Native title and hunting and fishing 1992-2024
Laws have recognised the native title rights and interests of Aboriginal people in NSW including hunting, fishing, and gathering rights. These laws aim to allow Aboriginal people to continue to practice their way of life and exercise rights to country and resources.
The decision in Mabo & Ors v The State of Queensland (No 2) (Mabo) 1992 175 CLR 1 () rejected the doctrine of terra nullius, which held that Australia was land belonging to no one. This decision affirmed that Australian law recognises native title: rights and interests in land that existed before colonisation.
After the decision in Mabo, the Australian Government passed the Native Title Act 1993 (Cth) (NTA) () which, amongst other things, set out how native title would be recognised and protected, and how people and governments could do things that were inconsistent with native title in the future.
Before this time, governments did things that were inconsistent with the continued exercise of native title rights and interests, such as granting interests in land or making laws in relation to the use of land. These government actions had the effect of wholly or partially extinguishing native title rights and interests.
The law created a system for native title claims and determinations by the Federal Court of Australia (). The role of the Federal Court in making a determination is to recognise native title rights and interests under Australian law. The Court does not create those rights and interests - they exist under Aboriginal and Torres Strait Islander law and are recognised under the NTA.
The native title rights and interests of a native title group are set out in native title determinations. The definition of native title rights and interests in the NTA makes clear that it can include hunting, gathering, and fishing rights and interests.
In NSW, native title rights for hunting, fishing and gathering for domestic and communal purposes have been recognised by Australian law in native title determinations in a number of areas (see Case Study Documents). However, many Aboriginal people continue to exercise native title rights to hunt and fish under traditional laws that have not yet been recognised under the Australian legal system.
NSW laws that regulate resources, such as fisheries, recognise the native title rights and interests held by Aboriginal people (see SUB0348). Native title provides a defence against prosecutions for taking such resources. Section 211 of the Native Title Act allows native title holders to carry out certain activities, such as hunting, fishing, and gathering, even if those activities are prohibited or restricted by other laws.
For example, fisheries charges against Aboriginal fishers in NSW have been withdrawn when the defence is raised ().
Indigenous land use agreements (ILUAs) are agreements made under the NTA about native title rights and interests. Currently, there are 29 such agreements registered by the National Native Title Tribunal; however, the specifics of these agreements remain confidential.
See the Discussion and Analysis and Case Study sections for commentary on native title and hunting and fishing, including a selection of significant Australian cases.