974. Questions of Definition. Any principle of preference for traditional users, in respect of species or resources available for exploitation, leaves open a number of questions, in particular:
what constitutes ‘traditional hunting and fishing’, a question which itself has two aspects;
· whether the activities encompassed by the term ‘traditional hunting and fishing’ should be restricted to those conducted for the purpose of sustenance;
· which changes in the technology of hunting or fishing should be regarded as consistent with traditional usage; and
which Aborigines should benefit from the principle, and in particular whether there should be some requirement of a residential link with the area to be used.
975. The Purposes of ‘Traditional Hunting and Fishing’. Legislation based on notions of traditional hunting, fishing or foraging rights raises questions of definition and application. It has been said that the lack of a precise definition of traditional fishing ‘presents difficulties for those working in the management and enforcement of wildlife provisions’. The emphasis on the purposes encompassed in the notion of traditional hunting and fishing has tended to be on ‘domestic purposes’, ‘subsistence’, ‘consumption’, or quite simply ‘food’ or ‘sustenance’. It is suggested that the broader notion of ‘subsistence’ is to be preferred. Aborigines were sustained by the land not merely in the nutritional sense; its products were used, for example, in ceremony, exchange and in satisfying obligations to kin and family. While commercial harvesting enterprises involving large-scale accumulation of capital and labour should be excluded, it is not necessary to restrict activities to those carried on purely for the provision of food. Rights of access to resources or land should not therefore be unduly restricted to hunting for food, but should include the use of the resource for ceremonial or religious purposes. In practice it appears that a wide interpretation is placed upon the right to enter the land for ‘sustenance’ or to enter the land ‘to make and erect wurlies and to take and use for food, birds and animals ferae naturae’. It remains to be seen whether a broad interpretation is placed on the word ‘consumption’ in the Community Services (Aborigines) Act 1984 (Qld) s 77 and its Torres Strait equivalent. Traditional hunting and fishing should also include the taking of introduced feral species and should not preclude shifting dietary patterns.
976. Barter and Trade. It is a more difficult question whether traditional hunting and fishing should also include hunting and fishing for barter and trade. RL Barsh argues that the:
broader notion of subsistence [should include] pay back, gift giving, barter (especially between single women and men re their different catches), inter-community trade, and as sustenance for those unable to obtain their own (eg, the elderly). In other words, all activity short of sale to non-Aboriginal consumers or distributors.
But if such a broad approach is adopted there is a danger that exemptions for traditional hunting and fishing could be used to legitimise what are essentially unlicensed commercial activities. The Western Australian Director of Fisheries and Wildlife commented that:
The care that has been taken in Western Australia in consideration of Aboriginal hunting rights stems from the dual need to recognise traditional and customary practices and at the same time to ensure that people of Aboriginal descent who have adopted European values do not abuse their privileges to the detriment of the overriding interests of conservation. There are cases on record of Aboriginal people involved in extensive parrot nest-robbing, of being exploited by aviculturalists to catch birds on the aviculturalist’s behalf and of claiming exclusive rights to take flora, clearly for commercial purposes. The realities of the situation are that tribal and semi-tribal Aboriginal people have nearly total freedom to take wildlife for traditional purposes in this State … The basic problems concern neither philosophy nor the wording of legislation. They centre on the problem of distinguishing between Aboriginals acting from traditional motives and those who use Section 23 to ‘legitimise’ clearly illegal activities.
In the Commission’s view a distinction has to be drawn between hunting and fishing for local consumption, that is, for consumption within local family or clan groups (which should be regarded as traditional even though elements of barter or exchange are present), and trade, exchange or sale outside the local community, which should be treated in the same way as other commercial dealings with the species in question. If necessary the relevant legislation or regulations should state this distinction expressly, to avoid misunderstandings or arguments.
977. Traditional Hunting and Fishing Methods. In principle, in determining whether an activity is ‘traditional’, attention should focus on the purpose of the activity rather than the method. Thus the question which methods or technologies are to be regarded as ‘traditional’ is, for most purposes, a subordinate one. In normal circumstances it is inappropriate to insist on dugouts, fishing spears and harpoons (though many Aborigines in remote communities continue to use these hunting methods). In the Northern Territory the use of firearms has been held to be consistent with traditional hunting. Chief Justice Forster held that the ‘right to take or kill for food for ceremonial purposes’, conferred by the Crown Lands Act 1931 (NT) s 24(2), includes the right to kill by shooting. In the Chief Justice’s words:
It has been common knowledge for many years that in the process of adaptation of old Aboriginal ways many Aboriginal people have adopted firearms as a method of killing, being more efficient for many purposes than spears or boomerangs or other traditional weapons.
Similarly in discussing the right of access for purposes of traditional hunting and fishing, the Western Australian Aboriginal Land Commissioner stated:
If the right were confined narrowly by reference to traditional methods of hunting, fishing and foraging it would be meaningless to almost every Aboriginal person in Western Australia. The argument says that Aboriginal people should only enjoy such a right if they confine themselves to pre-settlement methods of hunting, fishing and foraging. In my view it is really an argument that they should not have rights of access for these purposes at all. I recommend that they should have those rights in certain circumstances, and that they should not be denied the use of modern technology such as vehicles, nylon lines, steel fish hooks, or rifles.
In direct contrast is the recommendation of the Arid Lands Review Committee (SA) to limit access to Aboriginals ‘in bona fide pursuit of their traditional game, utilising traditional weapons and artifacts’. Such a recommendation is anachronistic and amounts to an argument against any access for the purposes of hunting and fishing. It has been rejected by the South Australian Department of Lands. It is Departmental policy in most States to treat the use of firearms as constituting traditional hunting and fishing. This is despite the fact that, for example, the National Parks and Wildlife Act 1972 (SA) reg 14 refers to hunting with traditional weapons. In all but special cases it is suggested that the purpose and underlying method rather than the technology used should be the decisive criterion. This may exclude particularly destructive technologies completely: Aborigines did not, for example, kill more than was needed for food at a particular time, so that the machine-gunning of herds of kangaroos (to take an extreme example) would ipso facto not be traditional. Other factors, such as whether the person was under his customary laws entitled (or disentitled) to kill the animal in question at the time, would also be relevant.