Thiriet, Dominique --- "Tradition and Change - Avenues for Improving Animal Welfare in Indigenous Hunting" [2004] JCULawRw 8; (2004) 11 James Cook University Law Review 159

TRADITION AND CHANGE – AVENUES FOR IMPROVING ANIMAL WELFARE IN INDIGENOUS HUNTING

DOMINIQUE THIRIET*

* Lecturer, School of Law, James Cook University.

INTRODUCTION

In the last few decades, and increasingly so since recognition of native title rights, the hunting[4] of native wildlife under Aboriginal tradition and Islander custom has also been widely considered from the perspective of conservation and sustainable management of natural resources.[5] This has had the effect of opening discussions about the interactions between traditional practices of resource use and Western visions of conservation. Traditional hunting is frequently promoted as a legitimate and sustainable use of native wildlife.[6] In most Australian States and Territories, as well as This article is not concerned with the ecological sustainability of traditional hunting practices, nor will it focus on its native title dimension. Instead, it focuses on the animal welfare dimension of traditional hunting which arises from the cruel nature of some hunting practices. This issue must be situated in the context of the variety of Indigenous and non- Indigenous cultural attitudes towards animals[8] as well as the variety of competing perspectives on animal protection. At one end of the spectrum, the animal rights perspective regards animals as sentient beings with an intrinsic right to live their lives unhindered.[9] At the other end, animals are viewed as resources that can be used regardless of the pain they may endure. Positioned in between, the animal welfare perspective acknowledges the legitimacy of some animal uses, for instance for sustenance, but only where such uses are humane: that is, conducted without inflicting pain or suffering.[10]

This article first examines the significance, extent and nature of traditional hunting practices in the light of current animal protection legislation. It notes that some traditional hunting practices are inconsistent with contemporary legislative standards of animal welfare. It argues that judicial interpretation of the concepts of tradition and change cannot justify cruelty in traditional hunting. Finally, it explores proposals for improving the welfare of animals in ways that may prove acceptable to Indigenous communities.

I TRADITIONAL HUNTING: SIGNIFICANCE, EXTENT AND PRACTICES

A Significance of Traditional Hunting to Indigenous Peoples

The greatest significance of traditional hunting, however, concerns its spiritual dimension but is one that is virtually impossible for non- Indigenous people to fully comprehend. Most writers agree that traditional hunting does much more than merely meet physical and economic needs:

Foraging and hunting [allows Indigenous women and men] to express profound environmental knowledge stretching back over many generations, and continually reinforces their beliefs in the spiritual value of such knowledge; it is also an important medium of education, whereby both spiritual and ecological knowledge is handed on to succeeding generations.[20]

Interestingly, women’s hunting activities are rarely discussed,[21] probably because the animals they kill are smaller and have less ‘charismatic’ status, and their killing is less spectacular than the killing of large game by men. The size of animals, however, is immaterial to a discussion on their rights and welfare.

Once an animal has been killed it may be consumed by the hunter alone or, according to custom, shared with family and community members or used in traditional activities.[22] In some Island communities, dugongs are considered to be an essential part of any ceremony.[23] Muttonbirding conducted for commercial purposes also possesses a strong cultural significance.[24]

Clearly, traditional hunting has considerable significance for many Aboriginal and Torres Strait Islander people. This significance has been recognised not only in international agreements[25] but also in Australian native title[26] and conservation legislation.[27]

B Extent

For most species there are no available estimates of the number of animals killed for traditional purposes.[34] However, it is estimated that up to 1600 dugongs and 20 000 salt and freshwater turtles are taken annually in Australia.[35] In Tasmania, 200 000 muttonbirds are caught annually.[36] The number of animals killed on a national basis is therefore likely to be considerable and illustrates the extent of traditional hunting and its importance for Indigenous communities. The number is also large enough to warrant concern, not only for the animals’ long-term conservation but also for their welfare.

C Hunting Practices

Dugongs are hunted in Queensland, the Northern Territory and Western Australia. Hunters generally stalk them from dinghies, harpooning the dugongs when they come to the surface to breathe.[37] The harpoon is aimed mid-way up the animal’s back, embedding the barbed metal head a few centimetres into the flesh. Sometimes a second harpoon is used ‘for insurance’. A long rope, attached to the harpoon head at one end and to the boat at the other, uncoils as the dugong swims away, dragging the boat with it. The animal is ‘played’ on the line until it tires and is ‘subdued’. This may take from 15 to 20 minutes for pregnant females to several hours for large males. The dugong is then drowned by holding its head under water for several minutes.[38] Alternatively, it may be asphyxiated by plugging its nostrils with fibres or be keelhauled until death occurs.[39]

