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The bush tucker ruling

IN 1994, MURRANDOO YANNER, a member of the Gunnamulla clan of the Gangalidda tribe of Aboriginal Australians, speared two juvenile estuarine crocodiles on country in the Gulf of Carpentaria. These were then shared with other members of his clan for food. For this he was charged with hunting without a permit under the Queensland Fauna Act. The action ricocheted through the courts until, in October this year, the High Court of Australia set aside the prosecution and confirmed the native title right of Aboriginal traditional owners to hunt wild animals.

This decision is the first in the High Court where the Native Title Act has been used to confirm a native title right. It marks a small but significant turn in the progressive, though belated, accommodation of native title rights within Australia’s land law system.

The Yanner case is timely for environmentalists. In Queensland, nine major groups representative of the State environment agenda are currently developing a broad-based policy position on native title and protected areas. This work is occurring in the context of a Queensland Government review of legislation and policy relating to indigenous title to, and management of, national parks and protected areas.

The review is being carried out consistent with Premier Beattie’s approach to ‘negotiate, not litigate’, and is governed by the "Building Reconciliation" Protocol between the Queensland Government and the Queensland Indigenous Working Group, the State’s peak Aboriginal representative body.

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The Yanner case

Geoffrey Atkinson, of the National Aboriginal and Torres Strait Islander Legal Service Secretariat, sees in the Yanner ruling "a step towards reconciliation", while confirming that the decision "will not mean random killing of fauna".

"There’s no commercial element", he said, "You just simply cannot go around slaughtering animals here and there".

Atkinson is firm that "it’s not a case where you just take 2,000 turtles or anything tonight". It is a situation where the take must be "in accordance with the tradition and custom of the relevant area. You must be a person who comes from the relevant area and it must be shown that … is traditional food for your particular clan".

This is true of traditional practice and consistent with Section 223 of the Native Title Act. The Act defines native title or native title rights and interests "as the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters". Establishing native title under the Act is subject to three criteria.

The rights and interests must be "possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders". The Aboriginal peoples or Torres Strait Islanders, "by those laws and customs" must "have a connection with the land or waters". The native title must also be "recognised by the common law of Australia". Section 223 states that native title rights and interests "include hunting, gathering, or fishing".

The High Court Judges referred to this section when they confirmed that the taking of the crocodiles by Murrandoo Yanner at Cliffdale Creek was based on native title rights and interests acknowledged and observed by the clan and tribe of which he is a member.

In the opinion of Justices Gleeson, Gaudron, Kirby and Hayne, "an important aspect of ... native title rights and interests that is recognised by the common law is the spiritual, cultural and social connection with the land". Regulating particular aspects of this relationship "does not sever the connection of the Aboriginal peoples concerned with the land … It is sufficient to say that regulating the way in which rights and interests may be exercised is not inconsistent with their continued existence. Indeed, regulating the way in which a right may be exercised presupposes that the right exists. No doubt, of course, regulation may shade into prohibition and the line between the two may be difficult to discern".

Enforcing Section 211 of the Native Title Act over State law they said "a law which ‘prohibits or restricts persons’ from hunting or fishing ‘other than in accordance with a licence, permit or other instrument granted or issued to them under the law’, does not prohibit or restrict the pursuit of that activity in certain circumstances where native title exists".

The Justices declared that "the Fauna Act did not extinguish the rights and interests" upon which Yanner relied in his argument. Nor did it "prohibit or restrict" him as a native title holder "from hunting or fishing for the crocodiles he took for the purpose of satisfying personal, domestic or non-commercial communal needs".

This ruling clearly secures the native title right to hunt, gather and fish in accordance with traditional laws and customs. This is unremarkable in itself. In fact, as Andrew Chalk, a lawyer for Yanner’s people said: "Had the decision gone the other way it would have stripped native title of any real content in many areas". He described the Commonwealth Native Title law as allowing "a very narrow exemption" for indigenous people to hunt, fish or gather in a customary way, without the need for a permit.

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Indigenous rights and conservation regulations

THE Queensland Nature Conservation Act, the principal piece of legislation for the protection or conservation of wildlife in the State, is brought into focus by this case. The Act says that protected species are "to be managed to conserve the wildlife and its values" and "ensure the survival and natural development of the wildlife in the wild". Under the Nature Conservation Regulation 1994 an ‘authority’ can be granted by the ‘chief executive’ to indigenous people with an interest in a particular area, permitting "an individual to take, use, keep or interfere with a cultural or natural resource of a protected area under Aboriginal tradition or Island custom".

The Regulation is highly prescriptive. The ‘authority’ sets out the terms and conditions for taking wildlife. The holder of an Aboriginal tradition or Island custom authority "must ensure anyone acting under the authority takes … a cultural or natural resource of a protected area in a way consistent with Aboriginal tradition or Island custom applicable to the area". The authority must be administered by a representative Aboriginal Corporation and is for a set time not exceeding one year.

