18.08.2010
978. An Ordering of Priorities. An equitable resolution of legitimate claims to natural resources requires that there be a carefully articulated ordering of priorities. Where resources are not abundant, competition can become intense, and increasingly so as the number of competing user groups increases:
The largest single factor in this shrinkage of wildlife resources, moreover is industry: habitat degradation through population, physical obstruction, reduction of forage, etc. What is the priority between conservation and industry? Unless industrial development is included in the equation, a priority favouring Aboriginal rights will fail.[1782]
In terms of the determination of priorities off Aboriginal land, the question becomes one of Aboriginal involvement in seeking appropriate exemptions from the operation of conservation laws, and in determining the relative importance of traditional hunting and fishing, and commercial, recreational and other interests. On Aboriginal land, Aboriginal Councils should be able to regulate the use of their land under their by-law making powers. This matter is returned to para 999. The Council’s power to manage their land should however be subject to the overriding principle of conservation. The importance and relevance of the principle of conservation as a restriction on traditional hunting and fishing, whether such activities take place on Aboriginal land or off Aboriginal land, requires further elaboration.
979. Conservation — A Primary Concern. That necessary conservation measures should restrict traditional hunting and fishing activities is recognised at the international level.[1783] The James Bay and Northern Quebec Agreement provides that the right to hunt, fish and trap any species of wild fauna shall be subject to the principle of conservation.[1784] In Victoria, the Aboriginal Land Claims Bill 1983 (Vic) (cl 13.4(b)) provides that Aborigines shall have full care and control of the flora and fauna on Aboriginal land other than notable and endangered wildlife and protected flowers and plants.[1785] The Supreme Court of Canada in Jack v R[1786] held that even if the fishing rights claimed were established, they would have been properly subordinated to the conservation of fish. Thus Justice Dickson found that Art 13 of the Terms of Union with British Columbia provided that Indian fishing rights for food, and to a limited extent for commercial purposes, should take priority over commercial or sport fishery. Nevertheless he considered that:
Conservation is a valid legislative concern. The appellants concede as much. Their concern is in the allocation of the resource after reasonable and necessary conservation measures have been recognised and given effect to. They do not claim the right to pursue the last living salmon until it is caught. Their position, as I understand it, is one which would give effect to an order of priorities of this nature: (i) conservation; (ii) Indian fishing; (iii) non-Indian commercial fishing, or (iv) non-Indian sports fishing; the burden of conservation measures should not fall primarily upon the Indian fishery. I agree with the general tenor of this argument … If there are to be limitations upon the taking of salmon here, then those limitations must not bear more heavily upon the Indian fishery than the other forms of the fishery. With respect to whatever salmon are to be caught, then priority ought to be given to the Indian fishermen, subject to the practical difficulties occasioned by international waters and the movement of the fish themselves. But any limitation upon Indian fishing that it is established is for a valid conservation purpose overrides the protection afforded the Indian fishery by art 13, just as such conservation measures override other taking of fish … Considerable latitude should be given to the judgment of the fisheries officials in deciding the questions of when closure is required for conservation purposes and how that closure is to be effected. That does not, however, completely shield those measures from judicial review for constitutional competence.[1787]
Accordingly, in certain circumstances conservation measures must override traditional hunting and fishing interests. The following priorities appear to be justified:
(a) conservation and certain other identifiable overriding interests;[1788]
(b) traditional hunting and fishing;
(c) commercial and recreational hunting and fishing.[1789]
Such a scheme of priority is acknowledged in the management plan of the Kakadu National Park, where, subject to certain conservation restrictions, traditional hunting is permitted. At the same time recreational fishing is allowed, provided a fishing permit is held and that the taking of fish does not result in damage to the Park or interfere with the management of wildlife. Finally commercial fishing is not permitted except with the consent of the Director and subject to a permit.[1790] A scheme of priorities is adopted in the Torres Strait Treaty, where conservation and traditional fishing (as defined) are clearly and explicitly ranked above commercial fishing (in that where there is a conflict, conservation and traditional fishing interests will take precedence over commercial fishing) and there is an equally clear (though implicit) assumption that recreational fishing (ie fishing other than traditional fishing) will be, if not subordinated to, at least not given any preference over, traditional fishing.[1791] But, as has been seen,[1792] traditional fishing interests have in fact been subordinated to private fishing. The Commission proposes amendments to the Torres Strait Fisheries Act 1984 (Cth)[1793] to rectify the order of priorities. This problem also arose in the provisions relating to the management of the Great Barrier Reef Marine Park where, under the Marine National Park ‘A’ Zone for the Cairns and Cormorant Pass Zoning Plans, recreational fishing appears to have been accorded priority over traditional fishing.[1794] In view of the difficulties of implementation that can occur, it is desirable to say more about each of the interests represented in the ordering of priorities, and of their relative weight.
