Gray, Stephen --- "Native title: Gill nets at Bul Gul" [2000] AltLawJl 91; (2000) 25(5) Alternative Law Journal 245

• Native Title: Gill nets at Bul Gul
• STEPHEN GRAY* reports on fishing and section 211 of the Native Title Act.
• Comment

Native Title: Gill nets at Bul Gul

STEPHEN GRAY^[*] reports on fishing and section 211 of the Native Title Act.

Trenerry v Rivers (Lowndes SM, NT Court of Summary Jurisdiction, 3 July 2000) is the latest in a growing line of cases in which Australian courts have considered native title as a defence to a criminal charge.

In Trenerry, the defendant was a member of the Wadjigan people of the Wagait area west of Darwin. He was found in possession of a gill net in the Bul Gul area, which forms part of the Wagait Trust. He was charged under s.30 of the Fisheries Regulations (NT) which provides that:

A person shall not have possession of a gill net unless the person does so under and in accordance with a licence, permit or authority granted or given by or under the Act [i.e. the Fisheries Act (NT)].

The defendant argued that he was not guilty under s.38(2)(c) and s.53 of the Fisheries Act. Section 38(2)(c) provides that:

It is a defence to a prosecution for an offence referred to in subsection (1) if the defendant proves on the balance of probabilities that

(c) any contravention or failure to comply constituting the offence was authorised by being
(i) in the exercise of a right granted or recognised by law;
(ii) … in conformity with the law;
(iii) pursuant to permission, authority lawfully granted.

Section 53 of the Act provides that nothing in the Act shall limit the right of Aboriginals who have traditionally used the resources of an area from continuing to use the resources in that manner.

The gill net is a monofilament net with a large mesh size of four to five inches, making it suitable for efficiently catching large fish while allowing smaller fish to escape. There was some evidence that gill nets were originally European and not Aboriginal in style, although Aboriginal people had used them in the Wagait area for at least two generations. The defendant could have succeeded in his argument under s.53, although some question might have been raised concerning whether gill net fishing was a ‘traditional use’ under the Fisheries Act.

However, the magistrate found that the defendant was authorised to possess a gill net under s.211 of the Native Title Act 1993 (Cth).

This section provides that native title holders are protected from criminal proceedings where they carry on certain classes of activity on native title lands. The class of activity must be carried on for the purpose of satisfying personal, domestic or non-commercial communal needs, and must be carried on in exercise or enjoyment of their native title rights and interests.

In addition, the criminal proceeding must arise from a law which prohibits the class of activity otherwise than in accordance with a licence, permit or other statutory instrument. In other words, the legislation must allow non- Indigenous people to have access to the same resource where a licence is obtained. If the legislation absolutely prohibits the class of activity then s.211 will not apply. A ‘class of activity’ includes fishing.

The prosecution argued firstly that s.211 only applies to an offence directly involving the activity of fishing. Since the defendant was charged with possession of a gill net, rather than with actually fishing with a gill net, s.211 did not apply. This argument was rejected, following Wheeler and Kennedy JJ in Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269. Lowndes SM accepted a defence submission that:

[t]he possession of fishing equipment is a necessary incident of carrying on the activity of fishing. A person cannot fish without using some equipment to catch fish. If Section 211 only operated directly on conduct such as hunting or fishing, but did not operate in relation to the necessary incidents of such conduct, the preservation of native title rights would be illusory. [p.7]

The magistrate also accepted that the defendant was a ‘native title holder’ within the meaning of s.224 of the Native Title Act, and that the defendant possessed the gill net for the purpose of satisfying personal, domestic or non-commercial communal needs.

Finally, the magistrate needed to be satisfied that the defendant’s possession of the gill net was in the exercise or enjoyment of his native title rights and interests. In particular, Lowndes SM required evidence sufficient to show 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; that the claimant is a biological descendant of that original community; and that the claimant had continued uninterrupted to observe the relevant laws and customs (see Kirby P in Mason v Tritton (1994) 34 NSWLR 572 at 583-4).

The magistrate did, however, adopt the statements from various majority judges in Mabo No. 2 that traditional laws and customs may evolve and change (see, for example [1992] HCA 23; (1992) 175 CLR 1 at 61 per Brennan J.)

