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The recognition and scope of indigenous fishing, hunting and gathering rights at commom law in Australia Sweeney, Desmond 1997-12-31

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THE RECOGNITION AND SCOPE OF INDIGENOUS FISHING, HUNTING AND GATHERING RIGHTS AT COMMON LAW IN AUSTRALIA by DESMOND SWEENEY B.Sc, University of New South Wales, 1988 LL.B., University of New South Wales, 1988 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS THE FACULTY OF GRADUATE STUDIES (FACULTY OF LAW) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA October 1997 © Desmond Sweeney, 1997 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of •^tW The University of British Columbia Vancouver, Canada DE-6 (2/88) ABSTRACT Australian courts have yet to uphold the existence of any Indigenous fishing, hunting or gathering rights at common law. The High Court of Australia recognised that Indigenous peoples had existing common law rights to land in the Mabo decision in 1992. In doing so, the court fundamentally altered what had been the conventional legal wisdom about the legal rights of Indigenous peoples in Australia. The principles upon which that decision was based pave the way for the recognition of fishing, hunting and gathering rights of Indigenous peoples. But that recognition is yet to occur. The thesis explores the potential for the recognition of fishing, hunting and gathering rights of Indigenous peoples at common law in Australia. Whilst there have been some tentative steps towards the recognition of such rights, there remains considerable uncertainty as to whether such rights do exist at common law and, if so, their scope. This thesis traces the recent developments in the law concerning the recognition of Indigenous fishing, hunting or gathering rights in Canada, New Zealand and the United States. The thesis argues that Indigenous peoples in Australia have an existing, albeit unrecognised, common law right to fish, hunt and gather. If common law fishing, hunting or gathering rights exist, further issues arise as to restrictions upon their exercise under regulatory regimes. Particular problems which may arise in Australia in this regard are considered. Issues concerning the extinguishment and regulation of such rights are analysed in detail. The operation of the Racial Discrimination Act 1975 (Cth) and the Native Title Act 1993 (Cth), which confer additional protection on Indigenous rights recognised at common law, is examined in depth. The impact of these statutes upon State legislation dealing with fishing, hunting and gathering in so far as they affect Indigenous rights is significant. The thesis explores the potential for the commercial utilisation of Indigenous fishing, hunting and gathering rights. Indigenous peoples have received a greater share of the valuable commercial fishing industry in Canada, New Zealand and the United States in the past two decades. However, in Australia there has been no change in the level of participation of Indigenous peoples in fisheries in the wake the Mabo decision. Indigenous peoples remain largely excluded from the current commercial fishing industry. The thesis analyses the legal bases used by Indigenous peoples in other countries to obtain a share in commercial fisheries and considers the applicability of those legal principles to Australia. Finally, issues concerning allocation of natural resources between Indigenous and non-Indigenous users and the regulation or co-management of natural resources utilised by both Indigenous and non-Indigenous persons are explored. TABLE OF CONTENTS ABSTRACT ii TABLE OF CONTENTS iiFORWARD vCHAPTER 1: INTRODUCTION 1 A. OVERVIEW 1 B. METHODOLOGY 6 C. TERMINOLOGY 0 D. LEGAL FRAMEWORK OF INDIGENOUS RIGHTS IN AUSTRALIA 13 (i) Legislative Powers 13 (ii) Racial Discrimination Act 16 (iii) Native Title Act 19 (iv) Summary of Limits on Executive and Legislative Powers concerning Indigenous Affairs 21 CHAPTER 2: HISTORICAL AND STATUTORY TREATMENT OF INDIGENOUS FISHING AND HUNTING RIGHTS 24 A. BRIEF HISTORYB. EXISTING STATUTORY PROVISIONS 6 (i) Overview 26 (ii) Specific Provisions 27 (iii) Scope of Statutory Exemptions 35 CHAPTER 3: COMMON LAW RECOGNITION OF INDIGENOUS FISHING AND HUNTING RIGHTSA. INTRODUCTION 7 B. INITIAL MOVES TOWARDS RECOGNISING INDIGENOUS FISHING RIGHTS AT COMMON LAW IN AUSTRALIA 41 C. RECOGNITION OF INDIGENOUS FISHING AND HUNTING RIGHTS IN OTHER COMMON LAW COUNTRIES 6 (i) Canada 47 Overview 8 Case Law 51 (ii) New Zealand 56 (iii) United States 58 D. RELATIONSHIP BETWEEN NATIVE TITLE AND INDIGENOUS FISHING AND HUNTING RIGHTS 62 E. CUSTOM: AN ALTERNATIVE BASIS? 71 - Page iii -CHAPTER 4: CONTENT AND NATURE OF INDIGENOUS FISHING AND HUNTING RIGHTS 72 A. GENERAL PRINCIPLESB. MANNER OF EXERCISING FISHING AND HUNTING RIGHTS 75 C. MOBILITY 9 (i) The nature of the right 80 (ii) Claiming through another's right 82 (iii) Transfer of Indigenous rights 83 (iv) Conclusions concerning mobility 84 CHAPTER 5: EXTINGUISHMENT OF INDIGENOUS FISHING AND HUNTING RIGHTS 87 A. GENERAL PRINCIPLES 8B. EXPRESS EXTINGUISHMENT 90 C. IMPLIED EXTINGUISHMENT : 91 (i) General regulatory schemes 91 (ii) General prohibitions against fishing or hunting 92 (iii) Statutory grant offishing and hunting rights to third parties 92 (iv) Partial exemption of Indigenous fishing and hunting rights 94 (v) Special regimes for Indigenous fishing and hunting rights 96 (vi) Marine parks, national parks and wildlife reserves 99 (vii) Vesting of ownership of seabeds, riverbeds and waters 100 D. CONFIRMATION OF OWNERSHIP OF NATURAL RESOURCES 103 CHAPTER 6: REGULATION OF SURVIVING INDIGENOUS FISHING AND HUNTING RIGHTS 105 A. INTRODUCTIONB. AN ISSUE OF STATUTORY CONSTRUCTION 109 C. IMPACT OF THE RACIAL DISCRIMINATION ACT OH THE REGULATION OF INDIGENOUS FISHING RIGHTS 114 D. IMPACT OF THE NATIVE TITLE ACT OH THE REGULATION OF INDIGENOUS FISHING RIGHTS 118 (i) Permissible future acts 118 (ii) Removal of certain prohibitions affecting native title holders 121 E. REGULATION OF COMMERCIAL ASPECTS OF INDIGENOUS FISHING RIGHTS 124 F. SPECIFIC STATUTORY PROVISIONS AND ITQ MANAGEMENT REGIMES 127 (i) Specific Statutory Provisions Dealing with the Relationship between Native Title Fishing Rights and General Regulatory Regimes 127 (ii) Individual Transferable Quotas (ITQs) 130 G. SUMMATION 138 - Page iv -CHAPTER 7: COMMERCIAL UTILISATION OF INDIGENOUS FISHING AND HUNTING RIGHTS 141 A. INTRODUCTIONB. OVERSEAS APPROACHES TO COMMERCIAL FISHING RIGHTS 142 (i) United States 142 (ii) Canada 143 (iii) New Zealand 152 C. FRAMEWORK FOR ASSESSING INDIGENOUS CLAIMS TO COMMERCIAL FISHERIES 154 (i) Introduction 154 (ii) Characterisation as a subsistence right 155 (iii) Characterisation of the right by observed manner of exercise of the right 157 (iv) Characterisation by reference to Indigenous concepts of the right in question 160 (v) Characterisation by reference to integral elements of a distinctive culture (the Van der Peet test) ..168 Overview 168 A Critique 9 (vi) The search for self-limiting rights. 191 (vii) Conclusion 194 CHAPTER 8: NATURAL RESOURCE MANAGEMENT AND ALLOCATION OF RESOURCES BETWEEN INDIGENOUS AND NON-INDIGENOUS USERS 197 A. THE ROLE OF INDIGENOUS PEOPLES IN AUSTRALIA IN MARINE RESOURCE MANAGEMENT AND DEMANDS FOR CHANGE 19B. OVERSEAS ALLOCATION AND MANAGEMENT MODELS 205 (i) United States 205 (ii) Canada 211 s 35(1), Constitution Act, 1982 211 Land claim settlements 217 (iii) New Zealand 222 C. RELEVANCE OF OVERSEAS MODELS TO AUSTRALIA 226 D. PROPOSALS FOR CHANGE IN RECENT GOVERNMENT INQUIRIES 229 CHAPTER 9: CONCLUSION 233 BIBLIOGRAPHY 237 - Page v-FORWARD This thesis had a long gestation period. A number of parts of it have previously been published. Numerous changes to the law have occurred in the intervening periods which are included in the revised version of the material appearing this thesis. An earlier version of chapters 2, 3, 4, 5, 7 and parts B and C of chapter 8 appeared as D. Sweeney "Fishing, Hunting and Gathering Rights of Aboriginal Peoples in Australia" (1993) 16 University of New South Wales Law Journal 97. Parts of Chapter l(D)(ii), dealing with the operation of the Racial Discrimination Act 1975 (Cth.), previously appeared in Halsbury's Laws of Australia (Sydney: Butterworths, looseleaf) vol. 1. Finally, certain passages in part C of chapter 7 are based on parts of the conference paper D. Sweeney, "Reflections From The Past: Conceptualisation of State, Citizen and Aboriginality in Australian Law" delivered at the Annual Conference of the Canadian Law and Society Association (Memorial University, Newfoundland, June 1997). A matter of particular significance since some of these earlier writings is the enactment of the Native Title Act 1993(Cth.), which provides additional protection for Indigenous rights recognised at common law. New fisheries legislation has also been enacted in the majority of Australian states, partly to facilitate the introduction of individual transferable quota regimes in fisheries management. Finally, there have been a number of significant judgments handed down in Australia and Canada dealing with Indigenous fishing rights in the intervening period. - Page vi -CHAPTER 1: INTRODUCTION A. OVERVIEW Indigenous peoples of the coastal areas of Australia have a unique connection with the sea. In their view the sea is one with the land. The sea is often described as forming an indissoluble part of their being and connection with their country.1 Just as the relationship of Indigenous peoples to the land is fundamentally different to that of European societies,2 so is See generally, D. Smyth, Understanding Country: The Importance of Land and Sea in Aboriginal and Torres Strait Islander Societies, Council for Aboriginal Reconciliation Issues Paper No. 1 (Canberra: Australian Government Publishing Service, 1994). He observes that Indigenous peoples in coastal areas of Australia have "a more holistic view of land and sea. That is, land and sea may be viewed by Aboriginal or Torres Strait Islander peoples as central to their identities, their heritage and their economic futures" and that they "view the coastal sea as an inseparable extension of coastal land, and subject to the same characteristics of traditional ownership, custodianship, spirituality and origins in the Dreamtime and indigenous law". The Minjilang community expressed their relationship with the sea and land in the following terms: "We, Aboriginal people believed that all human beings go together with the Land and Sea. If we have Land, and no Sea, we will die. if we have Sea and no Land, we will also die. If we have Land and Sea, people will live free. Letter to the Chief Minister of the Northern Territory from the Minjilang Community, 27 May 1983 (successfully opposing a proposed declaration of a marine park around Croker Island), cited in Northern Land Council, Croker Island Native Title Claim (Darwin: Northern Land Council, 1997). The Northern Land Council, in its submission to the Coastal Zone Inquiry, put it in the following manner. "For Australia's indigenous coastal and island people, the relationship and sense of belonging to 'sea country' is as elemental as their affiliations with the land. ... the traditional estates of Aboriginal people extend from the land into marine areas or 'salt water country'. The rights to exploit and control the exploitation of marine resources within traditional estates are an essential component of traditional ownership." (cited in D. Smyth, A Voice In All Places: Aboriginal and Torres Strait Islander Interests in Australia's Coastal Zone, Australia. Resource Assessment Commission - Coastal Zone Inquiry, Consultancy Report (Canberra: Australian Government Publishing Service, 1993) [hereinafter Smyth, A Voice in All Places] at 26). The special relationship of Indigenous peoples with their land has received judicial acknowledgment in Australia. For example, in Gerhardyv. Brown (1985) 159 C.L.R. 70 at 142-43, 57 A.L.R. 472 Brennan J. observed: ... the courts of this country are familiar with the existence of traditional Aboriginal affiliations with, and responsibilities in respect of, land. The existence of such affiliations and responsibilities have been recognized judicially on many occasions and judges who sit in courts in areas where Aboriginal tradition remains strong are familiar, in varying degree, with (footnotes continue on next page) - Page 1 -their relationship with the sea. It often has a spiritual dimension,3 and the relationship also carries stewardship obligations to the sea, land and their living resources.4 It is perhaps not surprising therefore that Indigenous sea rights, and rights associated with marine resources, are shaping up to be a major area of litigation in Australia. But despite the importance of sea and marine resources to Indigenous peoples, no court in Australia has yet upheld any inherent Indigenous rights at common law in respect of the sea or fisheries. This thesis deals with Indigenous fishing rights. Fishing rights form a significant component of most Indigenous claims to sea rights. Fishing rights are the aspect of the rights related to the sea that form the most immediate potential source of conflict with non-Indigenous interests, namely the commercial fishing industry. The thesis also addresses, to a lesser extent, Indigenous hunting and gathering rights over land as these raise many similar legal issues to fishing rights. Fishing, hunting and gathering activities of Indigenous peoples have continuing importance for many Indigenous peoples, notwithstanding the introduction of a western market (Footnotes continued from previous page) the nature of the affiliations and responsibilities that exists in respect of the country in those areas. For a discussion of the extent of judicial and statutory recognition of the nature of relationship between Indigenous peoples and their lands and their corresponding responsibilities towards the land, see G. Neate, "Looking After Country: Legal Recognition of Traditional Rights to and Responsibilities for Land" (1993) 16 University of New South Wales Law Journal 161 at 185-217. 3 . There are numerous statements as to the spiritual significance of seas to certain Indigenous peoples in Australia. By way of example, the following are statements by the Yolgnu people in northern Australia describing their relationship with their sea country. In the Yolgnu world view, water is the giver of sacred knowledge, all ceremonies and lands, Whether it's fresh or salt, travelling on or under the land or in the sea, water is the source of all that is holy. [Gailiwin'ku Community Elcho Island, An Indigenous Marine Protection Strategy for Manbuynga ga Rulyapa (Darwin: Northern Land Council, 1994) at 4.] Within these waters are our sacred totems, song cycles, ceremonies and the pathways of creation beings. Responsibility for them is apportioned throughout our community: ibid, at 1. Both spiritually and physically the well-being of the sea has always been and remains crucial to our well-being: Manbuynga ga Rulyapa Steering Committee, Island Home, A speech to the Land Rights - Past, Present and Future Conference, Canberra, 16-17 August 1996 (Darwin: Northern Land Council, 1996) at 1. 4 . See generally, Smyth, Understanding Country, supra note 1; Neate, Looking After Country, supra note 2; G.D. Meyers, "Implementing Native Title in Australia: The Implications for Living Resources Management" (1995) 14 University of Tasmania Law Review 1. - Page 2 -economy.5 In addition to providing sustenance to members of the community, fishing, hunting and gathering are an important part of the society and culture of Indigenous peoples. They also are significant for the potential economic benefits the commercial utilisation of these resources have for many Indigenous communities. The judgment of the High Court of Australia in Mabo v. Queensland [No. 2J6 was a landmark decision in recognising rights of Indigenous peoples at common law in Australia. Whilst the judgment was confined to interests in land, it left the door open for recognition other rights of Indigenous peoples such as those concerning fishing, hunting and gathering. Furthermore, in contrast to native title to land, which has been extinguished in many areas of Australia in the past 200 years,7 there have been few if any actions that have extinguished Indigenous fishing rights. The recognition of such rights at common law would expand the notion of native title and provide the potential for a greater degree of economic self-sufficiency for Indigenous communities. 5. Australia. Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report 31 (Canberra: Australian Government Publishing Service, 1986) [hereinafter ALRC] vol. 2 para. 885 referred to the introduction of a cash economy and the increasing use of shop bought food in Indigenous communities but concluded "despite all these changes, it is clear that hunting, gathering and fishing are of continuing importance in the lives of many Aborigines". Similar findings have been made by other government inquires, including the Aboriginal Land Inquiry (Commissioner: P Seaman), Report (Perth: Government Printer, 1984) para. 11.4; Smyth, A Voice In All Places, supra note 1 at 14. The reports of the Aboriginal Land Commissioner in relation to hearings under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.) include many specific examples of this. For example, see Aboriginal Land Commissioner, Upper Daly Land Claim (Canberra: Australian Government Publishing Service, 1991) vol. 1 para. 13 where, having described the employment of indigenous persons on cattle stations, Kearney J. observed "they have remained throughout their lived in touch with their country .. and led what amounted to a dual lifestyle combining their traditional economy with the introduced economy". Fishing and hunting are viewed by most Indigenous peoples as an important part of their culture, see infra notes 142-149 and accompanying text. 6. (1992) 175 C.L.R. 1, 66 A.L.J.R. 408, 107 A.L.R. 1 [hereinafterMabo [No. 2]\. 7 Native title is extinguished by the Crown grant of freehold or leasehold conferring exclusive possession. As to extinguishment generally, see Chapter 6, below. A significant percentage of Australia is subject to pastoral leases. It is a matter of statutory construction as to whether the applicable pastoral lease confers exclusive possession on the leaseholder. Pastoral leases which do not confer exclusive possession on the leaseholder (as would seem to be the case for most pastoral leases) do not necessarily extinguish native title; however, native title will be impaired to the extent of any inconsistency with the rights of the leaseholder: Wik Peoples v. Queensland (1996) 187 C.L.R. 1, 71 A.L.J.R. 173, 141 A.L.R. 129. For an excellent discussion of the Wik decision, see C. MacDonald, "The Wik Decision - Some Implications for Land Use and Land Management" (1996) 3 The Australian Journal of Natural Resources Law and Policy 339; see also R.H. Bartlett, "The Fundamental Significance of Wik v. State of Queensland in the High Court of Australia" [1997] 2 Canadian Native Law Reporter 1. - Page 3 -Notwithstanding the importance of fishing, hunting and gathering to Indigenous peoples in Australia, the legal position has been largely ignored in the legal literature until recently.8 With the exception of the work of the Australian Law Reform Commission (discussed below), the writer's portion of the "Aboriginal and Torres Strait Islanders" title dealing with Indigenous hunting, gathering and fishing rights in Halsbury's Laws of Australia (Sydney: Butterworths, 1991) para. [5-2250]-[5-2275] was the first attempt to summarise the large number of existing legislative regimes regulating such activities in Australia. An earlier published draft of this thesis (published as D. Sweeney, "Fishing, Hunting and Gathering Rights of Aboriginal Peoples in Australia" (1993) 16 University of New South Wales Law Journal 97) was the first work to give detailed consideration of the potential for common law recognition of Indigenous fishing, hunting and gathering rights in Australia. In the past few years, there has been an increased academic interest in the area, see: J. Behrendt, "So Long, and Thanks for all the Fish: Aboriginal Fishing rights and the Commonwealth's Acquisition Power" (1995) 20:1 Alternative Law Journal 11; A. Bergin, "A rising tide of Aboriginal sea claims : Implications of the Mabo case in Australia" (1993) 8 International Journal Of Marine and Coastal Law 359; A. Bergin, "International Law and Indigenous Marine Rights: The Evolving Framework" (1993) 10:6 Environmental and Planning Law Journal 438; Berry, supra note 101; M. Exel, "Australian Fisheries Management - Resource Allocation and Traditional Rights" (1994) 53:5 Australian Fisheries 15; P. Jeffrey, "Native Title and the Australian Fishing Industry" (1994) 53:11 Australian Fisheries 6; P. Kilduff & N. Lofgren, "Native Title Fishing Rights in Coastal Waters and Territorial Seas" (1996) 81:3 Aboriginal Law Bulletin 16; J. Malbon, "Torres Strait Conference on Land and Sea Claims" (1996) 3:78 Aboriginal Law Bulletin 16; G.D. Meyers, "The Inclusion of Traditional Fishing and Hunting Rights in the Content of Native Title" in R.H. Bartlett & G.D. Meyers, eds., Native Title Legislation in Australia (Perth: Centre for Commercial and Resources Law, The University of Western Australia and Murdoch University, 1994) 213; Meyers, Living Resources Management, supra note 4; G.D. Meyers et al., A Sea Change In Land Rights Law: The Extension of Native Title to Australia's Offshore Areas (Canberra: Native Title Research Institute, Australian Institute of Aboriginal and Torres Strait Islander Studies, 1996) [hereinafter Sea Change]; N. Pearson, "Native Title and Fisheries Management: Where Is It Heading?" (1994) 53:5 Australian Fisheries 14; M. Storey, "The Black Sea" (1996) 79:3 Aboriginal Law Bulletin 4; Turning the Tide: Conference on Indigenous Peoples and Sea Rights, selected papers (Darwin, NT: Northern Territory University, 1993); P. Summerfield, "Implications of Native Title Legislation for Fisheries Management and the Fishing Industry in Western Australia" in R.H. Bartlett & G.D. Meyers, eds., Native Title Legislation in Australia (Perth: Centre for Commercial and Resources Law, The University of Western Australia and Murdoch University, 