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This legislation has been repealed.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.]