Another method consists of pursuing the dugong in shallow water for 10 to 15 minutes until it is too exhausted to dive. The animal is then tied up or harpooned, and drowned.[40] It is said that it takes years to become an expert dugong hunter, so one can presume that a number of animals are struck but manage to escape, injured. Although the back is the favoured target, the dugong may be harpooned in the face if it surfaces head on.[41]

2 Sea Turtles

Turtles, also, are hunted in Queensland, the Northern Territory and Western Australia, but the following information relates to methods used in the Torres Strait. When approaching a turtle with a dinghy, the hunter jumps on the animal and loops a rope around a forelimb or hooks the animal’s neck with a steel hook.[42] Alternatively, the turtle is harpooned from the boat. To assess the condition of the animal, an incision is often made at the inner base of the hind leg. If it is not fat enough, the turtle may be rejected. If fat levels are adequate, the animal is then hauled into the boat.[43]

Turtles are kept alive until it is time for them to be consumed.[44] To avoid their escaping, turtles may be kept in enclosures, or one of their flippers may be tethered or cut off. More commonly they are turned on their backs. They can be left upturned in the shade for weeks and survive, but if kept in the sun they are rapidly subject to dehydration, sometimes fatally.[45] Upturned turtles experience pain from increased blood pressure in the brain after a few hours.[46]

In some communities, cultural beliefs are said to prohibit the stunning or killing of the turtle prior to butchering. The turtle must be conscious at the time of butchering to ensure its spirit is returned to the sea, thus ensuring replenishment of the waters in the future.[47] Butchering is therefore done while the animal is still alive and commences with the severing of the front flippers at the shoulder joints to avoid injury to the butcher. Then the hind legs are cut, followed by an incision to lift the plastron. The animal dies at some time during the butchering.

Few details of the killing methods used outside the Torres Strait are available. It has been reported, however, that in some communities, turtles are killed by one or more blows to the head as soon as they are landed.[48]

Video footage[49] of turtle hunting in Western Australia viewed by the author showed a turtle killed by a dozen blows to the head with a hammer.

A less common practice euphemistically called ‘spaying’ involves catching a female turtle at sea, slicing open the abdomen to remove the eggs and then releasing the animal.[50] The chance of survival for such turtles is very low.[51]

3 Freshwater Turtles

Freshwater turtles can be caught in large quantities in northern Australian lagoons and may also be ‘stockpiled’ alive for days until use. This may be done by storing them in sinks or 44-gallon drums. Many animals in the bottom layer die from crushing, dehydration or asphyxiation. Alternatively, their limbs are cut or they are hung alive by a flipper with fishing line, until ready to eat.[52]

4 Muttonbirds

Muttonbirding is a traditional activity conducted exclusively in Tasmania for traditional and commercial purposes. Chicks are caught by hand inside their burrows. The hunter then flicks the bird briskly to break its neck, allegedly causing instant death.[53] It can be presumed, however, that hunters’ inexperience, error or fatigue would cause less than instant death for some of the 200 000 birds caught annually. Another welfare problem may include the smothering of chicks and adult birds when their burrows collapse under the weight of the hunters searching the area. 5 Other Practices

Other practices include breaking kangaroos’ legs to keep them fresh while preventing their escape,[54] as well as tethering goannas by the neck until they are required for food.[55]

This part has provided an overview of the considerable significance that traditional hunting has for many Indigenous peoples, including for sustenance, economic, social, cultural, and ecological purposes. It has described how the extent of traditional hunting is likely to affect a large number of animals across the nation. It has also described some of the practices which are currently used for killing and keeping animals. The following sections will argue that such practices, which undoubtedly cause animals pain, are inconsistent with contemporary humane standards for the treatment of animals, and explore how they can be subject to change.

II THE ANIMAL PROTECTION LEGISLATION: ‘JUSTIFIED, NECESSARY OR REASONABLE’

The hunting practices described in Part I above involve killing and storing some or all of the animals in ways that prima facie cause the animals to suffer considerable pain and/or not to die quickly. A consideration that would help determine whether a traditional hunting act was justifiable, necessary and/or reasonable would be whether a less cruel alternative method of killing or keeping the animal was readily available.[60] In the example of freshwater turtles referred to in Part I, it would be important to examine whether the animals could be prevented from escaping by keeping them other than in drums, or whether they could be captured later to prevent the need for storage altogether. Here a comparison with alternative practices used in other communities may be useful.

Another consideration to determine cruelty would be whether the act could be justified by, or was reasonable and necessary for, tradition and custom. If that were found to be the case, physiologically based measures of cruelty would be legally modified by cultural factors, leading to the concept that cruelty could be culturally defined. In Part I, the killing of turtles without pre-stunning was explained by cultural reasons to justify the cruelty. This is a very specific example, however, and Part III below will argue that in most cases, tradition is not a valid justification for inflicting cruelty on animals.