1994) 231; J. Sutherland, "Rising Sea Claims on the Queensland East Coast" (1992) 2:56 Aboriginal Law Bulletin 17; J. Sutherland, Fisheries, Aquaculture and Aboriginal and Torres Strait Islander Peoples: Studies, Policies and Legislation - Consultancy Report (Canberra: Australia. Department of Environment, Sport and Territories, 1996). The decade long research project cumulating in the publication of the seminal report on the recognition of Aboriginal customary laws by the Australia Law Reform Commission includes a part on traditional Aboriginal hunting, gathering and fishing rights, see ALRC, supra note 5. It remains a valuable source of information (with the exception of its coverage of commercial utilisation of Indigenous rights, where it adopts what is now considered a somewhat outdated view as to the nature of "traditional" Indigenous activities and rights). Volume 1 of The Laws of Australia (Sydney: Law Book Co, 1992), dealing with Aboriginals, was published in 1992 and remains another useful reference source. The volume was, however, unavailable for the author's research for this thesis, which was undertaken in Canada and, accordingly, is not referred to in this thesis. However, readers are commended to it. - Page 4 -This thesis examines the statutory and common law bases for the recognition of fishing, hunting and gathering rights of Indigenous persons. The following sections of this Chapter describe the methodology used and the legal framework for the regulation of rights of Indigenous peoples in Australia. Chapter 2 briefly examines the historical treatment of fishing and hunting rights of Indigenous peoples and summarises the existing statutory provisions concerning fishing, hunting and gathering by Indigenous persons in Australia. Chapter 3 considers the common law foundation for traditional fishing, hunting and gathering rights of Indigenous peoples. Chapter 4 considers the content and nature of Indigenous fishing, hunting and gathering rights. It also addresses issues arising out the exercise of those rights in a contemporary manner. Chapter 5 examines the power of the Crown to extinguish Indigenous fishing, hunting and gathering rights in Australia. Chapter 6 examines issues relating to the regulation of contemporary Indigenous fishing, hunting and gathering rights. Chapter 7 discusses whether Indigenous peoples are entitled to commercially develop such rights and, in particular, whether there is a right to an Indigenous commercial fishery. It also briefly explores different methods of characterising Indigenous rights at common law. Finally, Chapter 8 undertakes a brief survey of mechanisms designed to achieve an equitable allocation of resources such as fisheries between Indigenous and non-Indigenous users in Canada, New Zealand and the United States, and considers the potential for the application of similar mechanisms in Australia. - Page 5 -B. METHODOLOGY This thesis primarily adopts a comparative case law analysis in dealing with the potential for the recognition of fishing, hunting and gathering rights of Indigenous peoples at common law in Australia. The common law jurisdictions closest to Australia in terms of legal issues concerning Indigenous peoples are Canada, New Zealand and the United States of America. These jurisdictions (together with Great Britain) are also the jurisdictions whose decisions concerning the common law are afforded a high level of respect in Australian courts. Accordingly, the case law comparison focuses on those countries. Decisions concerning the recognition of the rights of Indigenous peoples at common law in other former British colonies, particularly those of the Judicial Committee of the Privy Council, are also referred to on occasion. In dealing with the issues of how to balance rights of Indigenous peoples against the interests of the broader community and how to share a resource between Indigenous and non-Indigenous persons, recent treaties and legislative settlements in other countries which address these issues are also discussed. Reference is also made to the reports of the Aboriginal Land Commissioner made under the statutory land claim regime in the Northern Territory.9 Though the reports are made in the context of statutory definitions of the traditional owners of land, the findings of Commissioners dealing with the identification of traditional owners and their customary rights may be of some assistance to common law courts when addressing similar issues. This thesis does not delve into the wider philosophical considerations in relation to the position of Indigenous peoples in the modern nation state. Nor does it seek to analyse in any detail the economic or human rights factors which some may consider to be relevant to the development of the law in this area. Nor does it seek to incorporate views concerning post-The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.) provides for the statutory grant of inalienable freehold title over certain categories of Crown land in the Northern Territory to persons who establish they are the traditional Indigenous owners of the land in accordance with the statutory criteria. See generally, G. Neate, Aboriginal Land Rights Law in the Northern Territory, vol. 1 (Sydney: Alternative Publishing Co-operative Ltd, 1989). - Page 6 -colonialism,10 or those which seek to challenge the underlying legitimacy of the introduced British common law legal regime.11 The recognition of hunting, fishing and gathering rights of Indigenous peoples in Australia is something that is possible within an incremental approach to the common law. In one sense, this thesis is an elaborate factum concerning the potential for the recognition by the common law of existing fishing, hunting and gathering rights of Indigenous peoples in Australia. It also addresses particular problems that are likely to arise in the Australian context. The common law judicial process is notorious for attempting to resolve only those issues which are essential to resolve the question at hand. The judicial process eschews grand philosophical or jurisprudential considerations unless they are essential to resolving the case in hand. The common law recognition of Indigenous fishing, hunting and gathering rights is within reach in Australia. Furthermore, such rights are capable of being recognised within the existing narrow framework of recognition of Indigenous rights at common law in Australia. Accordingly, this thesis adopts an incremental approach and one which does not seek to unduly disturb the existing conceptual boundaries. It may well be that once such rights have become established the courts may subsequently seek to situate them in a wider conceptual domain.12 However, at least initially, the courts are likely to take a narrower approach. In adopting this narrower approach for the purpose of arguing for the initial recognition of Indigenous fishing, hunting and gathering rights at common law in Australia, this thesis does not intend to deny the importance of the broader questions concerning For an overview of post-colonialism, see B. Ashcroft, G. Griffiths & H. Tiffin, eds., The Post-Colonial Studies Reader (New York: Routledge, 1995); P. Mongia, ed. Contemporary Postcolonial Theory (London: Arnold, 1996); P. Williams & L. Chrisman, eds., Colonial Discourse and Post-Colonial Theory: A Reader (New York: Columbia University Press, 1994). See further M. Mansell, "The Court Gives An Inch But Takes Another Mile" (1992) 2:57 Aboriginal Law Bulletin 4 at 6; I. Watson, "Indigenous Peoples' Law-Ways: Survival Against the Colonial State" (1997) 8 The Australian Feminist Law Journal 39 at 47-49, 58; I. Watson, "Law and Indigenous Peoples: The Impact of Colonialism on Indigenous Cultures" in C. Arup & L.A. Marks, eds., Cross Currents: Internationalism, National Identity and Law (Melbourne: La Trobe University Press, 1996) 107 at 116-19; L. Behrendt, "No One Can Own The Land" (1994) 1 Australian Journal of Human Rights 43. See also P. Kainthaje, The Intersection of Aboriginal Law and Aboriginal Rights in the Common Law Frameworks of Canada and Australia (LL.M. Thesis, University of British Columbia, 1996). This would be similar to the process that occurred in Canada. There the courts moved from the initial recognition of Indigenous hunting and fishing rights, to land rights to a much broader range of Indigenous rights and, in hindsight, have reconceptualised the basis of Indigenous rights and categorised Indigenous rights to land or to fish as merely a subset of a broader recognition of Indigenous rights. - Page 7 -Indigenous legal rights. However, the courts are likely to leave those questions for determination at a later date. It is perhaps a particularly Australian approach to address this issue from the perspective of recognising fishing, hunting and gathering rights of Indigenous peoples at common law. However, it is put in this manner simply because, leaving aside the possibility of future legislation, there is no other basis on which to argue for the existence of such rights within domestic Australian law. It is not possible to approach the determination of whether such rights exist and, if so, to ascertain their scope by reference to constitutional recognition of the position of Indigenous peoples or treaties with Indigenous peoples in Australia. In contrast to most other British colonies, there were no treaties between the Crown and any of the Indigenous peoples 'in Australia. Nor are there any constitutional provisions of relevance in Australia, unlike Canada.13 Further, unlike New Zealand, where legislative footholds existed on which to found Maori fishing rights,14 none exist in Australia. Hence, in light of the absence of other sources, the primary avenue to argue that Indigenous peoples presently have enforceable fishing, hunting and gathering rights in Australia is to seek to source such rights in the mists of the common law. Of course Indigenous rights do not have their original source in the common law. They pre date the introduction of the common law to Australia. Hence, they are rights which do not derive from the common law, but depend upon the common law for their recognition.15 To situate Indigenous rights within the framework of the common law is another example of what one author has described as the "imperialism of the common law".16 However, in light In Canada see s. 35(1) Constitution Act 1982, discussed infra notes 778-804 and accompanying text.. For a discussion of the constitutional provisions affecting Indigenous peoples in Australia, see Chapter 1(D) below and Halsbury's Laws of Australia (Sydney: Butterworths, 1991)para. [5-30] -[5-80]. See Fisheries Act 1983 (N.Z.) s. 88(2), subsequently repealed by the Treaty ofWaitangi (Fisheries Claims) Settlement Act 1992 (N.Z.). See further, infra notes 228-232 and accompanying text. See Mabo [No. 2], supra note 6 where Brennan J. stated that "Native title, though recognized by the common law, is not an institution of the common law ..." (at 59). In Wik Peoples v. Queensland, supra note 7, Toohey J. while observing that native title "does not derive from the common law but has been recognised by the common law" (at 122), emphasised that "native title rights depend on their recognition by the common law" (at 129). Similarly, Kirby J. considered that to "the extent native title is recognised and enforced in Australia by Australian law, this occurs because, although not of the common law, native title is recognised by the common law as not inconsistent with its precepts" (at 213), He rejected an argument that, in the context of determining matters concerning the recognition of native title within Australia, native title could exist independently, outside of the common law (at 236-38, 214). - Page 8 -of the firm position taken by the High Court of Australia that issues relating to sovereignty are non-justiciable in domestic courts,17 the incremental approach of recognising Indigenous fishing, hunting and gathering rights within the common law framework appears to be the approach that has the most prospect of success in the short term. For similar reasons, this thesis does not address the emergence of the issue of rights of Indigenous peoples at the international law level. While developments in the international arena may generate pressure on Australian governments, particularly if they seek to curtail rights declared by Australian courts, they are unlikely to be as persuasive in Australian courts as the case law from other common law countries. It has become accepted that an author or researcher should situate himself or herself in relation to the context of the research undertaken. I am a first generation Australian. I am not an Indigenous person and do not purport to speak for any Indigenous persons. I have worked as a retained solicitor for an Aboriginal Legal Service in northern Queensland. I acted as a solicitor in a case for a number of Torres Strait Islanders who had been charged with breaching the applicable fisheries legislation and in which a defence of customary fishing rights was raised.181 have also provided legal advice concerning native title issues in my professional capacity to government agencies and to corporate interests (though not fishing, pastoral or hunting interests). I do not have any links to the fishing industry or farming or hunting interests. Where I refer to the views or aspirations of particular Indigenous persons, Indigenous communities or industry, I do so, not to purportedly represent those views but, rather, to provide some context to the issues discussed in this thesis. (Footnotes continued from previous page) 16 . For a discussion of the benefits and dangers of situating Indigenous rights jurisprudence within the framework of the common law, see J. Borrows & L. Rotman, "The Sui Generis Nature of Aboriginal Rights: Does It Make A Difference?" (1997) Alberta Law Review (forthcoming). 17 . Mabo [No. 2], supra note 6 at 31-32 per Brennan J. (Mason C.J. and McHugh J. concurring), at 78-79 per Deane and Gaudron J.J.; Western Australia v. Commonwealth (1995) 183 C.L.R. 373 at 422, 69 A.L.J.R. 309, 128 A.L.R. 1; Coe v. Commonwealth (1993) 68 A.L.J.R. 68 at 114-15; Wik Peoples v. Queensland, supra note 7 at 206 per Kirby J. See also New South Wales v. Commonwealth (1975) 135 C.L.R. 337 at 388. For a critique of this approach, see S. Grey, "Planting the Flag or Burying the Hatchet: Sovereignty and the High Court Decision in Mabo v Queensland" (1993) 2 Griffith Law Review 39; P. Grose, "The Indigenous Sovereignty Question and the Australian Responses" (1993) 3 Australian Journal of Human Rights 40. 18 . The case is discussed infra note 332 and accompanying text. It was prior to the decision of the High Court of Australia in the Mabo case (or the determination of facts by Moynihan J.). - Page 9 -Having provided this statement of personal context, I leave it to the reader to determine the impact this context has had on my methodology, research and positions propounded in this thesis. C. TERMINOLOGY The following is a short note on terminology used in this thesis. (i) "Commonwealth" and "nationalparks" The federal or national government in Australia is generally referred to as the "Commonwealth" Government (taking its name from the Constitution Act19 which established the "Commonwealth of Australia") and its legislation is designated accordingly.20 The term "national park" in Australia does not indicate that the park is under federal control.21 Rather it is a term that is also used in State legislation and most States have their own national park legislation. Commonwealth national park legislation generally only applies in federal territories - such as Jervis Bay on the New South Wales Coast or the Northern Territory (which also has its own territorial parks regulated under territorial legislation). However, specific Commonwealth legislation does apply in certain State areas.22 (ii) "Native title ", "aboriginal title ", "recognised Indian title " and "original Indian title " In this thesis the term "native title" is used synonymously with the term "aboriginal title". In the Mabo case the judges differed in the terminology they used.23 Subsequently, the Native Title Act 1993 (Cth.) and the establishment of the National Native Title Tribunal have cemented the use of the term "native title" in Australia, notwithstanding some judges' Commonwealth of Australia Constitution Act 1900, 63 & 64 Vic. c. 12 (U.K.) ss. 3, 6. "Cth." is the standard abbreviation used to designate federal legislation. The term indicates the park is under federal control in Canada and the United States. Accordingly, the different use of the term in Australia can be a source of confusion for north American readers. For example, the World Heritage Properties Conservation Act 1983 (Cth.). Other Commonwealth legislation of relevance to the subject matter of this thesis regulates certain state areas in co operation with the States, such as the Great Barrier Reef Marine Park Act 1975 (Cth.); Wet Tropics of Queensland World Heritage Conservation Act 1994 (Cth.). (Mason C.J., Brennan and McHugh J.J. used the phrase "native title", Deane and Gaudron J.J. used the phrase "common law native title", Toohey J. used the phrase "traditional tide" and Dawson J. used the phrase "aboriginal title". - Page 10 -continued discomfort with that term.24 This discomfort may be explained by the often pejorative connotations the word "native" had assumed in Australia, which had resulted in the almost total abandonment of the use of the word prior to the Mabo judgment. However, the term "aboriginal title" is also problematic in Australia as there is some sensitivity in applying it to the Torres Strait region, since the indigenous inhabitants of that region do not consider themselves to be "Aboriginals" but rather Torres Strait Islanders. The terms "native title" and "aboriginal title" are used in this thesis as generic terms to describe the rights of indigenous inhabitants of a country arising out of their occupation of their ancestral lands to the extent recognised at common law.25 The term "aboriginal title" has gained currency in Canadian courts and has been used on occasions in courts in New Zealand and the United States. This thesis adopts the terminology of the applicable country when describing its laws and hence uses the phrase "native title" in relation to Australia, "aboriginal title" in relation to Canada and New Zealand and "original Indian title" (to be distinguished from "recognised Indian title") or "aboriginal title" in relation to the United States of America. (iii) "Aboriginal", "Aborigine", "Torres Strait Islanders" and "Indigenous" person, persons, people and peoples There is no generally accepted term to refer to the indigenous peoples of Australia. Legislation and judgments variously use "Aborigine", "Aboriginal person", "Aboriginal", "aboriginal", "aboriginal person", "Torres Strait Islander" and the plurals of those terms. As discussed above, Torres Strait Islanders (from the Torres Strait region in Queensland) strongly identify themselves as being distinct from "Aboriginals". As a result, the most common usage in national or Queensland legislation or commentary in the 1980s and early 1990's was the compendious phrase "Aboriginal or Torres Strait Islander". Apart from being a mouthful and not providing a short term to describe persons not of that background, the phrase is problematic since, by identifying people from one region as not being "Aboriginal", it implies a degree of homogeneity amongst those who are "Aboriginal". This can be misleading. There is a great degree of cultural and linguistic difference amongst Aboriginals in different parts of the Australian continent. Aboriginals generally identify with See Wile Peoples v. Queensland, supra note 7 at 101 note 399 per Toohey J., at 205 note 758 per Kirby J. The terms "native title" or "aboriginal title" should not be confused with the term "common law aboriginal title" (as used by Toohey J. in the Mabo case) which is based on a presumption of possessory title at common law by virtue of occupancy. - Page 11 -their local name of their own people (which generally divide on linguistic lines). Furthermore, the term used by an indigenous people to generally refer to indigenous peoples beyond their own locality varies from region to region (e.g. the term Murri is used in northern Queensland, while the term Koori is used in much of New South Wales and Victoria). Similarly, the terms used to described non-Aboriginals vary from region to region. In this thesis, the terms "Indigenous peoples", "Indigenous people" and "Indigenous person" and "Indigenous persons" are used when referring to the indigenous inhabitants of Australia rather than the more commonly used terms "aboriginals", "Aborigines", "Torres Strait Islanders" etc. "Indigenous" is also used as adjective. The exception is when quoting from legislation or cases, where the original wording is retained. Where a particular Indigenous people are referred to, it is normally by the actual name of the people (e.g. Yolngu, Meriam, Wik, Yorta Yorta). Where the terms "people" or "peoples" are used it is to denote a collective people or nation (such as in relation to native title rights of a particular Indigenous people) or peoples or nations. Where the terms "person" or "persons" are used it is to refer to Indigenous persons as an individual or a group of individuals but not as a collectivity (as is commonly the case in respect of statutory provisions concerning Indigenous persons). The word "Indigenous" is also capitalised as a proper noun. In this regard, the thesis follows the terminology used in the recent reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner.26 See Australia. Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report, January-June 1994, Report of the Aboriginal and Torres Strait Islander Social Justice Commissioner to the Minister for Aboriginal and Torres Strait Islander Affairs as required by s. 209 of the Native Title Act 1993 (Canberra: Australian Government Publishing Service, 1995) [hereinafter ATSISJC, Native Title Report June 94]; Australia. Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report, July 1994-June 1995, Report of the Aboriginal and Torres Strait Islander Social Justice Commissioner to the Minister for Aboriginal and Torres Strait Islander Affairs as required by Section 209 of the Native Title Act 1993 (Canberra: Australian Government Publishing Service, 1995) [hereinafter ATSISJC, Native Title Report June 1995]; Australia. Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report, July 1995-June 1996, Report of the Aboriginal and Torres Strait Islander Social Justice Commissioner to the Attorney-General as required by s. 209 of the Native Title Act 1993 (Canberra: Australian Government Publishing Service, 1996). -Page 12 -D. LEGAL FRAMEWORK OF INDIGENOUS RIGHTS IN AUSTRALIA (i) Legislative Powers In those former British colonies closest to Australia in terms of Indigenous issues, which have a federal structure, issues relating to the respective powers of the federal government and the state or provincial governments have played a significant role in the development of laws and policy affecting Indigenous peoples. Australia is somewhat different in that the constitutional division of powers has not had as nearly as much effect on the development of Indigenous affairs as it has in the United States or Canada.27 Nevertheless, the constitutional structure has gradually assumed more practical importance in Australia over the past two decades. It is summarised below as an examination of Indigenous fishing, hunting and gathering rights must take into account the contemporary legal framework for the regulation of native title and Indigenous affairs in Australia.28 The basic structure of the division of legislative powers between the Commonwealth and the States is that specific powers are conferred on the Commonwealth and the residual general powers remain with the States, within their geographical boundaries.29 Hence, the Commonwealth has an enumerated list of heads of its legislative power,30 but there is no For an overview of constitutional provisions and division of federal-state powers concerning Indigenous peoples or lands: in the United States, see C.J.S. Indians 42 §§ 4, 5, 69; F.S. Cohen, Handbook of Federal Indian Law, 1982 ed. ed. (Charlottesville, VI: Michie Bobbs-Merrill, 1982) chap. 2; V. Deloria Jr. & CM. Lytle, American Indians, American Justice (Austin: University of Texas Press, 1983) chap. 2 "Federal Responsibility and Power over Indian Affairs"; V. Deloria Jr., ed. American Indian Policy in the Twentieth Century (Norman, OK: University of Oklahoma Press, 1985); in Canada: see R.A. Reiter, The Law of First Nations (Edmonton: Juris Analytica Publishing, 1996) chap. 4. For an analysis for the constitutional division of legislative powers in relation to Indigenous peoples in Australia, see Halsbury's Laws of Australia (Sydney: Butterworths, 1991) para. [5-30]-[5-80]; P.J. Hanks, Constitutional Law in Australia (Sydney: Butterworths, 1991) at 372-380. For an overview of the legislative division of powers, see P.H. Lane, A Manual of Australian Constitutional Law, 7th ed. (Sydney: Law Book Co, 1991) at 7-11. There are some constitutional complexities concerning the geographical reach of State laws, particularly with respect to coastal waters in the period from federation in 1901 until the passage of a various coastal waters legislation by the Commonwealth in 1980 which granted the States title and certain powers in respect of coastal waters and the passage of Australia Act 1986 (Cth.). An examination of this issue is outside the scope of this thesis; see further, Mason v. Tritton, supra note 159 at 593-4 per Kirby P; Behrendt, supra note 8 at 13-15; G. Mclntyre, "Mabo and Sea Rights: Public Rights, Property Rights or Pragmatism?" in Turning the Tide: Conference on Indigenous Peoples and Sea Rights: selected papers (Darwin: Northern Territory University, 1993) 107 at 109-11; Hanks, supra note 28 at 178-83; Lane, supra note 29 at 137-39. See Constitution s. 51. The Commonwealth's sphere of influence is greater than may appear from (footnotes continue on next page) -Page 13 -corresponding list of powers of the States.31 Furthermore, Commonwealth legislative power within its enumerated heads of power is generally non-exclusive (with the exception of certain powers, such as defence).32 Where both the Commonwealth and the States have legislative power in respect of a subject matter, the laws of each may operate concurrently. Where there is an inconsistency between a law of a State and a law of the Commonwealth the law of the Commonwealth prevails and the State law is invalid to the extent of the inconsistency.33 The powers of particular relevance to the subject matters of this thesis, namely fisheries, wildlife conservation, land and Indigenous peoples fall primarily within the powers of the States. There are no corresponding heads of power over these areas for the Commonwealth (with the exception of powers in respect of Commonwealth lands or waters, territories and the non-exclusive Commonwealth race power, discussed below). Prior to 1967 the Commonwealth did not have any direct power to legislative in respect of Indigenous peoples. The Commonwealth did have power to make laws with respect to persons of any race for whom it was deemed necessary to make special laws. However, this power did not extend to the Indigenous peoples of Australia as the power was expressly limited to races "other than the aboriginal race".34 Nevertheless, the Commonwealth had (Footnotes continued from previous page) its enumerated list of powers, partly due to the fact that it collects most of the taxable revenue in Australia and makes financial grants back to the States on such terms and conditions it thinks fit (see Constitution s. 96). The courts have upheld the widespread use of tied grants which the Commonwealth can use to effectively direct policy in areas over which it has no legislative power; see further, Lane, supra note 29 at 387-94; Hanks, supra note 28 at 265-76. 31 . The Constitution provides that the States retain all powers they had prior to the enactment of the Constitution unless withdrawn under the Constitution or exclusively vested by the Constitution in the Commonwealth: s. 107. The position of leaving the States with the residual general powers to be contrasted with the situation in Canada: Lane, supra note 29 32 . See further, Lane, supra note 29 at 7-8. The exclusive powers of the Commonwealth and specific limitations upon the powers of the States are listed in ss. 52, 90, 92 114, 115. 33 . Constitution s. 109. For an analysis of the operation of s. 109, see Lane, supra note 29 at 395-416; Hanks, supra note 28 at 210-231. 34 . Constitution s. 51(xxvi). Contrary to what is often assumed, the exclusion of Indigenous persons from this power was probably not intended to be discriminatory against them. The primary purpose of the power envisaged at the time of the constitutional debates in the 1890's was to permit the Commonwealth to enforce the white Australia policy by passing discriminatory laws against particular races: see Hanks, supra note 28 at 373. Hence, the omission of Indigenous persons from this power limited the power of the Commonwealth to pass discriminatory laws against them: see G. Sawer, "The Australian Constitution and the Australian Aborigine" (1966) 2 Federal Law Review 17 at 23; and Kruger v. Commonwealth (31 July 1997, H.C.A., No.s M21 and D5 of 1995) (footnotes continue on next page) - Page 14 -some influence on Indigenous policy through its other powers, such with respect to social security and the use of its territory power in respect of the Indigenous peoples in the Northern Territory after 1911.35 A constitutional amendment in 1967, following a successful constitutional referendum,36 removed the words "other than the aboriginal race" from the Commonwealth's race power.37 Whilst the 1967 referendum is sometimes described as the giving the Commonwealth control over Indigenous persons, it in fact created a neutral constitution. The Commonwealth Parliament now has power to legislate in respect of any race for whom it is deemed necessary to make special laws. Indigenous persons are not signalled out for any special treatment in the Constitution. However, the race power can be used to enact special laws concerning Indigenous peoples.38 The Commonwealth Parliament has in fact rarely used its new found powers in respect of Indigenous persons.39 Indeed, what has turned out to be the most significant piece of legislation in protecting native title in Australia, the Racial Discrimination Act 1975 (Cth.), was enacted pursuant to the Commonwealth's external affairs power.40 (Footnotes continued from previous page) [unreported] at footnote 122 and accompanying text per Toohey J. 35. The Northern Territory was transferred from South Australia to the Commonwealth in 1911. 36 . A public referendum is required in order to alter the Australian constitution, see Constitution s. 128. 37 . Constitutional Alteration (Aboriginals) 1967 (Cth.). The amendment also deleted the only other reference to aboriginals in the Constitution contained in s. 127 (which provided that aboriginals were not to be to counted in a census reckoning the population of Australia and its States or Territories). 38 . See further, Halsbury's Laws of Australia (Sydney: Butterworths, 1991) para. [5-35] and cases cited therein. 39 . This appears contrary to the expectations that were created at the time of the 1967 referendum when it was envisaged that the Commonwealth would take a leading role in Indigenous affairs. For an examination of the Commonwealth's gradual use of the power, see P. Hanks, "Aborigines and Government: The Developing Framework" in P. Hanks & B. Keon-Cohen, eds., Aborigines and the Law (Sydney: George Allen & Unwin, 1984) 19 at 24-28. The Commonwealth, has assumed the major role for funding programs for assistance to Indigenous peoples. However, it would have been able to do this pursuant to its grants power (discussed at note 30 supra) even without the 1967 constitutional amendment. 40 . The High Court of Australia held that the legislation was not within the scope Commonwealth's race power, but was within the external affairs power, see Koowarta v. Bjelke-Petersen (1982) 153 C.L.R. 168. - Page 15 -Accordingly, the present position is that the States and the Commonwealth each have power to legislate in respect of Indigenous peoples.41 As a result, Indigenous lands or reserves do not form a whole or partial enclave from State laws (in contrast to the positions in the United States and Canada). The laws of both State and Commonwealth with respect to Indigenous peoples have full effect so long as they are not inconsistent with each other. Where a State law affecting Indigenous peoples or rights is inconsistent with a law of the Commonwealth, then by virtue of s. 109 of the Australian Constitution, the State law is, to the extent of the inconsistency, invalid.42 As a practical matter, the principal laws of the Commonwealth which limit State powers in relation to Indigenous peoples are the Racial Discrimination Act 1975 (Cth.) and the Native Title Act 1993 (Cth.). The content of these are briefly summarised below, after which the interaction between these laws and s. 109 of the Constitution will be summarised. (ii) Racial Discrimination Act The Racial Discrimination Act 1975 (Cth.) is intended to implement Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination.43 The principal sections of the Racial Discrimination Act 1975 (Cth.) are sections 9(1) and 10(2). They are in the following terms: Racial discrimination to be unlawful 9. (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. The situation of the Northern Territory legislative assembly is more complicated, see Halsbury's Laws of Australia (Sydney: Butterworths, 1991) para. [5-80]. See supra note 33. The Convention is reproduced in the Schedule to the Act. - Page 16 -Rights to equality before the law 10. (1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin. The scope of the "rights" or "fundamental freedoms" protected by these sections are very broad as they include any right of the kind referred to in Article 5 of the Convention.44 Accordingly, they go beyond matters which had hitherto been legally enforceable rights under domestic Australian law. Hence, though there is no general legally enforceable right to inherit property or not to be arbitrarily deprived of property, law may not adversely affect the ability of one race to enjoy such rights, but must treat persons of all races on an equal basis.45 The impact of the Racial Discrimination Act 1975 (Cth.) on government actions affecting rights recognised under the common law which are only enjoyed by Indigenous peoples was first considered in Mabo v. Queensland [No. JJ.46 In that case the Queensland parliament had passed legislation which purported to extinguish any rights that may have existed in respect of the Murray Islands by virtue of traditional claims to ancestral land.47 Whilst the legislation affected the rights of all persons who held rights in the islands, regardless of their race, as a practical matter it only affected the rights of Torres Strait Islanders. The law had the effect of establishing formal legal equality (as its provisions applied equally to all persons regardless of race) but substantive inequality (as the practical effect of the legislation was to deprive only Miriam persons of rights in the Murray Islands while leaving any other persons' rights in the island granted by the Crown under Crown lands legislation unaffected). The High Court of Australia held that the Racial Discrimination Act 1975 (Cth.) was intended to ensure practical equality and not mere formal equality.48 In the case at hand the court 44 . Racial Discrimination Act 1975 (Cth.) ss. 9(2), 10(2). 45 . See Mabo v. Queensland [No. 1] (1988) 166 C.L.R. 186, 63 A.L.J.R. 84, 86 A.L.R. 12 at 217-18 per Brennan, Toohey and Gaudron J.J.; at 231-33 per Deane J. 46. Ibid. 47 . Queensland Coast Islands Declaratory Act 1985 (Qld.) ss. 3, 4, 5. The Act was subsequently repealed by the Torres Strait Islander Land Act 1991 (Qld.). 48 . Mabo v. Queensland [No. IJ, supra note 45 at 230-1 per Deane J. See also Western Australia v. (footnotes continue on next page) - Page 17 -considered that persons of one race had been denied the ability to inherit property and not to be arbitrarily deprived of property which were enjoyed by other persons. Accordingly, the Queensland legislation was held to be inoperative as it conflicted with the Racial Discrimination Act 1975 (Cth.) s. 10.49 The impact of the Racial Discrimination Act 1975 (Cth.) on actions by the legislature or executive which purport to affect native title has been subsequently clarified by further decisions.50 The Racial Discrimination Act 1975 (Cth.) precludes both a bare legislative extinguishment of native title by a State or Territory and any discrimination by a State or Territory against the holders of native title which adversely affects their enjoyment of their title in comparison with the enjoyment by holders of other forms of title of their title.51 Accordingly, native title holders have, by virtue of the Racial Discrimination Act 1975 (Cth.), the same security of enjoyment of their Indigenous rights in respect of land as others who are holders of title granted by the Crown. A State or Territory law which purports to diminish that security of enjoyment is, by virtue of s. 109 of the Constitution, inoperative.52 Hence, an attempt by the Western Australian legislature in 1993 to extinguish all native title in Western Australia and replace it by a lesser form of statutory rights that had inferior (Footnotes continued from previous page) Commonwealth, supra note 17 at 436-7. 49 . Mabo v. Queensland [No. 1], supra note 45 at 217-18 per Brennan, Toohey and Gaudron J.J., at 231-2 per Deane J.; c.f. at 207 per Wilson J. dissenting. 50 . A more detailed examination of the impact and scope of the Racial Discrimination Act 1975 (Cth.) is outside the scope of this thesis. See further, Halsbury's Laws of Australia (Sydney: Butterworths, 1991) para. [5-2220]-[5-2230]; R. Bartlett, "Racism and the Constitutional Protection of Native Title in Australia: The 1995 High Court Decision" (1995) 25 University of Western Australia Law Review 127; F. Brennan, "Mabo and the Racial Discrimination Act: the Limits of Native Title and Fiduciary Duty Under Australia's Sovereign Parliaments" (1993) 15 Sydney Law Review 206; P. Hanks, "Can the State's Rewrite Mabo (No 2)? Aboriginal Land Rights and the Racial Discrimination Act" (1993) 15 Sydney Law Review 247; G. Mclntyre, "Aboriginal Title: Equal Rights and Racial Discrimination" (1993) 16 University of New South Wales Law Journal 57; K. McNeil, "Racial Discrimination and the Unilateral Extinguishment of Native Title" (1996) 1 Australian Indigenous Law Reporter 181; G.D. Meyers, "WA v Commonwealth of Australia" in G.D. Meyers, ed. Implementing The Native Title Act: First Steps, Small Steps (Perth: National Native Title Tribunal, 1996) 27; N. Nygh, "Implications of Recent High Court Decisions for State Laws Dealing with Aborigines and Aboriginal Land: Gerhardy v Brown and Mabo v Queensland" (1990) 1 Public Law Review 329; P. Vines, "Western Australia and Native Title: Western Australia v The Commonwealth" (1995) 2 Australian Journal of Human Rights 127. 51 . Western Australia v. Commonwealth, supra note 17 at 418, 441, 463. 52 . Western Australia v. Commonwealth, supra note 17 at 438, 439. -Page 18 -priority to other forms of title and interests granted by the Crown was held to infringe the Racial Discrimination Act 1975 (Cth.) and was, accordingly, invalid.53 Whilst these cases considered the application of the Racial Discrimination Act 1975 (Cth.) in relation to Indigenous rights concerning land, the same principles apply to other Indigenous rights recognised at common law in light of the broad definition of the rights protected by the Racial Discrimination Act 1975 (Cth.).54 (iii) Native Title Act The Native Title Act 1993 (Cth.)55 was enacted in response to the decision of the High Court of Australia in Mabo v. Queensland [No. 2].56 It principally deals four matters: (a) It permits the validation of certain interests which had been previously been granted (and the future renewal of these interests) and which were invalid, but would have been valid in the event there had been no native title; (b) It protects native title from future extinguishment, other than as authorised by the Act. (c) It establishes a regime regulating future dealings with native title lands. (d) It establishes a regime for the determination of who holds native title and creates a register of native title determinations and native title claims. The regime established is too detailed to consider here. However, some provisions, such as dispensing of the rules of evidence in proceedings brought under the Act in the Federal Court of Australia to determine the existence of native title, 57 are of considerable practical importance. Western Australia v. Commonwealth, supra note 17. The legislation in question was the Land (Titles and Traditional Usage) Act 1993 (W.A.). See supra notes 44-45 and accompanying text. Each State enacted complimentary legislation necessary in order to validate titles granted by that State and, in some instances the State legislation dealt with matters beyond the validation of titles. However, the State legislation must be consistent with the Native Title Act 1993 (Cth.) and, accordingly, will not be discussed in this thesis. Mabo v. Queensland [No. 2], supra note 6. Ibid. s. 82(3). See also s. 109(3) -Page 19-For present purposes, the most significant aspect of the Native Title Act 1993 (Cth.) is what it does not attempt to do. It does not attempt to define when native title exists or what the scope or content of native title rights. Rather, it incorporates the common law definition of native title. Nor does it establish a test as to the circumstances in which native title has been extinguished in the past.58 These matters are left for the courts to determine applying common law principles concerning native title. The Native Title Act 1993 (Cth.) does make a number of express references to Indigenous fishing and hunting rights. The definition of native title is based upon the "rights and interests" of Indigenous peoples in relation to land or waters.59 "Rights and interests" are in turn defined to include any "hunting, gathering or fishing rights and interests".60 However, any such rights and interests must be "rights and interests [that] are recognised by the common law of Australia".61 Accordingly, the Native Title Act 1993 (Cth.) does not attempt to resolve the question as to whether Indigenous fishing, hunting or gathering rights in fact exist at common law in Australia and, if so, in what circumstances. But if such fishing and hunting rights do exist at common law, the definition makes clear that those rights are subject to the provisions of the Act (including the procedural provisions and the protection from future impairment other than in accordance with the Act). Accordingly, the Native Title Act 1993 (Cth.) takes essentially the same approach to Indigenous fishing and hunting rights at common law as it does concerning native title to land or waters.62 A general examination of the operation of the Native Title Act 1993 (Cth.) is beyond the scope of this thesis.63 However, certain aspects pertinent to the exercise of Indigenous Other than in the limited circumstance of validating otherwise invalid titles. See Native Title Act 1993 (Cth.) s. 223(1). Native Title Act 1993 (Cth.) s. 223(2). Native Title Act 1993 (Cth.) s. 223(l)(c). For a contrary view, see infra note 163. The minor differences are that the preamble of the Native Title Act 1993 (Cth.) acknowledges that native title to land exists (in at least some parts of Australia) whereas it does not expressly acknowledge that Indigenous peoples have any fishing and hunting rights. There are also special provisions dealing with confirmation of existing fishing access rights, ownership of natural resources and restrictions on licences and prohibitions of fishing, hunting and gathering activities of native title holders in certain circumstances. These are discussed infra at notes 419-424 and notes 491-497 and accompanying text. See further, G. Nettheim, "The Native Title Act of the Commonwealth" in R.H. Bartlett & G.D. Meyers, eds., Native Title Legislation in Australia (Perth: Centre for Commercial and Resources Law, The University of Western Australia and Murdoch University, 1994) 7; M.A. Stephenson, ed. Mabo: The Native Title Legislation (Brisbane: University of Queensland Press, 1995); G.D. Meyers, ed. Implementing the Native Title Act: Selected Discussion Papers of The National Native Title (footnotes continue on next page) - Page 20 -fishing and hunting rights will be discussed throughout this thesis.64 As many of the provisions of the Native Title Act 1993 (Cth.) remain politically controversial and may be subject to change,65 where the Native Title Act 1993 (Cth.) contains particular provisions which may impact Indigenous fishing, hunting or gathering rights this thesis will generally first consider the general position at common law and then consider the impact of the particular provisions of the Native Title Act 1993 (Cth.). (iv) Summary of Limits on Executive and Legislative Powers concerning Indigenous Affairs As discussed above, each State has full powers in respect of Indigenous affairs, land management and fishing, hunting and gathering rights within their boundaries. However, those powers are subject to s. 109 of the Constitution which provides that where there is any inconsistency between a law of a Commonwealth and a law of a State, that the law of the Commonwealth shall prevail. This section summarises the practical effect of the Constitutional division of powers and the Racial Discrimination Act 1975 (Cth.) and the Native Title Act 1993 (Cth.) on legislative and executive powers of the States and Commonwealth with respect to Indigenous affairs. (1) Prior to 1901 Prior to federation of the British colonies of New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania to form the Commonwealth of Australia on 1 January 1901, there was no issue of a legislative division powers in those colonies in respect of Indigenous affairs. The Crown had full power in respect of Indigenous affairs. The local legislature of each Colony gained full power over Indigenous affairs as the same time as it (Footnotes continued from previous page) Tribunal (1994-1995) (Perth: National Native Title Tribunal, 1996); ATSISJC, Native Title Report June 94, supra note 26 chap. 1 "The Native Title Act". 