Heffernan v Ibell[2016] QDC 154

DISTRICT COURT OF QUEENSLAND

The appeal

1. [1]
   The appellant was convicted in the Magistrates Court at Townsville on 12 May 2015 and fined the sum of $3,500.00, ordered to pay professional costs of $2,250.00 and further costs of $80.70 on three charges made pursuant to the Fisheries Act 1994 (‘Fisheries Act’) and the Fisheries Regulation 2008 (the ‘Regulation’). The fine and the costs orders were referred to the State Penalties Enforcement Registry. The appeal is against the convictions.

Commonwealth interests

2. [2]
   This appeal raises matters, including issues of statutory construction, relating to the Native Title Act 1993 (‘Native Title Act’) and provisions that may apply to fisheries resources and certain fishing activities pursuant to section 14 Native Title Act; and Native Title Determinations.

3. [3]
   However, counsel submitted that there were no constitutional questions arising per se and I have proceeded to hear and determine the appeal on that basis.

The charges

4. [4]
   The charges each relate to the use of fishing apparatus, namely fishing nets:

1. Using a net that is a commercial fishing apparatus: section 178(1) of the Regulation.

2. Possessing a net that is a commercial fishing apparatus: section 178(1) of the Regulation.

3. Blocking off more than half a waterway: section 198(1)(d) of the Regulation.

Background

5. [5]
   The appellant was fishing in Wangaratta Creek near Rocky Ponds, south of Townsville, on 16 July 2013. He is not an Aboriginal man by descent but is said to be an adopted member of the Taylor family group of the Juru People, partly by reason of his prior relationship with a woman of the Juru People and his association with the family group and its communal and cultural activities.

6. [6]
   He was fishing at the request of, or direction from, an Aboriginal elder of the Juru/Jangaa People, one James Gaston (‘Mr Gaston’), for provision of fish for a ceremonial event or events.

The grounds of appeal

7. [7]
   The grounds of appeal are as follows:

'1.the learned Magistrate erred in finding that s 22 of the Criminal Code had no application to the charges;

2.the learned Magistrate erred in law in finding that Mr Gaston, as a Juru person and native title holder:

(a)had to personally exercise the native title right to fish for communal purposes; and

(b)could not delegate the task of fishing for communal purposes;

3.The learned Magistrate erred in finding that the defendant was not an adopted member of the Taylor family group (one of the families comprising the Juru People);

4.the learned magistrate erred in fact and law in finding that the defendant could not be a native title holder by reason of adoption into a Juru family group (rather than being a lineal descendant);

5.the learned Magistrate erred in finding that s 211 of the Native Title Act 1993 did not apply.’

The offences

8. [8]
   The offences were charged under the following provisions of the Regulation:

Counts 1 & 2 -

“178Regulation of commercial fishing apparatus

(1)A person must not buy, sell, possess or use commercial fishing apparatus unless –

(a)the person holds an authority that authorises the purchase, sale, possession or use of the apparatus; or

(b)under this regulation or a management plan, the person is authorised to buy, sell, possess or use the apparatus.

(2)Despite subsection (1) an aborigine or Torres Strait Islander may possess, but not use a commercial fishing net without an authority if –

(a)the net has a mesh size of at least 50 mm but no more than 215 mm; and

(b)the net is no longer than 80 m.

An authority means (as defined in Regulation 202) so far as is relevant, ‘a licence, permit, resource allocation authority or other authority issued, and enforced, under this Act.”

Count 3

“198Particular fishing methods prohibited

(1)A person must not take fish in any of the following ways –

…..

(d)using fishing apparatus across a waterway or navigation channel in a way that makes more than half of its width impassable to a boat or fish.”

Agreed facts

9. [9]
   The trial in the Magistrates Court proceeded on an agreed summary of the factual circumstances of all three offences.

10. [10]
    On 16 July 2013 a seine net (‘the nets’ or ‘a net’) was set up-stream of a camp where the appellant and another person, who had a vehicle and a boat, were located by fisheries officers. A net was set in the water all the way across the creek from bank to bank and made more than half of the creek’s width impassable to a boat or to fish. The net had been set that morning by the defendant. Another net in a bag was located in the defendant’s vehicle.

11. [11]
    It was further agreed for the purposes of the hearing of the charges, that:

• The nets were ‘Commercial Fishing Apparatus’ as defined by section 14 (3) of the Fisheries Act;

• The nets were ‘Prescribed Fishing Apparatus’ as defined by section 14 (3) of the Fisheries Act;

• the defendant did not hold any authority, as defined under the Fisheries Act, issued and in force, under the Fisheries Act which authorised his possession or use of ‘Commercial Fishing Apparatus’ as defined under the Regulation, or use by block-off netting;

• the defendant was not authorised under the Regulation or any management plan to possess or use the nets or use them by block-off netting;

• the defendant’s possession and use of the nets were not for any of the exemptions listed under section 77A of the Fisheries Act.

The issues at the trial in the Magistrates Court

12. [12]
    The issues for trial were identified for the Magistrate as follows:

1. (a)
   was the appellant an Aborigine - specifically as an adopted member of the Juru People;

2. (b)
   was the appellant on 16 July 2013 at Wangaratta Creek exercising a Native Title right to fish, as:

1. (i)
   an adopted member of the Juru People; or

2. (ii)
   under a direction of an elder of the Juru People; or

3. (iii)
   under a direction from a director of the Kyburra Mundea Yalga Aboriginal Corporation;

[if any issue above was found in the affirmative, the appellant had a defence available pursuant to section 211 of the Native Title Act]; 

and

3. (c)
   did the appellant have an honest claim of right pursuant to section 22 of the Criminal Code (Qld)?

Native Title Act

13. [13]
    The Native Title Act recognises and protects native title. It binds the Crown in right of the Commonwealth and each of the States (so far as is relevant here). It cites that one of its main objects is to provide for the recognition and protection of native title. Part 2 of the Native Title Act provides for the recognition and protection of native title, subject to a determination by the Federal Court of Australia or the High Court of Australia.

14. [14]
    Section 223 of the Native Title Act refers, amongst other things to native title and native title rights and interests, in the following way (so far as is relevant):

‘(1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the aboriginal peoples or Torres Strait Islanders; and

(b)the aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)the rights and interests are recognised by the common law of Australia.’

15. [15]
    Section 224 of the Native Title Act describes the expression ‘native title holder’, in the following terms in relation to native title as meaning:

‘(a)if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust – the prescribed body corporate; or

(b)in any other case – the person or persons who hold a native title.’

Meaning of relevant words and expressions

16. [16]
    Hunting, gathering and fishing are covered by the expression ‘native title rights and interests’. The section replicates the sections of the Acts Interpretation Act 1954, which in Schedule 1 refers to the meaning of commonly-used words and expressions, including the following that have relevance in the matters discussed in this judgment:

“Aboriginal people means people of the aboriginal race of Australia”

“Aboriginal tradition means the body of traditions, observances, customs and beliefs of aboriginal people generally or of a particular community or group of Aboriginal people and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships.”

“Aborigine means a person of the Aboriginal race of Australia.”