980. Conservation versus Traditional Hunting and Fishing Interests. It has been concluded that in certain circumstances conservation measures may override traditional hunting and fishing interests. It may be necessary to prohibit the taking, including the taking by Aborigines for food, of certain endangered species, in particular those threatened with extinction.[1795] In this instance it is necessary to determine both the status of the species concerned, and the threat to the species posed by traditional hunting and fishing, before any decisions can be made to restrict traditional hunting and fishing.[1796] This requires not only an accurate assessment of Aboriginal hunting and fishing practices but also an accurate assessment of other threats to the species, for example the taking by commercial or recreational fishermen, accidental trapping of dugong in shark nets, the destruction of feeding grounds, tourism and industrial development:[1797]
Controls on the indigenous harvest of dugongs are unlikely to be effective unless corresponding efforts are made to reduce the incidental take and to eliminate illegal killing by white Australians. It is unrealistic to expect Aborigines and Islanders to restrict their traditional take unless white Australians and indigenous commercial fisherman are also seen to reduce the number of dugongs they kill. Conversely, professional fishermen are unlikely to take a responsible attitude while they consider that traditional fishermen can do whatever they like.[1798]
In this context, the Kakadu Plan of Management para 34.2.4 is of interest. It provides that:
The traditional use by Aboriginals of areas within the Park for hunting or food gathering will be permitted. After investigation and research and after consultation with a representative of the Northern Land Council representing the traditional Aboriginal owners, periods during which and/or areas in which hunting and gathering of particular species will not be permitted may be prescribed if for instance the species:
is officially designated as endangered, nationally rare, threatened or locally of rare or of unusual occurrence in the Park; and
occurs in numbers significantly below the natural capacity of its range.
If restrictions have to be placed on traditional hunting and fishing practices, there should be regular monitoring and reassessment of the situation in consultation with those affected.[1799]
981. Local or Partial Restrictions in the Interests of Conservation. It may also be appropriate to restrict the taking of a certain locally or regionally endangered species to a certain defined area. For example, traditional fishing and traditional hunting are allowed in most areas and permitted (subject to permit) in all but preservation zones under the zoning plans for the Cairns and Cormorant Parks section of the Great Barrier Reef Marine Park.[1800] The Wildlife Conservation Act 1950 (WA) s 23 exempts traditional hunting and fishing in certain circumstances but prohibits the taking of any species in nature reserves and wildlife sanctuaries. Similarly the James Bay and Northern Quebec Agreement provides that native people shall continue to have the fight to hunt in parks, reserves, wilderness areas and ecological reserves, but that:
The creation or existence of wildlife sanctuaries shall operate to exclude all or part of such sanctuaries from the right to harvest but only with respect to those species for whose protection such sanctuaries are created and for such periods of time and/or season when such protection is required.[1801]
Restrictions may also take the form of limiting the purposes for which plants and animals may be taken or the equipment used.[1802] A permit system may be necessary.[1803] It may be appropriate to limit the numbers taken, or to create open and closed seasons in some circumstances. And it may be necessary to restrict hunting and fishing to relatively or even strictly traditional methods or technologies in certain circumstances.[1804] The Conservation Commission of the Northern Territory stated that:
Unless particular circumstances require it, the Conservation Commission would discourage any move toward defining hunting in terms of methods/technology of hunting until, at least, there is firm evidence that new technologies have resulted in a serious depletion of animal or plant stocks.[1805]
Such a restriction may ultimately be considered necessary for the preservation of the plains turkey in the Tanami Desert, or the dugong in waters controlled by the Great Barrier Reef Marine Park Authority. It has been argued that:
The use of firearms to kill dugongs by Aborigines and Torres Strait Islanders living on reserves should be explicitly banned by law as the use of firearms substantially increases the rate at which dugongs can be caught by a hunting team and encourages sport-shooting.[1806]