III TRADITIONS AND CHANGE

A The Nature of Traditional Change

The considerable changes to the extent, nature and methods of traditional hunting do not make the current hunting itself less traditional. The Supreme Court of the Northern Territory accepted this much when it held in Campbell v Arnold[74] that the shooting of kangaroos with a firearm met the traditional requirements outlined in the Crown Lands Act 1978 (NT). In Mabo,[75] some of the members of the High Court observed that laws and customs are not ‘frozen in time’[76] and that changes do not necessarily mean that native title rights and interests are affected.[77] It has been argued that these comments apply not only to the native title right but also to the manner in which this right is exercised.[78] In Members of the Yorta Yorta Aboriginal Community v Victoria,[79] the High Court had the opportunity to consider again the question of tradition and change. The Court confirmed that traditional laws and customs which found native title may still be identified as traditional, even where they have been significantly adapted or changed in the period since the arrival of European settlers.[80] Although traditions and customs must have their origins in the past, the High Court confirmed that they do not necessarily need to be ‘frozen in time’. This is consistent with the decision of the Supreme Court of Canada in R v van der Peet,[81] that traditional activities must be considered at a general rather than at a specific level and that they may be carried out in a modern form.

It is interesting to note that this common-law principle that has been recognised by both Australian and Canadian courts is not consistent with older statutes. Both the Torres Strait Fisheries Act 1984 (Cth) and the Torres Strait Fisheries Act 1984 (Qld) allow for declarations that the use of certain methods, boats or equipment is not traditional.[82] Thus an Indigenous person shooting a dugong with a firearm would not be able to claim that the hunt was traditional. Similarly, under the Nature Conservation Regulations 1994 (Qld), an authority for traditional hunting can be refused if firearms are used.[83]

B Reasons for Traditional Change

C Traditional Purpose v Traditional Method

The traditional purpose of hunting animals may have spiritual, sustenance or cultural dimensions. If it is the purpose of the hunt that is traditional and the method of killing the animal is unimportant, then switching to more humane methods of killing the animals will not detract from tradition. In such cases, there would be little justification for continuing to use a cruel method if a more humane method exists. This is, of course, provided that the alternative method is available in the circumstances.[86] Methods that hasten death would be preferable to current methods. Freshwater turtles, for instance, would suffer less if collected closer to the time of eating or if kept in less-crowded containers. Dugongs would experience less pain if shot cleanly rather than being pursued until exhaustion and drowned — although it could be argued that inaccurate shots would cause some animals to suffer from injury. The use of firearms to shoot dugongs is, however, currently unlawful on public safety grounds, and on ecological sustainability grounds as firearms may easily lead to overexploitation.[87] This is a striking example of conflict between animal welfare and conservation objectives.

In general, changes to killing methods do not make the hunting less traditional, unless the changes are extreme. For instance the ALRC considered that, because Aborigines did not … kill more than what was needed for food at a particular time, … the machine-gunning of herds of kangaroos (to take an extreme example) would ipso facto not be traditional.88 According to this definition, some of the methods discussed in Part I, such as storing freshwater turtles in large drums and keeping sea turtles on their backs for lengthy periods, could be considered to be extreme and non- traditional as the animals die before they can be consumed. These practices, which cause the death of many more animals than are needed, are also unsustainable.

To conclude this section, in most cases when the purpose of the hunt is traditional but the killing methods have no inherent cultural value, modifying the methods will not detract from the tradition. In such cases, it would be unnecessary, unjustifiable and unreasonable to continue using methods which inflict or are likely to inflict pain on animals in preference to humane alternative methods. Thus any blanket exemption from cruelty on the ground of tradition, such as that found in the Animal Care and Protection Act 2001 (Qld), is excessive. Indigenous representatives have already acknowledged that ‘the use of modern methods has reduced the suffering of animals [killed for traditional purposes]’,[89] so there appears to be no valid reason why widespread changes would not be supported by communities.

A more difficult situation arises when it is precisely the method that has a cultural significance. The practice of butchering turtles alive to ensure replenishment of the waters is an example in point. In such cases, cruelty could be considered justifiable, necessary or reasonable under the general provisions of the legislation to ensure that the tradition can be sustained. Therefore here, also, the blanket exemption found in the Queensland legislation clearly appears excessive and unnecessary. In cases where the method is culturally significant, eliminating cruelty cannot be achieved unless animal rights or welfare were found to take precedence over Indigenous communities’ human rights to conduct significant cultural practices. Such a finding seems most improbable, at least in the short term. Cross-cultural tensions like this, however, are likely to be rare, as most practices appear to be traditional in purpose rather than in method.

