18.08.2010

Legislation on Hunting and Gathering Rights

The Commonwealth

909. Wildlife Conservation. The National Parks and Wildlife Conservation Act 1975 (Cth) makes provision for the establishment and management of parks and reserves in the Territories and elsewhere in Australia, for purposes such as tourism or the carrying out of Australia’s rights and obligations in relation to the continental shelf or in relation to agreements between Australia and other countries (s 6(1)). In general terms the Act provides that land owned and leased by the Commonwealth may be declared a Park or Reserve or designated a wilderness zone and administered by the Director in accordance with the plans of management relating to that Park or Reserve (s 7, 11-14). Under s 71(1) the Governor-General has wide powers to make regulations providing for the protection and conservation of wildlife, and for the preservation of parks and reserves. However such regulations are not to be interpreted as affecting the traditional use of land by Aboriginal people[1586] unless expressly stated to do so. Section 70 provides that:

(1) Subject to subsection (2) and to the operation of this Act in relation to parks and reserves and conservation zones, nothing in this Act prevents Aborigines from continuing in accordance with law, the traditional use of any area of land or water for hunting for food-gathering (otherwise than for purposes of sale) and for ceremonial and religious purposes.

(2) The operation of sub-section (1) is subject to regulations made for the purpose of conserving wildlife in any area and expressly affecting the traditional use of the area by Aborigines.

There are as yet no such regulations expressly affecting the traditional use of any area of land by Aborigines.[1587]

910. Aboriginal Land. The National Parks and Wildlife Conservation Act 1975 (Cth) establishes certain basic principles in relation to the Commonwealth’s involvement in conservation issues arising on Aboriginal land. Thus the Commonwealth shall not acquire land for a park or reserve designated under State law, as having special significance in relation to Aborigines, without the consent of the State (s 6(2)). In addition, section 6(3) provides that:

Land in the Northern Territory, other than land in the Uluru (Ayers Rock-Mt Olga) National Park or in the Alligator Rivers Region as defined by the Environment Protection (Alligator Rivers Region) Act 1978, shall not, without the consent of the Territory, be acquired by the Commonwealth for the purposes of this Part if it is land that is dedicated or reserved under a law of the Territory for purposes related to nature conservation or the protection of areas of historical, archaeological or geological importance or of areas having special significance in relation to Aboriginals.[1588]

Section 18(1) provides that the Director of National Parks and Wildlife ‘may assist and cooperate with Aborigines in managing land not being a park, reserve or conservation zone held on trust for, vested in Aboriginal people or occupied by them’. However he may do so only after consultation with any Aborigines who have traditional rights in relation to the land, and only in accordance with an agreement between the Director and the federal Minister for Aboriginal Affairs, relevant State Minister or administrative authority, or any other person or body owning the land, as the case may be (s 18(2)).[1589] In 1984 the Australian National Parks and Wildlife Service appointed an officer to initiate an Aboriginal Assistance Program to more fully implement s 18. Where Aboriginal land is held under lease by the Director of National Parks and Wildlife, it may be declared by the Governor General to be a park or reserve and administered under the terms of the relevant plan of management.[1590] In 1985, the Act was amended to clarify the relationship between the Director of National Parks and Wildlife and the Land Councils in relation to the management of Aboriginal land situated wholly or partly within a Park or reserve. The new provision provides that where the Minister and the relevant Land Council agree to establish a Board of Management and, where the park consists wholly of Aboriginal Land, the majority of members shall be Aboriginal and nominated by the traditional owners (s 14C(5)).[1591] The Board’s function is, in conjunction with the Director, to prepare plans of management, to advise the Minister in relation to the future development of the Park and to maintain the management of the Park. In the event of disagreement between the Director and Board, they shall each advise the Minister accordingly, who if unable to resolve the disagreement, shall appoint an arbitrator (s 11(11A)-(11F)).[1592] The Plans of Management for Kakadu and the appointment of the Board of Management at Uluru demonstrate the ways in which the National Parks and Wildlife Service has sought to accommodate Aboriginal interests, as well as the interests of conservation and tourism. If Aboriginal land held under lease by the Commonwealth is declared a park or reserve, then certain activities (mining, the felling of trees, excavations etc.) are prohibited, notwithstanding any Commonwealth, State or Territory law, except in accordance with the plan of management (s 10).

911. Kakadu National Park. Following 15 years of public interest, and after numerous Government studies and reports,[1593] the Kakadu National Park was proclaimed in 1979. The creation of the National Park, on what was Aboriginal land, required amendment to the National Parks and Wildlife Conservation Act 1975 (Cth) and the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The plan of management[1594] contains detailed provisions for the involvement of Aboriginal people in the Park’s management,[1595] including the following:

  • Resource harvesting program which meet conservation criteria as agreed between the Director and a representative of the Northern Land Council to be permitted (29.5.2);

  • Aborigines, not being traditional owners, but entitled by tradition to use the land may so enter and use the land (29.5.6);

  • Traditional hunting and foraging to be permitted subject to limitations on the hunting of certain species where the species is officially designated as endangered, nationally rare, threatened or locally of rare or of unusual occurrence in the Park; and occurs in numbers significantly below the natural capacity for that species (34.2.4);

  • No further hunting permitted unless for authorised scientific purposes or for park management (34.2.4);

  • Traditional fishing permitted subject to restrictions made only after consultation with a representative on the Northern Land Council (35.5.2);

  • A recreational fishing permit may be granted provided the taking does not interfere with the management of wildlife (34.2.4);

  • Commercial fishing is not permitted except with the consent of the Director and subject to permit (34.2.5).