64 . As to the future regulation of Indigenous fishing rights, see Chapter 6(D) "Impact of the Native Title Act On The Regulation of Indigenous Fishing Rights" below; as to the effect of the Act on the recognition of non-site specific Indigenous fishing rights, see infra notes 291-295 and accompanying text.; as to the confirmation of ownership of natural resources, see Chapter 5(D) "Confirmation Of Ownership Of Natural Resources", below. 65 . By way of example, in the past four years, a number bills have been introduced into Parliament (or exposure drafts released) by the governing party of the time which would have substantially modified the provisions of the Native Title Act 1993 (Cth.) but, at the time of writing none have been passed. -Page 21 -did in respect of other matters, with the exception of Western Australia where the colonial representative government was denied full power over Indigenous affairs until 1897.66 (2) From 1901 until 3 0 October 1975 There were no applicable constitutional limits on the power of the States in relation to Indigenous rights prior to 31 October 1975.67 The Commonwealth could also impair or extinguish Indigenous rights in this period subject to its action being within an appropriate head of Commonwealth power.68 (3) From 31 October 1975 until 30 June 1993 (or 31 December 1993) From 31 October 1975 to 30 June 1993 (in respect of legislation) or to 31 December 1993 (in respect of non-legislative actions) States could deal with Indigenous rights (including native title) provided they did so in a manner which was not racially discriminatory. This meant as a practical matter the States could not deal with (or extinguish) native title in a manner which was less favourable than freehold property. However, where they did so, and granted interests to third parties, those interests have subsequently been validated at the expense of the native title interests, and native title holders given a right to compensation for the impairment of their rights.69 The same position applies to executive acts of the Commonwealth government during this period, but not to legislation of the Commonwealth Parliament. As to the evolution of responsible government in each of the Australian colonies, see R.D. Lumb, The Constitutions of the Australian States, 5th ed. (Brisbane: University of Queensland Press, 1991) at 3-41; A.C. Castles, An Australian Legal History (Sydney: Law Book Co, 1982). As to the peculiar position of Western Australia in relation to Indigenous affairs, see E.M. Russell, A History of the Law in Western Australia and its Development From 1829 to 1979 (Nedlands, WA: University of Western Australia Press, 1980) at 321; P.W. Johnston, "The Repeals of Section 70 of the Western Australian Constitution Act 1889: Aborigines and Governmental Breach of Trust" (1989) 19 University of Western Australia Law Review 318; P. Hasluck, Black Australians: A Survey of Native Policy in Western Australia, 1829-1897 (Melbourne: Melbourne University Press, 1942) at 165-66, 200-203. This was the date of commencement of the Racial Discrimination Act 1975 (Cth.). See further, supra notes 43-54 and accompanying text. As to Commonwealth heads of power and the effect of the 1967 referendum and constitutional amendment in expanding those powers, see notes 34-40 and accompanying text. See Native Title Act 1993 (Cth.) Part 2, Division 2, dealing with the validation of past titles. - Page 22 -(4) From 1 July 1993 (or 1 January 1994) to date From 1 July 1993 (in respect of legislation) or from 1 January 1994 (for executive or other actions) the States may only affect the rights of Indigenous peoples in a non-discriminatory manner and any actions affecting native title (including fishing and hunting rights) are void unless they comply with the detailed procedural provisions of the Native Title Act 1993 (Cth.). This is significant in relation to the future operation and management of fisheries, which until now have primarily been a State matter. The Commonwealth is in the same position as the States with the exception that any legislation passed after the enactment of the Racial Discrimination Act 1975 (Cth.) or the Native Title Act 1993 (Cth.) may impliedly override the earlier legislation and hence not be bound by the terms of the earlier legislation.70 Another relevant constitutional requirement is that where the Commonwealth acquires property situated in a State it must do so on "just terms";71 but the States are not under any such requirement. However, the operation of the Racial Discrimination Act 1975 (Cth.) and Native Title Act 1993 (Cth.) now mean that any extinguishment of native title rights by the States must also be on the payment of just terms. From the above summary it can be seen that many of the constitutional factors that affect powers in respect of Indigenous rights in other countries, such as Canada and the United States, have no counterpart in Australia. In particular, while the above constraints apply to State and federal legislative powers, there is no general separation of powers with respect to Indigenous peoples or lands between the federal and state parliaments. Furthermore, unlike the United States and Canada, whilst Indigenous rights may confer a benefit they will not generally act as a shield from State or federal laws in the absence of statutory protection.72 With this framework in mind, the statutory treatment of fishing, hunting and gathering by Indigenous persons will now be considered. See Pareroultja v. Tickner (1993) 42 F.C.R. 32 at 46 (Full Ct.); Western Australia v. Commonwealth, supra note 17 at 484. Constitution s. 51(xxxi). Extinguishment of native title is likely to constitute an "acquisition of property" for the purposes of the "just terms" provision, see infra notes 364-367 and accompanying text. As to the issue as to whether, as a matter of statutory construction, particular legislation applies to native title or Indigenous rights, see Chapter 6(B) "An Issue of Statutory Construction", below. - Page 23 -CHAPTER 2: HISTORICAL AND STATUTORY TREATMENT OF INDIGENOUS FISHING AND HUNTING RIGHTS A. BRIEF HISTORY A practice of permitting the Indigenous inhabitants to fish in the same waters as the colonists and sharing the colonists catch with them arose in the early days of the colony of New South Wales. As the first Governor of the Colony, Governor Phillip, recorded on 10 July 1788: Yesterday twenty of the natives came down to the beach, each armed with a number of spears, and seized on a good part of the fish caught in the seine. The coxswain had been ordered, however small the quantity he caught, always to give them a part whenever any of them came when he was fishing, and this was the first time they ever attempted to take any by force ... the coxswain very prudently permitted them to take what they chose, and parted good friends. They, at present find it very difficult to support themselves.73 As the colonial settlement expanded the ability of the Indigenous peoples to exercise traditional fishing, hunting and gathering rights was limited as settlers progressively occupied traditional hunting lands. There was inevitably conflict as Indigenous peoples were dispossessed of their traditional lands. Concern was expressed by some colonial officials about the ability of the Indigenous peoples to sustain themselves.74 Accordingly special Phillip to Nepean, 10 July 1788, Historical Records of Australia (Canberra: Library Committee of the Commonwealth Parliament, 1914) series I, vol. 1 at 66-67, cited in J. Woolmington, ed. Aborigines in Colonial Society, University of New England Monograph Series No. 7, 2nd ed. (Armidale: University of New England, 1988) at 34 (emphasis added). See also M. Barnard, A History of Australia (Sydney: Angus & Robertson, 1962) at 52, who summarised thefishing practices in the early period of the colony as follows: "The new settlement posed a number of problems. The first and most pressing was food. The country offered very little, the most useful being hauls of fish. These could not be relied upon, sometimes they were plentiful, sometimes the nets came up empty. Despite everyone's hunger, Phillip insisted that the aborigines should have a share of the catch. If the fish belonged to anyone - except His Majesty, of course - it was theirs. The remainder went to feed the sick." (emphasis added) For example, the Report of the Select Committee on the Aborigines in Victoria in 1858 contained a damming criticism of the lack of efforts to provide for Indigenous persons in lights of the "taking (footnotes continue on next page) - Page 24 -provisions were made in a number of jurisdictions permitting Indigenous persons access to pastoral leases on Crown land to hunt and forage.75 Fishing areas were also reserved for the use of Indigenous persons in a few parts of Australia. The legislature in most jurisdictions also acknowledged the special claim of Indigenous persons to maintain their hunting and fishing practices by exempting them from regulations concerning fishing and hunting practices.76 (Footnotes continued from previous page) of their hunting grounds and their means of living". It considered that "great injustice has been perpetrated upon the Aborigines" and that "proper provision should have been made for them" and recommended the establishment of reserves on the tribes' own hunting grounds: Victorian Legislative Council Votes and Proceedings, , 1858-59, No. D. 8, iv-v, cited in H. Reynolds, Dispossession: Black Australians and White Invaders (Sydney: Allen & Unwin, 1989) at 193-95. The Committees recommendations in this regard were not implemented. 75. For example, see Crown Lands Ordinance 1924 (N.T.) ss 26(e), 39(b) [now Pastoral Land Act 1992 (N.T.) ss 38(l)(n), 38(2)]; Pastoral Act 1904 (S.A.) schedule cl 3(q) (now Pastoral Land Management and Conservation Act 1989 (S.A.) s. 47(1)); Land Act 1933 (W.A.) s. 106(2). For a discussion of the historical background to the inclusion of reservations for access of Indigenous peoples in pastoral leases, see H. Reynolds, The Law of the Land, 2nd ed. (Melbourne: Penguin Books, 1992) at 146-47, 150-51; H. Reynolds, "Mabo and Pastoral Leases" (1992) 2:59 Aboriginal Law Bulletin 8; H. Reynolds, "Pastoral Leases in Their Historical Context" (1996) 3:81 Aboriginal Law Bulletin 9; H. Reynolds & J. Dalziel, "Aborigines and Pastoral Leases - Imperial and Colonial Policy 1826-1855" (1996) 19 University of New South Wales Law Journal 315. 76. In New South Wales, see Fisheries Act 1902 (N.S.W.) s. 23(4); Fisheries and Oyster Farms (Amendment) Act 1957 (N.S.W.) (inserting s. 25A(b) into the principal Act); Fisheries and Oyster Farms (Amendment) Act 1979 (N.S.W.) sched. 4 s. 15(c); National Parks and Wildlife (Hunting and Gathering) Regulation 1985 (N.S.W.) cl 3-4. In the Northern Territory, see Birds Protection Ordinance 1928 (N.T.) s. 19(a); Birds Protection Ordinance 1959 (N.T.) s. 19(a); Wildlife Conservation and Control Ordinance 1962 (N.T.) s. 54(1); Wildlife Conservation and Control Ordinance 1966 (N.T.) s. 8; Territory Parks and Wildlife Conservation Act 1976 (N.T.) s. 122; Fish and Fisheries Act 1979 (N.T.) ss 14, 93; Fish and Fisheries Regulation 1980 (N.T.) cl. 7B, 56(2). In Queensland, see Native Birds Protection Act Amendment Act 1877 (Qld.) s. 1; Native Animals Protection Act 1906 (Qld.) s. 9(c); Animals and Birds Act 1921 (Qld.) s. 17(b); Aboriginals Protection and Restriction of the Sale of Opium Act 1927 (Qld.) s. 2; Fauna Protection Act 1937 (Qld.) s. 24; Fauna Conservation Act 1952 (Qld.) s. 78; Fisheries Act 1957 (Qld.) s. 3(i); Fisheries Act 1976 (Qld.) s. 5(l)(d); Fishing Industry Organisation and Marketing Act 1982 (Qld.) s. 45AA(l)(d) (see also s. 31(l)(e)). . In South Australia, see Fisheries Act 1878 (S.A.) s. 14; Fisheries Amendment Act 1893 (S.A.) s. 8; Fisheries Act 1904 (S.A.) s. 22; Fisheries Act 1917 (S.A.) s. 48; Birds Protection Act 1900 (S.A.) s. 4; Animals Protection Act 1912 (S.A.) s. 18; Animals and Birds Protection Act 1919 (S.A.) ss 20(a), 21; Fauna Conservation Act 1964 (S.A.) s. 42(1). In Victoria, see Preservation of Game Act 1862 (Vic); Fisheries and Game Act 1864 (Vic.) s. 39; Protection of Game Act 1867 (Vic.) s. 12; Fisheries Act 1873 (Vic.) s. 39; Fisheries Act 1890 (Vic.) s. 41; Game Act 1890 (Vic.) s. 21; Fisheries Act 1915 (Vic.) s. 4; Fisheries Act 1928 (Vic.) s. 4; Fisheries Act 1958 (Vic.) s. 4. (footnotes continue on next page) - Page 25 -B. EXISTING STATUTORY PROVISIONS (i) Overview Indigenous peoples are presently partially or wholly exempt from a range of legislation regulating fishing, hunting and gathering rights. In some jurisdictions the exemptions only apply to specific provisions, to certain classes of Indigenous peoples or for specified purposes. Legislation in most States regulates fishing, hunting and gathering as different subject matters. The least regulated of these activities is gathering of flora (including berries and roots) which is generally unregulated outside of national parks and wildlife conservation areas. As national parks and other wildlife conservation areas comprise a large portion of the land area which is still accessible to Indigenous peoples to carry out these activities, the statutory provisions permitting the continuation of these activities (in varying degrees) are considered in detail below. There is virtually no regulation of commercial utilisation of flora. Falling mid-way in the spectrum of regulation is hunting of fauna. Regulation of hunting on private land generally only extends to endangered or protected species. However, hunting is highly regulated in national parks or wildlife conservation areas. There is almost no regulation of the commercial utilisation of hunting (other than in respect of protected or endangered species and regulations concerning processing of foodstuffs of a public health nature). The most highly regulated of the subject matters is fishing. Fishing is generally wholly regulated no matter where it takes place. Most fisheries legislation contains a blanket prohibition of any fishing activities other than those specifically authorised under the legislation.77 Accordingly, the legislation displaces the usual common law rights concerning fisheries78 All aspects of commercial utilisation of fisheries are regulated. Indigenous peoples are (Footnotes continued from previous page) In Western Australia, see Preservation of Game Act 1874 (W.A.) s. 13; Fisheries Act 1899 (W.A.) s. 11; Fisheries Act 1905 (W.A.) s. 43 (subsequently s. 56); Fauna Protection Act 1950 (W.A.) s. 23; Fauna Protection Act Amendment Act 1954 (W.A.) s. 13(c); Wildlife Conservation Act Amendment Act 1976 (W.A.) s. 11; Fisheries Act Amendment Act 1975 (W.A.) s. 15. For a detailed analysis of the statutory exemptions operating in the early 1980's, see ALRC, supra note 5 vol. 2, chapter 35. 77 . For example, s. 10(1) of the Fisheries Act 1988 (NT.) prohibits the taking of any fish other than in accordance with a licence. 78 . As to the common law right of the public to fish in tidal waters, see Halsbury's Laws of England, 4th ed. (London: Butterworths, 1977) vol. 18, para. 609-14. The issue as to whether common law recognition of specific rights of Indigenous peoples concerning fisheries are also displaced by such fisheries legislation is considered in Chapter 6, below. - Page 26 -partially or wholly exempt from a range of fishing rights in some States, but not others. These provisions are considered in detail below. Generally, any commercial fishing activities undertaken by Indigenous peoples fall outside the ambit of the exemptions and, hence, such activities are governed under the normal regulatory regime. In addition to the general regulatory regimes, specific regimes concerning wildlife management often apply on land which has been granted to Indigenous communities under statutory land claim legislation.79 This legislation generally permits non-commercial hunting, gathering and fishing on Indigenous land and, in some instances, permits the Indigenous community to regulate the wildlife management on the land. As these provisions tend to be local in nature and vary with each of the twenty-one types of statutory Indigenous land ownership regimes,80 they will not be considered further here. There is no comparable legislation in relation to land held by Indigenous communities by reason of common law native title to land and such land is governed by the general regulatory regimes applicable in the jurisdiction in question. The interaction between any native title or Indigenous fishing rights and general legislative regulatory regimes is considered in Chapter 6. (ii) Specific Provisions The specific provisions dealing with Indigenous peoples in the general regulatory regimes concerning fishing, hunting or gathering in each jurisdiction are outlined in this section. The relatively narrow scope of the provisions, particularly in relation to commercial activities, can be contrasted with the potential for a broader common law recognition of fishing, hunting and gathering rights of Indigenous peoples discussed in the remainder of this thesis. In national parks under Commonwealth jurisdiction,81 Indigenous persons are exempt from regulations which would prevent them from continuing "the traditional use of any area of For an overview of the various statutory regimes pursuant to which aboriginal land is held, see H. McRae, G. Nettheim & L. Beacroft, Aboriginal Legal Issues: Commentary and Materials (Sydney: Law Book Co, 1991), chap 5, Halsbury's Laws of Australia (Sydney: Butterworths, 1991) para. [5-120]-[5-1030]. Aboriginal land is held pursuant to three different statutory regimes in the Northern Territory, five different regimes in Queensland, three different regimes in South Australia, four different regimes in Victoria, three different regimes in Western Australia and one regime in each of New South Wales, Tasmania and the Australian Capital Territory and Jervis Bay. See further note 79 infra. The major parks under Commonwealth jurisdiction are Uluru - Kata Tjuta National Park and Kakadu National Park (both of which are situated in the Northern Territory) and Jervis Bay National Park (on the southern coast of New South Wales). Most "national parks" are under State (footnotes continue on next page) - Page 27 -land or water for hunting or food-gathering (otherwise than for purposes of sale) and for ceremonial and religious purposes".82 Plans of management of Commonwealth national parks also make provision for traditional hunting and gathering.83 In world heritage areas, Indigenous persons may be granted authorisation for activities which damage flora where the activities are part of the "traditional activities of Aboriginal people" or are "performed by Aboriginal people for their own use".84 Indigenous persons may also apply for a permit in relation to endangered species protected under Commonwealth laws where the acts to be done are of particular significance to aboriginal tradition and will not appreciably reduce the survival or recovery of the endangered species concerned.85 In the Northern Territory, Indigenous persons are exempt from wildlife conservation regulations which would prevent them from continuing "the traditional use of any area of land or water for hunting or food-gathering (otherwise than for purposes of sale) and for ceremonial and religious purposes".86 Fisheries regulations in the Northern Territory do not affect "the right of Aboriginals who have traditionally used the resources of an area of land or water in a traditional manner from continuing to use those resources in that area in that manner".87 However, the exemption does not extend to Indigenous persons engaged "in a commercial activity".88 A special form of a fishing licence may be issued to Indigenous communities in the Northern Territory. However, the entitlements conferred by the licence are quite restricted. One licence may be issued to each Indigenous community for which land has been granted in trust under the Aboriginal Land Rights (Northern Territory) Act 1976 (Footnotes continued from previous page) jurisdiction, see supra note 21-22 and accompanying text. 82 National Parks and Wildlife Conservation Act 1975 (Cth.) s. 70(1). The exemption is subject to any regulations made for the purpose of conserving wildlife in any area which expressly affect the traditional use of the area by Indigenous persons: s. 70(2). 