35. Aboriginal Hunting, Fishing and Gathering Rights: Current Australian Legislation
Access to Land for Hunting and Gathering: The Present Position
935. Access to Non-Aboriginal land. The provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), entitling Aborigines to have access to Aboriginal land under that Act in accordance with Aboriginal tradition, have been referred to already. In addition to general legislation dealing with hunting and gathering and specific legislation dealing with Aboriginal land rights, there is provision in the Northern Territory and some States for Aboriginal access to land (other than Aboriginal land) for these purposes. There are no access provisions enabling Aboriginal people to enter land to hunt for food in Queensland, Victoria or Tasmania. It remains to examine access provisions that exist in the Northern Territory, South Australia, Western Australia and New South Wales.
936. Northern Territory. Section 24(2) of the Crown Lands Act (NT) as amended in 1985 provides that in any Pastoral lease under the Act a reservation in favour of Aboriginal inhabitants of the Northern Territory shall permit certain Aborigines to:
(a) to enter and be on the leased land;
(b) to take and use the water from the natural waters and springs on the leased land; and
(c) subject to any other law in force in the Territory -
(i) to take or kill for food or for ceremonial purposes animals ferae naturae; and
This right does not apply to leased land within two kilometres of a homestead, except in certain limited circumstances (s 24(3)-(5)). Section 24(6) also provides that where the lease contains a reservation in favour of Aborigines anyone who without just cause interferes with a full and free exercise of this right by Aborigines is subject to a $2000 penalty. ‘Just cause’ includes any reasonable activity on behalf of the lessee or person having an interest in the lease to ensure the proper management of the lease. In 1982, s 24 was held to apply as a defence to a charge of discharging a firearm on property occupied by another, contrary to s 94(1) of the Firearms Act 1979 (NT). The defendant was in possession of two cooked kangaroos and admitted having shot them. Section 24(2)(c) of the Crown Lands Act provides that the right to take for food is ‘subject to any other law in force in the Northern Territory’. Section 94(3) of the Firearms Act 1979 (NT) provides that it is a defence that the defendant was authorised by another law in force in the Territory to discharge the firearm. Chief Justice Forster held that, since s 94(3) of the Firearms Act 1979 (NT) was ‘passed against the background of the permission for Aboriginal people to take wild animals on their own country’, a permission of long standing recently renewed, it must be read subject to that permission. While this result was undoubtedly desirable, the reasoning is not without its difficulties. Section 24 provides that where a lease contains a reservation in favour of Aboriginal people then that reservation is to be read as permitting Aboriginal people to take food and to use the waters. It does not confer on Aboriginal people the right to hunt and fish as against the world. The principal consequence of s 24 is that anyone who interferes with the exercise of the right it confers is liable to a penalty. An alternative, and possibly preferable, basis for the decision on the facts would have been to find that the occupant had, pursuant to the terms of the lease, consented to the discharge of a rifle on his land. This constitutes a defence under s 94(2) of the Firearms Act 1979 (NT).
937. Nexus Requirements. Before 1978 all Northern Territory Aborigines enjoyed the right to enter land. In 1978 the right to enter land was limited to Aboriginal inhabitants of leased land and Aborigines of the Northern Territory who in accordance with Aboriginal tradition were entitled to inhabit the leased land. On the assumption that the term ‘inhabit’ is to be given its ordinary meaning this limitation could have several negative consequences. Aboriginal inhabitants of South Australia, for example, could not benefit from the section should they wish to hunt across the border in the Northern Territory. The limitation of s 24 to those Aborigines who in accordance with Aboriginal tradition are entitled to inhabit the leased land was unduly restrictive, in that in the eastern part of the Territory, there were real difficulties with Aboriginal communities who had suffered great displacement from the land and who may not be able to prove that they were traditionally entitled to inhabit, as distinct from foraging on, the leased land. Given the distinction, observed in the land claims hearings, between ‘primary responsibilities’, and rights to forage, the right to reside was an unduly restrictive criterion for the purposes of s 24. Justice Toohey accordingly proposed the following amendment to s 24(2):
(a) deleting the words ‘the Aboriginal inhabitants of the leased land and the Aboriginal inhabitants of the Northern Territory who in accordance with Aboriginal tradition are entitled to inhabit the leased land’; and
(b) substituting the words ‘the Aboriginal residents of the leased land and Aboriginals entitled by Aboriginal tradition to the use or occupation of the leased land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission’.