In addition, there is always the possibility that communities may decide of their own will to introduce changes. Indeed, in some situations, even traditional killing methods are not sufficiently essential to justify continuing inhumane practices. One of the most world-famous and cruel animal-killing traditions, bullfighting, is being abandoned by some Spaniards because of its cruelty.[90] Although the validity of a comparison between Indigenous practices that date back 60 000 years or so and European practices that are only a few thousand years old can be questioned, it is arguable that the commonsense definition of ‘tradition’ would be sufficiently broad to include both.

D Compromises

A case in point is the hunting of species with vulnerable conservation status such as dugongs. On one hand, these animals can be killed traditionally in northern waters despite their recognised vulnerable status.[92]

On the other hand, some Indigenous communities have agreed to stop killing dugongs in areas where populations have fallen below sustainable levels.[93]

The implementation of further compromises is necessary to improve the welfare of animals involved in traditional hunting whilst maintaining Indigenous peoples’ traditional right to hunt. Compromises are indeed the most sensible means of resolving any conflict of rights or standards.

Compromises between traditions and animal welfare in the wider community are not new and can be illustrated by the case of ritual slaughter in Australia. Australian slaughtering regulations demand that animals be lethally stunned prior to slaughtering. In contrast, for Judaic (Kosher) and Islamic (Halal) slaughter, animals must be conscious at the time of exsanguination. Contemporary ritual practices now allow for ritually slaughtered animals to be fatally stunned with a captive bolt pistol immediately after the cut. This measure ensures a quick and less painful death but does not detract from traditional requirements.[94]

Compromises to take animal welfare concerns into consideration have also been made in the controversial practice of whalehunting. Under increasing international pressures and the ever-present risk of a total whaling ban, the Greenland, Norway, Alaska and Russia’s Indigenous peoples have adapted their practices to reduce cruelty.[95] Nowadays, the time of a whale’s death is reduced considerably with the use of penthrite grenades and high- powered rifles as opposed to traditional harpoons.[96] With animals still taking up to eight minutes[97] to die after being shot, however, there is still plenty of room left for further compromise.

This part has examined the two-dimensional way in which practices can be considered traditional. It has proposed that, in cases where practices are traditional because of their purpose alone, changes to the method of killing and/or storing animals would not alter the tradition and are likely to be acceptable to Indigenous communities. Ways to introduce alternative methods should be pursued with vigour. In the rarer cases where it is the method of killing the animal that is traditional, cruelty may be more difficult to avoid unless communities are prepared to willingly adapt their practices through a change of tradition, which is by no means impossible. Given relevant Australian and international precedents, it is argued that, wherever possible, compromises must be reached to reconcile traditional rights and animal welfare.

IV THE WAY FORWARD – PRACTICE AND LAW REFORM

First, there will be a need to acknowledge that animal welfare has been neglected in the discussions of traditional hunting and that it is time for this issue to come out of the ‘too hard basket’. A vigorous and open debate on the matter needs to involve Indigenous and non-Indigenous communities, academics, governments, and interest groups such as animal welfare and conservation groups. To avoid the inevitable risk of cultural imperialism, this acknowledgment would be best achieved if it took place in a legal environment willing to recognise some kind of dignity-right for animals involved in any animal use by Indigenous and non-Indigenous communities alike. In other words, Indigenous and non-Indigenous philosophies must be engaged simultaneously.

Secondly, a two-pronged comprehensive education campaign will be required. One aspect should address the general public’s poor level of understanding of the significance of traditional hunting for some communities. The other will need to raise awareness of humane standards in relation to the treatment of animals in Indigenous communities. This could be modeled on, or combined with, current community awareness campaigns conducted in various communities. One such campaign focuses on the welfare needs of dogs in remote Northern Territory,[98] while another deals with sustainability issues and training of community rangers.[99] To be successful, campaigns of this magnitude will need to be properly resourced.

Thirdly, the development of humane standards for the treatment of each animal species will be needed and will require the involvement of government departments, animal welfare agencies and, most importantly, Indigenous communities. This will not be easy. Attempts to address the issue of cruelty in traditional hunting as a matter of policy have not always been successful. For instance, recommendations that a code of ethics for humane slaughter be incorporated in a draft Green Turtle Recovery Plan[100] were ‘widely opposed by most [parties involved]’.[101] On the other hand, some communities have been successful in incorporating significant animal protection provisions in their management plans.[102] It is not known whether such provisions are followed and/or enforced.