“Native title means the communal, group or individual rights and interests of Aboriginal people or TSI in land or waters if –

(a)the rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed, by the Aboriginal people or TSI; and

(b)the Aboriginal people or TSI, by the laws and customs, have a connection with the land or waters; and

(c)the rights and interests are recognised by the common law of Australia.

Examples of rights and interests –

Hunting, gathering and fishing rights and interests.”

17. [17]
    Section 253 Native Title Act defines the term ‘interest’ as follows:

‘Interest, in relation to land or waters, means:

(a)a legal or equitable estate or interest in the land or waters; or

(b)any other right, including a right under an option and a right of redemption, charge, power or privilege over, or in connection with:

(i)the land or waters; or

(ii)an interest or estate in the land or waters; or

(c)a restriction on the use of the land or waters, whether or not annexed to other land or waters.’

The determination of Native Title

18. [18]
    Section 225 of the Native Title Act provides for determination whether or not native title exists in relation to a particular area (the Determination Area) of land or waters, and, if it does exist, a determination of: 

‘(a)  who the persons, or each group of persons, holding the common law group rights comprising the native title are; and

(b) the nature and extent of the native title rights and interests in relation to the determination area; and

(c) the nature and extent of any other interests in relation to the determination area; and

(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into the account the effect of this Act); and

(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.’

The Juru People Native Title Determinations

19. [19]
    On 26 July 2011 a Native Title Consent Determination was made on behalf of the Juru People: Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819. On 11 July 2014 a further Native Title Consent Determination was made on behalf of the Juru People: Lampton on behalf of the Juru People v State of Queensland [2014] FCA 736 (‘the Native Title Determinations’).

20. [20]
    The Native Title Determinations [QUD 554/2010] are held on trust for the Juru People by Kyburra Mundea Yalga Aboriginal Corporation RNTBC ICN 7581 (‘the Corporation’), a registered Native Title Body Corporate. Mr Gaston is a member and director of the Corporation.

21. [21]
    Wangaratta Creek (where the appellant was fishing) is within the Native Title Determination Area determined in QUD 554/2010.

22. [22]
    The Prior Determination was made and the Judgment delivered before the date of the offences [16 July 2013]. The Lampton Determination was made and the Judgment delivered after the date of the offences. The Prior Determination and Judgment is the principal Determination for consideration in this matter, although the Lampton Determination on its terms supports the scope of the Prior Determination. I propose to refer to the relevant parts of the Prior Determination and Judgment to provide a basis for the discussion in this judgment about what it means and the extent of its recognition of native title with respect to the Juru People.

The Prior Determination and Judgment

23. [23]
    The Federal Court determined in a consent judgment the following:

“1.Native title exists in relation to the Determination Area;

2.The native title is held by the persons described in Schedule 1 (the ‘native title holders’) [the Taylor (Gaston) family and the Morrell family are included in the Schedule as apical ancestors].

3.Subject to paragraphs 5, 6, and 7 the nature and extent of the native title rights and interests in relation to the Determination Area, other than in relation to Water, are the non-exclusive rights to:

…

(b)hunt, fish and gather Natural Resources along the Determination Area for personal, domestic and non-commercial communal purposes;

(c)take, use, share and exchange Natural Resources from the Determination Area for personal, domestic and non-commercial communal purposes.

4.Subject to paragraphs 5, 6, and 7, the nature and extent of the native title rights and interests in relation to Water within the Determination Area are the non-exclusive rights to:

(a)hunt and fish in or on, and gather from, the Water for personal, domestic and non-commercial communal purposes.

5.There are no native title rights in or relating to minerals [as legislatively defined and referred to in the Determination].

6.The native title rights and interests are subject to and exercisable in accordance with:

(a)the Laws of the State and the Commonwealth; and

(b)the traditional laws and traditional customs observed by the native title holders.

7.The native title rights and interests referred to in paragraphs 3 and 4 do not confer possession, occupation, use or enjoyment to the exclusion of all others.

8.The nature and extent of any other rights and interest in relation to the Determination Area (or respective parts thereof) are set out in Schedule 3 (the ‘other rights and interests’).

9.The relationship between native title rights and interest described in paragraphs 3 and 4 and other rights and interests is that:

(a)the other rights and interests continue to have effect, and the rights conferred by or held other the other rights and interests may be exercised notwithstanding the existence of the native title rights and interests;

(b)the other rights and interests and any activity that is required or permitted by or under, and done in accordance with, the other rights and interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests.”

24. [24]
    Rares J delivered reasons for judgment, which included the following passages that are relevant to the consideration of the issues in this appeal:

“2.The terms of this consent determination have been negotiated by the parties to these proceedings. Each of them claim rights and interests to the land and waters it affects. The final agreement for the determination was signed on behalf of all the parties on 15 July 2011.

…

4.A determination by the Court that native title exists serves many important purposes, as the preamble to the Act acknowledges. These include the recognition of entitlement of indigenous Australians to enjoy rights and interests to the land and waters, in accordance with their people’s traditional laws and customs. Those rights and interests were not previously recognised…

…

18.Dr Pannell [anthropological expert who provided a report to the Court with respect to the application determined by Rares J] opined on the basis of her and other’s research that the rights and interests in the lands and waters that are claimed by the Juru People are possessed by them under the traditional laws that they acknowledge and the traditional customs they observe. She concluded that the Juru People have continued from before the time of European settlement in 1861 to the present to acknowledge and observe traditional laws and customs and by those laws and customs the Juru People have a connection with the land and waters the subject of the proposed determination.

19.A determination of native title affects the status of the land and waters to which it relates because it creates rights and interests in them that, subject to the Act, and the terms of the determination itself, the holders can exercise forever after against any other person…”

The Magistrate’s decision

25. [25]
    His Honour identified the issues as whether defences pursuant to section 211(2) of the Native Title Act and/or section 22 of the Criminal Code applied. He said that the Native Title Act defence required proof on the balance of probabilities, whereas in s 22 of the Criminal Code, the prosecution had the burden of proof beyond reasonable doubt to negative any honest claim of right.

26. [26]
    His Honour asked rhetorically, in respect of the Native Title Determinations, ‘who are the native title holders’ and ‘what are native title rights and interests’? He referred to the appellant’s contention that he had been adopted into the Juru People “family”, but observed that the Determinations did not include as native title holders people who are adopted. He said that other Determinations did so. He said in that in the Prior Native Title Determination there was an acceptance “… that a member of the Juru people must be a bloodline descent of one of the aboriginal persons”, identified in a schedule to the Determination.

27. [27]
    His Honour considered “whether the defendant’s claim of right, that he had an authority to fish as an adopted member of the Juru people, or because he has been directed to fish by Mr Gaston, the Juru person, is one recognised at law”: that is, as I infer, a right recognised in the Determinations.

28. [28]
    His Honour accepted that acts or omissions – possession or use of a commercial fishing apparatus and the failure to comply with a regulated fishing method declaration – were acts or omissions in respect of property. He found that the defence was raised on the evidence – the appellant possessed nets that were owned by the Taylor family group, he had an ‘authority’ to possess and to use them as an adopted member of the Juru people; his fishing was for fish for ‘wakes’ of the family group; and he could net the waterway as he did. [In other words, the contentions by the appellant and Mr Gaston on their face raised the section 22 defence].