83. See, for example, Kakadu National Park Plan of Management para. 34.2.4. 84 . World Heritage Properties Conservation Regulations 1983 (Cth.) s. 3E(2)(c). 85 . Endangered Species Protection Act 1992 (Cth.) s. 89. 86 Territory Parks and Wildlife Conservation Act 1976 (N.T.) s. 122(1). The exemption is subject to regulations expressly made for the purposes of conserving wildlife in any area which expressly affect the traditional use of the area by Indigenous persons: s. 122(2). See also Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.) ss 73(l)(c)-(d) regarding limitations on the legislative power of the Northern Territory in relation to the utilisation of wildlife resources and fisheries by Indigenous persons. 87 Fisheries Act 1988 (N.T.) s. 53(1). The exemption is subject to any restrictions which expressly apply to Indigenous persons. 88 . Ibid. s. 53(2). - Page 28 -(Cth.).89 The licensee may take fish from within the area specified in the licence and may sell fish (other than certain specified species) within the boundaries of the community's lands.90 However, the licensee may not sell the fish for the purpose of resale91 and is restricted to using amateur fishing gear.92 Hence, any viable participation by Indigenous peoples in the commercial fishing industry is governed by the same regulatory mechanism as non-Indigenous commercial fishing operators. There is also provision for the closure of seas within two kilometres of aboriginal land to persons who are not entitled by aboriginal tradition to enter and use those seas.93 In New South Wales, Indigenous persons and their dependants are exempt from prohibitions against taking fauna in wildlife districts, wildlife refuges, wildlife management areas, conservation areas, wilderness areas and areas subject of a wilderness protection agreement and from taking or killing protected fauna (but excluding threatened species) anywhere in the State for domestic purposes.94 Similarly, Indigenous persons are exempted from prohibitions against picking or having in their possession native plants in those areas and or protected native plants anywhere in the State for domestic purposes; provided, in the case of protected native plants, the gathering or harvesting of the fruit, flower or other parts of the plants is carried out in a manner that does not harm the plants or interfere unreasonably with their means of propagation.95 In addition, the usual restrictions prohibiting the taking of animals or gathering of flora in national parks, nature reserves, or karst conservation areas does not apply to traditional Indigenous owners of such areas (or other Indigenous persons authorised by the Indigenous owners) in respect of those areas which have been vested in the Indigenous owners, where taken "for domestic or for ceremonial or cultural purposes".96 Fisheries Regulation 1992 (NT.) regs. 183-84. The licence is held by an individual who must be approved by the local aboriginal council (in those communities who have a council recognised under the Local Government Act 1985 (NT.)) or approved by persons accepted by the majority of the community to be its leaders (in those communities which do not have such a council): ibid. reg. 183(c). Ibid. regs. 186, 190(2), 191(2). Amongst the species which may not be sold (even within the Indigenous community) are baramundi and mud crab, both of which are highly valued species. Ibid. reg. 191(1). See also reg. 59(2). Ibid. reg. 189. Aboriginal Land Act 1978 (NT.) s. 12. See further, Halsbury's Laws of Australia (Sydney: Butterworths, 1991), Vol 1, para. [5-335]; M. Brady, "Sea rights the Northern Territory 'sea closure' : a weakened law" (1985) 15 Aboriginal Law Bulletin 8. National Parks and Wildlife (LandManagement) Regulation 1995 (N.S.W.) ss. 37. Ibid. ss. 38-39. - Page 29 -This exemption does to threatened species or animals protected by management plans for the particular area.97 However, Indigenous persons are not exempt from general fishing regulations.98 However, New South Wales (together with Tasmania) are the only jurisdictions in which the issue of native title is addressed in fisheries legislation.99 This is discussed below.100 In Queensland, Indigenous persons acting in accordance with Aboriginal tradition are exempt from general fisheries legislation.101 The exemption does not apply to any regulations or management plans that expressly apply to acts done in accordance with Aboriginal tradition.102 Any such regulations or management plans must be developed in consultation with Indigenous persons.103 In addition, Indigenous persons residing on former aboriginal reserves or trust areas and are exempt from fisheries regulations provided the fish are not taken for commercial purposes or by use of any noxious substance or explosive.104 Special provisions also apply in the Torres Strait region in northern Queensland in accordance with the Torres Strait Treaty between Australia and Papua New Guinea which makes special provision for traditional fishing of the Indigenous inhabitants of the region.105 (Footnotes continued from previous page) 96 . National Parks and Wildlife Act 1974 (N.S.W.) ss. 45(7), 56(7), 57(7), 58Q(7), 58R(7), 117(2). These sections were inserted by National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 (N.S.W.) which provided for the vesting of certain national parks, nature conservation areas and karst conservation areas in the traditional Indigenous owners and the lease by them back to the State for use as a national park, conservation areas or karst conservation area. 97. Id. 98. The last remaining exemption was repealed in 1994. 99 . See Fisheries Management Act 1994 (N.S.W.) s. 287 100 . See Chapter 6(F)(i) "Specific Statutory Provisions Dealing with the Relationship between Native Title Fishing Rights and General Regulatory Regimes", below. 101 . Fisheries Act 1994 (Qld.) s. 14(1). For an analysis of the statutory regime in Queensland, see M. Berry, "Indigenous Hunting and Fishing in Queensland: A Legislative Overview" (1995) 18 University of Queensland Law Journal 326. However, Berry's analysis of the interaction between the Native Title Act 1993 (Cth.) and Queensland legislation is not entirely correct, see infra note 493 and accompanying text. 102 . Ibid. s. 14(2). 103 . Ibid. s. 14(3). 104 Community Services (Aborigines) Act 1984 (Qld.) s. 77(l)(a); Community Services (Torres Strait) Act 1984 (Qld.) s. 76(l)(a). 105. The treaty is implemented by the Torres Strait Fisheries Act 1984 (Cth.) and Torres Strait Fisheries Act 1984 (Qld.). See further Halsbury's Laws of Australia (Sydney: Butterworths, 1991) vol. 1 para. (footnotes continue on next page) - Page 30 -Zoning plans for the Great Barrier Reef Marine Park also permit traditional fishing by Indigenous persons in specified zones with permission106 and they are exempted from restrictions on collecting protected organisms for their own use in zones which are designated as "limited collecting" zones.107 Different regimes apply in Queensland as to the taking of flora or fauna in "protected" and "non-protected" areas. In "protected areas" (national parks, conservation parks, nature refuges, wilderness areas and World Heritage management areas) there is provision for the grant of an "Aboriginal tradition authority" which authorises the taking or using cultural or natural resources (including plants and animals) in accordance with Aboriginal tradition.108 (Footnotes continued from previous page) [5-2270]; ALRC, supra note 5 para. 943-49; S. Kaye, "The Torres Strait Treaty: A Decade in Perspective" (1994) 9 International Journal of Marine and Coastal Law 311; M. Exel, "Australian Fisheries Management - Resource Allocation and Traditional Rights" (1994) 53:5 Australian Fisheries 15; K. Mfodwo & M. Tsamenyi, "The Regulation of Traditional Fishing under the Torres Strait Treaty" in Turning the Tide Conference: selected papers (Darwin: Northern Territory University, 1993) 229; R.E. Johannes & J.W. MacFarlane, "Traditional Fishing Rights in the Torres Strait Islands" in A.K. Haines, G.C. Williams & D. Coates, eds., Torres Strait Fisheries Seminar, Port Moresby, 11-14 February 1985 (Canberra: Australian Government Publishing Service, 1986) 31. See also J.C. Altman, Indigenous Participation in Commercial Fisheries in Torres Strait (Canberra: Centre for Aboriginal Economic Policy Research, Australian National University, 1994); M. Mulrennan & M. Sullivan, "Torres Strait: Recent Initiatives in Environmental Management" in Turning the Tide: Conference on Indigenous Peoples and Sea Rights: selected papers (Darwin: Northern Territory University, 1993) 253. Kaye observes that the treaty 'was hailed as a triumph for preserving the way of life of the Indigenous people of the region' and that it is 'the only example of a maritime delimitation agreement that took into account the specific interests and concerns of the traditional inhabitants of the delimitation area' (at 323). However, the Indigenous people have not been entirely satisfied with their level of participation in either the growing commercial fishery or in the management of fisheries in the region: ibid, at 324-25, 329. 106. See, for example, Cairns and Cormorant Pass Zoning Plan cl 4(l)(a) and 5.2(i)(xv) made under the Great Barrier Reef Marine Park Act 1975 (Cth.). However, nothing in the zoning plan permits the taking of any animal or plant otherwise protected under Commonwealth or Queensland laws: cl 14-15. 107 . Great Barrier Reef Marine Park Regulations 1983 (Cth.) s. 13AB(2)(d). As to co-management arrangements in relation to the Great Barrier Reef Marine Park and attempts by the Great Barrier Reef Marine Park Authority to take into account Indigenous interests in the management of the marine park, see A. Bergin & D. Lawrence, "Aboriginal and Torres Strait Islander Interests in the Great Barrier Reef Marine Park" in Turning the Tide Conference: selected papers (Darwin: Northern Territory University, 1993) 25; D. Briggs & R. Zigterman, "Aboriginal and Torres Strait Islanders' Involvement In Managing the Great Barrier Reef Marine Park and Queensland Marine Parks" in J. Birckhead, T. De Lacy & L. Smith, eds., Aboriginal Involvement in Parks and Protected Areas (Canberra: Aboriginal Studies Press, 1992) 275. 108 . Nature Conservation Regulation 1994 (Qld.) regs. 28-9. The application for an Aboriginal tradition authority must be made by a corporation whose members represent Indigenous persons particularly (footnotes continue on next page) - Page 31 -An Aboriginal tradition authority cannot be granted in respect of wildlife if doing so would reduce the ability of the wildlife to maintain its natural population levels in the area or be granted in respect of rare or threatened wildlife.109 In non-protected areas Indigenous persons are permitted to take, use or keep protected wildlife in accordance with Aboriginal tradition, notwithstanding the provisions of any other Act.110 The exemption does not apply to conservation plans that expressly apply to acts done under Aboriginal tradition.111 "Aboriginal tradition" is defined to mean "the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular group of Aboriginal people and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships".112 Accordingly, the exemptions do not exclude the possibility of commercial utilisation by indigenous peoples if such utilisation is encompassed by the broad notion of "Aboriginal tradition". Further exemptions in relation to the taking of fauna or flora apply to the residents of particular Indigenous communities in Queensland. Indigenous persons residing on former aboriginal reserves or trust areas are permitted to take native fauna by traditional means for consumption by members of their Indigenous community.113 Similarly, Indigenous persons resident in the Shires of Aurukun or Mornington (former aboriginal reserves in the Gulf of Carpentaria) may take fauna "to the extent necessary for the sustenance" of the Indigenous person's family or household.114 These exemptions apply notwithstanding the provision of (Footnotes continued from previous page) concerned with the area: ibid. s. 31. 109 . Ibid. s. 33(1). 110 . Nature Conservation Act 1992 (Qld.) s. 85(1). 111 . Ibid. s. 85(3). 112 . Acts Interpretation Act 1954 (Qld.)A similar definition is provided of "Island custom". Generally, in Queensland parallel sections or acts apply to "Aboriginals" and "Torres Strait Islanders". The phrase "Aboriginal tradition" is used in relation to Aboriginals and "Island custom" in relation to Torres Strait Islanders. For brevity, where the provisions are equivalent this thesis will refer solely to the provisions dealing with Aboriginals. 113. Community Services (Aborigines) Act 1984 (Qld.) s. 77(l)(a); Community Services (Torres Strait) Act 1984 (Qld.) s. 76(l)(a). The exemptions in these Acts apply only to Indigenous persons who reside on land that has been granted in trust, or reserved and set apart, under the Land Act 1962 (Qld.) for the benefit of Indigenous persons or formed part of Aurukun or Mornington Island Shire Councils (even though that land may have subsequently become "aboriginal land" under the Aboriginal Land Act 1991 (Qld.) or Torres Strait Islander Land Act 1991 (Qld.)). 114 . Local Government (Aboriginal Lands) Act 1978 (Qld.) s. 29(l)(a). - Page 32 -any other legislation, other than conservation plans concerning protected wildlife or flora which expressly apply to Indigenous persons.115 In South Australia, Indigenous persons are exempted from certain restrictions in taking native plants and protected animals on land that is not a national park.116 Within national parks, Indigenous persons may take native plants and protected animals in accordance with the terms of any proclamation permitting them to do so.117 Indigenous persons are also exempted from the requirement to hold a hunting permit.118 The exemptions only apply if the plant or animal is taken for the purposes of food or for "cultural purposes of Aboriginal origin".119 Indigenous persons are also exempted from restrictions applying in wilderness protection areas to the extent necessary to enable them to observe Aboriginal tradition.120 There are no exemptions in South Australia from fisheries legislation. In Tasmania, Indigenous persons engaged in an "Aboriginal cultural activity" are exempt from the need to obtain a fishing licence in coastal waters provided that the activity is not likely to have a detrimental effect on living marine resources.121 Fishing for commercial purposes is not permitted under the exemption by reason of the definition of "Aboriginal cultural activity".122 However, there is no similar exemption for Indigenous persons when fishing in inland waters.123 Nor is there any exemption in relation to hunting or gathering activities by Indigenous persons. 115 . Ibid. 116. National Parks and Wildlife Act 1972 (S.A.) s. 68d(l)-(2). The exemption does not apply to prescribed species or to the taking of plants or animals by prescribed means: s. 68c(2). 117 Ibid. s. 68d(3)-(5). 118 Ibid. s. 68e. 119 Ibid, ss 68d(6), 68e. 120 . Wilderness Protection Regulations 1992 (S.A.) s. 32. "Aboriginal tradition" is defined to mean "Aboriginals traditions, observances customs or beliefs and includes traditions, observances, customs and beliefs that have evolved or developed from that tradition since European colonisation": Wilderness Protection Act 1992 (S.A.) s. 3. 121 . Living Marine Resources Management Act 1995 (Tas.) s. 60(2)(c). See also s. 10(2)(b). 122. An "Aboriginal cultural activity" is defined to mean "the activity of fishing or gathering undertaken by an Aboriginal for his or her personal use based on Aboriginal custom of Tasmania as passed down to that Aborigine": ibid. s. 3. 123 . Inland fisheries are regulated under the Inland Fisheries Act 1995 (Tas.). The omission of an exemption in favour of Indigenous persons is strange given that the associated legislation, the Living Marine Resources Management Act 1995 (Tas.), that regulates coastal fisheries was passed in the same year containing such an exemption. - Page 33 -There are no exemptions for Indigenous persons from general fishing, hunting and gathering regulations in Victoria.124 In Western Australia, Indigenous persons are permitted to take fauna and flora on any Crown land or other land, other than a nature reserve or wildlife sanctuary, with the consent of the occupier (if any) of that land for the purpose of food for themselves and their families, but not for sale.125 If the Governor is satisfied that these provisions are being abused or that any species is becoming or is likely to become unduly depleted, he or she may by regulation suspend or restrict the operation of the exemption.126 Indigenous persons acting in accordance with aboriginal tradition are also exempt from the requirement to hold a recreational fishing licence, provided the fish are taken for the purpose of the person or the person's family and not for a commercial purpose.127 A number of joint management schemes have been established for certain national parks and wildlife refuges, which permit Indigenous persons to be involved in the development of management plans for such parks, and hence, the extent to which customary activities of Indigenous peoples will be permitted.128 However, fisheries legislation is generally silent on the issue of co-management with Indigenous peoples. For example, in the Northern Territory various objectives are to be accomplished by fisheries management plans, none of which include the involvement of Indigenous peoples in the management of the fisheries,129 The current fisheries legislation is the Fisheries Act 1995 (Vic). Wildlife Conservation Act 1950 (W.A.) s. 23(1). Where an Indigenous person has taken a kangaroo for food, the Executive Director of the Department of Conservation and Land Management may issue a certificate authorising the sale of the kangaroo skin: ibid s. 23(2). Wildlife Conservation Act 1950 (W.A.) s. 23(1). Fish Resources Management Act 1994 (W.A.) s. 6. Aboriginal tradition is not defined in the legislation. For example, the Cobourg Peninsular Sanctuary Board established under Cobourg Peninsular Aboriginal Land and Sanctuary Act 1981 (N.T.); the board of management established under the Nitmiluk ((Catherine Gorge) National Park Act 1991 (N.T.); boards of management in respect of certain Commonwealth national parks, see National Parks and Wildlife Conservation Act 1975 (Cth.) s. 14C; in respect of national parks transferred to Indigenous ownership and leased back to the State in New South Wales, see National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 (N.S.W.) which inserted ss. 63, 71AN, 77 into the National Parks and Wildlife Act 1974 (N.S.W.); boards of management in respect of national parks on aboriginal land under the Aboriginal Land Act 1991 (Qld.) s. 5.20; Torres Strait Islander Land Act 1991 (Qld.) s. 5.20. See further, infra notes 744-748 and accompanying text. Fisheries Act 1988 (NT.) s. 21. - Page 34 -nor does the statute require that the membership of Fisheries Management Advisory Committees include any Indigenous persons.130 (iii) Scope of Statutory Exemptions It is evident from the above survey that statutory provisions concerning Indigenous fishing, hunting and gathering activities are haphazard. Exemptions are not consistent between jurisdictions. For example, Victoria has no exemptions whilst Queensland and the Northern Territory have quite broad exemptions in favour of Indigenous persons. Even within a particular jurisdiction the nature of the exemptions is often not consistent. For example, New South Wales and South Australia have exemptions for Indigenous persons from hunting and gathering legislation but makes them fully subject to legislation concerning fisheries. Similarly, in Tasmania, Indigenous persons are largely exempt from regulations concerning coastal fisheries, but not from inland fisheries. However, it is possible to make some general observations. Seven jurisdictions contain exemptions of some type which implicitly acknowledge that Indigenous persons should be treated differently in management of fisheries, fauna or flora than the general members of the public. The exemptions often call upon notions of aboriginal "tradition." In legislation which defines aboriginal tradition, a broad definition is usually adopted. The legislation usually makes it clear that it is aboriginal traditions as currently observed that are relevant, permitting those traditions concerning fishing, hunting and gathering to change to reflect contemporary Indigenous ways of life. On the other hand, the exemptions are generally expressly limited to either domestic or non-commercial use of the resource in question. Generally the statutory exemptions from fisheries regulations are fairly wide in the northern States and Territories of Australia, but are non-existent in the more densely populated south eastern States (other than in respect of coastal fisheries in Tasmania). The lack of statutory recognition of traditional fishing rights is regarded by many Indigenous people in the south Ibid. s. 24. In appointing members to a Fisheries Management Advisory Committee the Minister is required to have regard to " the users of an area or fishery" (s 24). Where Indigenous peoples have a significant current involvement in a fishery this section should ensure that they have some representation on a fisheries management committee. But where Indigenous peoples have been excluded from a fishery (particularly in relation to the commercial utilisation of a fishery) this stipulation may work against them by directing that regard be had to the status quo in appointing members of the committees. For a discussion of recent recommendations concerning representation of Indigenous peoples on management advisory committees, see infra note 87 land accompanying text. - Page 35 -eastern States as a denial of the special identity and a restriction of their cultural expression.131 The exemptions are generally silent as to native title or Indigenous fishing, hunting or gathering rights recognised at common law.132 The existing exemptions from the general regulatory regimes therefore do not seem to be