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WILDLIFE CONSERVATION ACT 1950 - SECT 23

This legislation has been repealed.

WILDLIFE CONSERVATION ACT 1950 - SECT 23

23 .         Aboriginal persons may take flora and fauna for customary purposes

        (1)         In this section —

        Aboriginal customary purpose means —

            (a)         preparing or consuming food customarily eaten by Aboriginal persons; or

            (b)         preparing or using medicine customarily used by Aboriginal persons; or

            (c)         engaging in artistic, ceremonial or other cultural activities customarily engaged in by Aboriginal persons; or

            (d)         engaging in activities incidental to a purpose stated in paragraph (a), (b) or (c);

        Aboriginal person means a person wholly or partly descended from the original inhabitants of Australia;

        CALM Act means the Conservation and Land Management Act 1984 ;

        CALM Act land means —

            (a)         land, or land and waters, listed in the CALM Act section 5; and

            (b)         land that, under the CALM Act section 8C, is under the management of the CEO; and

            (c)         land to which the CALM Act section 131 applies;

        exclusive native title , in relation to an area of land or waters, means native title rights and interests (as defined in section 223 of the NT Act) —

            (a)         that exist in relation to the area, whether or not they have been determined under the NT Act to exist; and

            (b)         that confer possession, occupation, use and enjoyment of the area on the holders of the native title rights and interests to the exclusion of all others;

        exclusive native title holder , for an area in relation to which exclusive native title exists, means —

            (a)         the registered native title body corporate (as defined in section 253 of the NT Act) in respect of the native title rights and interests concerned; or

            (b)         if there is no such body corporate, each person who holds the native title rights and interests concerned or a person acting with the authority of each such person;

        NT Act means the Native Title Act 1993 (Commonwealth).

        (2)         This section does not affect the operation of the CALM Act.

        (3)         It is a defence to a charge of an offence against this Act of taking fauna or flora to prove —

            (a)         the accused is an Aboriginal person; and

            (b)         the accused took the fauna or flora for an Aboriginal customary purpose; and

            (c)         in taking the fauna or flora the accused complied with any regulations that restrict or exclude the operation of this subsection; and

            (d)         if the offence is alleged to have been committed on land other than CALM Act land, the person who has control or management of the land consented to the taking of the fauna or flora; and

            (e)         if the offence is alleged to have been committed in an area in respect of which exclusive native title exists, the accused either —

                  (i)         held the exclusive native title alone or with other persons; or

                  (ii)         took the fauna or flora with the consent of the exclusive native title holder.

        (4)         If, but for this subsection, the defence provided by subsection (3) would entitle an Aboriginal person to do an act that is inconsistent with the continued existence, enjoyment or exercise of any native title rights and interests (as defined in section 223 of the NT Act) held by another Aboriginal person, the defence does not apply to that act unless it is proved the accused did the act in order to obtain fauna or flora sufficient only for food for the accused and his or her family, but not for sale.

        (5)         An Aboriginal person who takes fauna or flora for an Aboriginal customary purpose must not sell the flora or fauna, or any part of it, unless, under the regulations, the sale is excepted or the person is authorised or licensed to do so.

        Penalty: a fine of $4 000.

        (6)         Regulations made under section 28 may restrict or exclude the operation of subsection (3) by reference to any of, or a combination of, the following —

            (a)         the fauna or flora taken;

            (b)         the class of person taking the fauna or flora;

            (c)         the time of taking;

            (d)         the place of taking;

            (e)         the manner of taking;

            (f)         the quantity of fauna or flora taken;

            (g)         the circumstances of the taking.

        [Section 23 inserted by No. 36 of 2011 s. 49.]