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Court of Criminal Appeal 8 July 2024

Moriarty v Nye

[2024] NSWCCA 116

Also reported as (2024) 114 NSWLR 560
Other
LAND LAW INDIGENOUS LAND RIGHTS COMMERCIAL COMMUNAL NEEDS BURDEN OF PROOF CRIMINAL PROCEEDINGS STATUTORY EXCEPTION TO GENERAL RULE

Citation: Moriarty v Nye [2024] NSWCCA 116
Court: NSW Court of Criminal Appeal
Date: 8 July 2024
Judges: Kirk JA; Wilson J; Yehia J

Background

The respondent, an Aboriginal man of the Yuin nation and member of a registered native title claim group, came into possession of approximately 567 shucked and frozen abalone gathered by around 25 other Yuin men. He transported the abalone to Sydney and sold 128 of them (about 16 kg) to the owner of a Chinese restaurant before being intercepted by police. He held no licence or permit under the Fisheries Management Act 1994 (NSW) to possess or sell abalone.

The respondent was convicted in the Local Court of two offences: possession and trafficking of abalone in a commercial and indictable quantity without a licence or permit. His reliance on s 211 of the Native Title Act 1993 (Cth), which provides native title holders with an immunity from certain laws prohibiting or restricting fishing and related activities, was rejected at first instance.

He appealed to the District Court, which submitted a stated case to the Court of Criminal Appeal under s 5B(1) of the Criminal Appeal Act 1912 (NSW). The stated case raised three core questions about the construction and application of s 211.

  • Whether collecting abalone from others for sale off Country can be characterised as being "for the purposes of satisfying personal, domestic or non-commercial communal needs" within s 211(2)(a) of the Native Title Act 1993 (Cth)
  • Whether the activity in question constituted "fishing", "gathering", or "a cultural or spiritual activity" within s 211(3)
  • Which party bears the legal burden of proof in relation to matters raised by s 211, and to what standard

Decision

Issue 1: The meaning of "non-commercial communal needs"

The Court held that the phrase "for the purposes of satisfying their personal, domestic or non-commercial communal needs" in s 211(2)(a) refers to needs of sustenance or consumption that are capable of being satisfied directly by the activities in question. It does not extend to the indirect satisfaction of broader needs by using the product of those activities for sale or barter beyond the household or community, so as to obtain money or goods which can then be applied to meet those needs. The Court grounded this construction firmly in the text of the provision, supported by its purpose as revealed in extrinsic materials, including a concern not to place undue burdens on natural resources.

Parliament is taken to have intended that s 211 would operate practically in a wide range of courts, including local courts before magistrates. The Court rejected a construction that would require courts to determine the appropriate level of resource exploitation for a given Indigenous community, describing such judgments as complex, polycentric, and unsuitable for criminal proceedings. Applying that construction, the respondent's purpose in receiving, assembling and transporting the abalone for commercial sale was not directed towards consumption by himself, his household, or his native title community, and so fell outside the immunity.

Issue 2: Whether the activity constituted "fishing", "gathering" or a "cultural or spiritual activity"

The Court accepted that the reference to "fishing" in s 211(3) extends beyond the act of catching fish to include steps in the reduction of fish into possession, such as receiving fish taken under a native title right. Penalising other members of a native title household or community for receiving and possessing fish taken pursuant to a native title right would undermine the protection s 211 is designed to provide. However, because the respondent's purpose was commercial sale outside the community rather than sustenance or consumption, his activities were not protected under any of the categories in s 211(3), including "fishing", "gathering", or "a cultural or spiritual activity".

Issue 3: Onus and standard of proof

The Court held that the onus question is one of statutory construction of the Native Title Act, which cannot be affected by State legislation. The Preamble, s 3, and the section's heading all indicate that the immunity was intended not merely to facilitate occasional exercises of native title rights, but to preserve the continued existence of those rights by enabling their ongoing exercise. Imposing a legal burden on defendants to establish the existence and content of native title rights would be inconsistent with that purpose, particularly where native title has not been the subject of a formal determination. The Court held that where a party seeks to rely on s 211, the legal burden falls on the other party to negative the application of the provision, to the standard of proof that otherwise applies to that party in making out its claim.

Orders Made

• Section 211(2)(a) of the Native Title Act 1993 (Cth) refers to needs of the person in question, their household or their community which are capable of being satisfied directly by undertaking the activities in question, being needs of sustenance or consumption, and does not extend to indirect satisfaction of broader needs by using the product of the activities for sale or trade outside the household or community

• The activity of receiving fish taken from the sea by others and assembling that fish for the purpose of sale to people outside the relevant native title community is not capable of constituting "fishing", "gathering" or "a cultural or spiritual activity" within the meaning of s 211(3) of the NT Act

• When a party seeks to rely on s 211 of the NT Act in litigation against them, the legal burden of proof falls on the other party to negative the application of the provision, doing so on the standard of proof that otherwise applies to that party in making out their claim

Key Takeaways

  • Section 211(2)(a) of the Native Title Act 1993 (Cth) protects activities directed at the direct sustenance or consumption needs of the individual, their household, or their native title community. It does not extend to activities whose purpose is to generate money through commercial sale, even if the proceeds might ultimately serve broader community needs.

  • Receiving and assembling fish taken by others for sale to persons outside the native title community is not "fishing", "gathering", or "a cultural or spiritual activity" within the meaning of s 211(3), regardless of whether the gatherers themselves may have been protected when taking the fish.

  • On the question of onus, the Court of Criminal Appeal held that the legal burden of negativing s 211 lies with the party seeking to enforce a law against a native title holder, not with the native title holder seeking to invoke the immunity. The applicable standard is that which otherwise governs the party making out the claim.

  • The Court declined to apply the usual common law principle that a defendant bears the burden of making out a statutory exception, finding that principle inapt where the relevant immunity is created by Commonwealth legislation and most frequently invoked in proceedings brought under State or Territory laws.

  • Parliament is taken to have intended that s 211 would be capable of practical and ready exercise in local courts and magistrates courts without requiring complex polycentric determinations about appropriate resource exploitation levels for a given community.

Legislation and Cases Referenced

Legislation:
- Native Title Act 1993 (Cth), ss 3, 211, 223, Preamble
- Fisheries Management Act 1994 (NSW), ss 18(2), 21B
- Criminal Appeal Act 1912 (NSW), s 5B
- Judiciary Act 1903 (Cth), ss 68, 79, 80
- Acts Interpretation Act 1901 (Cth)
- Native Title Amendment Act 1998 (Cth)

Key Cases:
- Karpany v Dietman [2013] HCA 47; (2013) 252 CLR 507
- Dietman v Karpany [2023] SASCA 52; (2023) 377 FLR 307
- Akiba v Commonwealth [2013] HCA 33; (2013) 250 CLR 209
- Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351
- Wilkes v Johnsen [1999] WASCA 74; (1999) 21 WAR 269
- Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619
- Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594
- Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249
- Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422
- AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390