The Regulation prohibits the taking of "rare or threatened wildlife" or the taking of "wildlife (other than rare or threatened wildlife) if the taking … will reduce its ability to maintain or recover its natural population levels in the area". In a way that seems limiting of traditional practice, the chief executive may only issue an authority after having regard to "a reasonable alternative to taking … the cultural or natural resource".

Public use issues are a factor. The chief executive may have regard to the "extent to which the proposed activity will interfere with the public’s use of the area". Public safety is, seemingly, also an issue. An authority cannot be given if "the way the cultural or natural resource is to be taken … involves the use of a weapon" or "the way the cultural or natural resource is to be taken … may endanger anyone visiting the protected area".

Set against the Yanner decision, this would amount to a fairly restrictive interpretation of indigenous hunting and gathering rights. In fact, the regulation is not grounded in indigenous rights at all. Ironically, in an unproclaimed section of the Act, ‘bush tucker rights’ received greater recognition.

Section 93 of the Nature Conservation Act set out to confirm "use of the wildlife … by Aboriginal people" so long as it "is ecologically sustainable". This unproclaimed section is explicit as it states that "despite any other Act, an Aborigine or Torres Strait Islander may take, use or keep protected wildlife under Aboriginal tradition or Island custom". This is "subject to any provision of a conservation plan that expressly applies to the taking, using or keeping of protected wildlife under Aboriginal tradition or Island custom".

Recognising and understanding indigenous laws and customs is a key task for environmentalists. Gummow, in his judgement in the Yanner case makes this task clear. He said: "Native title is not treated by the common law as a unitary concept. The heterogeneous laws and customs of Australia’s indigenous peoples, the Aboriginals and Torres Strait Islanders, provide its content. It is the relationship between a community of indigenous people and the land, defined by reference to that community’s traditional laws and customs, which is the bridgehead to the common law. As a corollary, native title does not exhibit the uniformity of rights and interests of an estate in land at common law and ‘ingrained habits of thought and understanding’ must be adjusted to reflect the diverse rights and interests which arise under the rubric of ‘native title’". [Emphasis added].

Chris Roberts, in a 1998 paper on Aboriginal Burning, Coexistence and Regional Agreements, given on behalf of Balkanu Cape York Development Corporation, said "native title rights vary from place to place. This is because different Aboriginal peoples belong to different places and express culture and rights in different ways. Native title rights are what particular groups say they are, according to their tradition. Commonly quoted Aboriginal aspirations include access to country for obligatory traditional purposes like visiting sites, hunting, fishing or just being on their places by camping there".

Nature conservation regulation by the State need not present any serious conflict with native title hunting, gathering and fishing rights. In looking at nature conservation and the protection of threatened and endangered wildlife, the line between regulation and prohibition may not be so difficult to discern. The logical approach is case by case. There are no grounds for blanket prohibitions on the taking of wildlife by indigenous people and such an approach would be destined to fail.

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Threatened species

It is also important for environmentalists to recognise as the National Strategy for the Conservation of Australian Species and Communities Threatened with Extinction does, that "hunting has not been a major cause of extinctions on the Australian mainland". It goes further. The Strategy recognises the critical role of indigenous people in species protection. It says that "Aboriginal traditional knowledge is sometimes the main source of information about the biology of endangered and vulnerable species and Aborigines are often the only people living in the same areas as endangered species. They are therefore on the spot for practical management and most State [and] Territory conservation agencies have working relationships with Aboriginal people on wildlife management".

The Strategy highlights aboriginal burning as a critical feature of management. "The life cycles of most Australian plants and animals are well adapted to survive fire and other natural disturbances", it says. "However, in many parts of Australia there have been major changes in these regimes since European settlement. For example, fire regimes resulting from Aboriginal land management practices and those followed by Europeans may be quite different. It is these changed fire regimes (fire frequency, intensity, season, pattern, size) that have threatened species. Suitable fire regimes will vary with the species or habitat under consideration. The management of some endangered species, for example the ground parrot, involves appropriately frequent fires. On the other hand, rainforest species are usually fire sensitive and generally need protection from fire". Of course, the Strategy recognises that land clearing and radical modifications to country through agriculture, pastoralism, industrialisation and urbanisation are the major contributing factors to loss of biodiversity.

The other point acknowledged by the Strategy is that "national parks and other conservation reserves, which in all cover about 5% of Australia, cannot alone ensure the survival of species and ecological communities. It is crucial that lands outside the reserve network be managed in ways that allow native species, including endangered and vulnerable species, to flourish over as much as possible of the range they inhabited before European settlement". Under present tenure arrangements "13% of Australia is under Aboriginal ownership including areas important to endangered and vulnerable species particularly ground-dwelling mammals", it says.

