963. Summary. Before turning to questions of principle relating to Aboriginal hunting, fishing and gathering rights and their possible recognition, it is helpful to summarise the approaches taken in the Australian legislation and administrative practices described in this Chapter. Several situations need to be distinguished:
exemptions for Aboriginal people from the application of the general law (whether fishing or hunting and foraging legislation);
the management of resources on Aboriginal land;
access to private land.
964. The Application of Hunting Legislation.
No special provision is made for traditional hunting by Aboriginal people under the Wildlife Act 1975 (Vic), the National Parks and Wildlife Act 1970 (Tas), the National Parks Authority Act 1976 (WA) or the National Parks and Wildlife Act 1974 (NSW). However s 100(2) of the New South Wales Act provides that exemptions may be made by regulation exempting classes of persons from the operation of the National Parks and Wildlife Act 1974 (NSW). As yet no regulations have been made.
In the Northern Territory Aboriginal traditional hunting is not subject to conservation laws unless they are stated to expressly affect Aboriginal people and are made for the purposes of conserving wildlife (Territory Parks and Wildlife Conservation Act 1976 (NT) s 22).
In South Australia regulations enable Aborigines to hunt protected animals for food but do not allow them to take animals in conservation reserves, even though Aborigine people may hunt on such reserves. But Aborigines cannot take protected plants such as quandongs, native oranges or native peaches without a permit. There are no similar regulations exempting Aborigines from the National Parks and Wildlife Act 1972 (SA) s 49 or from the Native Vegetation Management Act 1985 (SA) s 19, 20.
In Queensland, Aborigines not resident on trust land are subject to all conservation laws, with no special provision being made.
In Western Australia the Wildlife Conservation Act 1950 s 23 (WA) exempts Aborigines from conservation laws when hunting for food on land not being a native reserve or wildlife sanctuary. The Governor can suspend the operation of the section if he thinks the provision is being abused or that a species has become unduly depleted. In relation to nature reserves under this Act agreements have been made with tribal groups to enable them to take fauna under the Wildlife Conservation Act 1976 (WA) s 12D, 12E.
Under Commonwealth law Aboriginal people are not subject to conservation laws unless those laws are expressly stated to apply to them (National Parks and Wildlife Conservation Act 1975 (Cth) s 70).
965. Aboriginal Land. The grant of Aboriginal land and the hearing of land claims in the Northern Territory has been a catalyst for much anthropological research on traditional hunting and fishing, and has highlighted the importance of management of resources on Aboriginal land. It has demonstrated that there are various ways in which effective collaboration between the authorities and local Aborigines can be achieved. In the process a new balancing of interests has developed and continues to be refined. For example:
Northern Territory conservation laws are capable of applying to Aboriginal land, but the right of Aborigines to use natural resources is preserved. The Conservation Commission of the Northern Territory may enter into arrangements with Land Councils to protect wildlife on Aboriginal land, as, for example, at Cobourg where there is formal power sharing with Aboriginal control of the Cobourg Preservation Sanctuary Board. The Land Councils are required to consult with traditional owners, whose consent is required before the Board can take certain action. The Board cannot restrict the traditional owners’ right to use the sanctuary.
At the Commonwealth level the Kakadu Management of Aboriginal land was the first model developed, preceding the Cobourg Plan of Management. It contains detailed provisions for Aboriginal involvement at an informal level, rather than the formal structure provided for Cobourg. Under the Kakadu Plan of Management traditional hunting is preserved but may be proscribed where species are particularly endangered, after consultation with the Land Council.Amendments in 1985 to the National Parks and Wildlife Conservation Act 1975 (Cth) ensure greater decision making power for Aborigines.
In Queensland, Aborigines living on trust lands are exempt from hunting and fishing legislation under the Community Services (Aborigines) Act 1984 (Qld) s 77 and its Torres Strait equivalent. This exemption allows for traditional hunting for consumption. Aborigines living at Aurukun or Mornington Island are able to hunt for sustenance under the Local Government (Aboriginal Lands) Act 1978 (Qld).
