989. Access to Pastoral and Crown Land. Consistently with the principles outlined above, it is reasonable that Aborigines be accorded some access to traditional lands for the purposes of hunting, fishing and gathering, whether these lands are unalienated Crown lands or are subject to leasehold or other interests. It is to be hoped that such access will be maintained unimpaired in relation to South Australian perpetual and pastoral leasehold land. To deny such access, as occurs for example in Queensland, is to deny the reality of hunting and fishing rights. On the other hand where interests in the land are held by persons other than the Crown, conflicting claims and uses are likely, and it becomes necessary to take into account the interests of those affected, whether by negotiated access provisions, recourse to an appropriate tribunal or otherwise.
990. Traditional or other Nexus with Land. A further definitional question, which has been resolved in different ways in different Australian Acts, is the need for a link between the hunting or other activity and the land or sea on which it is carried out. For example that link may have to be a residential one (so that non-residents with traditional affiliations do not qualify), or it may be that a demonstrated traditional right of foraging is sufficient. Alternatively some less substantial link may be enough. Where the land is Aboriginal land and the hunting is being carried out by those Aborigines entitled to hunt over the land, the link is obviously satisfied. Other cases are not so easily resolved. The Canadian experience suggests that a requirement based on residence or on traditional affiliations or use is necessary, as several submissions pointed out:
While I agree that relating wildlife fights to residence or historical relations to the locale is administratively burdensome and poses difficulties for displaced groups in States such as New South Wales, I’m afraid it will become unavoidable. Wherever wildlife is scarce and restrictions must be imposed, indigenous groups themselves are likely to raise issues of relative entitlement. This has become a serious problem in managing Indian Salmon Fisheries in Washington State. As harvest continues to shrink, tribes intensify their arguments over who has the right to fish where. It has caused considerable friction, and forced the courts and wildlife managers to be more precise in demarcating traditional use areas. (Displaced groups can be assigned rights in otherwise unclaimed areas so that their exercise of rights does not displace other groups.)
[S]ome difficulty has been experienced in this regard with the Natural Resource Transfer Agreement, 1930. Those agreements to some extent replace the restrictions of the treaties and provide for Indian game harvesting without references to additional use and occupancy. As a consequence some concerns have been raised as to over-harvesting, and Indians, say from southern Alberta, harvesting game in Northern Saskatchewan. Consequently, it would seem that the approach that Aborigines should be able to show that ‘their use is consistent with traditions’ deserves support.
991. Long Association with Land. On the other hand, an emphasis on a traditional nexus with land may exclude numbers of Aborigines for whom bush food remains important. The Western Australian Land Commissioner, while rejecting claims to ‘a general right to hunt, fish and forage over any other person’s land’ in the absence of some element of a residential, historical or traditional nexus, concluded that:
it is more appropriate to consider the question of access to land to hunt, fish and forage by reference to the land which might be available for that purpose than to concentrate upon the protection of traditional interests. The latter course would exclude the aspirations of large numbers of Aboriginal people who live in areas of the State where their links with the pastoral land are by long association and no longer by tradition.
He thus recommended that Aboriginal people be granted access ‘by virtue of traditional association with or long association by residence on or use of the land concerned’. In the circumstances of Western Australia this approach has much to recommend it. But the Aboriginal Land Bill 1985 (WA) itself referred to Aborigines ‘who have entitlements in respect of the land in accordance with local Aboriginal tradition’ (cl 74(a)). Where hunting, fishing or foraging rights are granted on the basis of traditional affiliations, residential requirements in addition to traditional affiliations are undesirable, since they are likely to distort, rather than recognise or reflect, Aboriginal perceptions and traditions. As the Northern Territory land claim experience has shown, neither residence nor traditional ownership necessarily implies the exclusive right to use land: though courtesy, at least, may require that permission be sought, it is never refused. In these circumstances it should be enough to limit access to land to those Aborigines who can demonstrate traditional attachment to the particular land, or at least that their use is consistent with tradition. To restrict entitlement to inhabitants of the Northern Territory is also inappropriate where there is movement by Aborigines over State borders. In the Northern Territory both the Crown Land Act (NT) s 24 as currently drafted, and the recommendation of Justice Toohey, extend the entitlement both to residents of the land and to ‘Aboriginals entitled by Aboriginal tradition to the use or occupation of the leased land’. Where policies of dispersal and displacement have made such demonstrated attachment impossible or extremely difficult to demonstrate (for example in parts of Queensland), such a limitation may be too stringent, and access provisions based on long residential or historical links may be preferred. Thus the linking of access to land ‘traditionally used for hunting purposes or to land giving access to any lands to be used’, under s 48(1) of the Aboriginal Land Rights Act 1983 (NSW), is inappropriate given the history of settlement in New South Wales, at least unless the term ‘traditionally used’ is taken to refer only to common use in the relatively recent past.
992. Sea Closures. One way of recognising traditional fishing rights is to close the seas adjacent to Aboriginal land for the exclusive use of the land-holders, or others with rights to use that land or the adjacent sea. The Northern Territory legislation to this effect was described in Chapter 34. On the other hand, the Western Australian Aboriginal Land Commissioner rejected the vesting of the sea bed as a method of protecting Aboriginal fishing interests, preferring instead an order ‘for protection of waters adjacent to Aboriginal land’ in cases where Aboriginal applicants could show that use of the waters by others interfered with their traditional use. In making such an order the Tribunal should take into account the commercial recreational and environmental interests of the wider community, with protection orders effecting conservation and marine stock after consultation between the fisheries department and Aboriginal communites. The Aboriginal Land Bill 1985 (WA) substantially accepted these recommendations. The Commission favours this approach. It is regrettable that the proposals were rejected and that there are not ways to protect Aboriginal and Torres Strait Islander fishing interests from interference in seas adjacent to Aboriginal land in South Australia and Western Australia and adjacent to Aboriginal trust areas in Queensland. Legislative protection, along the lines indicated in Western Australia, would be desirable. The Great Barrier Reef Marine Park Authority should also be empowered to zone certain sections of the reef for the use and benefit of Aborigines. This approach has been advocated in relation to the traditional fishing areas adjacent to the Lockhart River and Bamaga communities. But draft zoning plans indicate that the Great Barrier Reef Marine Park Authority has not accepted this recommendation. It has been argued that there is a difficulty in doing this in that the aims and functions of the Authority are limited to balancing conservation of the reef with other uses generally — with no priority given to Aboriginal uses. It is said that the Act tinder which the Authority operates was not enacted for the benefit of Aborigines, as indicated by the absence of any recognition of traditional fishing interests in s 32(7). It is apparent that traditional fishing has not been given priority under the Act, nor does the Act envisage the closing of areas of the Reef for traditional fishing in the same way that it envisages closing off the Reef for scientific purposes under s 32(7)(a)(e), which requires the Authority to have regard to certain matters in the preparation of the zoning plans. It is recommended that the Act be amended to clarify the position by allowing the Minister to take into account, whether specific areas, adjacent to a trust area (for example Yarrabah, Hopevale, Lockhart River, Palm Island) be set aside for traditional fishing by members of that community. Ultimately there should be consideration of whether there may be a need for traditional fishing to protect areas of the sea adjacent to trust areas with the Torres Strait Protected Zone.
993. Traditional or other Nexus with the Sea. Clearly, for the purposes of special protection and sea closures there needs to be some traditional association or special link with the sea, usually if not invariably involving areas of the sea adjacent to Aboriginal land. For example Aboriginal Land Bill 1985 (WA) was expressed in terms of those Aborigines having entitlements to the sea in accordance with local Aboriginal tradition (cl 86(1)).