their asserted traditional right to fish, or as to whether the fishing in question had been in exercise of that right (at page 13). Heenan J felt that, on the evidence, the respondents had merely been engaged in ordinary fishing that was not pursuant to a native title right (at page 14). Accordingly, His Honour held that the respondents had not adduced evidence which might raise a reasonable doubt against their charge. His Honour allowed the appeal and set aside the dismissal of the charges by the Magistrate.

* The views reflected in this note are solely those of the author, and do not necessarily reflect the views of the National Native Title Tribunal or any other member of its staff.


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