AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Local Court 4 February 2022

NSW Department of Industry (for Fisheries NSW) v Connolly

[2022] NSWLC 8

Other
FISHERIES PROSECUTION DEFENCE OF NATIVE TITLE

Citation: NSW Department of Industry (for Fisheries NSW) v Connolly [2022] NSWLC 8
Court: NSW Local Court
Date: 4 February 2022
Judge: O'Brien LCM

Background

The accused, an Aboriginal man of the Yuin Nation from the NSW South Coast, was observed by NSW Fisheries Officers conducting ocean hauling activities using a net to catch silver trevally on two occasions in November 2016. He was subsequently charged with twelve fisheries offences, including unlawfully using a net to take fish, possessing illegally taken fish, taking fish for sale without appropriate authorisation, and harming animals in a sanctuary zone.

The prosecution was brought by the NSW Department of Industry on behalf of Fisheries NSW. Charges were laid in November 2018, almost two years after the alleged offending, with no explanation offered for the delay. The matter was heard at Nowra Local Court over two days in November 2021, some five years after the conduct in question.

The accused appeared self-represented on the first day of the hearing, having been legally represented at earlier mentions. He applied for an adjournment on the basis that he had been unable to secure legal representation, but the Magistrate refused that application given the prosecution's witnesses had attended court and sufficient notice had existed.

The court was asked to resolve the following key questions:

  • Whether the accused had a native title right to take fish by ocean hauling for commercial purposes under the Native Title Act 1993 (Cth), such that the fisheries offences charges could not be sustained
  • Whether any such native title right had been extinguished by the relevant NSW fisheries and marine park legislation and regulations
  • Whether the accused could rely on the defence of honest and reasonable mistake of fact in respect of any of the charges
  • Whether the prosecution had established each element of the various offences under the Fisheries Management Act 1994 (NSW) and the Marine Estate Management Act 2014 (NSW) beyond reasonable doubt

Decision

The Magistrate found that the accused was an Aboriginal person with a connection to Country on the NSW South Coast and accepted that Aboriginal people of the Yuin Nation held traditional customs and practices relating to fishing in those waters. However, the court found that even if a native title right to fish existed, it did not extend to commercial fishing activity of the kind observed. The body of High Court authority, including Akiba v Commonwealth (2013) 250 CLR 209 and Karpany v Dietman (2013) 252 CLR 507, confirmed that native title rights to take fish are subject to extinguishment and must be assessed against the specific rights asserted and the extinguishing effect of particular legislation.

The court found that the relevant NSW fisheries legislation and the marine park regulations had extinguished or suspended any native title right to fish by ocean hauling in the manner the accused employed, particularly in relation to the sanctuary zones. The regulatory scheme governing ocean hauling, including share management plan requirements, operated as a comprehensive regime inconsistent with the exercise of a native title right to take fish commercially by net.

On the defence of honest and reasonable mistake of fact, the court applied the principle in Proudman v Dayman (1941) 67 CLR 536. To succeed, the accused needed to establish that he honestly and reasonably believed in a state of facts which, if true, would have made his conduct innocent. The court was not satisfied that the accused had established this defence on the evidence to the requisite standard, noting the nature of the regulatory framework and the circumstances in which the accused was operating.

The Magistrate found the prosecution had proved the elements of the relevant charges beyond reasonable doubt. The accused was found guilty of the charges brought against him. The matter of penalty was reserved for a subsequent hearing.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A claimed native title right to fish does not automatically extend to commercial ocean hauling operations; the specific nature of the right asserted and the extinguishing effect of applicable legislation must be assessed in each case.
  • Under the framework established in Akiba, Karpany v Dietman, and related High Court authority, comprehensive state fisheries legislation and marine park regulations can extinguish or suspend native title fishing rights where they operate inconsistently with the exercise of those rights.
  • The defence of honest and reasonable mistake of fact under Proudman v Dayman requires the accused to point to a specific, reasonable factual belief that would have rendered the conduct innocent; a general belief in an entitlement to fish based on Aboriginal heritage does not, without more, satisfy that test.
  • The Local Court confirmed that the burden of proof remains with the prosecution throughout and that evidence raised by an accused consistent with innocence must be disproved by the prosecution rather than proved false by the accused.
  • Proceedings commenced almost two years after the alleged offending, within the two-year limitation period under s 278 of the Fisheries Management Act 1994 (NSW), but the five-year gap between conduct and hearing illustrated the practical difficulties that lengthy delays can create in prosecutions of this kind.

Legislation and Cases Referenced

Legislation:
- Fisheries Management Act 1994 (NSW)
- Fisheries Management (General) Regulation 2010 (NSW)
- Fisheries Management (Ocean Hauling Share Management Plan) Regulation 2006 (NSW)
- Marine Estate Management Act 2014 (NSW)
- Marine Estate Management (Management Rules) Regulation 1999 (NSW)
- Marine Parks Act 1997 (NSW)
- Native Title Act 1993 (Cth)
- Native Title (New South Wales) Act 1994 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Fisheries Act 1994 (Qld)

Cases:
- Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia (2013) 250 CLR 209
- Karpany v Dietman (2013) 252 CLR 507
- Mabo v State of Queensland [No 2] (1992) 175 CLR 1
- Ostrowski v Palmer (2004) 218 CLR 493
- Proudman v Dayman (1941) 67 CLR 536
- Fleming v The Queen (1998) 197 CLR 250
- He Kaw Teh v R (1985) 157 CLR 523
- Lee v The Queen (2014) 253 CLR 455
- Kuczborski v Queensland (2014) 254 CLR 51
- Mason v Tritton (1994) 34 NSWLR 572
- Andrews v Ardler (2012) 266 FLR 177
- Dudley v Department of Primary Industries and Regions South Australia [2018] SASCFC 23
- DPP v Brooks [1974] AC 862
- Dillon v Davies (1998) 145 FLR 111
- Derschaw v Sutton (1996) 17 WAR 419