To ensure successful recognition, adoption and enforcement of these standards, strong participation of Indigenous communities, rather than mere consultation, will be essential. Imposition of Western values of conservation is regarded as a new type of dispossession,[103] and the same would inevitably apply if Western animal welfare values were similarly imposed. The large number of communities whose participation will be required, as well as their varied needs and aspirations, will not make this task easy.

Current systems of community participatory monitoring of sustainable hunting[104] may be able to be used as valuable models for future monitoring of animal welfare standards. Alternatively, there may be opportunities to add an additional animal welfare component to the current programmes. This will require close cooperation, not only between Indigenous communities and government departments, but also between various departments in charge of nature conservation and animal welfare.

Fourthly, law reform will be required to acknowledge the importance of traditional hunting for some communities but also to eliminate broad, unjustified exemptions from the provisions of States and Territories’ animal protection legislation. A higher level of uniformity across State and Territory borders will be necessary to solve the difficult situation faced by any community which hunts in several States. For instance, the Central Australian Pitjantjatjara people whose land covers areas of South Australia, Western Australia and the Northern Territory are subject to three separate and contradictory sets of laws relating to traditional hunting,[105] including animal welfare laws, depending on which side of the border the hunt takes place. Difficulties also arise when the legislative standards of animal welfare differ markedly for communities hunting the same animals (eg dugong and turtles) either in Western Australia, the Northern Territory or Queensland.

Law reform will be faced with several other challenges that cannot be overlooked. One will be to address the increasing interest of Indigenous communities in benefiting from the utilisation of animals and animal products for commercial purposes and the complexity of determining which animal welfare standards should apply to activities conducted respectively for subsistence, cultural and/or commercial rewards. This situation already exists in relation to muttonbirds in Tasmania, crocodiles in the Northern Territory and kangaroo skins in Western Australia.[106] Ideally the standards should be strict and uniform, and impose a positive duty of care, whatever the activity. Another — and perhaps the most significant — challenge will be the inevitable resentment of Indigenous communities against stricter animal welfare laws and/or enforcement targeting Indigenous traditional hunting unless reforms also seriously address the large-scale animal cruelty found in non-Indigenous animal use areas such as other forms of hunting and fishing, and intensive farming.

V CONCLUSION

The problems caused by the poor standards of animal welfare currently found in some traditional hunting practices in some communities will not disappear, unless of course hunting traditions become less important for younger generations[107] or unless the animal populations, dying out as a result of hunting or other pressures, are no longer available for hunting.

The strong opposition to traditional hunting of native wildlife by non- Indigenous people has created a fear among some Indigenous people that, despite its significance to them, traditional hunting risks further vilification.[108] Although the issues are complex, opposition is unlikely to subside unless concerns about both conservation and animal welfare are allayed.

There is no doubt that improvements in the treatment of hunted animals will benefit animals themselves as well as the reconciliation process.[109] Such improvements may also benefit communities in a more subtle way. It is increasingly recognised that violence against animals is a precursor to violence against people, especially women and children.[110] It is therefore possible that serious efforts to incorporate humane practices in traditional hunting will also help, in the long term, curb violence within some communities.

Whether the reforms outlined in Part IV are acted upon will require determination from government and non-government agencies to overcome their reluctance to tackle this controversial issue. Nevertheless, any reform process would be greatly assisted by a general improvement in Indigenous communities’ capacity for self-determination — an improvement which may lead to alternative avenues for cultural expression. Until this is the case, any change to traditional hunting practices, whether imposed or not, risks being seen by some communities as an attack on one of the few exercises of cultural expression available to Indigenous peoples in Australia.

[1] [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo’).

[2] [1999] HCA 53; (1999) 201 CLR 351.

[3] Native Title Act 1993 (Cth) ss 211, 223(2).

[4] For want of a more inclusive term, ‘hunting’ will be used in the rest of this article with the encompassing meaning of hunting, fishing and foraging for animals.

[5] See for instance the provision for Traditional Use of Marine Resources Agreements now available under the Great Barrier Reef Marine Park Regulations 1983 (Cth).

[6] See, eg, ‘Cultural Considerations in Wildlife Use’ (Part 2) in Gordon Grigg, Peter Hale and Daniel Lunney (eds), Conservation Through Sustainable Use of Wildlife (1995), 29; Mary Bomford and Judy Caughley (eds), Sustainable Use of Wildlife by Aboriginal Peoples and Torres Strait Islanders (1996); Jocelyn Davies, Karen Higginbottom, Denise Noack, Helen Ross and Elspeth Young, Sustaining Eden — Indigenous Community Wildlife Management in Australia in Commonwealth reserves, nature conservation legislation authorises Indigenous people to kill native animals for subsistence and/or cultural reasons, provided certain conditions are met.7 (1999); and Peter H O’Brien (ed), Wildlife Use and Management — Report of a Workshop for Aboriginal and Torres Strait Islander People (1992).