29. [29]
    His Honour concluded that the appellant was not a native title holder by reason of adoption and could not rely on the native title defence. He said that native title rights and interests could not be delegated and that they were rights “in rem”, rather than rights “in personam”. His Honour referred to the Attorney-General of the Northern Territory v Ward [2003] FCAFC 283, (discussed further, infra) wher the Federal Court held that identification of native title holders and native title rights and interests should be exhaustively stated in a Determination. His Honour concluded that according to the Determinations, “Mr Gaston, a Juru person, does not have the native title right to authorise another person, being Mr Heffernan, to fish” and that the requirements of section 211(2) were not satisfied.

30. [30]
    Whilst his Honour did not find [the defendant] a “convincing witness”, on the evidence generally and including that of Mr Gaston, he could not find that the defence based on a “belief” was negatived “per se”. He accepted that the belief, whilst it “may be well-founded in law or fact, it must be a belief that if it was founded in fact, is capable of providing a defence which the law recognises”.

31. [31]
    His Honour applied Walden v Hensler, ex parte Hensler [1986] 2 Qd R 490 and referred to R v Waine [2006] 1 Qd R 458 [both discussed, infra], Mueller v Vigilante [2007] WASC 259, at [21] to [23] (possession of undersize crabs) and R v Jeffrey & Daley [2002] QCA 429 (robbery and an asserted entitlement to money stolen) [both also discussed, infra].

32. [32]
    His Honour found that the defence in section 211 (2) of the Native Title Act in respect of charges 1 and 2 did not apply; that the defendant’s claim was not one recognised at law; and that therefore a section 22 defence failed. In respect of charge 3 he found that the use of block-netting was absolutely prohibited. The defences were therefore not applicable.

33. [33]
    Accordingly, his Honour found there was no defence to the charges (the proof of the factual circumstances having been agreed and thereby proved) and that the [appellant] was guilty of each of the three charges. He convicted the [appellant].

34. [34]
    His Honour’s finding that section 211 did not apply to the third charge because it was a charge of absolute liability was incorrect. This is a matter, as I observed on the hearing of this appeal, that the respondent quite properly conceded was incorrect and that the Magistrate thereby had been inadvertently misled about that issue.

35. [35]
    The position adopted by both parties in the appeal was that the third charge is not distinguishable from the first and second charges so far as considerations of the application of section 211 of the Native Title Act are concerned.

The issues on the appeal

36. [36]
    The appeal hearing proceeded on the following broad issues:

1Whether Native Title rights and interests at common law continued, as distinct from or in addition to recognition pursuant to the Native Title Act, so as to provide a defence under the Fisheries Act and Regulations;

2Whether Native Title rights and interests could be conferred by authorisation, or delegation from a person who is a Native Title Holder;

3Whether the appellant was an adopted member of the Juru people;

4Whether section 211 Native Title Act applied by way of a defence, to the appellant.

5Whether the appellant had the benefit of a defence pursuant to section 22 Criminal Code (Qld);

Submissions: table of the parties positions on the issues in the appeal

Composite submissions: native title defence

Appellant

37. [37]
    Ms Keegan distinguished between the evidence of the primary witnesses, Mr Gaston and Mr Morrell. She submitted that Mr Gaston was an elder and director of the native title holder (the Corporation) and was able to speak on behalf of all Juru people (subject to decisions being taken back to the wider group of families). The appellant could act as an agent of a native title holder. However, Mr Morrell had neither of those status. Nevertheless, he gave evidence that Mr Gaston did not have the right to speak for all Juru people.

38. [38]
    She referred to the native title Determinations specifically with respect to paragraph 6 in Prior and paragraph 9B in Lampton. She submitted that The Determinations were expressed widely enough to enable native title holders to make their own decisions how to exercise their native title rights and interests. Hence the Juru People could ‘exercise traditional rights’, there being no definition in the Determinations as to what traditional lores and customs were. Those rights and interests, subject to them being exercised in accordance with traditional laws acknowledged and traditional customs observed by the native title holders, was a critical matter that the Magistrate had not referred to in his decision.

39. [39]
    She submitted that Mr Gaston was not cross examined on this particular issue to the extent that it was raised on his Affidavit and it was not suggested to him that he was not an ‘elder’.

40. [40]
    She submitted that those matters were critical considerations in determining whether section 211 of the Native Title Act applied to the appellant’s circumstances.

41. [41]
    She also submitted that the Magistrate did not give proper consideration to the evidence about whether a person in a positon of the appellant could be ‘adopted’ as a member of the Juru people. She highlighted the conflicts as between the evidence of Mr Gaston and Mr Morrell and submitted that the Magistrate’s failure to properly consider that evidence was a significant factor in his finding on the issue of ‘adoption’ or otherwise.

42. [42]
    She referred to section 224 Native Title Act and to the Acts Interpretation Act (Qld) and submitted that the appellant was a ‘common law’ native title holder because neither of those Acts defined ‘aborigine’ as being ‘by birth’: the Acts Interpretation Act (Cth) did not define ‘aborigine’ and Section 224 of the Native Title Act described a native title holder as a ‘corporation’ or a ‘person’ who held native title.

43. [43]
    The appellant could be a common law native title holder because he lived with the Juru people and participated in their traditional and cultural practices. These were wider than the Determinations provided.

44. [44]
    Finally, Ms Keegan submitted that the Native Title Act did not restrict rights and interests to the holders of the Determinations and that sections 223 and 224 of the Native Title Act applied to the appellant’s circumstances.

Respondent

45. [45]
    Mr Carroll submitted that the appellant had no ‘legal right’ to protect. The Juru traditional lore and customs were not previously clear, but in the Determinations they were made clear.

46. [46]
    The right to fish is but one ‘right’. The Determinations reflected a ‘suite’ of rights and interests.

47. [47]
    The conflict in the views expressed by Mr Gaston and Mr Morrell were simply different views of what traditional lores and customs were. The status of Mr Gaston as an elder or director of the corporation did not give his views greater weight and it was clear on the evidence in the voire dire conducted in the Magistrates Court that Mr Gaston’s affidavit evidence was limited to what he was able to say on his own behalf, rather than to purport to express on behalf of other families. Hence the exclusion of several paragraphs of the affidavit. Further, the evidence of Mr Morrell reflected what the Determinations provided.

48. [48]
    Mr Carroll submitted that the appellant had no right to fish either as an ‘adopted’ person or by ‘authorisation or delegation’ from Mr Gaston, who had no right to delegate native title rights and interests as he purported to do.

Composite submissions: section 22

Appellant

49. [49]
    Ms Keegan submitted that the Magistrate’s rejection of the section 22 defence was based upon his view that the belief must be one which is ‘recognised at law’. She submitted that the Magistrate had applied the wrong test. She submitted that the ‘belief’ required to found a section 22 defence must simply be ‘well-founded’ and that there was no requirement that the belief be one ‘recognised at law’.

50. [50]
    She also referred to his Honour’s observations that the issue of [as he expressed it] “non-adoption”, was not negatived beyond reasonable doubt by the prosecution. That left the issue of adoption open, she submitted, and this was relevant to the consideration of a section 22 defence.

51. [51]
    Ms Keegan referred to Stevenson v Yasso [2006] 2 Qd R 150, per McMurdo P at [52] – [67] submitted that her Honour had found that the defence was applicable in that case.