based on an attempt to accommodate what the legislatures perceived to be existing legal entitlements of Indigenous peoples, but rather an acknowledgement that they should be subject to a different regime due to their traditional reliance upon fishing, hunting and gathering as their means of sustenance. Accordingly, the interaction between native title or common law Indigenous fishing, hunting or gathering rights and the regulatory regimes is left for the courts to determine.133 Smyth, Understanding Country, supra note 1 (in the section titled "Hunting, Gathering and Fishing Rights"). The exceptions are fisheries legislation in New South Wales and Tasmania, which refer to the impact of the legislation on native title rights. This is discussed in Chapter 6(F)(i) "Specific Statutory Provisions Dealing with the Relationship between Native Title Fishing Rights and General Regulatory Regimes", below. This matter is considered in detail in Chapter 6, below. - Page 36 -CHAPTER 3: COMMON LAW RECOGNITION OF INDIGENOUS FISHING AND HUNTING RIGHTS A. INTRODUCTION In Walden v. HenslerlM an elder of the Gungalida people in Queensland was charged and convicted for taking a bush turkey in contravention of the Fauna Conservation Act 1974 (Qld.). The defendant was acting in accordance with aboriginal custom and believed he was entitled to take the turkey. The defendant argued that he was acting in accordance with an honest claim of right in respect of property which, under the provisions of the applicable Criminal Code, constituted a defence to the charge.135 The High Court of Australia held, by a majority, that the defence was not available to the defendant.136 However, the more fundamental question of whether the Fauna Conservation Act 1974 (Qld.) applied to the defendant's activities was not litigated. As Justice Brennan observed: It would not have been surprising if a question had been raised by the appellant as to whether and how it came about in law that Aboriginal people had their traditional entitlement to gather food from their own country taken away.137 The existence of native title to land at common law in Australia was subsequently recognised by the High Court in Mabo [No. 2J.l3S The court rejected the previously accepted proposition that Indigenous rights could only exist after the colonisation of Australia if they (1987) 163 C.L.R. 561, 61 A.L.J.R. 646, 74 A.L.R. 173. The defence of an honest claim of right is a general defence in respect of offences relating to property: Criminal Code (Qld.) s. 22. The decision turned on whether the offence was "an offence relating to property" within the meaning of s. 22 of the Criminal Code (Qld.). Brennan, Deane and Dawson J.J. held that the offence of keeping fauna was not an offence relating to property (Toohey and Gaudron J.J. dissenting). Walden v. Hensler, supra note 134 at 565. Mabo [No. 2], supra note 6. See further R.D. Lumb, "Native Title to Land in Australia: Recent High Court Decisions" (1993) 42 International and Comparative Law Quarterly 84; M.A. Stephenson & S. Ratnapala, eds., Mabo: A Judicial Revolution (Brisbane: University of Queensland Press, 1993); G. Nettheim, "Judicial Revolution or Cautious Correction? Mabo v Queensland" (1993) 16 University of New South Wales Law Journal 1; G.D. Meyers & J. Mugambwa, "The Mabo Decision: Australian Aboriginal Land Rights in Transition" (1993) 23 Environmental Law 1203. - Page 37 -were recognised or granted by the Crown. While holding that the Crown had power to extinguish native title, the court held that in the case of the Murray Islands the Meriam people's native title to the Murray Islands remained intact to the present day. A question that arises in the wake of the Mabo decision is if native title to land is recognised at common law, to what extent are fishing, hunting and gathering rights of Indigenous peoples also recognised at common law.139 The juristic foundation of such rights may arise either as an incident of native title, as an independent Indigenous right recognisable at common law or by virtue of a local custom. To the extent such rights are recognised as an incident of native title they may either be characterised as flowing from native title to land or seabeds or as a separate native title or Indigenous right in fisheries which is independent of native title to land or seabeds. These different juristic foundations of Indigenous fishing, hunting and gathering rights are considered in this Chapter. The starting point for the consideration of the existence of any Indigenous rights at common law in Australia is the decision of the High Court of Australia in Mabo [No. 2J. In Mabo [No. 2] the court held that the content of Indigenous rights to land (which it called "native title") comprises "the interests and rights of indigenous inhabitants in land whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants".140 Consequently, as one author has observed, "[wjhether the content of rights associated with a claim of native title include hunting and fishing rights ... is a question of fact; it is a matter of proof, not a question of existence".141 There is no doubt that hunting, gathering and fishing comprised an important part of Indigenous societies and were highly regulated by Indigenous laws and customs prior to colonisation.142 In relation sea and fishing rights, it is clear that the The plaintiffs had originally sought declarations of native title both in relation to the lands of the Murray Islands and in respect of "rights to the sea and seabeds extending to the fringing reefs surrounding the said islands, and right to the fringing reefs surrounding the said Islands". The claim for these declarations was abandoned before the High Court. Nevertheless, the decision of the High Court did not preclude a future claim for native title over those reefs, seas and seabeds provided those interests had not been extinguished. Mabo [No. 2], supra note 6 at 57 per Brennan J. See also at 58, 70 per Brennan J., at 110 per Deane and Gaudron J.J. Meyers, Traditional Fishing and Hunting Rights, supra note 8 at 227. See also Meyers, Living Resources Management, supra note 4 at 18-19; T.A. Gray QC, "The Myths of Mabo" in Essays on the Mabo Decision (Sydney: Law Book Co, 1993) 148 at 159; M. Mansell, "Australian and Aborigines and the Mabo Decision: Just Who Needs Whom the Most?" in Essays on the Mabo Decision (Sydney: Law Book Co, 1993) 48 at 48-49. For an overview of literature concerning traditional Indigenous fishing, hunting and gathering rights see ALRC, supra note 5, vol. 2, chapter 33 "Traditional Hunting, Fishing and Gathering (footnotes continue on next page) - Page 38 -boundaries of the traditional territories of many Indigenous peoples in coastal regions in Australia included areas of seas and they often exercised exclusive control over sea resources within their marine territories.143 In the words of one author, "to them, the coastal sea is an owned domain in which members of the local clan or family group have primary and even exclusive use and management rights".144 Furthermore, the "traditional rights to the resources of clan estates included rights to use and control the resources of the sea".145 Hence, there would seem to be little doubt that the rights and interests possessed under the traditional laws and customs of Indigenous peoples include the right of the traditional owners to hunt, gather and forage on the land and to fish in its rivers and adjacent seas.146 (Footnotes continued from previous page) Practices". 143 . As to traditional Indigenous views as to ownership of adjacent seas and waters see Aboriginal Land Rights Commission, First Report (Canberra: Australian Government Publishing Service, 1973) para. 205; S.L. Davis, "Aboriginal Sea Rights in Northern Australia" (1985) 12 Maritime Studies 12; N. Green, "Aboriginal Affiliations with the Sea in Western Australia" in G. Gray & L. Zann, eds., Workshop on Traditional Knowledge of the Marine Environment in Northern Australia (Townsville: Great Barrier Reef Marine Park Authority, 1988) ; W. Lanhupuy, "Marine Management For 40,000 Years: A Yolgnu View of Sea Rights" in Turning the Tide: Conference on Indigenous Peoples and Sea Rights: selected papers (Darwin: Northern Territory University, 1993) 4; B. Lawson, Aboriginal Fishing and Ownership of the Sea (Canberra: Department of Primary Industries, 1984), D. Allen, "Salt Water Dreaming" in Turning the Tide: Conference on Indigenous Peoples and Sea Rights: selected papers (Darwin: Northern Territory University, 1993) 58; J. Cordell, "Indigenous Peoples' Coastal-Marine Domains: Some Matters of Cultural Documentation" in Turning the Tide: Conference on Indigenous Peoples and Sea Rights: selected papers (Darwin: Northern Territory University, 1993) 159; D. Smyth, Aboriginal Maritime Culture in the Far Northern Section of the Great Barrier Reef Marine Park: Final Report (Townsville: Great Barrier Reef Marine Park Authority, 1991); Smyth, A Voice In All Places, supra note 1; Smyth, Understanding Country, supra note 1. 144 . Smyth, A Voice In All Places, supra note 1 at 166. See also S.L. Davis & J.R.V. Prescott, Aboriginal Frontiers and Boundaries in Australia (Melbourne: Melbourne University Press, 1992) who refer to "the unquestionable fact that Aboriginal communities regarded inshore waters as a part of their territory. Further, marine sections of the territory were also determined by precise boundaries" in the Northern Territory (at 146). Their discussion of boundaries in part of the Torres Strait region notes that "[r]ights in the seas, reefs and marine resources of the seas beyond the home reef are held by the four Maluigal clans as a corporate group" (at 129) 145 . Smyth, Understanding Country, supra note 1 at 24. 146. Indeed, the statutory definition of "traditional Aboriginal owners" in s. 3(1) of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.) requires persons claiming to be the traditional owners of land to, inter alia, establish that they are "entitled by Aboriginal tradition to forage as of right over that land". See further, G. Neate, Aboriginal Land Rights Law in the Northern Territory, vol. 1 (Sydney: Alternative Publishing Co-operative Ltd, 1989) at 77-9; ALRC, supra note 5 para. 889. The definition relates to the criteria necessary for persons to establish they are the traditional owners of the land, rather than the nature of the rights conferred by a grant under the legislation (footnotes continue on next page) - Page 39 -Whilst English law has tended to treat rights to land and sea differently from each other, Indigenous laws did not draw the same distinction between land and sea rights. The content of Indigenous rights at common law, on the basis of the decision in Mabo [No. 2], is to be determined by reference to Indigenous laws and customs. Whilst Indigenous rights depend upon the common law for their recognition, they are not creatures of the common law.147 Hence, Indigenous rights need not be confined to rights found in English property law. In many parts of Australia, the Indigenous peoples view "the coastal sea as an inseparable extension of coastal land, and subject to the same characteristics of traditional ownership, custodianship, spirituality and origins in the Dreamtime and indigenous law".148 As one Indigenous elder succinctly put it, "The sea and the land are one".149 Hence, there appears to be no barrier to the recognition of Indigenous rights at common law extending to the sea itself and its marine resources.150 (Footnotes continued from previous page) (which is dealt with elsewhere in the legislation). However, the definition is significant as it indicates the anthropological view of ownership indicia at the time of its enactment. Furthermore, in light of the large number of successful claims under the legislation, one can conclude that, at least in the Northern Territory, a right to forage over one's land was part and parcel of most if not all Indigenous people's laws and customs. 147 . See supra note 15 and accompanying text. 148 . Smyth, Understanding Country, supra note 1; Smyth, A Voice In All Places, supra note 1 at 166. See also ALRC, supra note 5 para. 890. In land claims under the statutory regime in the Northern Territory, the Land Commissioners have also addressed the extent of the entitlements of the traditional aboriginal owners of a region (for the purpose of determining the identification of the traditional owners of an area and the extent of their traditional territories. The nature of the traditional entitlements are not related to the rights conferred under the statutory regime). In his report on the Milingimbi claim, Justice Toohey stated he was "satisfied that, in accordance with Aboriginal tradition, strangers were restricted in their right to enter the seas adjoining the land under consideration". A similar conclusion was reached by Justice Kearney in his report on the Castlereagh Bay claim: see Northern Land Council, Croker Island Native Title Claim (Darwin: Northern Land Council, 1997). In the report of the Aboriginal Land Rights Commission that led to the establishment of the statutory regime in the Northern Territory, the Commissioner, Justice Woodward, noted that "Aborigines generally regard estuaries, bays and waters immediately adjacent to the shore line as being part of their land". He recommended that their traditional fishing rights be preserved by "the establishment of a buffer zone [of two kilometres from the coast line] which cannot legally be entered by commercial fishermen or holiday makers": Aboriginal Land Rights Commission, Second Report (Canberra: Australian Government Publishing Service, 1974) at 80-81. 149 . Mary Yarmirr of the Minjalang community on Croker Island, cited in Northern Land Council, Croker Island Native Title Claim (Darwin: Northern Land Council, 1997). 150 . Indeed, the definition of "native title" in the Native Title Act 1993 (Cth.) contemplates that native title may extend to the sea. Section 223(1) defines "native title" to mean the communal, group or individual rights and interests of Indigenous peoples recognised by the common law "in relation to (footnotes continue on next page) - Page 40 -Indigenous fishing, hunting and gathering rights have been characterised as being analogous to a profit a prendre.151 While caution needs to be exercised to avoid classifying the incidents of native title in English property law concepts152 it seems clear that fishing, hunting and gathering rights can comprise part of native title to land. However, as discussed below, while Indigenous fishing, hunting and gathering rights may be part of the bundle of rights comprised in native title to land, there is no necessary nexus between them. The issue as to the relationship between title to land and fishing rights will be revisited in more detail later in this thesis,153 as will the issue of the characterisation and scope of Indigenous rights.154 B. INITIAL MOVES TOWARDS RECOGNISING INDIGENOUS FISHING RIGHTS AT COMMON LAW IN AUSTRALIA At the time the research for this thesis commenced, there had been no case in Australia which had recognised the existence of any fishing, hunting or gathering rights of Indigenous peoples (other than those expressly granted by statute). Prior to Mabo [No. 2] di number of lower court decisions had rejected such claims.155 Since Mabo [No. 2] the issue of native title fishing rights have been raised as a defence to criminal charges for breach of State fisheries legislation. The results at first instance have been mixed. However, the appellate courts have rejected the defence in both of the cases that have reached the appellate level.156 The issue has also been raised in numerous civil (Footnotes continued from previous page) land or waters". "Waters" are in turn defined to include "sea" and the "bed or subsoil under any waters": s. 253. 151. See R. v. Isaac (1975) 13 N.S.R. (2d) 460 at 469 (N.S. C.A.); British Columbia (Attorney General) v. Mount Currie Indian Band (1991) 54 B.C.L.R. (2d) 156 at 185 (C.A.), affirming (1990) 50 B. C.L.R. (2d) 157, [1991] 1 C.N.L.R. 14; Bolton v. Forest Pest Management Institute (1985) 21 D.L.R. (4th) 242 at 248-49, 66 B.C.L.R. 126, [1985] 6 W.W.R. 562, [1986] 2 C.N.L.R. 26 (B.C. C. A.), reversing (1985) 34 C.C.L.T. 119 (B.C.S.C.). See also the discussion of usufructuary rights in Mason v. Tritton, supra note 159 at 580-82 per Kirby P. 152. See infra notes 300-306 and accompanying text. 153 . See Chapter 3, Part D "Relationship Between Native Title and Indigenous Fishing, Hunting and Gathering Rights", below. 154 . This is dealt with primarily in Chapter 7, below. 155 . For example, see R. v. Bourne, infra, note 332. 156 . The defence was also rejected in NSW Fisheries v. Gordon (18 May 1993, N.S.W. Local Court Sutherland, Clugston S.M.) [unreported], cited in Mclntyre, supra note 29 at 111, the Magistrate (footnotes continue on next page) -Page 41 -proceedings which seek a declaration that the claimants hold fishing, hunting and gathering rights as a part of their native title interests. However, no judgments have yet been handed down in those civil matters. 157 Accordingly, at the time of writing there have been no successful claims for Indigenous fishing rights. The issue as to whether such rights exist remains of some currency and controversy.158 Though the two criminal cases which reached the appellate level ultimately rejected the defence raised by the Indigenous persons, they did provide the first tentative steps towards recognising the potential for recognition of Indigenous fishing rights at common law in Australia. Those aspects of the cases which deal with the existence of such rights will be considered here, other aspects of the cases dealing with the interaction between native title fishing rights and the regulatory mechanisms of the applicable fisheries legislation are considered in later chapters. In the first case, Mason v. Tritton,l$9 the defendant was charged with being in possession of greater than the permitted quantity of abalone and of shucking abalone adjacent to the sea contrary to the Fisheries and Oyster Farms (General) Regulation 1989 (N.S.W.). He argued that he was exercising a native title right to fish and that in consequence the (Footnotes continued from previous page) holding that Mabo [No.2] did "not support the proposition the common law now recognises customary aboriginal fishing rights such that a claimed right must first be extinguished by legislation before an aboriginal exercising such a right is obliged to comply with legislation affecting the right". A further unreported case finding in favour of the Indigenous defendant was determined before the Mount Isa Magistrates Court in Queensland on 11 October 1996. Though the basis of the decision from the short published note is unclear, the court appeared to accept that the defendant was exercising a native title fishing right and accordingly was exempted from the operation of the applicable Queensland fisheries legislation by virtue of s. 211 of the Native Title Act 1993 (Cth.) (the operation of which is discussed infra notes 491-497 and accompanying text). The Crown has lodged an appeal against the decision. See further G. Atkinson, "Yanner v Eaton: Walden v Hensler reversed?" (1997) Indigenous Law Bulletin . 157. Two civil proceedings have reached trial, the Yorta Yorta claim in a region on the New South Wales and Victorian border and the Croker Island claim in the Northern Territory, see further, R. Levy, "Croker Seas Native Title Application: Federal Court Hearing" (1997) 4:2 Indigenous Law Bulletin 21; Northern Land Council, Croker Island Native Title Claim (Darwin: Northern Land Council, 1997); K. Derkley, "Ancient customs, legal first" (1997) 71:1 Law Institute Journal 14. 158 . See N. Hooper, "Sea rights: Mabo's second coming" (October 1993) 15:41 Business Review Weekly 33; M. Hogarth, "Northern Territory test case seen as crucial for marine environment" The Sydney Morning Herald (1 January 1997); M. Ceresa, "Sea Change in Native Title" The Australian (18 March 1997). 