[7] For a comprehensive review of enabling legislation, see David Haigh and B Coleman, ‘The Current Legal Position Affecting the Use of Wildlife by Australian Indigenous People’ in Grigg et al, above n 6.

[8] Dominique Thiriet, Out Of The ‘Too Hard Basket’ — Towards Reconciling Traditional Hunting and Animal Welfare (Honours Thesis, James Cook University, 2003), 17–20.

[9] See for instance Peter Singer, Animal Liberation (first published 1975, 2nd ed, 1990); Tom Regan, The Case for Animals Rights (1983); Steven Wise, Rattling the Cage (2000).

[10] This perspective is widely incorporated in State animal protection legislation (see Part II below).

[11] Davies et al, above n 6, 37.

[12] Australian Law Reform Commission (ALRC), The Recognition of Aboriginal Customary Laws, Report No 31(2) (1986), 129.

[13] George Wilson, Andrew McNee and Peter Platts, Wild Animal Resources: Their Use by Aboriginal Communities — A Study Commissioned by the Aboriginal and Torres Strait Islander Commission (1992), 20. See also the Human Rights and Equal Opportunity Commission’s Native Title Report (2000), 110, in which the Aboriginal and Torres Strait Islander Social Justice Commissioner considers that the native title right to hunt under s 211 of the Native Title Act 1993 (Cth) is consistent with international human rights standards articulated under the international covenants for civil and political rights (ICCPR) and for economic, social and cultural rights (ICESCR) that prevent states from depriving a people of its traditional means of subsistence.

[14] ALRC, above n 12, 128.

[15] Wilson et al, above n 13, 20.

[16] IM White, ‘Pitfalls to Avoid: The Australian Experience’ in Health and Disease in Tribal Societies, CIBA Foundation Symposium, No. 49 (1977) 269, 279.

[17] Mary Bomford and Judy Caughley, ‘Lessons from the Past and Opportunities for the Future’ in Bomford and Caughley (eds), above n 6, 189.

[18] Davies et al, above n 6, 39.

[19] David Kault, ‘Indigenous Hunting and Health’ (2003) 19(5) Paperbark, 7.

[20] Elspeth Young, Caring for Country: Aborigines and Land Management (1991) 111.

[21] Elizabeth Povinelli, ‘Where We Gana Go Now? — Foraging Practices and Their Meanings Amongst the Belyuen Australian Aborigines’ (1992) 20(2) Human Ecology 169, 169.

[22] Wilson et al, above n 13.

[23] RE Johannes and JW MacFarlane, Traditional Fishing in the Torres Strait Islands (1991) 26.

[24] Heather Brown, ‘Memories of Mutton-‘birdin’ our way’ in O’Brien (ed), above n 6, 3, 5.

[25] Convention on Biological Diversity [1993] ATS 32, art 10(c) (entered into force 29 December 1993).

[26] Native Title Act 1993 (Cth) s 223(2).

[27] See for instance, Wildlife Conservation Act 1950 (WA) s 23(1); Territory Parks and Wildlife Conservation Act 2001, s 122; Nature Conservation Act 1992 (Qld) s 93 (not yet in force); Environment Protection and Biodiversity Act 1999 (Cth) s 8; Great Barrier Reef Marine Park Regulations 1983 (Cth) s 9.

[28] Davies et al, above n 6, 37.

[29] Bomford and Caughley (eds), above n 6, 31.

[30] Irynej Skira, ‘A Mutton-bird in the Hand’ (1995) 8 Natural History 25, 25.

[31] The term ‘wild introduced animal’ is preferred to the commonly used ‘feral animal’ because it reflects more accurately the human responsibility for introducing the animal into an environment in which it does not belong — see Frankie Seymour, ‘Introduced Wild Animals — Invasive Pests or Abandoned Victims?’ (2000) 8(1) Animals Today 12, 13.

[32] Julie Collins, Nicholas Klomp and Jim Birckhead, ‘Aboriginal Use of Wildlife: Past, Present and Future’ in Bomford and Caughley (eds), above n 6, 20.

[33] Richard Baker, ‘Traditional Aboriginal Land Use in the Borroloola Region’, in N Williams & G Baines (eds) Traditional Ecological Knowledge — Wisdom for Sustainable Development (1993) 126, 139.

[34] Davies et al, above n 6, 37.

[35] Gary Henry and Jeremy Lyle, ‘The National Recreational and Indigenous Fishing Survey’, A Report for the Federal Department of Agriculture, Fisheries and Forestry (2000).

[36] Skira, above n 30, 28.