52. [52]
    The submission on behalf of the appellant was that the section 22 defence was open, that the prosecution had not negatived its application and that the appellant was entitled to the benefit of the defence in respect of all three charges.

Respondent

53. [53]
    Mr Carroll submitted that the Magistrate applied the correct test with respect to section 22. An honest mistake per se was not enough, it must be a mistake which, if the belief is honestly held, was about a legal right entitling one to a defence at law. He referred to Walden v Hensler (supra) and to Stevenson v Yasso (supra). He said that in Walden v Hensler the required belief only afforded a defence if the belief was ‘correct’ and in Stevenson v Yasso there had been no Determination for the Darumbal People and therefore there were no statutory limitations to the rights and interests traditionally acknowledged and observed by them. He submitted that the President used the word ‘could’ and not the word ‘would’ in referring to the applicability of section 22 to the circumstances in that case. Accordingly, that case is distinguishable from this case on appeal.

54. [54]
    Mr Carroll submitted that in Olsen v The Grain Sorghum Marketing Board; Ex parte Olsen [1962] Qd R 580 it was clear that a legal right was required in order to found the necessary belief for a section 22 defence.

Discussion

55. [55]
    The traditional lores and customs upon which the appellant claims adoption, or agency/delegation to found a defence, have been in place since time immemorial but have been specifically recognised in the Prior Determination and judgment. When one considers the content of that Determination and judgment, the Lampton Determination and judgment reinforce that view.

56. [56]
    Hence the Juru lore and custom has been recognised in those Determinations. The Juru People in their native title claim application were seeking recognition of their traditional native title rights and interests that is, all of those that were capable of recognition under the Native Title Act.

57. [57]
    When one considers the views expressed by the anthropologist Dr Pannell in the Prior Determination and judgment it is clear in my view that the native title rights and interests have been exhaustively stated. It seems to me that to suggest that common law rights and interests remain in addition to those recognised in the Determination is to devalue, in a way never intended in the legislation, the statutory recognition of native title rights and interests. I do not consider that anything has been left out of the terms in the Determinations and I do not consider that there is a subsistence of other rights and interests on any common law basis.

58. [58]
    The rights and interests recognised in the Determinations and judgments are non-exclusive rights: that is, those which are not subject to being subjugated to European rights such as might be, to use a common or typical European right, a pastoral lease. The latter are properly termed to be ‘exclusive’ rights.

59. [59]
    Dr Pannell was an expert witness in the Federal Court hearing and her evidence as an anthropologist and specialist in this area was to provide to the Court, in considering the nature and extent of the Juru People’s native title rights and interests, to set out their traditional lores and customs. I do not think that it is possible to argue that some relevant traditional lores and customs were omitted, not considered or left to the common law.

60. [60]
    It follows that there is no common law basis, as contended by Ms Keegan that provided to the appellant a right to fish in the relevant Determination Area.

61. [61]
    In so far as the issue of ‘adoption’ is concerned, the claim group description in the native title claim applications made by members of the families comprising the Juru Peoples is ‘apical’ and on the terms of the Determinations are restricted to lineal descent. The native title holders for the Juru are descended from a number of named apical ancestors. In the Juru Peoples there are eight named apical ancestors (in both Determinations) from whom the Juru People have descended. They include the Taylor (Gaston) family and the Morrell family. There is no reference in the Determinations to native title holders being persons ‘adopted’ into the Juru Peoples. By contrast, there are Determinations that do specifically provide for adopted persons to be native title holders. In Aplin on behalf of the Waanyi Peoples v State of Queensland (No 3) [2010] FCA 1515, Schedule 5 of the Determination included the statement: ‘it is accepted that adoption may take place and that where adoption has  occurred it confers upon the adoptee the right to identify as being a Waanyi person’. The Determination also provides that the expression ‘descent’ may include ‘descent by adoption’.

62. [62]
    Further, in Akiba v The Commonwealth (2013) 250 CLR 209, there was evidence of the existence of reciprocal rights for [so-called] ‘secondary rights holders’ but those rights could not be recognised as native title rights because they arose from personal relationships rather than a connection of those secondary rights holders to the land and waters the subject of the native title determination: see [40] to [47].

63. [63]
    In Members of The Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 Gleeson CJ, Gummow and Hayne JJ wrote, inter alia, about the notion of ‘common law native title’.

“[75]  To speak of the "common law requirements" of native title is to invite fundamental error. Native title is not a creature of the common law, whether the Imperial common law as that existed at the time of sovereignty and first settlement, or the Australian common law as it exists today. Native title, for present purposes, is what is defined and described in s 223(1) of the Native Title Act. Mabo [No 2] decided that certain rights and interests relating to land, and rooted in traditional law and custom, survived the Crown's acquisition of sovereignty and radical title in Australia. It was this native title that was then "recognised, and protected" in accordance with the Native Title Act and which, thereafter, was not able to be extinguished contrary to that Act.

[76]The Native Title Act, when read as a whole, does not seek to create some new species of right or interest in relation to land or waters which it then calls native title. Rather, the Act has as one of its main objects "to provide for the recognition and protection of native title" (emphasis added), which is to say those rights and interests in relation to land or waters with which the Act deals, but which are rights and interests finding their origin in traditional law and custom, not the Act. It follows that the reference in par (c) of s 223(1) to the rights or interests being recognised by the common law of Australia cannot be understood as a form of drafting by incorporation, by which some pre-existing body of the common law of Australia defining the rights or interests known as native title is brought into the Act. To understand par (c) as a drafting device of that kind would be to treat native title as owing its origins to the common law when it does not. And to speak of there being common law elements for the establishment of native title is to commit the same error. It is, therefore, wrong to read par (c) of the definition of native title as requiring reference to any such body of common law, for there is none to which reference could be made.

[77] The reference to recognition by the common law serves a different purpose of which there are at least two relevant features. First, the requirement for recognition by the common law may require refusal of recognition to rights or interests which, in some way, are antithetical to fundamental tenets of the common law. No such case was said to arise in this matter and it may be put aside. Secondly, however, recognition by the common law is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of the Act are those which existed at sovereignty, survived that fundamental change in legal regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are "recognised" in the common law.’

64. [64]
    Further, in Yorta Yorta at [49], the native title claim group is described as a ‘societal’ group. The ‘society’ ‘is to be understood as a body of persons united in and by its acknowledgement of a body of law and customs’.

65. [65]
    The traditional laws and customs of the Juru People are exclusively those which are recognised and protected in the Determinations. Such common law rights and interests as may have previously existed and which are capable of recognition and protection, have been subsumed into the Determinations.

66. [66]
    In Attorney General of the Northern Territory v Ward [2003] FCAFC 283, native title holders are described as ‘members by reason of descent… and persons adopted into such descent relationships’. The Court (Wilcox, North and Wynberg JJ) at [15] considered the determination made as to native title holders at first instance, observing that it included the word ‘including’ immediately before the identification of the primary native title holders and ‘other aboriginal people’ having rights, thereby leaving open the possibility of there being, for the present, unidentified secondary native title holders. The Court found that such a determination was impermissible and that there should be an exhaustive identification, in that case, of secondary native title holders. The Court said this could be achieved by substituting for the word ‘including’ the expression ‘such people being’.