Despite these provisions, whether effective control lies in Aboriginal hands, indeed whether there is any degree of formal power sharing, has been questioned.[1596] However these criticisms pre-date the 1985 amendments to the National Parks and Wildlife Conservation Act 1975 (Cth).[1597]

912. Uluru National Park. The existing plan of management for Uluru National Park was approved in 1983.[1598] The plan was to have ceased to have effect on 30 June 1987. However, the grant of Uluru National Park to the traditional owners by the Commonwealth Government, and the subsequent lease of the Park back to the Commonwealth, has led to renegotiation of the management arrangements for the area. The Pitjantjatjara Council and Central Land Council have been involved in negotiations with the Commonwealth and Northern Territory Governments over questions of effective Aboriginal control and management of the Park. Agreement has been reached on the composition of the Board,[1599] what comprises six representatives of the traditional owners, one representative each of the Australian National Parks and Wildlife Service, and of the Federal Departments of Sport, Recreation and Tourism and of Arts Heritage and Environment, and two members of the Legislative Assembly of the Northern Territory. The Board when constituted will continue to operate under the existing plan of management. These currently provide for the survey and classification of vegetation in the park incorporating Aboriginal knowledge, together with research on fire management, relying on Aboriginal knowledge of traditional fire regimes (37.2.3-37.2.5).

Pending the outcome of research harvesting by Aboriginals of plants or parts of plants for food, fuel or as primary material for the production of artefacts or for other purposes is to be regulated (37.2.12).

Similar provisions are contained in relation to the hunting of native fauna and food gathering by Aborigines.[1600] The Plan of Management further provides for research to examine questions of sustained yield and maintenance of the park ecosystems, in order to determine the feasibility of Aboriginal resource harvesting (44.5.1). Limited harvesting programs which meet approved conservation criteria agreed upon by the Director of National Parks and Wildlife and by the Uluru Aboriginal Advisory Committee, the Conservation Commission of the Northern Territory and, as necessary, a representative of the Central Land Council are to be permitted (44.5.2).

913. Future Directions: Jawoyn Land Claim. The question of effective Aboriginal control of the Board of Management of a National Park on Aboriginal land has arisen in the context of the Jawoyn Land Claim (near Katherine), currently before the Aboriginal Land Commissioner. On the assumption that the claim will succeed, a draft Jawoyn National Park Act has been prepared on behalf of the claimants, after extensive consultation with them and with others experienced in the management of Cobourg and Kakadu. A 12 man Board of Management is proposed, six members of which shall be traditional owners appointed on the nomination of the Land Council (cl 10(1)). As at Cobourg the Chairman would be appointed from among these six members and would have a casting vote (cl 13). The Board would be required to appoint a Planning Committee whose task is to prepare the management plans.[1601] It is envisaged that the Planning Committee itself will prepare the plans, thus allowing for Aboriginal input and placing emphasis on Aboriginal values and priorities in the preparation of management plans. One of the purposes of these plans is the ‘maintenance of the Aboriginal traditions of the traditional Aboriginal owners of the park’ (cl 26 7(a)). The Board’s functions would include the protection and enforcement of the right of Aborigines to use and occupy the park. The Board would have extensive power to make by-laws, provided that ‘a by-law shall not interfere with the use of the park by an Aboriginal traditional owner or an Aboriginal entitled by Aboriginal tradition to use the park’ (cl 33(3)). Nor shall a by-law prohibit possession of firearms and other equipment necessary for the exercise of this right although the plan of management may contain such limitations. This proposal was presented prior to the 1985 amendments to the National Parks and Wildlife Conservation Act 1975 (Cth) (s 11(11A), 14A-14D) and would appear to be subject to these amendments.

Northern Territory

914. Wildlife Conservation. The Territory Parks and Wildlife Conservation Act 1976 (NT) provides for the establishment and management of parks and reserves and for the protection of certain wildlife. Section 122 states that ‘subject to the regulations made for the purposes of conserving wildlife in any area and expressly affecting the traditional use of the area by Aboriginals’, nothing in the Ordinance prevents ‘Aboriginals who have traditionally used an area of land or water from continuing to use the area of land or water for hunting, for food gathering (otherwise than for the purposes of sale) and for ceremonial and religious purposes’. No regulations have been made expressly affecting Aborigines under s 122. They thus have unrestricted rights to hunt for food and for ceremonial purposes in the Northern Territory under the 1976 Act.[1602] Part IV of the Act prohibits Aborigines from selling, bartering or otherwise disposing to a non-Aborigine any protected animal or partly protected animal without a permit to do so (s 29). Such a permit may not authorise the taking of protected or partly protected animals in a sanctuary or reserve (s 29(2)). Similarly it is an offence to possess parts of a protected animal dead or alive (s 31).