[37] Johannes and MacFarlane, above n 23, 26–31.

[38] Ibid, 25.

[39] Helene Marsh, School of Tropical Environmental Studies and Geography, James Cook University, personal communication, 2003.

[40] Johannes and MacFarlane, above n 23, 31.

[41] Ibid, 30.

[42] Ibid, 61.

[43] Ibid, 61–62.

[44] Ibid, 63.

[45] Ibid.

[46] Colin Limpus, Queensland Parks and Wildlife Service, personal communication, 2003.

[47] Donna Kwan, School of Tropical Environmental Studies and Geography, James Cook University, personal communication, 2003.

[48] Personal communication from a community ranger who wished to remain anonymous.

[49] ‘De mémoire d’Aborigène’, produced for the Thalassa series for French Television Channel FR3 (2003).

[50] Colin Limpus, above n 46.

[51] Ibid.

[52] Anonymous source reporting on practices in this person’s own Northern Territory community. The reluctance of many Indigenous and non-Indigenous people to discuss traditional practices will be considered in a later paper.

[53] Skira, above n 30, 25.

[54] David Bennett, ‘Animal Rights and Aboriginal Concepts’, in DB Croft (ed), Australian People and Animals in Today’s Dreamtime — The Role of Comparative Psychology in the Management of Natural Resources (1991) 53, 66.

[55] Baker, above n 33, 139.

[56] Animal Care and Protection Act 2001 (Qld); Prevention of Cruelty to Animals Act 1985 (SA); Prevention of Cruelty to Animals Act 1986 (Vic); Prevention of Cruelty to Animals Act 1979 (NSW); Animal Welfare Act 1999 (NT); Animal Welfare Act 2002 (WA); Animal Welfare Act 1992 (ACT); Animal Welfare Act 1993 (Tas).

[57] Animal Care and Protection Act 2001 (Qld) s 18; Prevention of Cruelty to Animals Act 1985 (SA) s 13; Prevention of Cruelty to Animals Act 1986 (Vic) s 9; Prevention of Cruelty to Animals Act 1979 (NSW) s 4; Animal Welfare Act 1999 (NT) s 6; Animal Welfare Act 2002 (WA) s 19; Animal Welfare Act 1992 (ACT) s 7; Animal Welfare Act 1993 (Tas) s 8.

[58] Animal Care and Protection Act 2001 (Qld) s 8(1).

[59] Animal Welfare Act 1999 s 79(2).

[60] See, eg, the Canadian case of R v Paul (1997) Carswell BC 867, in Sarah Wright, Nonhuman Animal Rights — Legislation, Ethics and Reform (Honours thesis, University of Western Australia, 2001), 39, in which the Provincial Court of British Columbia refused to apply an objective standard without evidence of alternatives (to kill a cat — a legal act — the accused had stabbed it five times and stomped on its head).

[61] Simon Young, ‘The Trouble with ‘Tradition’: Native Title and the Yorta Yorta Decision’ (2001) 30 Western Australian Law Review 28, 37.

[62] Ibid, 38.

[63] Ian Lilley, ‘So near and yet so far: Reflections on Archaeology in Australia and Papua New Guinea, Intensification and Cultural Contact’ (2000) 50 Australian Archaeology 36.

[64] RG Roberts et al, ‘New Ages for the Last Australian Megafauna: Continent- wide Extinction About 46,000 Years Ago’ (2001) 292 (5523) Science 1888.

[65] Ian Anderson, ‘Aborigines Spare the Dugong’ (16 August 1996) New Scientist 5, 5; Davies et al, above n 6, 41.

[66] Skira, above n 30, 28.

[67] Ian Anderson, ‘Alien Animal Culls Backfire’ (3 August 1996) New Scientist 6, 6.

[68] See also the Central Australian ‘Pussycat Dreaming’ Central Land Council (2003) Feral Animals <http://www.clc.org.au/OurLand/rose_reports/feral2.asp> at 12 May 2005.

[69] Collins et al, above n 32, 19–20.

[70] For instance muttonbirds in Tasmania. In Western Australia, s 23(2) of the Wildlife Conservation Act 1950 (WA) permits the sale of skins from kangaroo traditionally hunted.

[71] Collins, above n 32, 20.

[72] Ibid.

[73] ALRC, above n 12, 182.

[74] (1982) 56 FLR 382 — See discussion in Desmond Sweeney, ‘Fishing, Hunting and Gathering Rights of Aboriginal Peoples in Australia’ [1993] UNSWLawJl 7; (1993) 16(1) UNSW Law Journal 97, 116.

[75] [1992] HCA 23; (1992) 175 CLR 1.

[76] Ibid 110 (Deane and Gaudron JJ).