The Torres Strait Fisheries Act 1984 (Cth) enables the use of specific equipment and fishing methods to be declared not to constitute traditional fishing (s 3(2)),[1807] but the Act fails to provide for any power to prohibit ‘non-traditional’ recreational hunting and fishing.[1808] It would be possible, for example, to allow the taking for use in traditional ceremonies and celebrations and to prohibit the harvesting of dugong for every day consumption.[1809]
982. Consistency of Conservation and Traditional Subsistence Activities in some Cases. While the conservation of species is a first priority, in most cases its implementation need not exclude altogether traditional and long established subsistence activities. The balance struck by Art 20 of the Torres Strait Treaty[1810] is illustrative: it provides that the Governments concerned may adopt conservation measures provided that best endeavours are used to minimise any negative effects on traditional hunting and fishing.[1811] The distinction made in Queensland between on and off-reserve Aborigines for the purposes of exemptions from Queensland wildlife legislation appears to have little to do with conservation. Dissatisfaction with this distinction is well known:[1812]
Consideration should also be given to amending the present Act … For example, only some parts of Thursday Island and Abednego are classified as reserve. This means that although many Islanders resident on Thursday Island are legally allowed to hunt dugong others by dint of their residential address are not … [M]easures dealing with only one component of the dugong problem are likely to be counterproductive as they will simply polarise the various protagonists in this complex and politically-sensitive issue. For example, we believe that the present absolute dichotomy between the hunting rights of indigenous people living on and off reserves in Queensland actually promotes illegal killing to supply dugong meat to urban Aborigines and Islanders.[1813]
The ‘reserve resident’ distinction as it applies in Queensland is an arbitrary one. It is also a distraction from the real issues: the status of each species, the restrictions needed to manage the species, and the need to identify the different interests affecting the species and to legislate accordingly. In this process it is hard to see how the ‘reserve resident’ distinction can be relevant.
983. Other Overriding Interests. The regulation of Aboriginal hunting and fishing practices should take certain other overriding interests, for example, those of personal safety, into account.[1814] Under the James Bay and Northern Quebec Agreement the right of native people to harvest is subject to provisions relating to public safety in regard to the discharge of firearms, the setting of large traps or nets and to other dangerous activities having due regard for others lawfully in the vicinity (s 24.3.9). The right to possess poisons, firearms, automatic weapons, tracer bullets, non expanding ball ammunition, air guns and other similar equipment may also be regulated provided the regulation is directed to public security and not to harvesting activity (s 24.3.12). The Agreement also specifically provides that ‘the right to harvest shall include the use of present and traditional methods of harvesting except where such methods affect public safety’ (s 24.3.14).[1815] Similarly questions of innocent passage, shelter and safety at sea should also take priority, as the Western Australian Aboriginal Land Commission pointed out in the context of sea closures.[1816]
984. Traditional Hunting and Fishing versus other Interests. Obviously allocation of resources can be a complex matter. However, as a general principle Aboriginal traditional hunting and fishing should take priority over non-traditional activities, including commercial and recreational activities, at least where the traditional activity is carried on for subsistence purposes. Once this principle is established the precise allocation is a matter for the appropriate authority acting in consultation with Aboriginal and other user groups. Such a priority has, in one form or another, achieved a considerable degree of recognition in Australia and elsewhere. In Alaska under State legislation priority is given to ‘subsistence’ users, defined in broad terms as customary or traditional users for food, trade or barter in the making of handicrafts.[1817] Under Federal law in operation in Alaska, subsistence use is limited to consumption by rural Alaskans.[1818] The definition of ‘conservation’ under the James Bay Agreement accords the same priority to native hunting, fishing and trapping:
‘Conservation’ means the pursuit of the optimum natural productivity of all living resources and the protection of the ecological systems of the Territory so as to protect endangered species and to ensure primarily the continuance of the traditional pursuits of the Native people, and secondarily the satisfaction of the needs of non-Native people for sport hunting and fishing (s 24.1.5).