A cooperative and mutual approach to nature conservation and species protection appears to be the way forward. By acknowledging common law native title rights, the issue becomes one of why, how and by whom regulation is to be effected. It places the onus on the State to provide for the fullest expression possible, rather than to restrict or prohibit, traditional owner hunting, gathering or fishing rights in the context of land allocation and environmental management. It makes the State’s role in regulating the use or conservation of wildlife, as the High Court Justices said when quoting Roscoe Pound, a "sort of guardianship for social purposes".

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Embedding rights

As native title rights are progressively embedded in the environmental and land management regimes of protected areas a range of cooperative management plans will ensue. At this stage of the debate on native title and protected areas an effort from environmentalists is required to come to grips with changes this is likely to produce. The emergence of native title rights in protected areas challenges the ‘ingrained habits of thought and understanding’ within the environment protection agenda of years past.

Some key issues are apparent when one looks at the ‘bush tucker’ ruling and the difference between Aboriginal and European perception and management of the natural environment.

One such issue is ‘bush tucker’ in relation to ‘wildlife preservation’. As Andrew Chalk pointed out, "many traditional communities are … dependent on bush tucker for an important part of their diet". Bush tucker is also an essential component of Aboriginal identity and Aboriginal cultural lifestyle.

Where a species, and therefore a wild food source, is in abundance there is no inherent opposition between an indigenous person’s use of certain plants and animals as ‘bush tucker’ and an environmentalist’s approach to wildlife preservation. It is where a species is threatened or endangered that misgivings may arise. There is, however, no reason to assume that this matter cannot be resolved through a cooperative approach that respects rights and interests.

Wildlife Preservation Society, as an exemplar of the wildlife preservation ethic, has defined a position on this issue in the native title and protected areas debate. It considers the issue to be one of ‘population viability’ of a species and case by case management plans agreed between indigenous traditional owners and Government conservation agencies, particularly concerning endangered species.

The need now is to demonstrate that ‘viable populations’ of species means plants and animals are available as an indigenous food source for traditional owners, and that where this viability is threatened or endangered, biodiversity suffers and the traditional food source can be lost.

Another, often politically charged issue is that of the means used in ‘traditional take’. In his paper, Chris Roberts put the view that "it is unreasonable to expect traditions of the past to be replayed in strictly traditional ways as it is unreasonable for crop farmers to use a horse drawn plough rather than 4WD diesel tractor or cattlemen to use horses when helicopters, motor bikes and Toyotas provide more cost effective means to muster. It is the practice that is the tradition and not the means. [T]he fact that traditional practices might be expressed in a modern context or that so many people have passed on, should not detract from the fact that people wish to reconnect with their country. It is the responsibility of all of us to reconcile and acknowledge connections to land and sea".

Wildlife Preservation Society discussions have again provided a useful contribution on this issue. There is a general acceptance of the view that ‘it is the practice that is the tradition and not the means’, as well as some animal welfare arguments in its favour.

The issue only sticks with the question of the use of firearms in protected areas. The issue can be minimised with reference to the Native Title Act where the native title rights of hunting, gathering or fishing are expressed "in accordance with traditional laws and customs". This does not give, and need not imply, a value statement that traditional take should be by a particular means, ancient or modern, only that the practice must accord with tradition as defined and expressed by traditional owners.

In Queensland the Nature Conservation Act 1992 and the Weapons Act 1990 already regulate and define the use of firearms and other hunting implements in protected areas. In NSW, the issue has been satisfactorily dealt with by reference to Public Safety laws for the use of hunting weapons, whether traditional or modern, and management plans. Again, case by case management plans agreed between indigenous traditional owners and Government agencies become the focal point for resolution of the issue.

There is little doubt that the Queensland Government intends to pursue a cooperative and conciliatory approach to resolving native title and protected area issues. After years of litigation, recrimination and political division the chance now exists to move forward by the judicious formulation of agreements. ‘Caring for country’ is a theme that can promote the rights and interests of traditional owners and encourage a working relationship with environment groups.

The cooperation and policy development between environment groups in the Native Title and Protected Areas Project will be an important contribution to this process.

The High Court, through its decision in Yanner v Eaton, has afforded all those interested in negotiating legislative and policy outcomes for indigenous rights and environment protection a chance of mutual respect and dignity.

Murrandoo Yanner said of the outcome of his High Court case: "The reason I went hunting those crocs at night is that the law made us skulk around, like thieves in the night. Now we can continue to play our role as proud and efficient hunters and gatherers and not have to hide behind trees and stuff and throw our spears".

Ó Anthony Esposito

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