915. Aboriginal Land. TheAboriginal Land Rights (Northern Territory) Act 1976 (Cth) specifically allows for the application of Northern Territory laws to Aboriginal land, to the extent that they are ‘capable of operating concurrently with’ the Commonwealth Act.[1603] The right of Aborigines to utilise wildlife resources is preserved and Territory conservation laws applying to the sea within 2 kilometres of Aboriginal land must allow for the right of Aborigines to use the resources of the sea. Section 73(1) states that the powers of the Legislative Assembly for the Northern Territory extend to:

(c) Laws providing for the protection or conservation of, or making other provision with respect to, wildlife in the Northern Territory, including wildlife on Aboriginal land, and, in particular, laws providing for schemes of management of wildlife on Aboriginal land, being schemes that are to be formulated in consultation with the Aboriginals using the land to which the scheme applies, but so that any such laws shall provide for the fight of Aboriginals to utilise wildlife resources; and

(d) Laws regulating or prohibiting the entry of persons into, or controlling fishing or other activities in, waters of the sea, including waters of the territorial sea of Australia, adjoining, and within 2 kilometres of, Aboriginal land, but so that any such laws shall provide for the right of Aboriginals to enter, and use the resources of, those waters in accordance with Aboriginal tradition, but any such Ordinance has effect to the extent only that it is capable of operating concurrently with the laws of the Commonwealth, and, in particular, with this Act, the National Parks and Wildlife Conservation Act 1975 and any regulations made, schemes or programs formulated or things done, under this Act, or under that Act.

The Territory Parks and Wildlife Conservation Act 1976 (NT) provides that the Commission may enter into arrangements with a Land Council relating to schemes to protect wildlife on Aboriginal land.[1604] Where no such agreement has been entered into within two years of the grant of land under s 12 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), any existing sanctuary or protected area contained in the deed of grant of that land is revoked (s 73(2)). For example at Daly River and in the Tanami Desert, where no arrangements have yet been concluded, existing provisions for a sanctuary have lapsed and conservation programs must be renegotiated with the Conservation Commission.[1605]

916. Cobourg Peninsula. The joint involvement of the Northern Territory Conservation Commission and Aboriginal people in the management of the Cobourg Peninsula Sanctuary is provided for by the Cobourg Peninsula Aboriginal Land and Sanctuary Act 1981 (NT). Land on the Cobourg Peninsula is vested in the Cobourg Peninsula Sanctuary Land Trust (s 5-7). The Cobourg Peninsula Sanctuary Board, the body corporate (s 8), is composed of eight members appointed by the Minister, four of whom, including the Chairman, are appointed on the recommendation of the Northern Land Council (s 19(1)). The Chairman has a casting vote, thereby ensuring voting control,[1606] though the extent to which there is formal power sharing and true joint management is a more complex question.[1607] Before taking certain action the Land Council is required to consult with the traditional owners (s 4). The functions and responsibilities of the Board include the preparation of a Plan of Management for the sanctuary (s 27),[1608] including the ‘protection, conservation and management of native flora and fauna within the sanctuary and the natural environment generally ‘(s 27(4f)). The Land Council’s consent, and thus the traditional owners’ consent, is required before the plan is submitted to the Minister (s 27(5)). The Board is empowered under s 35 to make by-laws prohibiting or regulating fishing, access to the land, the use of firearms, traps, the taking of animals. However s 35(3) provides that:

A by-law shall not regulate the use by a member of the group or prohibit him from having in his possession or using any firearm, ammunition, trap, net or fishing equipment used or intended to be used by him in connection with the exercise of his right, as a member of the group, to use and occupy the sanctuary or a part of the sanctuary.

In addition, Parts IV and VIII of the Territory Parks and Wildlife Conservation Act 1976 (NT) relating to protected animals and to administration, together with provisions permitting entry to land, and the authorised destruction of feral or trespassing animals, also expressly apply to the Cobourg Sanctuary.[1609] Similarly, regulations and by-laws made under the Territory Parks and Wildlife Act 1976 (NT) apply to Cobourg to the extent that they are not inconsistent with the plan of management (s 37(2)). In 1983, the definition of ‘land’ under the Territory Parks and Wildlife Conservation Act 1976 (NT) s 9 was extended to include the ‘sea above any part of the sea bed of the Territory’. Subsequently the Cobourg Marine Park was declared adjacent to the Cobourg Sanctuary. As a consequence the Conservation Commission is able to regulate conservation in the Marine Park under the Territory Parks and Wildlife Conservation Act 1976 (NT) without proceeding by way of consultation with the Board and with the Land Councils under s 35 of the Cobourg Peninsula Aboriginal Land and Sanctuary Act (NT).