Amendments passed in 1985 provide that a reservation in favour of Aboriginal inhabitants of the Northern Territory now entitles those Aborigines who ordinarily reside on the leased land, or on land which has been excised since 1979, or who are entitled by Aboriginal tradition to use or occupy the leased land to enter leased land and to hunt and forage (s 24(2)(a)-(c)). However the amendments make it clear that the rights conferred do not allow Aborigines already entitled to reside on the land to reside ‘other than at the place on the leased land where they ordinarily reside’, nor do they allow other Aborigines to take up residence on the leased land. Without legislative provision for residential excisions from pastoral leases, the effect of the amendment will be to restrict rather than simply clarify rights under s 24(2).
938. Further Limitations on Access Rights. Section 24 was also amended in 1978 to incorporate many of the suggestions made by Justice Woodward in the Second Report of the Aboriginal Land Rights Commission. Although he did not recommend that Aboriginal claims to the reversion of pastoral properties be granted, Justice Woodward considered that the existing rights of Aboriginal people to enter, travel over, and camp upon such country should be strengthened. He was critical of the fact that the right existed merely as a reservation in pastoral leases, and that at that time, the only penalty was forfeiture:
I have no doubt that most cattle station proprietors and managers accept their responsibilities in this connection quite willingly. However I have been told of a number of instances where Aborigines have been prevented, or at least discouraged from exercising their rights. It seems to me that these rights should now be directly protected by legislation, that they should be amended to meet the requirements of the present day, and that realistic penalties should be provided for any breach. It has also been suggested that rights should be limited to those having a traditional interest in the land in question. However no such distinction has previously been drawn and it would create problems in practice. The matter might have to be reconsidered in future if the privilege were abused by people having no traditional interests.
He also considered that Aborigines should be entitled to make use of bore waters provided that they complied with any reasonable requirements of the pastoral lessee concerning such use. This recommendation has not been adopted. Despite the adoption of some of these recommendations by amendments in 1977 and 1978 to the Crown Lands Act (NT), the right to hunt and forage is still only incorporated as a reservation in a lease rather than being directly recognised in legislation. However in his review of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Justice Toohey questioned whether much would be achieved by legislation on this point.
939. South Australia. The Pastoral Act 1936 (SA), Schedule I provides that leases shall contain such exceptions and reservations in favour of the Aborigines of the State, as may be prescribed, or as the Minister may require. As a matter of practice pastoral leases do contain a reservation in favour of Aboriginal people. A reservation included as clause 1 in the standard form of South Australian pastoral lease provides:
And also reserved to Aboriginal inhabitants of the said State and their descendants full and free access into, upon, over and from the said land except such pans as improvements have been erected upon and in and to the springs and surface waters thereon and to make and erect wurlies and other native dwellings and to take and use for food birds and animals ferae naturae as if this lease had not been made.
Apparently conflicts continue to arise between pastoralists and Aborigines over the operation of this clause. The Arid Lands Management Review Committee (now disbanded) stated that it has been suggested that the reservation ‘conflicts with racial discrimination attitudes and provisions in the ninth decade of the twentieth century’. The Committee recommended that:
Legislation should henceforth specify that the Reservation in Leases in favour of Aborigines is applicable to those pursuing their traditional lifestyle travelling on foot in bona fide pursuit of their traditional game, and utilising traditional weapons and artefacts.
