906. Legislative and Administrative Overview. This Chapter examines Australian legislation as it affects ‘traditional’ hunting, fishing and gathering activities of Aborigines. It is based on an examination of relevant State, Territory and Commonwealth Acts and regulations, and on discussions with Aboriginal organisations and State and Commonwealth authorities such as Land Departments, Parks and Wildlife Authorities and Fisheries Departments.[1581]

907. Historical Background. As early as 1848, the question had been raised of ‘such free access to land, trees and water as will enable [the Aborigines] to procure the animals, birds and fish, etc., on which they subsist’, and of the possibility of securing such access by inserting conditions in Crown leases.[1582] Between 1867 and 1900, legislation recognising Aboriginal rights to forage was enacted in Western Australia, Queensland, Victoria and South Australia.[1583] One example, the Fisheries Act Amendment Act 1893 (SA) s 8, enabled the Governor to declare the whole or any part of any river, lagoon, estuary of the sea, a reserve within which only Aboriginal natives of South Australia would be allowed to fish.[1584] This was the first legislative recognition of a fishing right as an independent right, that is, one not couched merely in terms of exemption from prosecution. The intervening years have seen many amendments to the early legislation, with the rights of Aboriginal people to gather food very often being reduced considerably (if not abrogated altogether) in the process.

908. Three Main Areas of Concern. As the following discussion will indicate, Federal, State and Territory legislation and regulations vary considerably. The legislation is by no means consistent or complete, and in many cases difficulties can arise from divergences between legislation and administrative policy. For convenience it is proposed to distinguish between three main areas:

  • hunting and gathering rights;
  • rights to fish;
  • rights of access to land.

In each case it is proposed to deal first with any relevant Commonwealth legislation, then with the States and the Northern Territory. In view of the large and complicated body of legislation and administrative practice, this account is substantially descriptive. The questions of principle will be returned to in Chapter 35, against the background of the present law and practice.[1585]