South Australia

917. Wildlife Conservation. The National Parks and Wildlife Act 1972(SA) and regulations made thereunder are potentially contradictory and require some clarification. The following provisions of the Act and regulations are relevant:

  • s 8(a)(1) of the Act states that a person shall not hunt unless a permit is held.

  • s 53 requires a special permit to take protected animals.

  • s 68(a) requires a permit before a person can hunt or have in his possession a firearm or ‘any device for the purpose of hunting’.

  • s 68(b) prohibits entry onto private land for the purpose of hunting without written authorisation of the owner.

  • s 80(w) empowers the Governor to make regulations exempting Aboriginal people generally, or Aboriginal persons of a specified class, from all or any of the provisions of the Act.

Regulation 14 provides that any Aboriginal person ‘living in his traditional way of life’:

  • may take such protected animals as are reasonably required for food without a permit as required in s 53.

  • may hunt on land set aside for Aboriginal purposes without a permit, but may not take animals in native reserves or conservation parks.

  • does not require a permit under s 68(a) to hunt with traditional weapons.

This regulation does not however exempt Aborigines entering private land, from the requirement of written consent of the owner.

918. Proposed Reforms. In 1984, the Director of the South Australian National Parks and Wildlife Service initiated an Interdepartmental Working Group to formulate policy on Aboriginal hunting. In doing so consideration was given. to Research Paper 15.[1610] The Working Group’s detailed Report recommended that Regulation 14 was inappropriate and should be replaced.[1611] In particular, it concluded that:

  • the term ‘traditional lifestyle’ should be defined to include those Aborigines … in an urban situation but still able to demonstrate ‘an affiliation with tribal customs to hunt native wildlife for food’;

  • the method of hunting should not generally be limited to traditional weapons;

  • Aborigines should be exempt from s 53, and s 68(a) when hunting for food for themselves and their family;

  • foraging on reserves should not be permitted as a general principle with the Gammon Ranges National Park and the Yumbarra Conservation park being exceptions;

  • zones should be set aside for Aboriginal hunting under s 80(2) and the National Parks and Wildlife Act 1975 and joint management agreements established.[1612]

This would enable a proclamation to declare that defined areas of, for example, the Unnamed Conservation Park or the Nullabor Conservation Park could be used for hunting by Aboriginal people.[1613] At Balcanoona where Aboriginal land adjoins a Conservation Park, plans are being made to enable the joint management of the area.[1614] The Working Group hold the following criteria important in assessing Aboriginal hunting on reserves under the control of the National Parks and Wildlife Service:

  • evidence of traditional use of the reserve land;

  • considerations of conservation and other interests;

  • status of the resource and determination of the impact of hunting on the species;

  • control methods available;

  • other significant matters (especially certain government undertakings to Aboriginal people about their rights to use certain land).[1615]

The criteria have been used to formulate policy for Aboriginal hunting in the Gammon Ranges National Park. The Working Group concludes that Aboriginal hunting did not appear to have a significant impact on the species listed, and recommend joint management of the reserve.[1616]

919. Native Flora. Native flora is protected under the National Parks and Wildlife Act 1972 (SA). Section 49 makes provision for the issue of permits to take protected wildflowers and plants. Regulation 5 of the Wildlife Regulations requires the production of reports on the species and number of protected plants and wildflowers taken pursuant to the s 49 permit. Native oranges, native peaches and quandongs are listed in a Schedule of the Act as protected plants. These plants are however only taken very occasionally by Aboriginal people. An earlier Departmental Discussion Paper argued that there should be no restriction on their taking by Aborigines.[1617] It recommended that Part IV of the Act (Conservation of Native Plants and Wildflowers) and the corresponding regulations be amended to exempt Aborigines.[1618] The Native Vegetation Management Act 1985 (SA) makes it an offence to clear native vegetation without the consent of the Native Vegetation Management Authority (s 19, 20) unless the vegetation is in a prescribed area, of a prescribed class, and cleared by a person of a prescribed class or in prescribed circumstances (s 20). There is no exemption for traditional land management practices though possibly traditional activities may fall within prescriptions envisaged in s 20.

920. Aboriginal Land. As has been seen, reg 14 of the National Parks and Wildlife Act 1972 (SA) enables Aborigines to hunt on land set aside for Aboriginal purposes. This regulation applied to reserve land and presumably to Aboriginal land. Some 150 000 sq kilometres of South Australia are Aboriginal land under the Pitjantjatjara Land Rights Act 1981 (SA) and the Maralinga Tjarutja Land Rights Act 1984 (SA). The Pitjantjatjara Land Rights Act 1981 (SA) enables the Governor to make regulations ‘regulating, restricting or prohibiting any activity on the lands that may have adverse environmental consequences’ (s 43(1)(b)). Such regulations can only be made on the recommendation of the Anangu Pitjantjatjara (the relevant Aboriginal body corporate) (s 43(2)). Formally, therefore, the initiative in these matters has to come from the Anangu Pitjantjatjara, which also has a right of veto over regulations under s 43(1)(b), at least as to substance but possibly also as to their precise terms. When the Maralinga Tjarutja Land Rights Bill 1983 was first published it contained a provision (cl 39(1)(b)) in the same terms as s 43(1)(b) of the 1981 Act. The Bill was referred to a Select Committee of the House of Assembly, which suggested that clause 39(1)(b) required amendment:

The Maralinga land is a sensitive and arid area. Any future change in its use could have considerable environmental significance. As the regulation stands, the initiation. of any appropriate regulations for environmental controls rests with Maralinga Tjarutja. This approach is in contrast to that adopted in most other areas of the State, where land owners and managers are commonly required to consult with the Government regarding any change of land use and in fact are required to obtain Government approval for several categories of development. Your Committee is of opinion that the power to initiate the introduction of regulations should rest also with the Department of Environment and Planning or any other appropriate agency and for their development to proceed in consultation with Maralinga Tjarutja. This approach is acceptable to the Department and to the Aboriginal people.[1619]

In consequence, s 43 of the Maralinga Tjarutja Land Rights Act 1984 (SA) provides that:

43. (1) The Governor may make regulations —

(aa) prescribing a form of agreement as a model form of agreement under which exploratory operations may be carried out on the lands and providing that such a model form of agreement shall form the basis of negotiations between Maralinga Tjarutja and any applicant for permission to carry out exploratory operations on the lands:

(a) regulating, restricting or prohibiting the depasturing of stock upon any specified pan of the lands;

(b) regulating, restricting or prohibiting any activity on the lands that may have adverse environmental consequences;

(c) regulating, restricting or prohibiting the supply or consumption of alcoholic liquor on the lands;

(d) providing for the confiscation of alcoholic liquor;

(e) prescribing other matters contemplated by this Act, or necessary or expedient for the purposes of this Act;

(f) prescribing penalties (not exceeding two thousand dollars) for breach of, or non-compliance with, any regulation.

(1a) A regulation shall not be made under subsection (l)(aa) except with the approval of Maralinga Tjarutja.

(2) A regulation shall not be made under subsection (l)(b) except after consultation with Maralinga Tjarutja.

(3) A regulation shall not be made under subsection (l)(c) or (d) except upon the recommendation of Maralinga Tjarutja.

Questions have also arisen with regard to conservation measures in the Unnamed Conservation Park in the far north west of South Australia. Notice was given to the Select Committee of the House of Assembly of Aboriginal interest in adding this park to the Maralinga lands, given the strong traditional interest in these lands.[1620] The Select Committee found that both Aboriginal people and the National Parks and Wildlife Service ‘have indicated their willingness to establish a joint management arrangement for control of the Park, on the understanding that final responsibility rests with the Minister for Environment and Planning’.[1621] It is understood that amendments are to be made to Division 5 of the National Park and Wildlife Act 1972 (SA) to enable the National Parks and Wildlife Service to enter into joint management agreements for the management of reserves in which Aborigines have a vested interest. This proposal would enable negotiations to take place between the Adnjamanthanha people and the Service in relation to Balcanoona.[1622] It is proposed that there be conditions embodied in the Park Joint Management Agreement in relation to reserves with which ‘Aboriginals have had long-standing traditional associations’.

Western Australia

921. Wildlife Conservation. In Western Australia a distinction is made between National Parks vested in the National Parks Authority under s 27, 28, 29 of the Land Act 1933 (WA) and administered under the National Parks Authority Act 1976 (WA), and areas subject to the control of the Western Australia Wildlife Authority under the Department of Fisheries and Wildlife, and subject to the Wildlife Conservation Act 1950 (WA).

922. National Parks Authority Act 1976 (WA). Under the National Parks Authority Act 1950 there is no statutory recognition of the right of Aboriginal people to forage. It is understood that the policy of the National Parks Authority is to allow Aborigines to forage in their traditional style, although this is not provided for in any specific or formal way.

923. Wildlife Conservation Act 1950 (WA). Under the Wildlife Conservation Act 1950, there are general provisions relating to the taking of certain protected flora and fauna. These apply to all land including Crown land. Aboriginal people are exempted from these provisions by s 23(1) which allows ‘a person of Aboriginal descent’ as defined the Aboriginal Affairs Planning Authority Act, 1972, s 4 to take fauna or flora:

upon Crown land or upon any other land, not being a nature reserve or wildlife sanctuary, but where occupied, with the consent of the occupier of that land,

sufficient only for food for himself and his family, but not for sale —

and the Governor may, if he is satisfied that the provisions of this section are being abused or that any species of fauna or flora which is being taken under the authority of this section is likely to become unduly depleted, by regulation suspend or restrict the operation of this section in such manner and for such period and in such part or parts of the State as he thinks proper.[1623]

The exemption in s 23(1) refers to the taking for food. This has not been interpreted in a narrow sense.

