Fishing rights advice
Advising native title holders on rights to fish in sea country, coastal waters and inland waterways without a licence for traditional purposes.
Practice Areas
Traditional Hunting and Fishing Rights under Australian Law
Legal advice on the right to access land and waters for traditional activities. David Saylor advises native title holders on traditional hunting rights under Australian law and fishing rights under the Native Title Act 1993.
Under Australian law, native title can include the right to access land and waters for traditional activities, including traditional hunting rights and fishing for personal, domestic and non-commercial communal purposes. These rights are recognised under the Native Title Act 1993 and depend on the terms of the relevant determination.
- Court
- Federal Court of Australia
- Governing law
- Native Title Act 1993 (Cth); Fisheries Act 1994 (Qld)
- Sea country basis
- Connection under traditional law and custom
- State regime
- Cultural fishing, Queensland Fisheries Act exemptions
Traditional hunting rights under Australian law and traditional fishing rights
Under Australian law, native title can include rights to access Country for traditional activities, including fishing, hunting and gathering. Where a native title determination recognises these rights, native title holders can exercise them for personal, domestic and non-commercial communal purposes. The specific rights depend on the terms of the determination.
Traditional hunting rights under Australian law are not the same as hunting licences and do not carry the same commercial entitlements. They are the recognition by Australian law of the continuing relationship between Traditional Owners and their Country.
Fishing rights
For many Traditional Owner groups, particularly those with sea country or coastal determinations, the right to fish is among the most significant practical aspects of their native title. Where a determination includes the right to access waters for traditional purposes, native title holders may fish in those waters without a licence for personal, domestic or non-commercial communal use.
Sea country determinations can cover coastal waters, estuaries and the foreshore. Inland determinations may cover rivers, creeks and wetlands. The interaction with Commonwealth fisheries law and Queensland fisheries legislation adds complexity, and specific legal advice is required to understand what a particular determination actually authorises.
Hunting rights
Where a determination includes the right to hunt, native title holders may hunt on native title land for personal, domestic and non-commercial communal purposes. This includes taking native animals under traditional practice.
Queensland’s nature conservation and wildlife legislation continues to apply alongside native title hunting rights, and the interaction between the two frameworks is not always straightforward. Some activities that might otherwise require a permit may be covered by the native title right; others may not be.
When rights are interfered with
If native title holders are being prevented from exercising their traditional fishing or hunting rights, or if a government or developer is proposing an activity that would affect those rights, legal advice is available.
David Saylor advises native title holders on the scope of their rights under a particular determination and on the options available when those rights are interfered with.
Call (07) 4431 0074 or 0474 244 447, or email david@saylorlegal.com.au to discuss your matter.
What we cover
Traditional Fishing Hunting Rights, services
Hunting rights advice
Advising Traditional Owners on hunting rights under native title and the interaction with Queensland game and wildlife laws.
Rights enforcement
Advising and representing native title holders whose traditional fishing and hunting rights are being interfered with.
FAQ
Common questions
Do native title holders have the right to fish without a licence?
Where a native title determination includes the right to access waters for traditional purposes, native title holders may fish in those waters without a licence for personal, domestic or non-commercial communal use. The precise scope depends on the terms of the determination.
What are traditional fishing rights under native title?
Traditional fishing rights are the rights to access and take fish from sea country or inland waterways in accordance with traditional laws and customs, for personal, domestic or non-commercial communal purposes. These are distinct from commercial fishing rights and are not the same as a fishing licence.
Can Aboriginal people hunt on native title land in Queensland?
Where a native title determination includes hunting rights, native title holders may hunt on native title land for personal, domestic and non-commercial communal purposes. Queensland game and wildlife laws continue to apply in some respects and the interaction between those laws and native title rights can be complex.
Can traditional fishing and hunting rights be taken away?
Traditional fishing and hunting rights can be extinguished by valid acts under Commonwealth or State law in the same way as other native title rights. Where extinguishment has occurred, compensation may be payable under the Timber Creek framework.