UBC Theses and Dissertations
The recognition and scope of indigenous fishing, hunting and gathering rights at commom law in Australia Sweeney, Desmond
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.
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