In Western Australian the word ‘food’ as used in Section 23 … is subject to a broad interpretation as a matter of policy. It encompasses any use, apart from a commercial use, to which an Aboriginal can put his mind. It follows that few restrictions are placed on Aboriginal people with respect to interpretation of Section 23.[1624]

So far no regulations have been made under s 23(1). It should be noted that the exemption requires the consent of any occupier of the land. Nonetheless, the then Conservator of Wildlife in Western Australia described s 23 as:

a very powerful [provision]. Aboriginal people acting under Section 23 are not subject to any other provision of the Act and Regulations. Thus there are no restrictions placed on times or methods whereby Aboriginals can take fauna except where nature reserves and game reserves are concerned.[1625]

Section 23 does not apply to nature reserves and wildlife sanctuaries where regulations may be made restricting or prohibiting the taking of certain flora and fauna, restricting access to the sanctuaries or reserves, restricting the lighting of fires, use of boats, firearms, and interfering with or disturbing the fauna or natural environment. However in relation to nature reserves, agreements have been reached, pursuant to the Wildlife Conservation Act 1950 (WA) s 12D and s 12E, with Aboriginal groups to take fauna.[1626] The fact that s 23 does not apply to nature reserves and wildlife sanctuaries has been the cause of some concern on the part of Aboriginal people. Submissions made to the Inquiry into Aboriginal Land in Western Australia claimed the right to ‘cut trees for artefacts, whether in national parks, or nature reserves and to have access not only for ceremonial reasons, but to camp there, make fires, hunt with rifles and fish’.[1627]

924. Aboriginal Land. At present there are just under 21 000 hectares of Aboriginal land in Western Australia.[1628] The Land Act 1933 (WA) s 29(1)(a) allows for land to be reserved for any purpose and the reservation or disposition itself can contain a specification for the ‘use and benefit of Aboriginal inhabitants’. The Aboriginal Affairs Planning Authority Act 1972 (WA) s 25(1) allows for ‘any Crown land to be reserved for persons of Aboriginal descent’. Crown land so reserved is held by the Aboriginal Land Trust, which is required to use and manage the land for the benefit of and according to the wishes of Aborigines (s 23). The Governor may make regulations for the management and use of reserved land and for the provision of appropriate means of consultation with the representatives of Aboriginal people (s 51(2)). Customary hunting and foraging rights are recognised under s 32, which provides that the Governor may declare areas of the reserved lands to be for the exclusive use of ‘Aboriginal inhabitants of that area, being persons who are or who have been normally resident in their area or their descendants’ (s 32(1)). Section 32(2) allows for documentary evidence of Aborigines so entitled, including evidence of the benefit derived from the ‘enjoyment of the natural resources related to customary land use’. So far there have been no instances of resort being made to this section.[1629]

925. Aboriginal Land Inquiry and Hunting Rights. Complaints to the Land Commissioner were also made on the ground that national parks and nature reserves had been created in traditional country without consultation.[1630] In recommending that Aborigines should have the right to apply to the tribunal for a grant to title to a reserve or park, the Commissioner stated that:

4.73 … the public authorities managing such reserves or parks should be given wide powers to negotiate with Aboriginal organisations to achieve settlements of Aboriginal claims to this sort of public land. If an accommodation cannot be reached, then I recommend that the Aboriginal organisation concerned should have the right to apply to the Tribunal for the grant of title to the reserve or park.

4.74 Various problems are likely to arise when balancing Aboriginal aspirations with the public interest in the preservation of reserves and the use of parks. I consider it necessary to give the Tribunal jurisdiction to dispose of the application upon the following basis’ It shall make the grant if there are appropriate means of accommodating the public interest with Aboriginal ownership or if it is satisfied that the public interest would not be unduly disadvantaged by the granting of title to Aboriginal interests.

4.77 I do not recommend that the Tribunal should be confined to making or refusing a grant of the public land concerned. It should also have the power if it thinks fit to make orders for access in favour of members of the applicant organisation on such terms and conditions as are appropriate to protect the public interest in the reserve or park. For that purpose it should also have power to make an order declaring what portion of the general laws applicable to the use of the park or reserve should not apply to the Aboriginal people who are afforded access by the order.

The Western Australian Environment Protection Authority has a large number of proposals relating to the creation of Conservation Reserves at varying stages of implementation.[1631] The Aboriginal Land Inquiry found that while there has been considerable public input into these proposals, little allowance has been made for Aboriginal aspirations.[1632] The Commissioner recommended that the Environmental Protection Act 1971 (WA) s 4 be amended to empower the Environmental Protection Authority to give consideration to Aboriginal concerns.[1633] Failing successful negotiations with the Authority there is still the possibility that Aboriginal organisations may make a claim to the land the subject of a recommendation.[1634] On the question of the application of general laws such as conservation laws, the Commissioner commented:

I recommend that modified title-holders should in general be bound by all those general laws which affect the use which landowners may make of their land, or the activities which may be carried out on land. However there will be occasions where their absolute application would frustrate reasonable Aboriginal aspirations in relation to the use of modified titles. I recommend that the Tribunal should have the power to make an order in relation to the use of land which is the subject of an application before the Tribunal, declaring what portion of the general laws should not apply to the land and to the members of the claimant organisation.[1635]

