Native Title Defences in Fishing Prosecutions

Monday 21 March 2022

First Nations’ fishermen on the NSW South Coast are increasingly being prosecuted in the Local Court for fishing, or for the possession of fish, in contravention of the Fisheries Management Act 1994 (NSW).

Many rely on s 211 of the Native Title Act 1993 (Cth) as a defence.  Under s 211, if it applies, a NSW law cannot restrict a native title holder from accessing waters in order to fish if they are doing so in order to satisfy personal, domestic or non‑commercial communal needs and in the exercise or enjoyment of their native title rights and interests.

The defence raises serious evidentiary issues.  On the South Coast, where there is an extant native title claim (the South Coast People native title claim (NSD1331/2017)) but no current determination that native title exists, defendants are required to rely on extensive lay and expert anthropological evidence to prove the existence of native title.  

Marshalling evidence, and proving that defence, requires significant time and resources.  This CPD brings together various individuals with experience in these kinds of proceedings to discuss their experiences and the impacts of ongoing criminalisation of traditional practices and culture of First Nations People.

Speakers:

• John Waters SC,  Sixth Floor Windeyer Chambers
• Anthony McAvoy SC, Frederick Jordan Chambers
• Dr Natalie Kwok, Anthropologist
• Danny Chapman, Councillor, NSW Aboriginal Land Council
• Wally Stewart, Applicant of the South Coast Peoples native title claim and member of the NSW Aboriginal Fishing Rights Group.