In South Australia, in relation to the Pitjantjatjara Land, the Governor can make regulations restricting activities with adverse environmental consequences but only on the recommendation of the Anungu Pitjantjatjaraku under the Pitjantjatjara Land Rights Act 1981 (SA). Under the Maralinga Tjarutja Land Rights Act 1984 (SA) the equivalent provision has been altered to allow the Governor to make regulations restricting activities with adverse environmental consequences but only after consultation with the Maralinga Tjarutja. There are proposed amendments to enable joint management schemes to take place.
In New South Wales legislative amendments which comes into effect in 1986 will exempt Aborigines and their dependants from certain provisions of the National Parks and Wildlife Act 1974 (NSW, provided the taking is for domestic purposes. The exemptions do not cover endangered fauna and do not permit the taking in national parks, on the lands managed by the National Parks and Wildlife Service, nor on lands to which Aborigines do not have a legal right of access.
In Victoria under the Aboriginal Lands Claim Bill 1983 (Vic) Aboriginal claimants would be vested with full control of flora and fauna on Aboriginal land unless it has been declared protected, notable or endangered under the relevant legislation.
In Western Australia, the Aboriginal Land Bill 1985 (WA) provided that laws of general application would apply to Aboriginal land. The wildlife laws in that State give wide exemptions to Aboriginal people. The Bill also envisaged joint Aboriginal and Government management and special management areas. The Bill was never enacted.
966. Access to Land. In Queensland, Victoria, or Tasmania there are no access provisions enabling Aboriginal people to hunt on land belonging to another.
In the Northern Territory under the Crown Lands Act 1979 (NT) s 24(2) Aboriginal inhabitants of the Northern Territory who ordinarily reside on the leased land (or on land excised since 1979 or who by tradition are entitled to use and occupy the land) are entitled to enter and to hunt for food and ceremonial purposes.
In South Australia reservations in pastoral leases enable traditional hunting, fishing and gathering on some pastoral leased land: no traditional nexus is required. It is unclear whether these reservations will be preserved as pastoral leases are convened to perpetual leases.
In New South Wales under the Aboriginal Land Rights Act 1983, s 47, the Land Council is able to negotiate with the owners of land to enable access by specified Aboriginal groups. There is an appeal to the Land and Environment Court where access cannot be negotiated with the owner. There is no reservation in favour of Aboriginal people in pastoral leases in New South Wales.
The Land Act 1933 (WA), s 106 enables Aboriginal people to enter onto unenclosed and unimproved pastoral lease land. No traditional nexus is required. The Western Australian Aboriginal Land Commissioner criticised s 106(2) and recommended that there should be no general right of access to Aboriginal people with no particular interest in the land. Instead he recommended that Aboriginal groups be able to apply to a tribunal which could grant access on conditions which protect the privacy and use of the landholders. The Land Commissioner’s recommendations were included in the Aboriginal Land Bill 1985 (WA), at least in relation to public land.
967. The Application of Fishing Legislation.
There are no exemptions for traditional fishing under fisheries legislation in South Australia, Victoria or Tasmania.
In New South Wales there is no exemption from general fisheries legislation, with the exception of inland anglers licences under the Fisheries and Oysters Farms Act 1935 (NSW).
In Queensland the Community Services legislation exempts Aborigines living on reserves from fishing legislation; a similar provision is contained in the Fisheries Act 1976 (Qld). Community licences may be taken out by reserve residents under the Fishing Industry Organisation and Marketing Act 1982 (Qld).
In Western Australia Aboriginal people engaged in traditional fishing are exempt from the Fisheries Act 1905 (WA). However the Government may restrict or limit this exemption if it is abused or the species is likely to become depleted. The exemptions for Aboriginal people do not prevent the Minister from gazetting regulations in relation to matters such as rock lobsters, illegal devices, and the taking of a particular species. A professional fisherman’s licence has been issued to the Bardi Aboriginal Association to enable members of the Bardi community to collect Trochus shell for commercial purposes.
In the Northern Territory Aborigines are only subject to fishing laws which expressly apply to them. However they are not authorised to trespass on leases or to interfere with traps or nets on another person’s property, nor engage in a commercial activity under the Fish and Fisheries Act 1979 (NT) s 93. But s 14 of this Act enables community licences to be taken out and a new licence under reg 7b enables the distribution of fish through kin and wider clan groups.