926. The Aboriginal Land Bill 1985 (WA). This recommendation was not endorsed in the Bill to implement aspects of the Report, which was unsuccessfully presented to the Western Australian Parliament in 1985.[1636] The Aboriginal Land Bill (1985) (WA) did however propose that the Governor on the recommendation of the Aboriginal Land Tribunal could declare any national park, nature reserve on marine park a special management area (cl 96) and appoint a management committee to oversee the management of the area (cl 97). An Aboriginal land corporation or regional Aboriginal organisation, acting on behalf of Aborigines with entitlements, by traditional association or residence to the land, would have been able to apply for the land to be declared a special management area (cl 98, 100) or for a lease of the land to be granted on the recommendation of the Aboriginal Land Tribunal (cl 99, 101). The Tribunal would have to be satisfied that the grant of the lease or the creation of a special management area does not ‘significantly affect the achievement of the purpose for which the land is held by the controlling body’ (cl 106(2)(b)(i)) and that the declaration may be made in such a way as to protect the use and enjoyment of any existing interests (cl 106(2)(b)(ii)).

Queensland

927. Wildlife Conservation. The Fauna Conservation Act 1974 (Qld) repealed the Fauna Conservation Act 1952 (Qld), s 78 of which had exempted Aborigines from its provisions relating to the killing of native birds and animals, so long as the killing was for food and provided the employment terms relating to the particular Aborigine did not include food. The 1974 Act makes no specific provision to allow Aboriginal people to take any native birds, mammals, reptiles or animals. In addition s 34 of the National Parks and Wildlife Act 1975 (Qld) applies specifically to National Parks and makes it an offence to interfere with the forest products, notwithstanding anything to the contrary in any other Act. Apparently the provisions of the National Parks and Wildlife Act 1975 (Qld) and the Fauna Conservation Act 1974 (Qld) are not rigorously enforced against Aboriginal people hunting for food and not for purposes of sale. However given that the economy of many Aboriginal communities relies heavily on traditional hunting and fishing,[1637] legislative protection appears to be necessary, particularly in Cape York, where Cape York Peninsula Wildlife reservations have been declared over areas still subject to traditional use by Aboriginal people.

928. Aboriginal Land. Until 1984 the prohibition against hunting native animals in Queensland extended equally to residents of Aboriginal reserves. The only exemption to this general prohibition was in the Local Government (Aboriginal Lands) Act 1978 (Qld) s 29, which provides that, notwithstanding the provisions of any Act, an Aboriginal resident of the shires of Aurukun or Mornington may hunt native fauna and ‘consume the same to the extent necessary for the sustenance of himself and members of his family or household’. Aboriginal residents may also gather, dig and remove forest products within the shire for domestic use. This meant that Aboriginal residents of Aurukun and Mornington Island were in a better position in this respect than residents of Aboriginal reserves in Queensland. Recent amendments to the Land Act 1962 (Qld) enable reserve land to be returned to Aboriginal people under a deed of grant in trust.[1638] The management of such ‘trust areas’ is to occur under the Community Services (Aborigines) Act 1984 (Qld), and the Community Services (Torres Strait) Act 1984 (Qld). Section 77 of the former Act provides that:

(1) Notwithstanding the provisions of any other Act, a member of a community resident in an area shall not be liable to prosecution as for an offence for taking marine products or fauna by traditional means for consumption by members of the community.

(2) Subsection (1) shall not be construed to authorize the sale or other disposal for gain of any marine product or fauna taken by traditional means.[1639]

New South Wales

929. Wildlife Conservation. The National Parks and Wildlife Act 1974 (NSW) makes it an offence to take or kill any protected and endangered fauna with that State without a licence. In National Parks, which form a large part of available Crown land in the State, it is an offence to take or kill any animal without a licence. The provisions of the Act dealing with nature reserves are similar, in that it is also an offence (unless the person is a licencee, lessee or occupier of the land) to take or kill any animal, to carry, discharge or possess a prohibited weapon, or to cut, destroy, pick or set fire to any tree, scrub, plant, flower or vegetation. In wildlife refuges it is an offence to kill any native animal unless licensed, though fishing is permitted, and certain species of animals may be exempt under certain conditions. There are provisions allowing for open seasons, generally or in specific areas of New South Wales, for specified fauna.[1640] The lack of any clear protection of Aboriginal interests has, in the past, created administrative difficulties. In one matter at Wellington (NSW) four men were charged by police with the use of firearms for the purpose of taking protected fauna (goanna) and with the use of a firearm in a public place. To assist in mitigation of penalty, the Minister for Aboriginal Affairs sought a statement from the National Parks and Wildlife Service, ‘detailing the impetus’ to recognise ‘traditional hunting and gathering practices’. The Service replied that since the charges were laid under the Firearms and Dangerous Weapons Act 1973 (NSW), it was ‘not a matter in which the Service should be involved’.[1641] This was despite the fact that the Service itself had generally sought to avoid prosecuting Aborigines under the National Parks and Wildlife Act 1974 (NSW). A State Land Rights meeting held in September 1983 called for the amendment of the Act so that it would not apply to traditional hunting and fishing.[1642] The Director of the New South Wales National Parks and Wildlife Service subsequently indicated that:

individual Aboriginals would not be required to hold licences under the National Parks and Wildlife Act subject to certain conditions. Local Aboriginal Land Councils would be encouraged to have an active role in wildlife management to ensure that populations are not jeopardised … In summary, the Service’s view is that Aboriginal hunting and gathering rights do not necessarily conflict with nature conservation values so far as locally common species are concerned.[1643]

