Posted: 2024-07-12 00:56:33

In short:

A NSW Court of Criminal Appeal ruling says prosecuting authorities must negate applicants' native title claims in cultural fishing cases, instead of putting the burden of proof on defendants.

A First Nations man says historic processes to prove connection to country have been "onerous" and expensive.

What's next?

Legal experts believe the ruling could set a precedent for cultural fishing cases around the country.

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".

"That's something of a breakthrough, and an important and practical one," he said.

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.  

A silhouette of a diver going fishing off NSW coastline

Native title holders can exercise rights to fish for personal, domestic or non-commercial needs in line with the 1993 Native Title Act.(ABC South East NSW: Wayne Carberry)

"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 lessening of the burden and the vulnerability of Aboriginal people to prosecutions ... is, I think, a very beneficial step for Aboriginal people.

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.

Catch up on our NAIDOC Week content at the abc.net.au Indigenous page and on ABC iView

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.

A man looking outdoors

Following the CCA judgement, Mr Nye's appeal will continue in the District Court.(ABC South East NSW: Vanessa Milton)

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.

Portrait of man looking directly at camera standing among eucalyptus trees

Danny Chapman says many Aboriginal people are scared of practising their saltwater culture for fear of prosecution.(ABC South East NSW: Vanessa Milton)

"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.

"The threat of prosecution is acting as a strong disincentive to a lot of Aboriginal people these days, in terms of their ability to go out and catch a feed of fish or gather food for their families," she said.

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

Close up of freshly caught abalone and lobster laid out on the rocks

Mr Chapman says proving connection to country can be "onerous".(ABC South East NSW: Vanessa Milton)

Mr Chapman agreed.

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

"Without our fishing rights … we would lose our identity."

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