1001. Summary of Recommendations in this Part. In this Part, the following recommendations are accordingly made:
· Recognition should reflect the wide variety of legitimate interests such as conservation, effective management of natural resources, pastoral and other residential interests and commercial interests. These interests mean that no overriding categorical recognition of traditional hunting, fishing and gathering practices is appropriate (para 972).
· Given the need for unitary management of particular resources and in view of the extensive activity at State and Territory level, the Commission does not consider it necessary or appropriate for detailed legislation to be enacted. However a set of general principles should be adopted, with detailed resource management and administrative decisions made at the appropriate levels in consultation with Aboriginal people affected by these decisions (para 973, 978). State and Federal legislation inconsistent with these principles should be amended, as indicated in paragraph 1003.
· Traditional hunting and fishing should not be limited to consumption for food or sustenance. The broader notion of subsistence (including ceremonial exchange, satisfaction of kin obligations) is to be preferred. Consumption within the local family or clan groups should be regarded as traditional, even though elements of barter or exchange are present. But trade, exchange or sale outside the local community should be treated in the same way as other commercial dealings with the species in question. Relevant legislation or regulations should state this distinction expressly, to avoid misunderstandings or arguments (para 976, 985-7).
· Traditional hunting should not be limited to indigenous species but may include introduced fetal animals (para 975).
· In determing whether an activity is ‘traditional’, attention should be focussed on the purpose of the activity rather than the method. However the method may be relevant in some cases (as will other factors such as whether the person was at the time under his customary laws entitled to kill the animal in question) (para 975, 977).
· The following priorities are justified:
1. conservation and other identifiable overriding interests;
2. traditional hunting and fishing;
3. commercial and recreational hunting and fishing (para 985).
· Conservation principles represent a legitimate limitation on the fights of indigenous people to hunt and fish as do interests of safety, fights of innocent passage, shelter and safety at sea (para 979-983).
· Necessary conservation measures may require restrictions on traditional hunting and fishing interests. While Aborigines should be given control over resources on Aboriginal land, this control should nonetheless be subject to the principal of conservation (para 979-81, 994-9).
· It may be necessary to prohibit or restrict traditional hunting or fishing by limiting the numbers taken, the methods by which or the areas in which they are taken, in the case of rare and threatened species (in particular those threatened with extinction). In this situation it is necessary to determine as far as possible in the circumstances both the status of the species concerned, and the threat to the species posed by traditional hunting and fishing, before long-term decisions are made to restrict traditional hunting and fishing (para 936, 981, 994-9). This requires not only an assessment of Aboriginal hunting and fishing practices but also an assessment of other threats to the species, for example commercial or recreational fishing. If restrictions are placed on traditional hunting and fishing practices, there should be regular monitoring and assessment of the situation in consultation with those affected (para 921, 995).
· As a matter of general principle, Aboriginal traditional hunting and fishing should take priority over non-traditional activities, including commercial and recreational activities, where the traditional activities are carried on for subsistence purposes (para 984, 988). Once this principle is established the precise allocation is a matter for the appropriate licensing and management authorities acting in consultation with Aboriginal and other user groups (para 915, 987-8, 994-5).
· Legislation in Queensland and the Northern Territory allowing for Aboriginal people as a group to take out community licences is preferable to the requirement that such a licence be taken out by a corporation or an individual (para 985).
· Preferential rights to resource harvesting on Aboriginal land for commercial as opposed to community use may well be desirable, since this may provide advantages such as local employment. But this is a distinct question from the recognition of traditional hunting and fishing rights for subsistence and related purposes. Resource harvesting for commercial purposes as such is a matter for the relevant management authorities. The distinction between traditional harvesting for use within the community as distinct from commercial fishing (preferential commercial rights) should be maintained (para 987).
· Recreational hunting and fishing should be treated, at best, no more favourably than traditional activities. The exact place of recreational viz-a-viz commercial fishing will depend on the circumstances, but it is hard to see that any justification exists for special measures for Aborigines who are engaged in recreational hunting and fishing. The Torres Strait Fisheries Act 1984 (Cth), the effect of which may well be to give private fishing exemption from regulations applying to traditional fishing should be amended along the lines proposed in para 1003, and care should be taken to ensure that there is no similar discrimination against traditional fishing, such as previously occurred under the Great Barrier Reef Marine National Park ‘A’ Zone in relation to the Cairns and Cormorant Pass Zoning Plans (para 988).
Access. It is reasonable that Aborigines be accorded access to traditional lands for the purposes of hunting, fishing and gathering, whether these lands are unalienated Crown lands or subject to leasehold or other interests. However where interests in the land are held by persons other than the Crown, it is necessary to take account of those interests, whether by negotiated access provisions or otherwise (para 989).
The linking of access rights to residents of a particular State or Territory creates difficulties (para 936-8).
Where hunting and fishing or gathering rights are granted on the basis of traditional affiliation, additional residential requirements are undesirable since they are likely to distort rather than to recognise or reflect Aboriginal perceptions or traditions. Where policies of disbursement or displacement have made such attachment impossible or extremely difficult, then access provisions based on residential or historical nexus are to be preferred (para 990-1).
Sea Closures. There should be provision for areas of the sea, adjacent to Aboriginal land to be preserved for traditional fishing. The recommendations of the Western Australian Aboriginal Land Commissioner in this respect have much to commend them. Such protection should extend to Aboriginal and Torres Strait Islander fishing interests in seas adjacent to Aboriginal reserves in Queensland. The Great Barrier Reef Marine Park Act s 32(7) should be amended to ensure that traditional fishing interests, and hence the possibility of sea closures and sea protection orders, are specific matters to be taken into account by the Great Barrier Reef Marine Park Authority in preparing its zoning plans (para 992). Ultimately there should be consideration of the need to preserve for traditional fishing, areas of the sea adjacent to trust areas and within the Torres Strait Protected Zone.