To this effect the Service announced in 1986 regulations under s 70(7), 71(4), 100(2) of the Act, exempting Aborigines and their dependants from the provisions relating to the taking or killing of protected fauna except in relation to raptors, parrots and endangered fauna (i.e. s 70(1), 70(2), and 98(2)). Further exemptions under s 71(4) and 117(5) exempt Aborigines and their dependents from provisions prohibiting or restricting the gathering and harvesting by Aborigines of native plants provided that in the case of a protected plant they must be harvested or gathered without harm to the plants or unreasonable interference with their means of propagation (i.e. s 71(10 and 117(1)). The taking by Aborigines must be for domestic purposes. The service has advised that it is:

not prepared to permit hunting and gathering in national parks or nature reserves. The Service’s view in relation to state game reserves is, in general terms, the same and therefore requires some comment. These areas are set aside primarily for their importance as breeding areas for birds, some of which happen to be traditional (and ‘legal’, during open seasons declared under Section 95 of the Act) game birds. The use of these areas for controlled hunting during limited times of the year is very much secondary to their nature conservation values. Notwithstanding these general comments, the Service would be prepared to consider proposals for hunting and gathering in particular state game reserves on a case by case basis.[1644]

The Regulation does not apply to hunting and gathering on lands to which Aborigines do not have a legal fight of access.[1645]

930. Aboriginal Land. Although the Aboriginal Land Rights Act 1983 (NSW) provides for certain rights of access to land for the purpose of hunting, fishing and gathering,[1646] it makes no special provision for hunting, fishing and gathering on Aboriginal land.[1647] The position on such land (when it is vested under the Act) is accordingly the same as for other land in the State.

Victoria

931. Wildlife Conservation. The Wildlife Act 1975 (Vic), the National Parks Act 1975 (Vic) and regulations made thereunder provide no particular exemptions for Aboriginal people. The Commission is not aware of any difficulties experienced by Aboriginal people with the operation of these Acts. Aboriginal organisations and the relevant authorities had few complaints.

932. Aboriginal Land. The Aboriginal Land Claims Bill 1983 (Vic) proposed to establish machinery for granting Crown Land to Aborigines. Upon such a grant any national park under the National Parks Act 1975 (Vic) on the land would cease to exist (el 13(3)), while any lease under the Act would continue but would not be renewable without the consent of the Aboriginal claimants (cl 13(4b)). The Aboriginal claimants would be vested with:

full care and control of the flora and fauna on the land granted other than —

(a) wildlife which has been declared by the Governor in Council to be notable or endangered wildlife pursuant to the provisions of the Wildlife Act 1975; or

(b) wild flowers or native plants which have been proclaimed to be protected pursuant to the provisions of the Wild Flowers and Native Plants Protection Act 1958.[1648]

The Bill was introduced into the Victorian Parliament in March 1983 but has not been proceeded with, pending further discussion and consultation with Victorian Aborigines.

Tasmania

933. Wildlife Conservation. The National Parks and Wildlife Act 1970 (Tas),[1649] the Crown Lands Act 1976 (Tas),[1650] the Forestry Act 1920 (Tas),[1651] and the regulations made under these Acts contain no special provisions to accommodate Aboriginal interests. These Acts are similar to those of other States in that they restrict some kinds of hunting and fishing without a licence, and generally the taking of vegetation, lime shell, sand, or any natural substance from Crown land. They protect flora, fauna and provide for permits for taking certain wildlife and eggs; they also prohibit hunting of indigenous animals and birds in State forests. So far as Tasmanian Aborigines are concerned, it appears that mutton birding gives rise to a particular problem.[1652] Mutton birds are a protected species for which a licence is required. Aboriginal people have been advised by the Tasmanian Aboriginal Legal Service to apply for licences to hunt mutton birds commercially. The purchase of Trefoil Island for the Trefoil Island Company by the Aboriginal Development Commission has facilitated the taking of mutton birds on the island by local Aborigines. No amendments to existing legislation to enhance Aboriginal rights in this respect are envisaged by the Tasmanian authorities.

934. Aboriginal Land. No land in Tasmania is specifically set aside by Tasmanian law for the use or benefit of Aborigines. The Aboriginal Development Commission has however purchased 19.8 hectares on Cape Barren Island in addition to Trefoil Island.