Such a provision would appear to conflict with the policy of the National Parks and Wildlife Service. However the Arid Lands Review Management Committee’s proposal was rejected as ‘contra to the policies of the present South Australian Government’, whose stated policy in relation to access rights to pastoral lease lands is to ‘maintain existing Aboriginal rights without either extension or curtailment thereof’. It is to be hoped that this policy extends to the creation of new perpetual leases as envisaged by amendments in 1985 to the Crown Lands Act 1929 (SA), though the position is by no means clear. An earlier Interdepartmental Working Group on the South Australian Pastoral Lands — Tenure, Administration and Management (1981) recommended that the reservation of rights only extend to Aboriginal inhabitants of leased land who in accordance with Aboriginal tradition are entitled to inhabit the land in question. This recommendation has also been rejected. The Working Group recommended that the right to take, kill or use for food or for ceremonial purposes, native animals and vegetable matter grown on the leased land should be subject to any other law in force in South Australia, such as the National Parks and Wildlife Act 1972 (SA). That Act makes it an offence for a person to be on private land (including pastoral land) for the purpose of hunting without the written consent of the owner obtained within the preceding six months (s 68b(1)). It appears to be that Aborigines would have to obtain written permission to hunt on pastoral lands. However the Working Group set up under the National Parks and Wildlife Service (SA) was critical of these provisions, which appear designed to deprive most Aborigines of any rights to hunt or forage. The South Australian Department of Land’s has advised that its response to this Working Group’s report is as follows:
(a) General acceptance of and agreement with the maintenance of hitherto existing Aboriginal access and hunting rights on pastoral lease lands; with
(b) Introduction of a regulatory provision requiring Aborigines to make all reasonable efforts to advise pastoral lessees on each occasion.
(1) of their intention to enter the subject lease for the purpose of taking game for food/tribal purposes; and
940. Western Australia. The Land Act 1933 (WA) s 106(2) provides that ‘the. aboriginal natives may at all times enter upon any unenclosed and unimproved parts of land the subject of a pastoral lease to seek their sustenance in the accustomed manner’. This provision refers only to ‘sustenance’. It is unclear whether taking for ceremonial use is included, although on a liberal interpretation use for ceremonial purposes might perhaps be described as ‘sustenance’. It is understood that, with the exception of nature reserves where no shooting is allowed, the Department does not object to the use of guns. Neither s 23 of the Wildlife Conservation Act 1976 (WA) nor s 106(2) of the Land Act 1933 (WA) restricts foraging to those Aborigines who traditionally inhabit the land in question, or who are traditionally entitled to hunt and forage in the area. The view has however been expressed that Aborigines from other areas and with no special needs should not be entitled to the benefit of these provisions. The Aboriginal Land Commissioner made the following comment on s 106(2):
That provision was described at the Pastoralists and Graziers hearing as an anachronism, presumably upon the view that Aboriginal people are no longer dependent upon that sustenance for their survival. The provision is anachronistic because they are no longer absolutely dependent upon hunting and fishing for their sustenance, and also because there will be few unenclosed and unimproved parts of pastoral leases ... I recommend that Aboriginal groups should be able to seek access to pastoral leases by virtue of traditional association with or long association by residence on or use of the land concerned. I also recommend that they should be able to seek access to hunt, fish and forage on public lands.
But these rights of access, he recommended, should not extend to Aborigines generally, as distinct from those with historical or traditional associations with the land in question. In the absence of agreement with the landholder, it was proposed that the Tribunal be able to make access orders, in favour of identifiable persons, on conditions preserving the ‘reasonable privacy of the occupiers’ and not unduly interfering with the use of the land. The Land Commissioner’s recommendations in relation to public land were substantially endorsed in the Aboriginal Land Bill 1985 (WA) cl 69-94. Aborigines entitled in respect of the land in accordance with local Aboriginal tradition would have been entitled to apply for an order conferring the ‘right to hunt and fish and gather food for domestic purposes’ (s 71, 74). The Governor could make such an order on the recommendation of the Aboriginal Land Tribunal (cl 73). The Tribunal would be required to satisfy itself that such an order did not ‘significantly affect’ the purposes for which the land is held, and that it protected any existing interests or rights in the land (cl 88(2)(a)(b)). However the Bill was defeated in the Upper House.
941. New South Wales. The Aboriginal Land Rights Act 1983 (NSW) makes specific provision for Aboriginal people to have access to land for the purpose of hunting and fishing. Section 47 provides that:
Subject to the provisions of any other Act, and any rule, by-law, regulations, ordinance or like instrument, a local Aboriginal Land Council may negotiate agreements with the owner or occupier of any land to permit specified Aboriginal groups to have access to land for the purpose of hunting, fishing or gathering on the land.
Under s 48(1), where a Land Council seeks a right of access to land traditionally used for hunting purposes, or to land giving access to any land so used, and has been unable to negotiate an agreement to that effect, the Council may apply to the Land and Environment Court for a permit, which may be subject to conditions, conferring these rights. Any owner of land who refuses access to permit holders is guilty of an offence. These provisions have not yet been used.