For the purposes of such provisions some traditional association or special link with the sea, primarily involving areas of the sea adjacent to Aboriginal land is necessary (para 993).
Consultation and Control
· At both State and federal level, legislation should be amended to require consultation with Aboriginal people affected where steps are to be taken to restrict traditional hunting and fishing, to ensure that views of those Aborigines affected are taken into account in reaching any decision on the management of resources (para 994-7).
· In relation to the Torres Strait and Great Barrier Reef Marine Park regions the Government should satisfy itself that consultations so far have been adequate. The Department of Aboriginal Affairs should be involved in this process along with their Departments. Aborigines and Islanders should be fully informed of all the legal implications of restrictions on their traditional activities. Adequate resources should be provided to government authorities and to Aboriginal and Torres Strait Islander bodies to ensure that such consultation takes place (para 997).
· As far as possible Aborigines should be represented on bodies such as the Great Barrier Reef Marine Park Authority Consultative Committee, and on bodies advising the Protected Zone Joint Authority. Where necessary the Department of Aboriginal Affairs should also be represented (para 998).
· There is no general formula for Aboriginal control in the management of scarce resources. The responsibility of governments to legislate for conservation of resources does not exclude the role of Aborigines in conservation and management; this is especially so on Aboriginal land. Boards of management should be entrusted with the management of Aboriginal land, including the power to regulate its use. There is no reason why. Aboriginal local councils should not therefore be able to make by-laws regulating hunting and fishing on Aboriginal land; though it may be that this power should be limited to by-laws which are more restrictive than those passed by the responsible State or federal Government (para 999-1000).
· There is thus no one model for formal power sharing in relation to the management of national resources. These questions of co-operation and control are properly matters for negotiation between the relevant Aboriginal bodies and Commonwealth or State authorities (para 999).
1002. The Commonwealth’s Role. The question whether these recommendations should receive detailed legislative endorsement has already been raised, as has the question of federal legislative involvement in areas of unitary resource management committed to the States and Territories. In determining. the Commonwealth’s role in the implementation of the principles articulated in para 1001, two questions arise: the legislative competence of the Commonwealth in asserting Aboriginal interests in resources under State or Territory management, and the desirability of such Commonwealth involvement. Questions of fisheries beyond territorial limits apart, the conservation of natural resources is not specifically a matter of Commonwealth legislative competence under the Constitution. However, conservation provisions may be upheld as valid under a variety of powers, as the High Court’s decision in the Tasmanian Dam case demonstrates. One of these powers is the Commonwealth’s power to legislate for the people of the Aboriginal race for whom it is deemed necessary to make special laws, under s 51(26). The extent of this power is discussed in greater detail in Chapter 38. Even under the narrower view preferred by the minority of the High Court in the Tasmanian Dam case, the Commonwealth has extensive legislative power over the matters raised in this Chapter. In a number of ways the Commonwealth has demonstrated its determination to accord appropriate legislative recognition to Aboriginal customary hunting and fishing interests in projects or areas with which it is otherwise involved. These include the National Parks and Wildlife Act, the Kakadu Plan of Management, the Great Barrier Reef Marine Park and the Torres Strait Treaty provisions. But the question is whether federal legislative involvement should extend further into areas of State or Territory responsibility. In the Commission’s view the principle of unitary management of resources is of such importance that such direct federal involvement is not desirable at this stage. However an agreed statement of principles along the lines set out in this Report should be adopted by the Commonwealth in relation to environment and resource matters within its own management or control. These principles should be taken up by the Commonwealth with the States and Territories, in an attempt to ensure more uniform adherence to them in the wide variety of circumstances in which they have to be applied. The work of the Great Barrier Reef Marine Park Authority and of Northern Territory and Commonwealth Wildlife authorities demonstrates that co-operative administrative arrangements with the States may well be effective. Certain States and the Northern Territory have also demonstrated similar willingness to recognise Aboriginal hunting and fishing interests in certain areas.
1003. Legislation Requiring Amendment. Consistently with this conclusion, legislation inconsistent with the principles set out in this Chapter should be appropriately amended by the competent legislature. Some legislation substantially accords with these principle (for example the National Parks and Wildlife Conservation Act 1975 (Cth), the Wildlife Conservation Act 1976 (WA), the Territory Parks and Wildlife Conservation Act 1976 (NT)) and accordingly requires little or no amendment. At the Commonwealth level the Great Barrier Reef Marine Park Authority Act 1975 and the Torres Strait Fisheries Act 1984 require some amendment. The Great Barrier Reef Marine Park Authority Act 1975 (Cth) should be amended:
to require the Authority to consult with Aboriginal people both in relation to the preparation and amendment of zoning plans;
to take account of the importance of traditional fishing and the desirability of minimising the effects of a zoning plan on traditional fishing;
to require that consideration be given to setting aside specified areas near to trust areas belonging to an Aboriginal or Islander community specifically for traditional fishing;
to require that traditional fishing be given priority over recreational interests, while at the same time ensuring that conservation has priority over traditional fishing;
The Torres Strait Fisheries Act 1984 (Cth) should also be amended to require appropriate consultation, and to ensure that priority is not inadvertently accorded to non traditional fishing. At present, much wildlife legislation in all States, fisheries provisions in all States, and access provisions in Queensland, Western Australia and New South Wales are inconsistent with the recommendations made in this Chapter. Provision should also be made for Aboriginal access to the waters adjacent to Aboriginal land in Western Australia and Queensland.