Section 24.3.30(c) provides that harvesting controls required by governments or the Coordinating Committee shall be ‘less restrictive for Native peoples than for non-Natives’. The Agreement also provides that certain species of mammals, fish and birds shall be reserved for the exclusive use of native people. Animals that may be so reserved include beavers, foxes, polar bears, muskrats, porcupines, black bear, wolves, sturgeon and burbot.[1819] Priority for traditional fishing is already adopted in some Territory, State and Commonwealth legislation which, by exempting Aboriginal people from certain wildlife regulations, in effect give traditional hunting and fishing priority over commercial fishing and over recreational fishing.[1820] But other Australian legislation makes no provision at all for traditional hunting, fishing or foraging rights.[1821] In States where these rights remain important, Aborigines who rely on traditional foods are dependent on benign administrative practices, including non-prosecution, to maintain their preferred way of life.
985. Commercial Interests and Community Licences. The Commission takes the view that hunting for local consumption within local family or clan groups should be regarded as traditional even though elements of barter or exchange may be present.[1822] Trade or exchange outside the community is however to be treated in the same way as commercial dealings. That traditional fishing should take priority over commercial interests has already been stated.[1823] This is the position for example, under the Torres Strait Treaty and its associated legislation.[1824] Given reasonable provision for traditional hunting and fishing claims along these lines, the exploitation of resources for commercial purposes, whether by traditional inhabitants or by others, becomes a matter for the relevant licensing or management authorities. One issue of interest for present purposes is access to community licences for commercial resource-harvesting on a local basis. Under the Torres Strait Treaty legislation, a community fishing licence may be issued to individual Aborigines. Legislation in Queensland and the Northern Territory,[1825] allows for Aboriginal people as a group to take out a community licence rather than being required to take a licence as a corporation or as individuals. The Northern Territory provisions apply to members of an Aboriginal community living in the vicinity of Aboriginal land and the Queensland provisions apply to reserve or land trust residents. However the Northern Territory experience has been that a community licence, although facilitating commercial fishing by a local community, is not necessarily the best way to meet the needs of Aboriginal communities. In the Northern Territory (as distinct from the Torres Strait) community licences carry a relatively high licence fee, and permit fishing to be conducted on a commercial scale far exceeding what may be necessary or desired. In March 1984 the regulations were amended to enable an Aboriginal licence for non commercial fishing to be obtained.[1826] Regulation 7B provides that a Class D licence may be issued to a member of an Aboriginal community, on condition that the licensee shall not use gill-netting above a certain size or in certain waters, or ‘supply or dispose of fish except to an Aboriginal community’. Regulation 7B is intended to enable Aboriginal people to trade within their community. A community licence under reg 7B has the advantage over a commercial licence under the Fish and Fisheries Act (NT) s 14. The renewal fee for the former is much less ($5). It may be that such a licence should be adopted elsewhere.