Under the Marine Parks Act 1982 (Qld) provisions made for the setting aside of tidal rivers and waters as marine parks. However the legislation does not require special account to be taken of Aboriginal interests.
Under the Great Barrier Reef Park Marine Act (Cth) in Queensland there is no legislative requirement for consultation with Aboriginal people over and above the general public. There is no legislative requirement that Aborigines should be represented on the consultative committee or that special consideration should be given to traditional users, nor that they should be given priority over other uses of the Great Barrier Reef Marine Park area. However the policy of the Great Barrier Reef Marine Park Authority is to take into account such interests.
The Torres Strait Treaty and implementing legislation protects the traditional fishing subject to the principle of conservation of the species. However where it is necessary to restrict traditional fishing in waters in order to conserve a species the parties must use certain endeavours to minimise the restrictive effect on traditional fishing. The Minister has considerable powers of regulation and is not required to consult with traditional fishing interests in making regulations. He has power to determine that particular methods do not constitute traditional fishing. The Torres Strait legislation enables community fishing (ie commercial fishing by traditional inhabitants) to take place. There may be difficulties with the Commonwealth legislation as it does not apply to private fishing within the Zone: the anomalous position could be created where private fishing may in certain circumstances take priority over traditional fishing.
968. Sea Closures. There are further provisions to protect Aboriginal traditional fishing by way of sea closures in the Northern Territory; somewhat similar measures have been proposed for Western Australia.
In the Northern Territory the Administrator after receiving a Report from the Aboriginal Land Commissioner, can close seas adjoining and within 2km of Aboriginal Land to non-Aboriginals not entitled to inhabit the seas. The Land Commissioner is required to report on the effect of closure on other interests, including commercial, recreational and environmental interests.
In Western Australia the Land Commissioner rejected the vesting of the seabed adjacent to Aboriginal land. However he recommended that the Tribunal have the power to grant protection orders protecting traditional interests in circumstances where the use by others interferes with traditional fishing interests. In the making of a protection order the Tribunal would take into account other interests, including commercial, environmental and recreational interests. The Commissioners recommendations were substantially taken up in the Aboriginal Land Bill 1985 (WA).
969. Conclusion. The review of legislation and administrative practice in this chapter reveals that:
Under Commonwealth, Northern Territory, South Australia and Western Australia law, Aboriginal people are able to hunt substantially unrestricted by conservation laws. Certain exemptions apply in New South Wales and allowance is also made for residents of trust lands in Queensland. However in Tasmania and Victoria there is no special provision to take account of Aboriginal interests.
In relation to traditional fishing activities there is in principle a recognition of traditional fishing under the Torres Strait legislation and the Great Barrier Reef Marine Park Authority Zoning Plans. At the State level, the experience varies considerably’ Aboriginal people are allowed considerable scope to fish unrestricted by fishing laws and regulations in the Northern Territory and Western Australia, and residents of trust lands also have special rights in Queensland. But there is no special provision made in the other States. On the other hand there is an increasing understanding and appreciation of Aboriginal traditional fishing interests. Developments include the work of the Great Barrier Reef Marine Park Authority and research by the CSIRO, the Northern Territory Fisheries Authorities and the Australian Fisheries Industries Council. Research includes anthropological work on traditional fishing activities and considerable mapping of the seabed. The sea closure applications have stimulated interest in this area in much the same way as have land claim applications. The creation of community licences (such as reg 7b created on the initiative of the Northern Territories Department of Fisheries) is a novel method of recognition of Aboriginal traditional trading practices.
In terms of Aboriginal land, different models have been developed, including the earlier Kakadu model and the more recent amendments to the National Parks and Wildlife Conservation Act 1975 (Cth) providing for formal structures for power sharing between Aboriginal traditional owners and conservation authorities.
In South Australia, Western Australia and Northern Territory, Aboriginal people have substantially unrestricted access to pastoral land in order to hunt for food. Aboriginal access provisions in these States contrasts markedly with those in Queensland, Victoria and Tasmania. In Queensland, in particular, the failure to allow access denies the relevance of hunting and foraging for many traditional communities. In New South Wales Land Councils (and individual Aborigines in Western Australia) will be able to apply for access orders in certain circumstances.