159 . (1994) 34 N.S.W.L.R. 572 (C.A.). - Page 42 -regulation did not apply to him. The expert evidence relied upon concerning the traditional laws, customs and practices of the Indigenous community in question was scant. Furthermore, the defendant did not give evidence himself. The defendant was convicted in the Magistrates Court and the conviction upheld on appeal to the Supreme Court. He then appealed to the Court of Appeal. The major difficulty for the defendant at all stages was the paucity of the evidence. The case ultimately turned upon the lack of evidence that the defendant was exercising a native title right. The Court of Appeal unanimously dismissed the appeal on this basis.. Nevertheless, the court made a number of comments about native title fishing rights. Kirby P. held that the common law recognises a native title right to fish.160 Gleeson C.J. did not positively hold the common law recognised such a right, but his short judgment was open the possibility of the common law recognising such a right.161 He emphasised the need for the defendant to establish the existence and content of a system of rules of Indigenous peoples concerning the right capable of recognition at common law and to bring his activities within the scope of the right.162 Priestly JA. did not express any concluded view on the issue of whether the common law recognised fishing rights of Indigenous peoples, as his decision was confined to the failure of the defendant to lead evidence sufficient to establish such a right.163 Ibid, at 575. Ibid, at 574. Ibid, at 574-75. Ibid, at 601, 604. Though not expressing a concluded view as to the common law recognition of Indigenous fishing rights, Priestly J.A. ventured the opinion that s. 223(2) of the Native Title Act 1993 (Cth.) "puts beyond doubt the inclusion of hunting, gathering or fishing rights and interests within the meaning of native title". While observing that the common law may have reached that position "in due course", he considered that the section "puts an end to possible argument about the matter" in cases brought under the Native Title Act 1993 (Cth.): ibid, at 600. However, with respect to His Honour, that analysis is not supported by an examination of the legislation. As discussed infra at notes 59-61 and accompanying text, the Native Title Act 1993 (Cth.) deals with native title only to the extent native title is recognised by the common law. In this regard, s. 223(2) (which provides that "rights and interests" in s. 223(1) "includes hunting, gathering, or fishing, rights and interests) must be read in conjunction with s. 223(l)(c) (which provides that the rights and interests comprising native title must be "rights and interests [which] are recognised by the common law of Australia"). A lexical substitution makes this clear. The definition of "rights and interests" in s. 223(2) does not apply to the bolded phrase in quotation marks appearing in s. 223(1) of "native title rights and interests" (which is one of the terms being defined in that section) but the subsequent phrase "rights and interests" appearing in that section and in the following sub-sections 223(l)(a) and 223(l)(c). Accordingly, the expanded s. 223(1), incorporating the additional definition in s. 223(2), reads as follows: The expression "native title" or "native title rights and interests" means the communal, group or individual rights and interests [including hunting, gathering, or fishing, rights (footnotes continue on next page) - Page 43 -The second case was Derschaw v. Sutton. The defendants were charged with being in possession of 66 mullet which had been taken in contravention of notices issued under sections 9 and 11 of the Fisheries Act 1905 (W.A.), which prohibited the taking of fish by certain types of net (subject to exemptions for certain persons).164 At trial the magistrate held that the defendants had raised sufficient doubt as to whether they were exercising a native title fishing right, which had not been rebutted by the Crown. He held that therefore the Crown failed to establish that the defendants had committed any offence under the Fisheries Act 1905 (W.A.). This finding was reversed on appeal in the Supreme Court and a conviction entered.165 The Court held that although a right to fish based upon the traditional laws and customs of Indigenous peoples was recognised by the common law, the defendants had failed to satisfy the evidentiary burden that they possessed, or were exercising, such a right.166 On further appeal to the Court of Appeal, the court, by a majority of two to one, upheld the convictions.167 Franklyn J., writing for the majority, adopted the view of Kirby P. (Footnotes continued from previous page) and interests] of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests [including hunting, gathering, or fishing, rights or interests] are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests [including hunting, gathering, or fishing, rights and interests] are recognised by the common law of Australia. [emphasis in italics added, emphasis in bold in original] Furthermore, to the extent it be considered that there is any ambiguity, there is nothing in the legislation, the second reading speeches or parliamentary debates which indicate that parliament intended the Native Title Act 1993 (Cth.) to operate as a positive source or grant of new Indigenous rights. The highest that the position can be put is that parliament considered that the common law may recognise fishing, hunting and gathering rights of Indigenous peoples and, if so, intended those rights to be subject to the provisions of the Native Title Act 1993 (Cth.). 164 . Section 12(l)(d) created an offence for taking fish in contravention of such notices. 165 . Sutton v. Derschaw (1995) 82 A. Crim. R. 318 (S.C. W.A.), affirmed (unreported, W.A. C.A., 16 August 1996, No.s S.J.A. 1175-77 of 1994, Lib. No. 960449S), special leave to appeal to H.C.A. refused (unreported, H.C.A., 30 May 1997, No. P44-46 of 1996) 166 . Ibid, at 324. 167 . Derschaw v. Sutton (16 August 1996, W.A. C.A., No.s S.J.A. 1174-77 of 1994, Lib. No. 960449S) [unreported], affirming (1995) 82 A. Crim. R. 318, special leave to appeal to the H.C.A. refused (footnotes continue on next page) - Page 44 -in Mason v. Trittonx(,% that the common law of Australia recognised a right to fish based upon the traditional laws and customs of the Indigenous people concerned.169 He considered such a right to fish to be a "form of native title".170 However, the majority judgment upheld the conviction on the basis of the failure of the defendants to lead sufficient evidence to establish that they were exercising a native title right to fish.171 The dissenting judge, Wallwork J., also found that the common law recognised a right of Indigenous people to fish and, for the reasons discussed below, would have allowed the appeal against their conviction.172 The High Court of Australia refused special leave to appeal, on the basis that the case was not a suitable vehicle for a determining the important questions of principle involved due to the lack of an evidentiary foundation on which to consider these matters.173 Accordingly, whilst the defendants ultimately failed to meet the evidentiary burden that they were exercising an Indigenous fishing right, the Magistrates Court, the Supreme Court and all three judges in the Court of Appeal unanimously agreed that, in principle, such a fishing right was capable of recognition under the common law. However, in the absence of a case positively upholding the exercise of such a right or a determination by the High Court of Australia on the matter, there are likely to remain doubts as to the existence of such rights. Justice Debelle of the South Australian Supreme Court recently expressed the view, in an article on Indigenous customary law and the common law, that whilst Mabo "may influence the capacity of the common law to recognise customary rights concerning hunting, fishing and food gathering", the "present position is that the common law has not recognised such rights".174 This indicates the uncertainty that continues (Footnotes continued from previous page) (unreported, H.C.A., 30 May 1997, No. P44-46 of 1996). 168 . Mason v. Tritton, supra note 159. 169 . Derschaw v. Sutton, supra note 167 at 7 (Murray J. concurring). 170. Ibid. 171 . Ibid, at 8, 14 172 . Ibid, at 18. 173 . Derschaw v. Sutton (30 May 1997, H.C.A., Dawson, Toohey and Kirby J.J., No. P44-46 of 1996) [unreported], refusing special leave to appeal from (unreported, W.A. C.A., 16 August 1996, No.s S.J.A. 1175-77 of 1994, Lib. No. 960449S), affirming (1995) 82 A. Crim. R. 318 (the comments of Toohey and Dawson J.J. are contained in the transcript of the special leave application). 174 . Judge B. Debelle, "Aboriginal Customary Law and the Common Law" in E. Johnston QC, M. Hinton & D. Rigney, eds., Indigenous Australians and the Law (Sydney: Cavendish Publishing, 1997) 81 at 98. - Page 45 -to surround this issue in Australia. The recognition that Indigenous peoples possess fishing rights at common law would bring the common law in Australia into conformity with the common law in other countries, which are considered below. C. RECOGNITION OF INDIGENOUS FISHING AND HUNTING RIGHTS IN OTHER COMMON LAW COUNTRIES Preface This part of the thesis contains a survey of other certain common law jurisdictions in which Indigenous fishing, hunting or gathering rights have been recognised. This part focuses on case law in those countries which find "pre-existing", "inherent" or "continuing" Indigenous rights which do not derive their source from treaty, proclamation, statute or any other similar positivist source. Where courts find that Indigenous peoples have such pre-existing legal rights that are legally enforceable today the question arises at to the present day legal source of the right (in the absence of a positivist source). The courts are often silent on this issue. Two broad approaches can be found in judicial decisions. The first would be that Indigenous laws and rights, on their own strength, continue into the era of colonisation (subject to actions by the new sovereign). The second is that some Indigenous rights are recognised by reason of the laws of the newly introduced English legal regime. They pre-date it and had independent existence under Indigenous laws. However, under this approach, there are common law principles as to what pre-existing rights and laws will be recognised and their present day enforceability depends upon the common law recognition of those rights. It is the second approach which has clearly been adopted in Australia.175 That is what is meant in this thesis when reference is made to the recognition of Indigenous rights at common law. The position is less clear in Canada. It is possible to read some judgments as saying that some parts of the former Indigenous legal regimes survive into the new colonial order of their own force,176 perhaps as some type of inter-societal accommodation177 See supra note 15 and accompanying text. For example see Calder v. Attorney-General of British Columbia, infra note 185, at 328 per Judson J. (Martland and Ritchie J.J. concurring) ("Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is which Indian title means ..."). - Page 46 -(without a clear articulation of the legal basis on which this occurs). Other judgments in Canada refer to the recognition of Indigenous rights by the common law.178 The initial United States cases, notably the decisions of Marshall C.J., refer to colonial practice and what are said to be international law concepts concerning discovery and colonisation.179 These decisions can be seem as applying common law principles, although that language is not expressly used.180 In my view, these variant approaches ultimately rely upon the common law, as they involve a juridical articulation of basic principles, not the interpretation of positivist sources. Issues dealing with the reception of laws within new colonies, which are referred to at times during this thesis, are not part of the body of the "domestic" content of the common law, but can still be seen as a part of the wider body of the common law.181 References to the common law in this thesis are to this expanded notion of the common law and the notion of recognition of rights at common law, should be understood in this context. (Footnotes continued from previous page) 177 . This basis of Indigenous rights is explored in the articles cited in infra note 688, some of which have been cited with approval in subsequent judgments. 178 . For example see Colder v. Attorney-General of British Columbia, infra note 185, at 376, 396, 401 per Hall J. (Spence and Laskin J.J. concurring); R v. Isaac, infra note 188, at 469 per MacKeigan C.J.N.S. See also R. v. Sparrow, supra note 189 at 1091 where Dixon J. emphasised the notion of "pre-existing" aboriginal rights. The prior jurisprudence was read in this light, namely as recognising Indigenous rights at common law, in R. v. Van der Peet, infra note 190, para. 28 per Lamer C.J.C. (La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major J.J. concurring). 179 . See Johnson v. Mcintosh 21 U.S. (8 Wheat.) 543 (1823); Worcester v. Georgia (1832) 31 U.S. (7 Pet.) 515. 180 . This analysis appears to be consistent with the statement of Deane J. in Gerhardy v. Brown (1985) 159 C.L.R. 70 at 149 in his oft quoted statement dealing with the "retreat from injustice" by the common law in the context of referring to the Marshall decisions 181 . See generally, W. Blackstone Commentaries on the Laws of England, 17th ed, (1830), book 1, chap. 4, at 106ff. - Page 47 -(i) Canada Overview In Canada issues relation to Indigenous fishing and hunting rights have been litigated for many decades.182 However, the framework in which those rights have been situated has changed over time. The evolution of this framework is briefly discussed in this overview, prior to examining the individual cases which focus on a common law basis of those rights in the following section. Indigenous peoples in many regions of Canada were guaranteed certain fishing and hunting rights in treaties with the Crown. The treaties were entered into from the earliest days of the British colonies in north America to the last of the so called "numbered" treaties in Canada in 1921. The first phase of litigation often dealt with the scope of these treaty rights in the context of s. 88 of the Indian Act,n3 and references to Indian fishing and hunting rights in resource transfer agreements that became part of the constitutional framework in the prairie Provinces.184 The cases during this phase were ultimately about constitutional division of For an overview of Indigenous hunting and fishing rights in Canada, and the different legal basis of those rights, see D.E. Sanders, "Indian Hunting and Fishing Rights" (1974) 38 Saskatchewan Law Review 45; K. McNeil, Indian Hunting, Trapping and Fishing Rights in the Prairie Provinces of Canada (Saskatoon. Native Law Centre, University of Saskatchewan, 1983); P.G. McHugh, "Maori Fishing Rights and the North American Indian" (1985) 6 Otago Law Review 62 at 65-82; J. Woodward, Native Law (Toronto: Carswell, 1989) chapter 13; T. Isaac, Aboriginal Law: Cases, Materials and Commentary (Saskatoon: Purich Publishing, 1995) chapter 4. For an excellent review of Indigenous involvement in, and subsequent exclusion from, Pacific coast fisheries in Canada, see D. Newell, Tangled Webs of History: Indians and the Law in Canada's Pacific Coast Fisheries (Toronto: University of Toronto Press, 1993). See also Canada. Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples (Ottawa: Ministry of Supply and Services, 1996) [hereinafter RCAP] vol. 2 at 496-519. Indian Act, R.S.C. 1985, c. 1-5 s. 88 is in the following terms: "Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province except to the extent that such laws are inconsistent with the Act ..." (emphasis added). Section 88 accordingly incorporates provincial laws of general application into federal law and applies them to Indians. In the absence of this provision, due to exclusive federal power over "Indians, and lands reserved for the Indians" by reason of s. 91(24) of the Constitution Act 1867, RS.C. 1985, App. II. No. 5, ( 30 & 31 Vict., c. 3) (U.K.), provincial laws affecting the status of Indians of their "Indianess", such as those regulating hunting of game, would probably not apply to Indians: Dick v. R. [1985] 2 S.C.R. 309, [1986] 1 W.W.R. 1, 23 D.L.R. (4th) 44. See further, T. Isaac, Aboriginal Law: Cases, Materials and Commentary (Saskatoon: Purich Publishing, 1995) at 161-65; Reiter, supra note 27 at 194ff. A right of Indigenous persons to hunt and fish for food on all unoccupied Crown lands and on other (footnotes continue on next page) - Page 48 -powers issues delimiting the reach of Provincial laws upon Indigenous peoples. Indigenous fishing and hunting rights were generally viewed in a positivist framework. The source of the right was seen as the applicable statutory protection granted in respect of, or at least the positive recognition by the Crown of, the right in treaties with Indians. Nevertheless, these cases remain of some interest where they deal with the scope of the treaty right. This is particularly so in light of some more recent cases which have viewed treaties as preserving pre-existing common law rights, rather than a grant of rights. The second phase of litigation comprises those cases which moved towards tentatively recognising Indigenous rights to land at common law. This started with the Calder case in 1973,185 which was quickly followed by a lower court injunction in Quebec in relation to the proposed James Bay hydro-electric project.186 In some cases, during this phase, such as the Baker Lake case,187 wildlife hunting and rights were viewed a being part and parcel of aboriginal title and capable being protected by the law from interference. These cases moved away from the positivist approach to finding the source of Indigenous rights to be pre-(Footnotes continued from previous page) lands on which they have a right of access notwithstanding provincial laws was guaranteed in Alberta, Manitoba and Saskatchewan when control over natural resources was transferred from the federal government to those provinces in 1930: see s. 12 of the Alberta and Saskatchewan Natural Resource Transfer Agreements and s. 13 of the Manitoba agreement, confirmed by the Constitution Act 1930 reproduced in the Schedule to R.S.C. 1985, App II, No. 26. See further, Sanders, supra note 182 at 54-56; T. Isaac, Aboriginal Law: Cases, Materials and Commentary (Saskatoon: Purich Publishing, 1995) at 163-65, 237-38. 185 . Calder v. Attorney-General of British Columbia [1973] S.C.R. 313, 34 D.L.R. (3d) 145, [1973] 1 W.W.R. 1. 186 . Le Chef Max "One-Onti" Gros Louis v. La Societe de developpement de la Baie James [1974] R.P. 38, 8 C.N.L.C. 188 (Que. S.C.), reversed by La Societe de Developpement de la Baie James c. Chef Robert Kanatewat [1975] C.A. 166, 6 C.N.L.C. 373 (Que. C.A.) (the case was in a civil law jurisdiction, though many of the issues were the same). Though the interlocutory injunction was reversed after only 1 week by the Court of Appeal, there were intense negotiations between the parties in an attempt to conclude a settlement prior to the trial of the action. This cumulated in the James Bay and Northern Quebec Agreement which was the first of the modern land claim settlements in Canada. See further, J. O'Reilly, "The Role of the Courts in the Evolution of the James Bay Hydroelectric Project" in S. Vicent & G. Bowers, eds., Baie James et Nord Quebecois: Dix Ans Apres (Montreal: Recherches amerindiennes au Quebec, 1988) 34; T. Morantz, "Aboriginal Land Claims in Quebec" in K. Coates, ed. Aboriginal Land Claims in Canada: A Regional Perspective (Toronto: Copp Clark Pitman, 1992) 101 at 111-116. 187 . Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development (1979), [1980] 1 F.C. 518, (1979) 107 D.L.R. (3d) 513, [1980] 3 W.W.R. 193, [1979] 3 C.N.L.R. 17 (F.C. T.D.), additional reasons [1981] 1 F.C. 266. The case is discussed infra notes 204-205 and accompanying text. - Page 49 -existing Indigenous rights. The courts found that some elements of "pre-existing" rights survived in Canadian law.188 The next phase commenced with the seminal decision of the Supreme Court of Canada in R. v. Sparrow.1*9 The decision was also the first to consider the recognition and affirmation of aboriginal rights contained in s. 35(1) of the Constitution Act of 1982. The case did not directly address the issue of the relation between Indigenous rights to land and other Indigenous rights, such as fishing and hunting. It simply held that Indigenous fishing rights of the Musqueam were an existing aboriginal right. The next phase commenced with the trilogy of cases handed down by the Supreme Court of Canada, generally referred to as the Van der Peet trilogy.190 They were quickly followed by further decisions of the Supreme Court of Canada in R. v. Adams191 and R. v. Cote.192 These cases directly addressed, for the first time, the relationship between Indigenous rights to land and other Indigenous rights. They held that Indigenous rights to land were a subset of a wider range of Indigenous rights, which included a right to fish. At the same time the court required a great degree of specificity in characterising particular Indigenous rights. This characterisation of Indigenous rights has been pushed even further in the arguments of the Province of British Columbia in its argument before the Supreme Court of Canada in the appeal in the Delgamuukw case.193 With this framework in mind, a number of cases touching upon the existence of Indigenous fishing rights at common law in Canada will now be considered. Even during this phase, the judges differed in their approaches to the source of aboriginal rights. For an examination of the different approaches of the judges in the Calder case, supra note 185, see D. Sanders, "Pre-existing Rights: The Aboriginal Peoples of Canada" in G.A. Beaudoin & E. Mendes, eds., The Canadian Charter of Rights and Freedoms, 3rd ed. (Toronto: Carswell, 1996) chap. 17 at [17-11]. As to the source of Indigenous rights in Canada see also, supra notes 176-178. [1990] 1 SCR 1075, 70 DLR (4th) 385, affirming (1986) 36 DLR (4th) 246, 9 BCLR (2d) 300. The cases were R. v. Van der Peet [1996] 2 S.C.R. 507, 137 D.L.R. (4th) 289, [1996] 9 W.W.R. 1; R. v. Gladstone [1996] 2 S.C.R. 723, 137 D.L.R. (4th) 648, [1996] 9 W.W.R. 149; R. v. N.T.C. Smokehouse Ltd. [1996] 2 S.C.R. 672, 137 D.L.R. (4th) 528, [1996] 9 W.W.R. 114. The Supreme Court of Canada refers to these cases collectively as "the Van der Peet trilogy", see R. v. Cote, infra note 192 para. 3, 4, 31, 37, 51. R. v. Adams, infra note 191 para. 4. That phrase is adopted in this thesis. [1996] 3 S.C.R. 101, 138 D.L.R. (4th) 657, reversing [1993] R.J.Q. 1011, 3 C.N.L.R. 98, 55 Q.A.C. 19 (Que. C.A.), [1985] 4 C.N.L.R. 39 (Que. Superior Ct), [1985] 4 C.N.L.R. 123 (Que. C.S.P.). [1996] 3 S.C.R. 139, 138 D.L.R. (4th) 385, reversing [1993] R.J.Q. 1350, 98 107 D.L.R. (4th) 28, [1994] 3 C.N.L.R. 98, which had affirmed [1989] R.J.Q. 1893, [1991] 1 C.N.L.R. 107, which had affirmed [1988] R.J.Q. 1969, [1989] 3 C.N.L.R. 141. See infra notes 702ff and accompanying text. - Page 50 -Case Law As discussed above, the right of Indigenous persons "to hunt and fish as usual" on unoccupied Crown land was confirmed in many treaties with Indigenous peoples in different parts of the country. Similarly, a right of Indigenous persons to hunt and fish for food on certain lands within the prairie provinces, notwithstanding provincial laws was guaranteed when control over natural resources was transferred from the federal government to those provinces in 1930.194 However, it is only relatively recently that the courts have recognised that Indigenous peoples have inherent rights to fish and hunt. In R. v. Isaac the court recognised a usufructuary right of Indigenous persons on reserve land "to use that land and its resources, including, of course, the right to hunt on that land". That right was said to arise out of "our customary and common law" (though subsequently confirmed by the Royal Proclamation and other declarations).195 The court characterised the right as "akin to a profit a prendre" which "arose long before [the Royal Proclamation of 1763] but has not been extinguished as to reserve land". It stated that "this stresses legalistically and the perhaps self-evident proposition that hunting by an Indian is traditionally so much a part of his use of his land and its resources as to be for him, peculiarly and specially, integral to that land".196 In