The known and unknown scope of Native Title Act s 211

Tuesday, 3 June 2014
John Waters

Native Title Act s211 can relieve native title holders of the need to hold licences under state, Commonwealth or territory laws for hunting, fishing, gathering and for cultural or spiritual activities. This exemption can apply whether or not there has been a determination of native title (although proof may be more difficult where there is no determination).

Although underpinned by a requirement that native title must exist, s 211 has other attributes and raises issues which set it apart from other provisions of the NTA.

For example:

  • As it prevails over state laws by operation of the Constitution, there is little that a state can do to curtail its operation. However, agencies of state government have at times, in policy and in practice, not accorded s 211 its full operation.
  • Section 211 is likely to be considered by courts other than the Federal Court (often busy magistrates courts). These courts face a steep learning curve in understanding and resolving the issues that arise.
  • Section 211 has potential application to criminal prosecutions and can make the critical difference between conviction and acquittal and between liberty and incarceration.
  • Although the nature of s 211 is now reasonably apparent in decisions of state courts, questions remain as to onus and the scope of application. It is likely that there is more work ahead for s 211.

In this presentation John Waters explores the strengths and weaknesses to be weighed in considering reliance on s 211 and some possibilities concerning the future application of the section.