67. [67]
    It was observed that in the determination of native title, section 225(a) in the description of ‘determination of native title’:               ‘…requires determination of the persons, or each group of persons, holding the common or group rights comprising the native title. It is not necessary to identify the native title holders by name; it is sufficient that the persons be members of an identified group or groups’.

68. [68]
    In Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1, at p 219:

'…by designating land as a reserve for a public purpose … the executive, acting pursuant to legislative authority, decided the use or uses to which the land could be put. The executive thus exercised the power that was asserted at settlement by saying how the land could be used. The exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used. The executive had taken to itself and asserted (pursuant to the authority conferred in that regard by statute) the right to say how the land could be used. This step was not, however, necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation.

At 220: “The reason that the right to use the land may have survived reservation is the same reason that the grant of a pastoral lease extinguished the right to control access to the land, but not necessarily all the rights of native title holders to use it in accordance with the rights held under traditional laws or customs. … Whether a right in native title holders to use the land continued unextinguished depends upon other considerations, particularly what, if any, rights in others were created by the reservation or later asserted by the executive.”

69. [69]
    In Akiba v The Commonwealth (supra) at [40] to [47] (with respect to native title rights and interests), the court described the latter as being ‘in rem’ as distinct from ‘in personam’, which is relevant in the context of the contention on behalf of the appellant in this case that he had an “authorisation” or delegation provided by Mr Gaston to him. The rights and interests of native title holders are in rem. The characterisation of an “authorisation” or delegation as propounded on behalf of the appellant, is a right or interest ‘in personam’.

70. [70]
    See also The Wik Peoples v Queensland & Ors [1994] FCA 967; (1994) 120 ALR 465, at [8], in the context of the finality of a native title determination, in respect of such determinations being “judgments in rem”.

71. [71]
    Mr Gaston deposed an affidavit which refers to matters of aboriginality and adoption, inter alia, in respect to the issues in this appeal. He also gave oral testimony in the proceeding before the Magistrate.

72. [72]
    In his affidavit he described himself as a director and a member of the Corporation and deposed that it was the prescribed Body Corporate for the Juru People and held the native title land on trust for the Juru people.

73. [73]
    He described the Juru People connection to country as follows:

“The Juru (Cape Upstart) People recognises the traditional owners of some 8,500 hectares in Cape Upstart National Park. The Juru People are a clan forming part of the larger cultural block known as the Birri Gubba.”

74. [74]
    He said there are eight families that make up the Juru People and that he was an Elder of Birri Gubba Juru tribe. He described the Juru Sea Country as encompassing the area of Rocky Ponds and Wangaratta Creek, and deposed that 'there is no Juru lore restricting Juru People’s use of fishing nets. We can use fishing nets if we want to.”  He deposed that his family, the Taylor family (Gaston), “uses nets to catch fish for traditional ceremonies and family gatherings. My family has been using nets for as long as I can remember – for over 50 years. Prior to having our own nets, we would borrow nets from other families. It was common for families to share their nets because not every family had their own nets. Historically we shared nets because they were expensive and not everyone could afford one.”

75. [75]
    He said that his family had two nets of different sizes to use for the purpose of catching different fish for use for ceremonies and family gatherings. These nets were all marked with his name on them. He said that, “These nets were gifted to my family by Kevin Heffernan, who previously owned the nets. Kevin gifted the nets to us after his retirement from commercial fishing. The nets still have Kevin’s name on them because they used to belong to him.”

76. [76]
    So far as the appellant is concerned, he deposed that he “gave Kevin my permission to fish in our waters for traditional purposes” and “authorised Kevin to use the nets that he had previously gifted to us for this purpose. I gave authorisation to Kevin to use my family’s nets for when we needed fish for our sorry business.”

77. [77]
    Mr Gaston said that the appellant had been in a relationship with a Juru woman for a number of years but she had passed away and the appellant had continued to live with and be part of the Juru community. He considered the appellant to be part of his Juru family. He said that he gave a written authorisation to the appellant to fish on his family’s behalf. It was laminated and signed by him and was proposed to be kept in the appellant’s possession when he was fishing for family purposes.

78. [78]
    A ‘corporation’ extract from the Office of the Registrar of Indigenous Corporations, inter alia, describes the membership of Kyburra. The appellant’s name does not appear in the list of members of Kyburra.

79. [79]
    In the hearing in the Magistrates Court, Mr Gaston’s affidavit was tendered as substantially his evidence in chief [paragraphs 9 – 14 were excluded on the basis of hearsay]. In cross-examination there were a number of relevant passages dealing with aboriginality and adoption. Mr Gaston was cross-examined by Mr Carroll. The following passages relate to the issues:

“Q.So Mr Heffernan, he is not Juru traditionally, is he?

A.He’s adopted.

Q.He’s adopted. But what does that mean?  Does that mean he’s a member of the Juru community, or does that mean that he’s a Juru person?

A.He’s a member of the Juru people – my people – my family group.

Q.Not of the broader native title group?  Not of the Juru people as native title holders?

A.If some of them accept him as adopted, they do – he is. Yeah.

Q.Well I’m just talking about what you know. What does Kevin’s status as adopted into your family group give him with respect to the Juru generally?

A.He can fish with the Juru people.

Q.He can fish?  Is he a member of the Juru people?

A.Under the adoption. Yeah.

Q.So what rights does that give him?

A.Any rights that I have if I went fishing. He acts on my behalf.

Q.Okay. Well, let’s just stick on the adoption, for a start.

A.As far as netting, you know.

Q.Okay. So he’s an adopted member of the Juru … by your family?

A.Yep.” 

…………

“Q.How you become a member of the Juru is a pretty fundamental thing, though isn’t it?  How you become a member of the clan group, how you become a member of the Juru people?

A.You’re recognised by the Juru people.

Q.Isn’t only descent that makes you Juru?

A.Descent? 

Q.Mmm? 

A.No. Bloodline.

Q.Yeah. Bloodline to country?

A.Yeah, that’s right.

Q.Isn’t that the only way you can be Juru?

A.Not if I adopt somebody.

Q.Not if you adopt somebody? 

A.Yeah. My father adopts – he adopted people.

Q.People from outside Juru or inside Juru?

A.Well, when I was a kid, he just adopted them.

Q.People from outside Juru or inside Juru?

A.Well, when I was a kid I wouldn’t even know if they were Juru or what. Only to the …

Q.Were they aboriginal people?

A.Aboriginal people, yeah.”

……..

“Q.Ultimately, the Juru consent determinations both say that you are Juru by way of descent … bloodline to country from … certain named apical [that is, apex] ancestors? 

A.Yeah.

Q.They say nothing about adoption, do they?

A.That could be true, yeah.

Q.Well doesn’t that represent the agreement of the Juru people, that that’s how they define themselves?

A.That’s right.

Q.Well, doesn’t that represent your traditional lore and  if that’s what everybody agrees is how you get to be Juru?

A.Well, that’s right.

Q.So what you’re really saying is you can welcome someone into your family, you can adopt them, they can be a close community member, but that doesn’t make them Juru?

A.I never said it did.

Q.Okay. So Mr Heffernan isn’t Juru by adoption?

A.No.

Q.He’s not?