R. v. Taylor and Williams191 the defendants were members of the Chippwea Nation which had, by treaty, surrendered 1.9 million acres of land to the Crown "without reservation or limitation in perpetuity" in 1818. The defendants were charged with taking bullfrogs during closed season. Notwithstanding the surrender of their aboriginal title to land, the Ontario Court of Appeal, having regard to the Indians understanding of the treaty, held that they not surrendered their Indigenous right to hunt and fish over that land. Hence, in the absence of valid legislation restricting that right the defendants were entitled to hunt and fish over that land.198 The decision of the court is significant in that it indicates that an Indigenous right to hunt and fish over land can continue independently of Indigenous rights See infra note 184. R. v. Isaac, supra note 151 at 469 per MacKeigan C.J.N.S. See also at 496 per MacDonald J.A. Ibid, at 469, and also at 485, per MacKeigan C.J.N.S. See further R. v. Cope (1981), (1982) 65 C.C.C. (2d) 1, 132 D.L.R. (3d) 36, 49 N.S.R. (2d) 555 (N.S. C.A.) at 2-3. (1981), (1982) 62 C.C.C. (2d) 227, 34 O.R. (2d) 360 (C.A.). No such federal legislation had restricted the defendants right to hunt or fish and the provincial legislation under which the defendants were charged was inapplicable due to constitutional reasons: see Constitution Act 1867, RS.C. 1985, App. II. No. 5, ( 30 & 31 Vict., c. 3) (U.K.) s. 91(24), Indian Act, RS.C. 1985, c. 1-5 s. 88. -Page 51 -to the land itself. Many treaties have expressly guaranteed the right to hunt and fish to Indigenous persons in exchange for surrender of land. However, the court did not characterise the basis of the hunting and fishing rights upon a promise by the Crown, but rather that the Indigenous persons retained their existing Indigenous right to hunt and fish.199 Presumably, they only had an "existing" right if, at the time of the treaty, that right was recognised at common law.200 In R. v. White and Bob201 the British Columbia Court of Appeal considered whether the defendant was bound by regulations which prohibited deer hunting other than in open season. In 1854, the defendant's band had surrender their land on terms which included that the Indians were "at liberty to hunt over the unoccupied lands, and to carry on [their] fisheries as formerly". The case turned upon an exemption of treaty rights from the application of provincial laws under the s. 88 of the Indian Act, the court holding that the terms of the surrender constituted a "treaty" for the purposes of the Act. However, Norris J.A. emphasised that the terms of the surrender and Royal Proclamation of 1763 simply affirmed an existing Indigenous right to hunt and fish,202 and observed that: This is not a case merely of making the [game] law applicable to native Indians as well as to white persons so that there may be equality of treatment under the law, but of depriving Indians of rights vested in them from time immemorial, which white persons have not had, viz., the right to hunt out of season on unoccupied land for food for themselves and their families.203 While there are certain legal consequences which arise as a result of the right being guaranteed in a Treaty (see s. 88 Indian Act, R.S.C. 1985, c. 1-5) the content of the fishing and hunting right appears to be no more than that which existed at common law: see R. v. Simon [1985] 2 S.C.R. 387, 23 C.C.C. (3d) 238, 24 D.L.R. (4th) 390 "the right to hunt already existed at the time the Treaty was entered into by virtue of the Micmac's general aboriginal right to hunt" at 402 and "the Treaty did not create new hunting and fishing rights but merely recognised pre-existing rights" at 409 (emphasis in original); R. v. Taylor and Williams, supra note 197 (reference to the "preservation" of the Indians historic right to hunt and fish and that "the right would continue" at 367-8); R. v. Isaac, supra note 151 at 485; R. v. White and Bob, supra note 199 at 634-5, 646-7. The same approach has been taken in interpreting constitutional limitations on provincial powers in the Prairie provinces, see R. v. Wesley [1932] 4 D.L.R. 774 at 781, 58 C.C.C. 269 (s 12 of the Alberta Natural Resource Transfer Agreement "re-assured ... the continued enjoyment of a right which [Indians have] enjoyed from time immemorial", (emphasis added). See further supranotes 175-181 and accompanying text. (1964), (1965) 50 D.L.R. (2d) 613, 52 W.W.R. 193 (B.C. C.A.), affirmed (1965) 52 D.L.R. (2d) 481« (S.C.C.). Ibid, at 635, 646-47. Ibid, at 648. - Page 52 -While the early Canadian cases were primarily concerned with treaty rights, the courts have recognised in recent years that Indigenous peoples possess fishing, hunting and gathering rights which exist either as a part of aboriginal title to land or as a separate Indigenous right. In Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development the plaintiffs claimed aboriginal title over a large area in the Northwest Territories. The court, in granting an interlocutory injunction to restrain mineral exploration activities and to restrict low flying aircraft over the calving areas of wild caribou herds upon which the plaintiff community was heavily dependent, stated "if there is substance to the Inuit's right to the continued enjoyment of land used by them and their ancestors from time immemorial, it is difficult to see how that substance does not, to some extent, embrace their traditional activities of hunting and fishing for the indigenous wildlife".204 At the subsequent trial of the action, the court upheld the plaintiffs' claim to aboriginal title. In relation to fishing and hunting activities, the court stated aboriginal title carries "with it the right freely to move about and hunt and fish over it, vested at common law in the Inuit".205 As discussed above, the case of R. v. Sparrow206 marked the beginning of a new phase concerning Indigenous rights in Canada. A member of the Musqueam First Nation, was charged with fishing in contravention of the terms of a Musqueam food fishing licence under the Fisheries Act. The accused's Indian band held an "Indian food fish licence" under s 27 of the British Columbia Fishery (General) Regulation which permitted members of the band "to fish for salmon for food for themselves and their families" in specified areas and subject to certain conditions, including limitations on the length of drift net to be used. The decision provided the first opportunity for the court to consider s 35(1) of the Constitution Act 1982) which provided that: The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development (1978), [1979] 1 F.C. 487, (1978) 87 D.L.R. (3d) 342 (F.C. T.D.) at 491 (F.C), at 344-55 (D.L.R.) (emphasis added). Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development (1979), [1980] 1 F.C. 518, (1979) 107 D.L.R. (3d) 513, [1980] 3 W.W.R. 193, [1979] 3 C.N.L.R. 17 (F.C. T.D.), additional reasons [1981] 1 F.C. 266 at 563, 579 (F.C), at 547, 560 (D.L.R.). The Inuit lost the case, not due to the non-recognition of aboriginal title or hunting or fishing rights, but due the court's finding that the exploration activities in question did not interfere with those rights. R. v. Sparrow, supra note 189. - Page 53 -As the Musqueam has not entered into any treaty, the court was solely concerned with aboriginal rights at common law. While much of the analysis of the Supreme Court focused on s 35(1), which has no counterpart in Australia, the decision is still significant in relation to the court's findings as to the existence, scope and prior extinguishment of existing aboriginal rights. The Court held that the word "existing" in s 35(1) meant that it applied only to those aboriginal rights that were in existence when the Constitution Act 1982) came into effect.207 Hence, extinguished aboriginal rights were not revived by the Constitution Act 1982).208 The court rejected an argument that "existing rights" meant freezing those rights in the specific manner in which the rights of each Indian band were regulated on the date s 35(1) came into force. To do so would create a constitutional "patchwork quilt".209 Rather, the phrase "existing aboriginal rights" was to be interpreted flexibly so as to permit the evolution of aboriginal rights over time.210 Having regard to anthropological evidence concerning Musqueam fishing practices, the court did not have any difficulty in finding that there was an aboriginal right to fish.211 The court characterised the aboriginal right to fish of the Musqueam band as "not only for consumption for subsistence purposes, but also consumption of salmon on ceremonial and social occasions" 212 A major issue on the appeal was whether the aboriginal right had been extinguished by prior regulations under the Fisheries Act.213 The court held it had not. The regulatory scheme was "simply a manner of controlling the fisheries, not defining underlying rights".214 Similarly, "historical policy on the part of the Crown is not only incapable of extinguishing the existing aboriginal right without clear intention, but is also incapable of, in itself, delineating that right".215 The aspects of the case concerning extinguishment are considered further below.216 207 Ibid, at 1091. 208. Id. 209. Ibid, at 1091-3. 210 Ibid, at 1093. 21 \ Ibid, at 1095. 212. Ibid, at 1101. The court declined to address whether the right extended to a right to fish for commercial purposes. Commercial aspects of Indigenous fishing rights are considered in Chapter 7, below. 213. R.S.C. 1970, c. F-14. 214 supra note 189 at 1099. 215. Ibid, at 1101. - Page 54 -The remaining issue concerned whether the government regulations were invalid by virtue of s 35(1) of Constitution Act 1982). The court held that government could regulate the aboriginal fishery for conservation purposes, but only if in doing so the aboriginal food fishery was given priority over non-aboriginal sports and commercial fishermen. This aspect of the judgment is not relevant for present purposes, though will be considered later in the context of mechanisms to allocate fisheries between Indigenous and non-Indigenous users.217 The most recent phase of cases dealing with Indigenous fishing rights in the Supreme Court of Canada commenced with the Van der Peet trilogy,218 followed by the decisions in R. v. Adams219 and R. v. Cote.220 These again upheld the existence of Indigenous fishing rights. The primary aspects of the Van der Peet trilogy dealt with the commercial component of Indigenous fishing rights and the justificatory standard required under s. 35(1) to impinge upon the commercial component of such rights. The Adams and Cote cases also clarified the relationship between Indigenous fishing rights and aboriginal title. These aspects of the cases will be discussed in detail later in the thesis.221 The Van der Peet trilogy also marked a new approach to determining the existence and content of Indigenous rights affirmed and recognised under s. 35(1) of the Constitution Act 1982). The court held that Aboriginal rights comprise those practices, customs or traditions integral to the distinctive culture of the Indigenous people claiming the right prior to contact with Europeans.222 A critique of this test and, in particular for making the criteria for the ascertainment of rights dependant on cultural aspects of the Indigenous people concerned, is undertaken later in the thesis.223 But, (Footnotes continued from previous page) 216. See Chapter 8 below. 217. See infra notes 778-792 and accompanying text. 218 . Supra note 190. For a general analysis of the approach of the Court in the Van der Peet trilogy, see the articles cited infra note 586. 219 . Supra note 191. 220 . Supra note 192. 221 . As to the commercial component of Indigenous fishing rights, see infra notes 586-595 and accompanying text; the justificatory standard for impinging such rights, see infra notes 794-803 and accompanying text; the relationship between aboriginal title and Indigenous fishing rights see infra notes 272-282 and accompanying text. 222 . R. v. Van der Peet, supra note 190 at para. 46, 55-9 per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major J.J; R. v. Adams, supra note 191 para. 26, 33-34, 37; R. v. Cote, supra note 192 para. 58; R. v. Gladstone, supra note 190 para. 25; R. v. N.T.C. Smokehouse Ltd., supra note 190 para. 22. 223 . See Chapter 7(C)(v) "Framework For Assessing Indigenous Claims to Commercial Fisheries: (footnotes continue on next page) - Page 55 -for present purposes in dealing with the existence of Indigenous fishing rights in other common law countries, the cases strongly affirm that such rights can exist. Those rights now receive additional protection in Canada by virtue of s. 35 (1) of the Constitution Act 1982); however, that is not the source of the rights, but rather the common law.224 (ii) New Zealand A form of traditional Maori fishing rights was recognised in New Zealand last century.225 However, after the case of Wi Parata v. Bishop of Wellington,226 which held that the Treaty of Waitangi was a "simple nullity", recognition of Maori rights was limited to where those rights were granted or recognised by statute. Similarly, common law aboriginal title (as opposed to any rights flowing from the Treaty of Waitangi) was not recognized after 1877 until the case of Te Weehi v. Regional Fisheries Officer.221 Te Weehi's case considered s. 88(2) of the Fisheries Act 1983 (N.Z.) which provided "Nothing in this Act shall affect any Maori fishing rights". A similar provision had been included in all fishing legislation since its inception in 1877, with the exception of the period (Footnotes continued from previous page) Characterisation by reference to integral elements of a distinctive culture (the Van der Peet test)- A Critique", below. 224 . However, see the discussion infra notes 653-660 and accompanying text. See also supra notes 175-181 and accompanying text. 225. See the address of Chief Judge Fenton of the Maori Land Court to the Native Affairs Committee of the House of Representatives, June 1880, reproduced in S. Kenderdine, "Legal Implications of Treaty Jurisprudence" (1989) 19 Victoria University of Wellington Law Review 347 at 357-8. As to the nature of traditional Maori fisheries, see New Zealand. Law Commission, The Treaty of Waitangi and Maori Fisheries: A Background Paper, Preliminary Paper 9 (Wellington: Law Commission, 1989) at 26-35. 226. (1877) 3 N.Z. Jur. (N.S.) S.C. 72. For a review of New Zealand cases concerning recognition of aboriginal title, see P. McHugh, The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (Auckland: Oxford University Press, 1991) at 113-126; New Zealand. Law Commission, supra note 224 at 54-9, 97-129. 227. [1986] 1 N.Z.L.R. 680 (H.C.) ("Te Weehi's case"). See generally, F.M. Brookfield, "Maori Fishing Rights and the Fisheries Act 1983: Te Weehi's case" (1987) 13 New Zealand Recent Law 63; P.G. McHugh, "The Legal Status of Maori Fishing Rights in Tidal Waters" (1984) 14 Victoria University of Wellington Law Review 247 at 2-3, 14; A.L. Mikaere & D.V. Williams, "Maori Issues" [1992] New Zealand Recent Law Review 152 at 157-8. A Maori Land Court was established under statute to adjudicate on Maori customary land claims, but in the positivist approach of the time, the legal source of these rights was considered to be the legislation itself and Maori rights not deriving from legislation were not recognised. - Page 56 -from 1894 to 1903.228 Williamson J. held that the defendant was exercising a customary Maori fishing right which had not been extinguished by law. In doing' so he resurrected the implicit recognition of aboriginal title at common law in R. v. Symonds.229 Therefore, by virtue of s. 88(2) the defendant was not bound by the provisions of the Act regulating the taking of undersized paua. The statutory provision was not the source of the right, but merely exempted the existing common law Maori fishing right from the regulatory regime. The reasoning in Te Weehi's case, subsequently described as a "watershed decision",230 was followed in other cases.231 The issue of the existence of common law Indigenous fishing rights in New Zealand has never been conclusively settled by the Court of Appeal. Te Weehi's case was not appealed. However, on an appeal in other interlocutory proceedings, it was implicitly approved by Cooke P. who stated: While this Court cannot at the present stage rule on questions of law that are not before us for decision and have not been fully argued, there is clearly a real possibility that the view of the law, and in particularly Maori customary fishing rights, provisionally taken by Greig J will prove to be right. The judgment of Williamson J in Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 points in the same direction.232 For a history of the legislation see Te Rununga o Muriwhenua Inc v. Attorney-General [1990] 2 N.Z.L.R. 641 (C.A.) at 645 and New Zealand. Law Commission, supra note 224 p 55. (1847) N.Z.P.C.C. 387 at 390. Ministry of Agriculture and Fisheries v. Hakaria [1989] D.C.R. 289 at 291. See Ministry of Agriculture and Fisheries v. Love [1988] D.C.R. 370; Rarere v. Ministry of Agriculture and Fisheries (11 February 1991, H.C., Smellie J, Gisborne) [unreported] cited by A.L. Mikaere & D.V. Williams, "Maori Issues" [1991] New Zealand Recent Law Review 149 at 161-2; Paku v. Ministry of Agriculture and Fisheries (13 September 1991, H.C., Gallen J, Masterton) [unreported] [1991] B.C.L. 2001 [1991] B.C.L. 2001; Ngaheu v. Ministry of Agriculture and Fisheries, supra note 231; contrast: Green v. Ministry of Agriculture and Fisheries (1988), [1990] 1 N.Z.L.R. 411 (H.C.). See also Ministry of Agriculture and Fisheries v. Campbell (1988), [1989] D.C.R. 254 (where the court found that the defendant was not exercising a traditional Maori right, but implicitly acknowledged that had he been exercising such a right he would have been exempt form the Act); Ministry of Agriculture and Fisheries v. Hakaria, supra note 230 (where the court treated Maori fishing rights the defendant sought to uphold under s. 88(2) as being derived from the Treaty of Waitangi and did not rely upon common law aboriginal right to fisheries). Te Rununga o Muriwhenua Inc v. Attorney-General, supra note 228 at 654. See further F.M. Brookfield, "Constitutional Law" [1991] New Zealand Recent Law Review 253 at 253-7. - Page 57 -As a pan-Maori settlement and subsequent legislation has resolved the issue of Maori fishing rights in New Zealand at present, the Court of Appeal is unlikely to be called upon in the near future to clarify the issue.233 (iii) United States Fishing and hunting rights of the Indigenous peoples in the United States of America have been recognised since the earliest days of European occupation.234 Most issues concerning the extent or scope of hunting and fishing rights in the United States have arisen in the context of treaty rights. The focus on treaty cases has tended to obscure the issue as to whether Indigenous rights recognised at common law in the United States include hunting and fishing rights.235 There may be a tendency in countries such as Australia to disregard the United States jurisprudence concerning, treaty rights on the basis that it is not applicable to the common law position.236 A distinction is made in the United States between common law rights (commonly referred to as aboriginal or original Indian title) and treaties or other congressionally recognised lands (commonly referred to as recognised title) which is important in relation to extinguishment of title237 and compensation for taking such land.238 For a discussion of the settlement and legislation, see infra 850-859 notes and accompanying text. For a discussion of the approach of the New Zealand courts concerning commercial components of Maori rights, see infra notes 599-606 and accompanying text. For an overview of the sources of Indigenous fishing, hunting and trapping rights in the United States, see F.S. Cohen, Handbook of Federal Indian Law, 1982 ed. ed. (Charlottesville, VI: Michie Bobbs-Merrill, 1982) at 441-56; W.C. Canby, American Indian Law in a Nutshell, 2nd ed. (St Paul: West Publishing, 1988) at 295-301; Conference of Western Attorneys General, American Indian Law Deskbook, (Niwot, CO: University Press of Colorado, 1993) [hereinafter, "CWAG"] at 210-62. For a recent analysis of treaty fishing rights jurisprudence, see F.P. Prucha, American Indian Treaties: The History of a Political Anomaly (Berkeley, CA: University of California Press, 1994) at 402-408, 419-422. As late as 1976, the Full Court of the Idaho Supreme Court, having reviewed the United States case law, referred to the "paucity of opinions on the subject of whether the rights to hunt and fish are included among the rights of aboriginal title": State of Idaho v. Coffee 97 Idaho 905 at 908, 556 P.2d 1185 at 1188 (1976). The case is discussed infra at notes 246-247 and accompanying text. Australian judges tend to regard the United States jurisprudence as being of only limited assistance as they view it as stemming from a very different history of relation between the Crown and the Indigenous peoples which they consider has no parallel to Australia, see Coe v. Commonwealth (1979) 53 A.L.J.R. 403 at 40S; Mabo [No. 2], supra note 6 at 131, 135 per Dawson J. (dissenting); Coe v. Commonwealth (1993) 68 A.L.J.R. 68 at 115. A similar, caution has been expressed by some Canadian judges concerning the application of principles developed in jurisprudence in the United States, seei?. v. Sparrow, supra note 236 at 273-74; cf. R. v. Van der Peet, supra note 190 para. 35 per Lamer C.J. Recognised title and rights guaranteed by treaty are afforded greater protection than original Indian title, as a greater degree of explicitness by Congress is required to abrogate the former rights, see (footnotes continue on next page) - Page 58 -However, the courts in the United States have generally treated the underlying rights in the treaties as flowing from original Indian title. This is since the treaties are generally regarded as confirming rights, rather than conferring rights on the Indigenous peoples.239 Therefore, the scope of the Indian rights in question in treaty cases often turns upon the scope of the original Indian title.240 Further, there are a number of cases which directly address the issue of the recognition of Indigenous fishing rig