Legal ‘breakthrough’ sees roles reversed for First Nations fishers forced to prove connection to country

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

The New South Wales Court of Criminal Appeal (CCA) dominated on Monday that the authorized burden of proof needs to be on the prosecuting authority to negate the applicant’s declare to native title, in a said case judgement.

Native title barrister John Waters SC mentioned the state’s CCA was the best courtroom to have thought of the matter and mentioned it set a “compelling legal precedent”.

Since the Commonwealth Native Title Act was handed 30 years in the past, native title holders have been exempt from state legal guidelines that limit their capability to train their conventional rights to hunt, fish, and collect.

But Mr Waters mentioned the onus had all the time been on native title holders to prove their connection to country throughout authorized 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 mentioned.

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 “needs to be characterised as plainly incorrect”.

Mr Waters said the NSW ruling was likely to “carry a great deal of drive” as a precedent for similar cases around Australia.

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Ongoing authorized 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 portions of abalone with no licence beneath 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 authorized staff declined the ABC’s request for remark due to ongoing authorized 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 mentioned in lots of circumstances charges were eventually withdrawn or dismissed, however fishers had to undergo an “onerous” and costly course of to prove Native Title connection to country.

“That bar is extraordinarily excessive, and it prices folks some huge cash to get to that time,” he mentioned.

The authorized prices for defendants working a Native Title defence can simply attain tens of thousands of dollars.

Mr Waters mentioned the “rampant interference” with traditional fishing could cause “very substantial” damage to Indigenous communities.

“[The penalties] trickle down into actual social isolation and compounded issues for folks, people and households,” 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 very own vitamin, however particularly to have the ability to cross on their tradition, may be very crucial to their wellbeing.”

Mr Chapman agreed.

“[The water is] the place we had been taught to reside, it is all about our survival as a folks,” he mentioned.