986. The Canadian Experience. Similarly the James Bay Agreement refers to harvesting for personal and community use, as well as to commercial trapping and commercial fishing. However under this agreement what constitutes community use is fairly widely defined. Community use includes gift, exchange and the sale of all products consistent with current practices between native communities generally, and is not restricted to local groups. Community use does not include the exchange or sale of fish and meat to non natives (except in the case of commercial fisheries) (s 24.3.11). Native harvesting is given priority. Subject to the principle of conservation and subject to game populations, native people are guaranteed levels of harvesting equal to levels present at the time the Agreement came into affect (s 24.6.2). Under the Agreement the Government and the Coordinating Committee are required to ensure that in allocating wildlife resources for harvesting or non-native hunting above the guaranteed levels, the harvesting need of native people and the needs of non-natives for recreational hunting and fishing are taken into account, and that there shall always be some allocation of species for non-native sport hunting and sport fishing (s 24.6.3). In addition it is stated that the exercise of the right to harvest shall not require permits except where expressly stipulated. Where permits are necessary native people shall only be required to pay a nominal fee.[1827]
987. Resource Harvesting in Australia. There are dangers in making comparisons with the Canadian and Alaskan situations, with their different historical and political contexts,[1828] including much greater involvement of indigenous people of those countries in commercial harvesting,[1829] and the resulting heavy competition for allocation of resources which are key matters in the negotiation for land claims.[1830] But there are several instances of Aboriginal involvement in commercial (as opposed to community resource) harvesting. For example, members of the Bardi community are involved in the commercial harvesting of trochus shell,[1831] and the Edward River community are involved in the breeding for sale of crocodiles. Resource harvesting on Aboriginal land for commercial as opposed to community use is regulated under the Kakadu Plan of Management (s 29.5.2). In instances such as these, some preference for Aboriginal people for community harvesting of a commercial or semi-commercial character may well be desirable. An advantage of such schemes is that they may assist in providing employment and work skills in areas where there is high unemployment and relatively little commercial activity.[1832] But they are distinct from the recognition of traditional hunting and fishing rights for subsistence or related purposes. This point was made strongly by the Director of Fisheries and Wildlife in Western Australia:
Wildlife is rarely commercialised in Western Australia, the precedents are either historic or have been set in the face of overwhelming need to protect agriculture using sale of a product as a means of financing the control operation. There is a growing body of opinion in the community that even this level of commercialisation should be subject to review. I doubt whether any suggestion for Aboriginal preference in commercial ventures would add to the debate on traditional rights. Questions of preference in commercial situations are quite distinct from those of customary rights. Considering the difficulties of the distinction even in current operations and with existing legislation, perhaps it would be in the interests of clarity to keep them separate at all levels.[1833]
The Commission agrees with this view. Traditional harvesting should be distinguished from commercial fishing. Special programs may be desirable, but it is necessary to distinguish traditional activities based on local consumption in the broad sense from preferential commercial rights.
988. Recreational Hunting and Fishing. As the preceding discussion would indicate, recreational hunting and fishing should be treated, at best, no more favourably than traditional activities: depending on the relative weight accorded to commercial harvesting it may accordingly rate rather low in the order of priorities. This was the view taken by the Court in Jack v R,[1834] and it is reflected in the Kakadu Plan of Management[1835] and the James Bay Agreement.[1836] The exact place of recreational vis-a-vis commercial fishing will depend on the circumstances,[1837] but it is hard to see that any justification exists for special measures for Aborigines engaged only in recreational hunting and fishing. It is true that the distinction between recreational compared with traditional hunting is hard to draw in particular cases: the method of hunting may be relevant in a dispute as to whether the hunting was recreational rather than undertaken for traditional subsistence purposes.[1838] That recreational fishing was originally given priority over traditional fishing in the Great Barrier Reef Marine National Park ‘A’ Zone under the Cairns and Cormorant Pass Zoning Plan was inappropriate.[1839] Thus while in most cases an Aborigine or Torres Strait Islander may wish to prove that he or she was engaging in traditional and not recreational fishing in order to come within an exemption from prosecution under certain wildlife legislation, it would have been necessary in a case of fishing in the Marine National Park ‘A’ Zone under the Cairns and Cormorant Pass Zoning Plan to establish that recreational (and not traditional) fishing was involved, so as to gain the benefits of s 7.2(c) and to avoid the permit requirements under s 7.2(9). The failure of the Torres Strait Fisheries Act 1984 (Cth) to cover private fishing, thus giving private fishing exemption from regulations applying to traditional fishing, also creates problems requiring amendment of the Act.[1840]