970. Articulating Basic Principles. As will be apparent from the review of Australian law and practice in Chapter 35, the Commonwealth and some States have demonstrated considerable willingness to recognise Aboriginal traditional hunting, fishing and gathering rights. However legislation in many of the States contains distinctions and omissions which are difficult to justify. Provisions protecting Aboriginal hunting and fishing rights in earlier legislation were omitted from later Acts, without apparent reason. Very often there is a considerable gap between legislative provisions and what appears to be Departmental policy. Departmental policy may be to refrain from prosecuting non-commercial breaches of wildlife and fisheries legislation by Aboriginal people, but the need for such a policy indicates that the legislation itself does not give due recognition to Aboriginal hunting, fishing or foraging rights. Moreover a general policy of non-prosecution may be unlawful, and it may well be applied erratically or inconsistently. The inconsistencies found in the legislative provisions of most States can be ascribed in part to the fact that there is no articulated, publicly available set of principles to guide legislators in the protection of legitimate Aboriginal interests. Before legislation can be amended to remove unjustified limitations on Aboriginal traditional hunting, fishing and gathering rights, the principles on which the recognition of these rights should be based must be established. This Chapter articulates these principles.

971. The Need for Recognition. The recognition of customary hunting, fishing and gathering rights accords with — indeed, may be thought to be required by — the principle that Aboriginal people should have the right to retain and develop their traditional lifestyle and identity.[1750] In addition Article 1(2) of the International Covenant on Civil and Political rights states that: ‘In no case may a people be deprived of its own means of subsistence’. Recognition also accords with the reality that food obtained by subsistence often forms an important part of the diet of many Aborigines in remote areas.[1751] Much present State legislation, if strictly enforced, would deny many Aborigines reasonable access to natural resources which are still important to their way of life. The practices of many State authorities in not prosecuting Aborigines for breaches of wildlife conservation and fishing provisions may be attributed both to the difficulties of policing large areas of inaccessible country, and to a realisation of the irrelevance and inappropriateness of these laws for Aboriginal people in such cases. That few Aborigines are charged and convicted for breaches of State wildlife and fishing laws was reflected in the fact that the Commission received few written submissions specifically calling for the recognition of hunting and fishing rights. However, during the Commission’s Public Hearings the matter was raised on a number of occasions.[1752] However, the fact that administrative practice does not accord with legislative provisions is not an argument against reform. If anything, it strengthens the case for reform. The Canadian practice of issuing Ministerial directives to departmental officers that they not charge Indians with offences under the Migratory Birds Convention Act was strongly criticised by the Manitoba Court of Appeal,[1753] and guidelines providing for exemption from prosecution may be unlawful in Australia.[1754] While, as the review in Chapter 35 has shown, some Commonwealth, State and Territory laws do take account of legitimate Aboriginal needs, other legislation is in many cases demonstrably inadequate. If so, there is good reason for bringing legislation into line with existing practice and policy.