A.Not the way you put it, no.

Q.He doesn’t have traditional rights to fish does he?

A.Yeah, only the ones I gave him.

Q.He’s got the rights that you gave him?

A.That’s right …

Q.But that doesn’t make it a traditional right. That’s just a right from Jim Gaston, isn’t it?

A.As an elder of Juru or Birri-Gubba.”

…………

“Q.… just in terms of him being adopted into the Juru, as you say, okay. Adopting him into Juru … that doesn’t make him a Juru person, does it?

A.No, it doesn’t.

Q.… The adoption doesn’t give him a right to fish on Juru country, does it? He’s still got to get authority from you to fish doesn’t he? 

A.That’s right. Yep.

Q.He wouldn’t need authority if adoption gave him the right to fish on your country, would he?

A.No, that’s right. But … I give him authority in writing to only come and fish for ceremonial reasons.

Q.Yep. So we will get to the authority in a minute. It’s the adoption I am focussed on here. Okay. The adoption – and don’t let me put words in your mouth. The adoption doesn’t give him a right to fish, unless you have given him authorisation beyond that; is that right?

A.That’s right.

Q.And the adoption doesn’t make him a Juru person, does it? 

A.That’s right.

Q.So it does or it doesn’t make him a Juru person?

A.Whatever you said. It doesn’t.

Q.It doesn’t?

A.Yeah.

Q.You are clear on that?

A.Yep.

Q.I am not confusing you?

A.No.

Q.Alright. So when you told Robert Ibell, when you spoke to him a couple of days after … Mr Heffernan was charged, you spoke to Robert Ibell, didn’t you?

A.He rang me, yeah.

Q.When you told him that Mr Heffernan has been traditionally adopted, what did you mean by that?

A.Well traditionally adopted by me.

Q.By you?

A.Yeah. By our family.

Q.By your family?

A.Yeah.

Q.But not by the Juru people, or not into the Juru people?  Into your family?

A.Yeah. Into my family.”

……….

“Q.… so your adoption of Kevin and your authorisation to him, that’s given on your family’s behalf rather than on behalf of the Juru people more broadly, isn’t it?

A.That’s right.

Q.Because in fact, nobody can speak for all of the families in Juru without their expressed authority, can they?

A.Now they can.

Q.Now they can?  How so?

A.In the Kyburra Yalga Munda …

Q.So you’re saying that the prescribed body corporate can speak for the families of Juru without their express instructions?

A.Exactly … but, first of all, what you’ve got to realise is we act on behalf of the Juru people, we hold native title and trust for the Juru people, we make decisions for Juru people, then we take them back to the wider group to say …

Q.So you still have to take their instructions?

A.That’s right. Yeah.

Q.You can’t do without consulting?

A.No, that’s right.”

…………

“Q.Now you’ve said that you’ve authorised him to fish with nets?

A.Yeah.

Q.But that’s authority given on behalf of your family and your family alone; that’s right?

A.That’s right.

Q.Not on behalf of the Juru people … on behalf of your family?

A.That’s right.

Q.For instance, you didn’t have the Morrell’s family authority to authorise Kevin Heffernan to fish with nets, did you?

A.Yeah, well, they don’t use nets, the Morrell family, apparently.”

80. [80]
    In re-examination by Ms Keegan there were two answers which addressed the relevant issues:

“Q.It was put to you that Mr Heffernan couldn’t be Juru by adoption? That was the question?

A.Yep.”

………..

“Q.So when you answered, ‘that’s right’ to the question ‘you can’t get traditional rights by adoption’ … what did you think that meant?

A.Once you’re adopted, you can’t be a Juru person. That’s how I look at it. And I think I answered that correctly, did I?”

81. [81]
    A member of the Morrell family, Mr Morrell, gave evidence for the prosecution. Mr Gaston in his affidavit said that Mr Morrell “may be authorised to speak on behalf of the Morrell family but he is not authorised to speak on behalf of the Juru people”. So far as is relevant to the issues, Mr Morrell answered several questions that relate to the issues: 

“Q.How does somebody become a member of the Juru people?

A.Through bloodline descent.

Q.What do you mean by that?

A.Well, for me, like I’m Juru through my father and he’s Juru through his father and his father’s father is Juru through both of the parents.

Q.Is there any other means by which you can become a member of the Juru people?

A.No, not at all.

Q.Does adoption have any meaning according to Juru traditional lore and custom? 

A.Traditional adoption only exists to the point where, if an uninitiated person – like a young man before he has been initiated … if his parents die … he is actually taken in by aunties and uncles. That’s traditional adoption.

Q.So traditionally speaking so far as your understanding goes … can somebody who’s not of bloodline descent from a Juru person, be adopted such as to become a Juru person?

A.Not at all.”

……….

“Q.Now, traditionally speaking, can a Juru person … have a right to permit non-Juru people to fish on Juru country?

A.Not traditionally speaking. No.

Q.Is there any way a person might be able to get that right?

A.They would have to apply to – like, they would have to get permission off all of the families that are currently listed on the claim.

Q.In mid-2013 had your family given anybody the right to allow others – non-Juru people – to fish in Juru country?

A.No.

Q.If particular families within the Juru have particular areas of authority?

A.No. Just country-wide. …. Just colouring, like where our claim boundaries are. So that’s from the Burdekin River south to Bowen, out to the Bogie Range?

Q.So is there any one family that has particular authority over Rocky Ponds and that area?

A.No.”

82. [82]
    In cross-examination Mr Morrell said he was not a member of Kyburra or a director of it. He agreed that he could not speak for the Gaston or Taylor family generally or in relation to how they would consider traditional adoption. However, he said that all families have the same outlook on traditional ways of adoption.

83. [83]
    In re-examination, he said that to his knowledge there were people who held knowledge about Juru traditional lore and customs and those who did not. Knowledge was passed down to people and how much knowledge you were given would determine your status within the group. He did not accept the term “elder” in that context.

84. [84]
    The appellant gave evidence before the Magistrate in relation to these issues. He said that he considered having been adopted into the Gaston family and believed himself to be a Juru person because he was “accepted”. He described having been adopted “in ages ago” and in the following terms: “it was just verbal – a friend of a friend and how they took to me and I really respected the art of bush things and art. I was interested and they knew I wasn’t just another white fellow coming along. I was more accepting because I had a lot of bush in me too, a lot of understanding and wanted to know more …”. He said that Mr Gaston represented the Juru people by reason of “all the other people’s talk, the understanding of how Jim speaks to all the other people and is looked up to … he’s the man. He just has authority and he’s looked upon to do everything for his community too.” With respect to the nets that were being used asserted to belong to Mr Gaston, that they had been obsolete nets of his and that he had given them to Mr Gaston. In cross-examination he said that he was acting in his own right as an adopted Juru person by fishing with the nets and that he was authorised to do so. He said he had to be asked for ceremonials or things like that.

“Q.But you didn’t have a right to decide on your own to go fishing on Juru country?

A.No.

Q.You could only do that if you actually asked?

A.Yes.

Q.You didn’t have a right of your own, but you had a right to do it if you were authorised?

A.Yes.

Q.So that’s why you needed the letter, right?  If you didn’t have the letter or if you weren’t asked by Jim Gaston, then you couldn’t do it, could you?