[77] Ibid 61 (Brennan J).

[78] Sweeney, above n 74, 115.

[79] [2002] HCA 58; (2002) 214 CLR 422 (‘Yorta Yorta’).

[80] Ibid, 455 (Gleeson CJ, Gummow and Hayne JJ); 463–4 (Gaudron and Kirby JJ); 486 (Callinan J); Justice McHugh’s decision did not refer to this point.

[81] [1996] 2 SCR 507.

[82] Torres Strait Fisheries Act 1984 (Cth) s 3(2); Torres Strait Fisheries Act 1984 (Qld) s 6(1).

[83] Nature Conservation Regulations 1994 (Qld) s 33(1)(d)(i).

[84] ALRC, above n 12.

[85] Ibid, 180–2.

[86] Wright, above n 60.

[87] Nature Conservation Regulations 1994 (Qld) s 33(1)(d)(i); see also T Bryant and K Akers, ‘Utilisation of Native Flora and Fauna in Victoria: A Comparison of Models of Utilisation against the Existing Victorian Regulatory Regime’ (1999) 16(5) Environment Planning and Law Journal 385, 394.

[88] ALRC, above n 12, 182.

[89] Letter from Lois O’Donoghue, Chair, ATSIC, to Gary Cullen, Chair, National Consultative Committee on Animal Welfare, 22 July 1996.

[90] G Tremlett, ‘Spanish City Hopes to Make Matadors Hang up Their Hats’, Guardian, London, (4 April 2003)

<http://www.guardian.co.uk/international/story/0,3604,929193,00.html> at 5 April 2003.

[91] Hopevale Aboriginal Council and Melissa Nursey-Bray, Chapter 14, A Guugu Yimmithir Bama Wii: Ngawiya and Girrbithi (A Turtle and Dugong Hunting Management Plan) (1999).

[92] Under the Treaty Between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area Between the Two Countries, Including the Area Known as Torres Strait, and Related Matters (Torres Strait Treaty), art 11(1) and art 14(4). The Treaty was given effect by the Torres Strait Fisheries Act 1984 (Cth).

[93] Ian Anderson, ‘Aborigines Spare the Dugong’ (16 August 1996) New Scientist 5, 5; Fernando Ponte, Helene Marsh and Richard Jackson ‘Indigenous Hunting Rights — Ecological Sustainability and the Reconciliation Process in Queensland’

(1994) 25(9) Search 258, 261.

[94] Standing Committee on Agriculture and Resource Management, Livestock at Slaughtering Establishments — Model Code of Practice for the Welfare of Animals (2001) s 2.6.1.6; Export Meat Orders, s 203.2.

[95] International Whaling Commission, ‘Report of the Working Group on Whale Killing Methods and Associated Welfare Issues’, Chairman’s Report, IWC/54/6, 16 May 2002, <http://www.iwcoffice.org/2002%20Documents/> at 15 April 2003.

[96] Ibid, 3–4.

[97] Ibid, 3.

[98] Animal Management in Indigenous Communities (AMIC)

<http://www.ava.com.au/content/confer/uam/uam03/colprogram_03.htm#AMRRI C%20-%20THURSDAY%2021/08/03> at 20 May 2003.

[99] Davies et al, above n 6, 63.

[100] Environment Australia, Draft Recovery Plan for Marine Turtles in Australia, (1998).

[101] Email from Rod Kennett, Natural Resource Manager (Ecology), Kakadu National Park to Dominique Thiriet, 19 May 2003.

[102] Hopevale Aboriginal Council and Melissa Nursey-Bray, above n 91.

[103] Phillip Toyne and Ross Johnston, ‘Reconciliation or the New Dispossession: Aboriginal Land Rights and Nature Conservation’ (1991) 18 Habitat Australia 8.

[104] See, eg, Davies et al, above n 6, 75–6.

[105] O’Brien, above n 6, 69.

[106] Davies et al, above n 6, 35, 38.

[107] Skira, above n 30, 34.

[108] Davies et al, above n 6, 22.

[109] Ponte et al, above n 93.

[110] Katrina Sharman, ‘Sentencing under our Anti-cruelty Statutes: Why our Leniency Will Come Back to Bite Us’, (2002) 13(3) Current Issues in Criminal Justice, 333; Nicholas Fawcett, Eleonora Gullone and Judy Johnson ‘The Relationship Between Animal Abuse and Domestic Violence: Implications for Animal Welfare Agencies and Domestic Violence Agencies’ (2002) 10 Australian Domestic and Family Violence Clearinghouse Newsletter 10 <http://www.austdvclearinghouse.unsw.edu.au/PDF%20files/Newsletter10. pdf> at 5 April 2003.