972. Setting Out a Concerted Approach. Attempts to argue for a common law right to hunt and fish in Australia are not likely to assist most of those Aboriginal people for whom traditional hunting and fishing for food remains a reality.[1755] Similarly, any attempt to limit customary hunting and fishing rights of Aboriginal people to Aboriginal land would benefit some Aborigines while leaving many others without protection. On the other hand proposals for an overriding or categorical form of recognition have rarely been made, and even more rarely adopted. In 1969, a Bill introduced into the House of Commons of Canada[1756] described the right of Canadian Indians to hunt and fish for food as ‘a hereditary and inalienable perogative’ (cl 1), and provided that these rights were not to be diminished or in any way derogated from by any law of Canada (cl 2). The Bill would have bound the Crown in the right of Canada and in the right of a Province (cl 3). The Bill failed to reach the second reading stage, and there have been no subsequent attempts to reintroduce it or similar broadly based legislation.[1757] It is suggested that Aboriginal hunting fishing and gathering rights may more effectively be secured by a proper appraisal of Aboriginal needs and interests, in the context of the overall regime for management of the resource in question. The problem is that, in the area of resource management, some form of unitary, or at least co-operative, regime is necessary in any case where resources are scarce and demand threatens supply. In such cases it is necessary to consider a variety of factors, and Aboriginal interests, however important, are only one amongst these. Other factors include the need to take account of legitimate conservation interests, for example the need to protect, absolutely or regionally, endangered species, the need for effective management of natural resources, established pastoral or other residential interests, and commercial interests such as fisheries and tourism. The relative importance and nature of these needs and demands will vary in each situation. For example, commercial interests may have to be taken into account in consideration of traditional fishing; on the other hand commercial harvesting of Australian fauna is minimal and is not a significant factor.[1758] But in every case there is a need to recognise as a matter of principle the relations of Aboriginal people to the land and to their customary laws, and to take account of the fact that, although hunting, fishing and gathering practices have changed and adapted to new conditions, these traditions remain important, in many areas, both in their own fight and in terms of sustenance. The multitude of interests to be considered militates against an entrenched overriding recognition of hunting and fishing rights of a general character. But it is possible to articulate general principles which take due account of Aboriginal needs and interests and of other relevant interests. In developing these principles, the Commission has drawn on relevant Australian experience as set out in Chapter 35. In a number of cases the relevant authorities have developed working models which go to considerable lengths to respond to Aboriginal needs, and to balance conflicting interests with the underlying need for conservation of the resource in question. Special attention has also been given to the Canadian experience, for example, as represented by the James Bay and Northern Quebec Agreement.[1759]

973. A Legislative Response? Several submissions to the Commission called for specific legislation to protect traditional hunting and fishing interests or for some form of constitutional protection of these interests:

It is evident from the discussion of the variety of Commonwealth and State or Territory legislation that applies to Aboriginal traditional hunting fishing and gathering rights, that it is time to consider specific and uniform legislation to protect these rights.[1760]

I completely agree with the need for and propriety of legislative recognition of Aboriginal hunting and fishing rights. Personally, I would prefer a more durable approach than mere legislation, which can easily be changed, in favour of constitutional entrenchment or a ‘manner and form’ mechanism of entrenchment (eg, amendment or repeal only by a 75% vote in the House and Senate), or enabling legislation which implements a negotiated agreement or treaty.[1761]

It is all very well, for example to entrench rights in a constitution but the precise manner in which that is done is very important. Do you adopt a s 35 approach or something a little more specific (such as Art 12 of the Natural Resources Transfer Agreement) or do you develop a detailed set of principles and rights which will then be used as the basis for further negotiations on resource management and harvesting between Aboriginal people and state and commonwealth governments?[1762]

However several submissions warned of the dangers of excessive legislative intrusion:

The principle of co-operation and consultation between Aboriginal interests and those who administer wildlife legislation would be better served by a generous measure of goodwill than the subscription to a series of restrictive guidelines to such consultation no matter how carefully worded.[1763]

These submissions raise several questions.

  • whether there should be Aboriginal control, involvement or consultation in the management of resources in which they have a legitimate interest. This issue will be referred to again later in this Chapter.[1764]

  • the extent to which there should be legislative guidelines. The Commission does not consider it necessary for detailed legislative provisions to intrude into the details of administration and management. However it is important that the principles set out in this Chapter receive legislative endorsement. This can be done without interfering with detailed resource management and administrative decision-making, which needs to be carried out in consultation with Aboriginal people. It is important that legislation inconsistent with these principles not be allowed to remain unamended. Examples of State and Commonwealth legislation that fail to meet these principles are given below. Supportive policy statements are not sufficient: particularly where policy and legislation conflict, legislative amendment is necessary.

  • the question of federal legislative competence in asserting legitimate Aboriginal interests in resources under State or Territory management (eg by virtue of the special legislative power in s 51(26) of the Constitution) and the desirability of such federal action. This question will be referred to later in this Chapter.[1765] A more detailed examination of Commonwealth involvement in implementing the proposals contained in this Report is contained in Chapter 38.[1766]

The principles set out below are stated at this stage without specific regard to these questions of implementation, which can only be discussed after basic principles are established. It is proposed to clarify some questions of definition before developing a statement of principles.