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Kennedy, Lachlan --- "Exercising Native Title Hunting Rights: Derschaw v Sutton" [1996] AboriginalLawB 75; (1996) 3(85) Aboriginal Law Bulletin 31


Exercising Native Title Hunting Rights: Derschaw v Sutton

Derschaw v Sutton

Supreme Court of Western Australia

Franklyn, Wallwork and Murray JJ

Unreported

Lib No 960449S

Casenote by Lachlan Kennedy

This case raises two issues of importance in relation to the enjoyment of native title rights. The first (and the one most thoroughly dealt with by both the majority and minority judgments) concerns evidence that must be bought by a defendant who seeks to rely on native title rights as a basis for establishing a reasonable doubt as a defence to a criminal charge. (The charge in this case related to illegal fishing). The second is the extent to which native title rights to fish may be regulated consistently with the Racial Discrimination Act 1975 (Cth). However, this issue is not thoroughly considered by either judgment.

The majority (Franklyn, Murray JJ) found the applicants had not satisfied the evidentiary burden of proof in relation to their claimed native title. They therefore did not address the legal question as to whether, if the applicants had otherwise been able to satisfy the evidentiary burden in relation to their claimed native title, this would have amounted to a defence to the charges. That is, they did not consider whether the regulation of native the rights to fish by the State of Western Australia is valid.

The minority judge (Wallwork J) found that the applicants had satisfied the evidentiary burden, and impliedly accepted the applicants' arguments that the regulation by the State of Western Australia of the applicants' native title rights to fish was discriminatory. He therefore found that the magistrate had been entitled to find that they had raised a reasonable doubt as to their guilt.

The facts

The applicants are Aboriginal people from the northwest of Western Australia. They had been charged in 1993 (prior to the enactment of the Native Title Act 1993 (Cth)) under the Fisheries Act 1905 (WA) ('the Fisheries Act') with taking fish in Six Mile Creek, near Port Hedland, in contravention of a notice issued under the Fisheries Act. At their trial, they conceded that they had acted contrary to the notice. However; in their defence .they argued that they had been exercising their native title rights to fish. They further argued that the provisions of the Fisheries Act under which they had been charged purported to impair their native title, by making the right to fish for food subject to closure or other regulation. Their argument was that these restrictions are discriminatory against Aboriginal people because they affect their private rights to fish (that is, their native title rights). As these rights are not possessed by non-Aboriginal people, such regulation is inconsistent with s10 of the Racial Discrimination Act, and by virtue of s109 of the Constitution, invalid in its application to them (Wallwork J at ppl4-15).

The evidence

Generally, the evidence produced to the magistrate supporting the claim for native title was that the defendants were Aboriginal people who claimed they had been exercising native title rights to fish. The purpose of their fishing was so that they could feed Aboriginal and traditional people who had been attending a funeral at a transit camp for Aboriginal people called 'Drovers Rest', near Port Hedland. They had screened Six Mile Creek using two nylon nets approximately 60 metres long. There were 66 mullet in the nets. Both the fish and the nets were removed by the fisheries officers. What happened to the fish after that was not the subject of evidence.

The prosecution made no submission to the magistrate on the native title question.

The majority view

Both the majority and minority judgments relied upon the decision of Kirby P (as he then was) in Mason v Tritton (1994) 34 NSWLR 572 (Franklyn J p7-8, Wallwork J p21).

In that case Kirby P found that the right to fish based upon traditional laws and customs is a recognisable form of native title in Australia (Franklyn J p7). Kirby P then went on to elaborate upon 'the exacting nature of the evidential burden' that must be satisfied in order to establish a successful claim for native title where it is raised as a defence to a criminal charge. The evidence must demonstrate:

1. That traditional laws and customs extending to the right to fish were exercised by an Indigenous community immediately before the Crown claimed sovereignty over the territory;

2. That the appellant is an Indigenous person and is a biological descendant of that original Indigenous community or group;

3. That the appellant 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 appellant's activity or conduct in fishing is an exercise of those traditional laws and customs.

The majority view was that the appellants had not led sufficient evidence on these issues. According to Franklyn J:

'[t]he evidence went no further than to establish [Derschaw] to be an indigenous person [sic] resident in the area who believed that, as an Aborigine, he had a right to fish in Six Mile Creek. It did not identify him as a biological descendent of any indigenous [sic] group or clan which had exercised the right to fish immediately before the Crown claimed sovereignty. Nor did it establish any of the matters which ... are required to be made out to establish a native title right to fish. It did not suggest that the claimed right was one to be exercised in accordance with traditional laws and customs of an organised group or clan and there was nothing to suggest that on the occasion in question the fishing was the exercise of traditional laws and customs' (Franklyn J p14).

Franklyn J found similar difficulties with the evidence of the other appellants.

In the majority's view, it is not necessary that the evidence establish the defence of native title on the balance of probabilities, but it must be such as to raise a reasonable doubt. It must, however, go to each of the elements necessary to make out the native title claim. In the absence of evidence going to any such element there is insufficient foundation for the claim to have legal justification. Further, it is insufficient to raise as a reasonable possibility that any one of the defendants has a native title right to fish (Franklyn J p24).

The minority view

Wallwork J also adopted Kirby P's summary in Mason v Tritton of the matters on which evidence must be adduced when using native title as a defence. However, he also found that there was a fundamental difference between that case and this, in that the defendant in Mason v Tritton had not given evidence as to his intention in relation to the purpose of his fishing, and therefore he could not bring himself within the traditional title he had claimed. In this case the defendants had bought evidence of the communal use to which the fish were to be put by them (Wall work J p21).

Wallwork J took the view that it is not necessary to prove the detail of the system of native title, nor the limitation of the traditional rules. He found that

'bearing in mind all the evidence, including the fact that the applicants were not fishing only for themselves, but for some of the 300 people who had gathered to mark the burial of a prominent Aboriginal man, and also bearing in mind the difficulties of proof which Aboriginal people face in those situations, together with the absence of any contrary evidence, the magistrate would have been entitled to have been left with a reasonable doubt... ' (Wallwork J p23).

In reaching this conclusion, Wallwork J appears to have impliedly accepted the applicants' arguments that the Fisheries Act notice under which the applicants were charged did not apply to them by reason of inconsistency with the Racial Discrimination Act 1975 (Cth) (Wallwork J p14).

The Native Title Act 1993 (Cth)

It is likely that had the applicants been fishing after the enactment of the Native Title Act 1993, they would have sought to rely on s211 of that Act. Section 211 provides that where the enjoyment of native title rights involves hunting, fishing, gathering, or a cultural or spiritual activity, and there is a law which prohibits persons from (for example) fishing other than in accordance with a licence or permit, then the requirement for a licence or permit does not apply to native title holders where they are (for example) fishing for the purpose of satisfying their personal, domestic or non-commercial community needs, and they are exercising their native title rights.

It is likely that native title holders who are able to argue s211 will not need to establish (as the applicants in this case had attempted to) that the Racial Discrimination Act 1975 invalidates the regulation or prohibition in its application to them.

The applicants have applied to the High Court for special leave to appeal.


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