Species laws 1850-present
Since colonisation began, laws have been made to eliminate or protect certain species. These laws failed to take into account how they affected Aboriginal hunting and the systems essential to their way of life.
The first instrument designed to protect species in NSW was the Cruelty to Animals Act 1850 (NSW) (), which attempted to establish a common standard for the treatment of private and wild animals in the colony. Acts such as the Cattle Stealing Prevention Act 1853 (NSW) () protected introduced species that were valuable to the colonisers, but had no regard to native species that were valuable to Aboriginal people. Neither law made reference to Aboriginal hunting or fishing.
Early laws that governed native species often included exemptions to allow Aboriginal people to hunt them, for example, the Game Protection Act 1866 (NSW) (), the Animals Protection Act 1879 (NSW) () and the Birds Protection Act 1881 (NSW) (). However, the later Birds Protection Act 1893 (NSW) (), did not include an exemption and may have impacted Aboriginal peoples’ ability to hunt some native birds.
The NSW Government began eliminating animals that posed a threat to the agricultural industry under the Pastures and Stock Protection Act 1880 (NSW) (). This law defined such species as ‘noxious’ (a term used in subsequent Acts, defined as ‘harmful, poisonous, or very unpleasant’). This law facilitated the destruction of ‘noxious’ species, such as native dogs and marsupials. The law and parliamentary debates made no reference to the significance of these animals to Aboriginal communities and native ecosystems.
A few years later, the Rabbit Nuisance Act 1883 (NSW) () allowed the Governor to ‘at any time declare any animal to be a natural enemy of the rabbit’, which would make it an offence to kill or capture that species without a ‘special permit’.
Under that provision, the Governor prohibited the hunting of several animals thought to eliminate rabbits. Introduced feral cats, which have since become extremely harmful to Australian ecosystems, were declared to be the natural enemy of the rabbit and protected in 1883 (). The native iguana was declared an enemy of the rabbit and protected in 1896 ().
The NSW Legislative Assembly also considered the possibility of ‘Natives being employed to clear the land’ of rabbits under the Act. However, Sir John Hay argued that the ‘Natives were too few to render assistance’ (). This was the only reference to Aboriginal communities.
Between 1890 and 1900, the NSW Government passed two additional Acts designed to refine the practice of ‘noxious’ species elimination; the Rabbit Act 1890 (NSW) () and the Pastures and Stock Protection (Rabbit) Act 1900 (NSW) (). Consistent with prior laws governing protection of species, neither referred to Aboriginal people or Aboriginal hunting and fishing activities.
The Game and Feral Animal Control Act 2002 (NSW) () implemented exemptions that allow Aboriginal people hunting with native title rights or as a member of an Aboriginal Land Council to hunt without a license.
The Biodiversity Conservation Act 2016 (NSW) () provides Aboriginal people with a defence for harming or harvesting flora and fauna for domestic purposes where it would otherwise be an offence to do so. The associated Biodiversity Conservation Regulation 2017 (NSW) () lists species excluded from the defense.
The law and policy in this subject is accurate as of 1 April 2024.