A.No, that’s right.

Q.So really, if we get down to brass tacks, the reason that you were allowed to be there on that date was because Jim Gaston authorised you to be there?

A.You’re right.”

85. [85]
    Section 211 of the Native Title Act preserves certain native title rights and interests with respect to native title holders. The section provides as follows:

“211Preservation of certain native title rights and interests

Requirements for removal of prohibition etc. on native title holders

(1)Subsection (2) applies if:

(a)the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and

(b)a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and

(ba)the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and

(c)the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.

Removal of prohibition etc. on native title holders

(2)If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so:

(a)for the purpose of satisfying their personal, domestic or non-commercial communal needs; and

(b)in exercise or enjoyment of their native title rights and interests.

Note: In carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application.

Definition of class of activity

(3)Each of the following is a separate class of activity:

… …

(b)fishing;”

86. [86]
    Section 14 of the Fisheries Act provides as follows:

“14Defence for Aborigines and Torres Strait Islanders for particular offences

(1)It is a defence in a proceeding against a person for an offence against this Act relating to the taking, using or keeping of fisheries resources, or the using of fish habitats, for the person to prove –

(a)the person is an Aborigine, who at the time of the offence was acting under Aboriginal tradition, or the person is a Torres Strait Islander, who at the time of the offence was acting under Island custom; and

(b)the taking, using or keeping of the fisheries resources, or the using of the fish habitats, was for the purpose of satisfying a personal, domestic or non-commercial communal need of the Aborigine or Torres Strait Islander; and

(c)depending on whichever of the following applies –

(i)for an offence relating to the taking or using of fisheries resources, or the using of fish habitats – the taking or using of the fisheries resources, or using of the fish habitats, was carried out using prescribed fishing apparatus in waters other than prescribed waters;

(ii)for an offence relating to the keeping of fisheries resources –

(A)the fisheries resources kept were taken using prescribed fishing apparatus in waters other than prescribed waters; and

(B)at the time of the offence, the fisheries resources were not in prescribed waters.

(2)However, sub-section (1) is subject to a provision of a regulation that expressly applies to acts done under Aboriginal tradition or Island custom.

(3)In this section –

prescribed fishing apparatus means –

(a)fishing apparatus that is recreational fishing apparatus under a regulation under this Act; or

(b)fishing apparatus that is used under Aboriginal tradition or Island custom, and prescribed specifically under a regulation for the purpose of this section.

prescribed waters means waters

(a)that are regulated waters under a regulation under this Act; and

(b)that are prescribed specifically under a regulation for the purpose of this section; and

(c)where the taking of any fish, or the possession of any fish taken, by any person is prohibited.”

87. [87]
    In my view neither section 14 of the Fisheries Act nor section 211 of the Native Title Act applied to the appellant.

88. [88]
    The appellant’s evidence was that he was fishing with nets ‘in his own right’ as an adopted Juru person. He had been ‘verbally adopted’ into the Gaston family, but he fished with a net because Mr Gaston authorised him to do so.

89. [89]
    Mr Gaston said that the appellant was a member of ‘my people – my family’ by ‘adoption’. He said that the appellant ‘acts on my behalf’. He conceded that the appellant was not Juru by adoption. The authority given to the appellant to fish with nets was given on behalf of the Gaston family and not on behalf of the Juru People.

90. [90]
    Mr Morrell said that someone who is not of bloodline descent from a Juru person cannot be ‘adopted’ so as to become a Juru person.

91. [91]
    Further, if there was to be an authority giving a person (who was not Juru) the right to fish in Juru country, it required the consent of all the native title holders.

92. [92]
    In my view, the appellant was not a native title holder or someone who could exercise native title rights and interests. He was not adopted as a member of the Juru People, although he could claim to be part of the Gaston family by informal ‘adoption’ or family recognition or acceptance. He was not doing an act (upon the ‘authorisation’ or ‘delegation’ of Mr Gaston) in the exercise and enjoyment of native title rights and interests. He had no recognisable right or interest that invoked the defences.

Section 22 Criminal Code (Qld)

93. [93]
    Section 22 (1) of the Criminal Code (Qld) provides that ignorance of the law does not afford any excuse unless knowledge of the law by the offender is expressly declared to be an element of the offence.

94. [94]
    Section 22 (2) provides that a person is not criminally responsible, for an offence relating to property, for an act or omission with respect to property in the exercise of an honest claim of right and without intention to defraud. The section specifically provides as follows:

“22Ignorance of the law – bona fide claim of right

(1)Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.

(2)But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.

(3)…

(4)…

95. [95]
    The burden of evidentiary proof is on the appellant, but once raised the respondent must negative beyond reasonable doubt the application of section 22: Olsen v The Grain Sorghum Marketing Board (supra), at p 589; R v Waine (supra); and Stevenson v Yasso (supra), at [99].

96. [96]
    The application of section 22 requires that the belief “… would, if well founded, preclude what was done from constituting a breach of the relevant criminal law which an accused is presumed to know”; Deane J at p 580 in Walden v Hensler (supra); Keane JA at [30] in Waine (supra). See also Olsen (supra) at p 589 per Hanger J; and R v Jeffrey & Daley (supra) at [21] – [23].

97. [97]
    In assessing section 22 there are three matters that require consideration, usually in the following sequence: firstly, one must consider if the offence is an offence relating to property; secondly, one must ask if the belief of the appellant is an honest belief; and thirdly, the claim of right, if held, must provide a defence at law.

98. [98]
    The key phrases are “ignorance of the law” and “an act done in the exercise of an honest claim of right and without intention to defraud”. The meanings of the words in the phrases are:

• The “law” means the ordinary or general laws of Queensland and the ordinary or general laws of Australia. It does not mean a private right: Olsen v The Grain Sorghum Marketing Board (supra), at p 589;

• To “defraud” means to do something dishonestly. In other words, the defendant must have honestly believed himself to be entitled to do what he did.

• With respect to an “intent to defraud”, it is not necessary for the prosecution to prove an intent to defraud any particular person: section 643 Criminal Code (Qld);

• The phrase “an offence relating to property” refers to an offence relating to the wrongful interference with the property of others. In other words, offences such as those defined in Part 6 of the Criminal Code (Qld): Pearce v Paskov [1968] WAR 66. Part 6 in each of the Criminal Codes of Queensland and Western Australia are substantially the same;

• The word “property” is defined in section 1 of the Criminal Code (Qld) as “everything animate or inanimate that is capable of being the subject of ownership”; and

• The word “honest” means what is honest by the ordinary standards of reasonable and honest people: R v Lawrence [1977] 86 A Crim R 412, as referred to in R v Mill [2007] QCA 150; and see R v Dale [2012] QCA 303.

• An “honest” claim may arise from the belief in a right which the law does not recognise. For example, “a belief in the right to money which was demanded constitutes a good defence to a charge of demanding money with menaces”: R v Bernhard [1938] 2 KB 264, at p 270 (as discussed in R v Williams (1988) 1 Qd R 289 at pp 295 and 306).

99. [99]
    The taking of protected fauna is an offence relating to property: Walden v Hensler (supra).

