| Summary: | Australian courts have yet to uphold the existence of any Indigenous fishing, hunting or
gathering rights at common law. The High Court of Australia recognised that Indigenous
peoples had existing common law rights to land in the Mabo decision in 1992. In doing so,
the court fundamentally altered what had been the conventional legal wisdom about the legal
rights of Indigenous peoples in Australia. The principles upon which that decision was based
pave the way for the recognition of fishing, hunting and gathering rights of Indigenous
peoples. But that recognition is yet to occur.
The thesis explores the potential for the recognition of fishing, hunting and gathering rights
of Indigenous peoples at common law in Australia. Whilst there have been some tentative
steps towards the recognition of such rights, there remains considerable uncertainty as to
whether such rights do exist at common law and, if so, their scope. This thesis traces the
recent developments in the law concerning the recognition of Indigenous fishing, hunting or
gathering rights in Canada, New Zealand and the United States. The thesis argues that
Indigenous peoples in Australia have an existing, albeit unrecognised, common law right to
fish, hunt and gather.
If common law fishing, hunting or gathering rights exist, further issues arise as to restrictions
upon their exercise under regulatory regimes. Particular problems which may arise in
Australia in this regard are considered. Issues concerning the extinguishment and regulation
of such rights are analysed in detail. The operation of the Racial Discrimination Act 1975
(Cth) and the Native Title Act 1993 (Cth), which confer additional protection on Indigenous
rights recognised at common law, is examined in depth. The impact of these statutes upon
State legislation dealing with fishing, hunting and gathering in so far as they affect
Indigenous rights is significant.
The thesis explores the potential for the commercial utilisation of Indigenous fishing, hunting
and gathering rights. Indigenous peoples have received a greater share of the valuable
commercial fishing industry in Canada, New Zealand and the United States in the past two
decades. However, in Australia there has been no change in the level of participation of
Indigenous peoples in fisheries in the wake the Mabo decision. Indigenous peoples remain
largely excluded from the current commercial fishing industry. The thesis analyses the legal
bases used by Indigenous peoples in other countries to obtain a share in commercial fisheries
and considers the applicability of those legal principles to Australia. Finally, issues
concerning allocation of natural resources between Indigenous and non-Indigenous users
and the regulation or co-management of natural resources utilised by both Indigenous and
non-Indigenous persons are explored.
|
|---|
