The burden of proof has been reversed in a long-running legal battle between First Nations people and the NSW government over cultural fishing rights. 

The New South Wales Court of Criminal Appeal (CCA) ruled on Monday that the legal burden of proof should be on the prosecuting authority to negate the applicant's claim to native title, in a stated case judgement.

Native title barrister John Waters SC said the state's CCA was the highest court to have considered the matter and said it set a "compelling legal precedent".

Since the Commonwealth Native Title Act was passed 30 years ago, native title holders have been exempt from state laws that restrict their ability to exercise their traditional rights to hunt, fish, and gather.

But Mr Waters said the onus had always been on native title holders to prove their connection to country during legal proceedings.  

"It's a time-consuming and costly procedure to be undertaking when you've been charged with what is, in the scheme of offences, a minor offence for breaching fisheries laws or regulations," Mr Waters said.

The CCA judgement found imposing a legal burden on native title holders to prove their rights would make the task so difficult that it would render the benefit of their rights "illusory".

Last year, a ruling by the South Australian Court of Appeal held that the legal burden of proof was on the Indigenous person claiming native title rights.

The NSW CCA judgement ruled against the South Australian decision, saying it "should be characterised as plainly wrong".

Mr Waters said the NSW ruling was likely to "carry a good deal of force" as a precedent for similar cases around Australia.

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Ongoing legal proceedings

The CCA judgement was in response to an appeal by Walbunja man Keith Nye, who was arrested after Fisheries officers found via surveillance he had sold abalone to a restaurant in Sydney in 2017.

Mr Nye was convicted in 2022 for two offences of possessing and trafficking indictable quantities of abalone without a licence under the NSW Fisheries Management Act 1994.

He was ordered not to fish, dive or possess abalone for two years, fined $4,500 and issued a 26-month intensive correction order.

His legal team declined the ABC's request for comment due to ongoing legal proceedings.  

Connection to country

Walbunja man and NSW Aboriginal Land Council councillor Danny Chapman welcomed the appeal decision.

However, he said it came too late for hundreds of First Nations fishers on the NSW south coast who had been prosecuted by the state government.

Mr Chapman said in many cases charges were eventually withdrawn or dismissed, but fishers had to go through an "onerous" and expensive process to prove Native Title connection to country.

"That bar is extremely high, and it costs people a lot of money to get to that point," he said.

The legal costs for defendants running a Native Title defence can easily reach tens of thousands of dollars.

Mr Waters said the "rampant interference" with traditional fishing could cause "very substantial" damage to Indigenous communities.

"[The penalties] trickle down into real social isolation and compounded problems for people, individuals and families," he said.

Australian National University Indigenous policy researcher Janet Hunt said the prosecution of Indigenous fishers contradicted the government's closing the gap targets.

"To take seafood for their own nutrition, but especially to be able to pass on their culture, is very critical to their wellbeing."

Mr Chapman agreed.

"[The water is] where we were taught to live, it's all about our survival as a people," he said.