Although large mesh or gill net fishing had been practised in the area for only two generations, the magistrate accepted that this practice was a development of the traditional method of fishing with a spear or bush net. The critical, and continuing, element was the Wadjigan people fished for themselves or their family and did not waste the fish they caught (see Lowndes SM, p.10).

Consequently, fishing with a gill net was considered a legitimate exercise of native title rights under s.211 Native Title Act. The magistrate drew a parallel with the High Court’s acceptance in Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258 that hunting crocodiles using a motorised dinghy was an exercise of native title rights (pp.10–11).

Comment

The major hurdle facing the defendant in this case was to show, on the evidence, that his use of a gill net was an exercise of native title.

In a criminal case, the prosecution ordinarily bears the onus of proving beyond reasonable doubt the elements of the offence. This means that a defendant relying on s.211 NTA must raise some evidence of native title before the prosecution will be required to discharge the persuasive onus of disproving the elements of s.211 NTA.

Lowndes SM, however, considered that the onus of proving the elements of s.211, or establishing a ‘native title defence’, lay on the balance of probabilities on the defendant (p.7). This was by virtue of the application of s.38(2)(c) Fisheries Act, which (as noted above) requires the defendant to prove that the contravention constituting the offence was authorised by law. Effectively this meant that the ‘native title defence’ was not treated as a defence in its own right, but merely as a pre-condition for the operation of the defence under the Fisheries Act.

This reasoning is not consistent with the recognition in Yanner v Eaton that s.211 gives rise to a defence to a criminal charge, independent of any other statutory defence. If a defence exists under the Native Title Act (a Commonwealth Act) then this is not subject to any State or Territory legislation: in fact, under s.109 of the Constitution, it overrides any such legislation to the extent of any inconsistency.

Nevertheless, the approach taken by the magistrate in Trenerry v Rivers may be favourably contrasted with that taken in other cases where Indigenous defendants sought to argue that their conduct was authorised under traditional laws and customs.

In Derschaw (1996) 90 A Crim R 9, an Indigenous man was prosecuted for using a prohibited net to catch fish in a creek. The fish were to feed 300 people attending the funeral of a prominent Aboriginal man. The Full Court of the Supreme Court of Western Australia held that the defence failed to address whether the conduct was authorised by traditional laws and customs.^[1]

In Trenerry, however, the magistrate was prepared to accept, on the basis of evidence from the defendant, his great aunt, another traditional owner and an expert witness, that fishing with a gill net was an appropriate adaptation of traditional methods, sufficient to satisfy s.211 NTA.

It should be noted that where a defendant seeks to raise s.211, native title must exist and must not have been extinguished. If native title has been extinguished by inconsistent acts, or even perhaps where it has been regulated, then s.211 will not be a defence. Thus for example, the defence will not operate on a lease where native title has been extinguished.

The operation of other criminal defences, particularly honest claim of right, may provide powerful defences in certain situations in combination with s.211. In a NT prosecution in 1998, honest claim of right was successfully argued as a defence to assault and criminal damage charges, although the magistrate’s reasoning in this case was rejected by the Supreme Court (see DPP Reference No. 1 of 1999 (1999) NTSC 23). If a defendant had a belief in facts which, if true, would give rise to a defence under s.211 — for example if Rivers honestly believed a gill net was a traditional form of fishing, even though this was not the case — then honest claim of right would appear to provide a defence.

Honest claim of right only operates where the belief is one of fact, not of law. Hence, an interesting question might arise where a defendant believed that native title had not been extinguished where in fact it had; or where the defendant believed that his or her action was authorised by traditional law, where this was not the case. In the second situation the defendant might be forced into the unusual, even perverse, position of arguing that a belief as to the state of traditional law is a question of fact, not of law. Such an argument might find favour in some courts, but would be contrary to the almost universally expressed position of Aboriginal people. This illustrates the anomalies inherent in attempting to ‘shoehorn’ defences based on Aboriginal law into pre- existing Anglo-Australian legal categories.

Reference

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^[*] Stephen Gray teaches law at the Northern Territory University.

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^[1] See Flynn, Martin, ‘Wild Crocodiles are not in the Possession of Anyone’, paper delivered at ALTA conference, July 2000.