100. [100]
     In Stevenson v Yasso (supra), per McMurdo P, McPherson JA and Fryberg Jat [67], there is a discussion about ‘property’ and about the application of section 22(2) of the Criminal Code (Qld) to a Fisheries Act offence and a claim in relation to possession of fisheries resources under Aboriginal tradition. There was no evidence that the applicant was a native title holder and hence the question of whether the operation of section 211 of the Native Title Act was engaged did not arise; and that section 22 of the Criminal Code (Qld) was considered by McMurdo P at [67]:

“… All this suggests that whilst the law as to the operation of s 22 Criminal Code may not be entirely settled, the issue of Mr Yasso’s entitlement to possess the net in the exercise of an honest claim of right under s 22 Criminal Code was raised on the evidence. It must follow from the magistrate’s conclusion that Mr Yasso was acting in the traditional way of an Aborigine in his possession of the net, that the magistrate was also satisfied that the prosecution had not disproved beyond reasonable doubt that Mr Yasso was in possession of the net whilst acting under an honest claim of right by way of Aboriginal tradition under s 14 of the Act. That conclusion also supports the orders I propose.”

101. [101]
     The statement of Gibbs J (with whom the Court in Stevenson v Yasso agreed), in R v Pollard [1962] QWN 13 that “an accused person acts in the exercise of an honest claim of right if he or she honestly believes himself or herself to be entitled to do what he or she is doing”, should be read in the light of the explanation expressed in Walden v Hensler by Connolly J at p 493, namely that the accused in Pollard “claimed a right of user of the property [a motor vehicle], derived from its owner, a right personal to himself”.

102. [102]
     Keane JA in Waine (supra) at [27] expressed the Gibbs J statement made in Pollard, in terms that clarify it further: that an accused “acts in the exercise of an honest claim of right (in respect of property the subject of the charge) if he honestly believes himself to be entitled to do what he is doing” [in relation to that property] [my emphasis indicates the matter of clarification].

103. [103]
     His Honour wrote at [27] that “the issue was whether the appellant, as a person dealing with property in a manner authorised by aboriginal persons asserting ownership of the [property] could raise a defence under s 22 (2) of the Criminal Code by claiming to deal with the [property] in accordance with the consent of those persons”. The appellant acted on a belief formed upon what she was told by an aboriginal tribe about the legality of her painting buildings that she believed they had a proprietary interest in: in other words, she was acting in the capacity of an agent for those whom she believed to be the owners of the buildings.

104. [104]
     A belief that one is doing nothing unlawful, if wrong, is a mistake as to the law: it does not amount to a defence to any criminal prosecution: Olsen v The Grain Sorghum Marketing Board (supra).

105. [105]
     But in Mueller v Vigilante (supra), the appellant was accompanying native title holders who were exercising their native title rights in carrying out fishing. It was not a case where, if he was fishing (crabbing) as a matter of fact, he was acting pursuant to an authorisation so to do given by those native title holders. Being in their company meant that he was ‘in possession’ of the undersized crabs that were the subject of the charge. However the native title holders were able to have possession of them and being in their company the entitlement was extended to him.

106. [106]
     That factual scenario in Mueller v Vigilante is quite different to the facts and circumstances in this case, where in my view section 22 does not apply to the three charges because the appellant had no right to fish other than as an adopted member of the Juru people or under an authorisation or delegation of Mr Gaston. The appellant simply was not and could not be “exercising native title rights and interests”.

107. [107]
     The appellant knew there might be an issue about his conduct, as did Mr Gaston, because he carried a document ‘authorising’ him to fish on behalf of the Juru People or a family group of the Juru people. Of course, I am not suggesting that by doing so there was a specific intention to accommodate a section 22 defence per se, but there was seen to be a need to give the appellant some form of ‘reason’, perhaps in an holistic sense, for his fishing activity that involved netting, conduct that for other Australians who could not claim a right or interest exercised by native title holders, would amount to unlawful conduct.

108. [108]
     Is the appellant’s belief that he had an ‘authority’ (or delegation), traditional or otherwise (that is, a ‘reason’) conferred by Mr Gaston to fish with the nets as he did, a mistake of law in the context of section 22 of the Criminal Code? In Ostrowski v Palmer (2004) 218 CLR the fisherman, through consultation with authorities, fished in an area that he believed was not one subject to a prohibition. The High Court held that the belief was mistaken, but that it was a mistake of law, not a mistake of fact.

109. [109]
     For an ‘honest claim of right’ to be exercised, the appellant must believe that he is entitled to do what he was doing: that is (in the context of the evidence, including the document signed by Mr Gaston and given to the Fisheries officers by the appellant), using a net to fish: Pollard (supra). In other words, a belief of an ‘entitlement’ per se, is not enough: see the explanation of the proposition stated in Pollard (supra), in Olsen v The Grain Sorghum Marketing Board (supra) and in Walden v Hensler (supra). [However, cf Waine, supra].

110. [110]
     Mr Gaston said the appellant ‘acts on my behalf” in fishing with nets; that the appellant was not Juru by adoption; that the has to get authority from him to fish; that the appellant had authority in writing to only fish for ceremonial reasons; that the authorisation was given on the Gaston family’s behalf rather than on behalf of the Juru people. The appellant agreed that he fished because Mr Gaston authorised him to do so.

111. [111]
     Mr Morrell said that a person not of bloodline descent from a Juru person could not be adopted so as to become a Juru person; that ‘traditionally speaking’ a Juru person cannot permit non-Juru people to fish on Juru country; and that permission was required from all of the Native Title Holder ‘families’.

112. [112]
     The test in section 22 does not simply involve the assertion of a ‘well-founded belief’. That may be relevant to honesty. But the belief must be more than that. It must be a belief in respect of a legal right, as a matter of fact, to do the act, in order to invoke the defence.

113. [113]
     Further, in my view and contrary to the finding of the Magistrate, I consider that the prosecution on the evidence in the Magistrates Court negatived the defence. That much is apparent from the extracts of the evidence that I have replicated in this Judgment.

The nature of the appeal

114. [114]
     The appeal is made pursuant to section 222 of the Act. It is conducted as a hearing de novo, on the evidence that was before the Magistrate: section 223 of the Act. I am required to review the evidence and draw my own inferences and conclusions and thereby determined the relevant facts in issue from the evidence, giving proper deference to the Magistrate’s view: Warren v Coombes (1979) 142 CLR 531; Fox v Percy (2003) 214 CLR 118; and Rowe v Kemper [2008] QCA 175.

115. [115]
     In determining the appeal I may set aside, confirm or vary the appealed order: section 225(1) of the Act.

Resolution

116. [116]
     In my view the Magistrate (in addition to his inadvertent error about the third charge) erred in finding that the prosecution had not negatived section 22. I can of course take a different view on the appeal and upon my consideration of the evidence, I have done so and made a finding that the prosecution has negatived the application of section 22.

117. [117]
     In the premises and on the findings I have made, the appellant must fail on both the native title defences and the section 22 defence.

118. [118]
     The appeal will be dismissed and the convictions of the appellant confirmed.

Costs

119. [119]
     There were no specific submissions as to costs. I will hear the parties further if there is an application by the respondent for costs.

ORDERS

1Appeal dismissed.

2The convictions of the defendant in the Magistrates Court of Townsville on 12 May 2015 are confirmed.

3I will hear the parties further as to costs.