Other Rights and Interests
Hunting and Fishing
Taking fish from the sea and birds and animals from the land continues to be an important part of modern day Aboriginal law and culture in Tasmania. Until recently such activities were regarded as illegal unless allowed by legislation applicable to the general community and commercial interests. Traditional Aboriginal hunting and fishing practices are protected under the Native Title Act, but an attempt to establish that such rights continued to exist in southern Tasmania in relation to taking abalone was unsuccessful (Dillon v Davies (1998) TASSC 60).
However, Aboriginal cultural, and native title rights to take fish are recognised under the Living Marine Resources Management Act 1995 (Tas) (s10(2)). Aborigines exercising their cultural rights to fish do not need a licence (s60(2)(c)). The onus is on a person to prove they are an Aborigine and are engaged in cultural fishing (s215(b)). The government’s view is that bag and size limits and other regulations continue to apply, though this is not a view shared by the Aboriginal community.
The main legislation for Aboriginal heritage protection is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) concerning matters of national environmental significance. In Tasmania, the ancient heritage at Kutalayna (Jordan River levee) attracted Commonwealth intervention under the EPBC Act when it was accepted for national heritage listing in December 2011.
Protection is also available under the Commonwealth’s Protection of Movable Cultural Heritage Act 1986 (Cth) to stop heritage objects from being exported illegally. However, there is no legislation to prevent the sale of significant items such as portraits and paintings at auction or by private sale.
The federal Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) enables the Commonwealth Minister for Sustainability, Environment, Water, Population and Communities to make declarations preventing ‘desecration or injury’ to sites and objects of cultural significance to Aboriginal people (ss10 and 12). In practice, the power to make declarations under the Act is a ‘back-up’ where the state is unable or unwilling to act, and Commonwealth intervention to protect Aboriginal heritage is uncommon.
The courts have also been prepared to protect Aboriginal culture from exploitation through creative use of copyright law and the common law relating to breach of confidence. Breach of confidence was used to stop an anthropologist publishing sacred ritual knowledge he had obtained from Pitjantjatjara tribal elders in Central Australia (Foster v Mountford (1976) FLR 233). Copyright law was used to stop the Reserve Bank using sacred pole designs on the $1 note, and to stop an importer selling carpets reproducing paintings containing images of sacred significance.
Tasmanian Aboriginal artifacts are protected under the Aboriginal Heritage Act 1975 (Tas).
Knowledge of the genetic structure of human beings, and flora and fauna are considered valuable resources. Commercial interests are seeking to patent knowledge of genetic heritage as ‘intellectual property’ for their own exclusive use for medical, and plant and animal breeding purposes.
Indigenous peoples are understandably concerned that this new extension of the frontier of human knowledge will simply become a means of exploiting their genes and the biodiversity of the living natural resources of their lands. Australia ratified the Convention on Biodiversity in 1993. Article 10 of this convention requires Australia ‘to protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation and sustainable use requirements’.
The battle to secure respect for the Aboriginal dead has been a crucial cultural issue. Tasmanian Aborigines have been prepared to go to museums in all corners of Europe and North America, as well as Australia and New Zealand, to bring back the remains of their ancestors taken for ‘scientific’ or trophy purposes in the 19th and early 20th century.
The Coroners Act 1995 (Tas) recognises the right of the Aboriginal community to deal with the remains of both ancient and contemporary Aboriginal people by requiring a coroner who suspects that human remains are Aboriginal to place the matter in the hands of an Aboriginal organisation (s23). Currently the relevant organisation is the Tasmanian Aboriginal Land and Sea Council Inc (this organisation is not the same as the elected but statutory Aboriginal Land Council of Tasmania (ALTC)).