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“LAW” v “LORE” - THE EROSION OF NATIVE TITLE IN THE SEA COUNTRIES OF THE GREAT BARRIER REEF

By Michael Burrows - Senior Associate and head of the Crime and Misconduct division at Creevey Russell Lawyers.

I recently had the privilege of discussing the serious and ongoing issues facing Aboriginal Australians who live within the Great Barrier Reef Marine Park with the Great Grandson of Eddie Koiki Mabo, a man recognised by both the legal profession and all Indigenous Australians as the face of Aboriginal and Torres Strait Islander “Native Title”.

More than 17 years on from the introduction of the Native Title Act 1993, we talked at length about the continuing struggle for proper recognition and understanding of traditional cultural practices like hunting of dugong and green turtle and how the over-regulation of Queensland’s World Heritage Listed Great Barrier Reef (at least insofar as it limits the Native Title rights of some Traditional Owners and Indigenous peoples) is acting as both a heavily punitive scheme against those peoples whose inherited traditions are being more heavily restricted by law, and the sad reality that these laws will eventually see the total loss of some of the most significant customary traditions of Indigenous Australians within the next few generations.

More and more Indigenous Australians and Traditional Owners are being prosecuted for offences under the Marine Parks Act 2004 for engaging in conduct either within, or outside one of countless types of ‘zones’, identified by a series GPS coordinates contained in legislation that is utterly meaningless to the ‘lore’ of their ‘country’.

As an avid scuba diver and piscatorial enthusiast, it goes without saying that the Great Barrier Reef is truly one of the greatest wonders of the natural world.

As a lawyer however, the unparalleled diversity and complexity of the Great Barrier Reef is mirrored through the sheer volume of the laws regulating conduct within the Marine Park. This regulatory regime is so intricate yet voluminous that it has become, for many traditional inhabitants, too confusing and completely irreconcilable with any understanding of the ‘lore’ which matters to the people whose very identity rests in their personal and ancestral connection the sea country.

The Great Barrier Reef Marine Park Authority manages the area pursuant to numerous pieces of legislation, regulations, various zoning plans, plans of management such as “Traditional Use of Marine Resources Agreements” between Traditional Owners of lands and sea recognised under the Native Title Act 1993, as well as being guided by a plethora of policy documents.

This web of laws and policy seem to act as a metaphor of the endless twisting corals of the Reef itself. But how do these ‘laws’ place the various Aboriginal and Torres Strait Islander Peoples who still rely on the region for traditional hunting practices that are integral to their heritage?

Since the introduction of the Native Title Act 1993, and now recognised in the Great Barrier Reef Marine Park Act 1975 and Regulations 1983, Traditional Owners have the right to take marine resources, including hunting of marine turtles and dugongs for personal, domestic or non-commercial communal needs and in exercise and enjoyment of their native title rights and interests.

These rights however are not unlimited and as Mr. Mabo and I discussed, are seldom understood by or even explained to the people whose traditions they are apparently designed to protect. The aim of protecting endangered or protected species and promoting sustainability has been prioritised over protecting the sacred traditions of some groups of Indigenous Australians. That is not to say that these people who engage in traditional hunting do not have an ecological and sustainability focus. Indeed, their respect for the animals of their land and sea country is far greater than we could appreciate.

As Mr. Mabo explains, “Indigenous Australians have deep cultural connections to both their land and sea country, and associated systems of kinship, customary law, and knowledge systems, that involve obligations and responsibilities to a complex web of ancestral beings, future generations, and country. This connection conceptualises the health of the people and their country as deeply connected and incorporates practical activities such as fishing, hunting, burning of country, accessing country, and finding pathways to gain greater recognition

The traditional use of marine resources of the Marine Park is critically important in the culture of Indigenous coastal peoples. The activities associated with traditional use of marine resources have great significance and express the continuance of long cultural traditions. For Traditional Owners the spiritual relationship with ‘country’ (land or sea) has been likened to that with a favourite member of the family: to be loved, nurtured, cared for and above all, respected. The practise of traditional use of marine resources by Traditional Owners, an integral part of the relationship with country, is steeped in ancient “lore” and ritual developed over thousands of years. Dugongs and marine turtles are an essential element of Aboriginal and Torres Strait Islander People’s living maritime culture along the Great Barrier Reef World Heritage Area.

The activities associated with the hunting of dugong and turtle and preparing the meat has great significance and is an expression of the continuance of long cultural traditions. Great importance is placed on the social sharing of food with members of the family, often occurring only at times of significance, such as the passing of a tribal elder. Marine resource use strengthens Aboriginal and Torres Strait Islander culture and demonstrates and strengthens connection with tradition and sea country.

Traditional Owners have cultural authority over who is allowed to hunt in their sea country. Customary law and cultural practices determine such matters as what animals can be taken, who can catch and cut up the animals and other restrictions such as seasonal closures of beaches and hunting areas.

Although the laws provide for some traditional hunting, from a conservation perspective the impact is negligible. There are far more serious threats to marine animals and resources, such as coastal development, habitat degradation, boat strikes, netting, sedimentation and pollution. These are all more prolific killers of marine resources like dugong and turtle than any traditional hunting practices.

Despite this, and although regulated in various forms, the immediate effect and the incidental nature of the harm makes these factors much more difficult to enforce and detect, with the people responsible being less accountable in both a legal and moral sense.

It is still more legitimate and more common to prosecute a son, hunting a dugong or turtle for ceremonial use at his father’s funeral in accordance with customary lore than an anonymous polluter or careless recreational fisherman. The son who doesn’t have the time or understanding to jump through the legislative hoops to obtain a permit, that will ultimately not be processed in time.

People don’t notice when a careless fisherman or beachgoer throws a plastic bag into the ocean or leaves it on the sand, to be later eaten by the turtle mistaking it for a jellyfish. They don’t notice the ‘boatie’ not paying attention as he collides with a grazing dugong, leaving it for dead.

The people back at the boat ramp only see the Indigenous man with his spear and the confronting image of dead animal. They stand in judgement and condemnation of the grieving son who took the life an animal, simply to share with his family in honour and respect of his father and his people’s traditions. Traditions that existed long before the imaginary lines were drawn through the sea dictating where something is still honourable and where it is now criminal.

Traditional Owners engaging in “illegal” traditional hunting because they have crossed some invisible line created by geospatial engineers should not be prioritised for prosecution over the often culturally necessitated traditions of a people who will forever be guided and governed by customary “lore” over GPS coordinates in a piece of “law” that they have never read, nor could they be expected to understand, either literally or culturally.

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