Weisbrot, David --- "Bush Bustardry or Bustard in the Bush - Herbert Walden v Peter Baxter Hensler" [1987] AboriginalLawB 61; (1987) 1(29) Aboriginal Law Bulletin 14

• Bush Bustardry Or Bustard In The Bush-Herbert Walden V Peter Baxter Hensler

---

Bush Bustardry or Bustard in the Bush - Herbert Walden v Peter Baxter Hensler

Unreported judgement of the High Court of Australia

(on appeal from the Full Court of the Supreme Court of Queensland)

F.C. 87/054 [1987] HCA 54

6 November 1987

Casenote by David Weisbrot

Herbert Walden is an Aboriginal elder of the Gungalida tribe of North Queensland, who presently lives and works as a musterer near Mt Isa. He has, throughout his life, hunted for traditional food in accordance with his people's customs. In February 1984, having obtained the permission of the property manager to hunt, he shot a bush turkey (or bustard) and took it home to eat. He also kept a turkey chick (caught by his son) in his home as a pet, but intended to release it into the bush when it grew up, as was required by custom.

Walden was soon after charged by an officer of the Queensland National Parks and Wildlife Service with two offences under the Fauna Conservation Act 1974-1979 (Qld), s.54(1), for taking and keeping protected fauna. Walden did not know that bustards were among the protected species. As Justice Deane later wrote (at p.26):

the case does exemplify the practical injustice which can result from the clash of the established customs of an indigenous people and the demands of imposed laws, even laws enacted for undeniably laudable purposes such as the conservation of native fauna.

Whilst accepting that Walden honestly believed that he was doing nothing wrong, the magistrate nevertheless convicted him on both counts. Walden was fined $100 and ordered to pay $260 in royalties (since the magistrate erroneously believed that a double-payment or royalties was required by statute), $30.50 in court costs, and $529 in "professional costs" - most of which was comprised of the prosecuting counsel's airfares between Brisbane and Mt Isa - or $919.50 in total. The Full Court of the Supreme Court of Queensland upheld the convictions and the penalties.

The High Court was unanimous in quashing the convictions and orders, and imposed instead an absolute discharge under s.675A of the Queensland Criminal Code (the equivalent of s.556A in NSW), with an order for $30.50 in court costs. Justices Toohey and Gaudron would have gone further and set aside the convictions and all orders.

Although the circumstances of the case raise critical general issues regarding the recognition and application of Aboriginal customary law, the High Court predictably took a much narrower tack.

As Justice Toohey wrote (at pp 47-48):

The question before this Court is not, as counsel for the appellant tended to suggest, whether an aspect of Aboriginal customary law is to prevail over an aspect of the statute law of Queensland. That issue does not arise here. The question is whether a belief by the appellant that he was, by reason of being an Aborigine and pursuing a particular life-style, entitled to take and keep plain turkeys is a claim of right that falls within the operation of s.22 of the [Queensland Criminal] Code. If the defence is made out, it is because the defence [of honest claim of right] is recognised by the statute law of Queensland . . . It is not made out because an aspect of Aboriginal customary law takes some precedence over statute law.

Accordingly, most of the discussion in all five opinions is devoted to the question of statutory interpretation: does the claim of right "defence" under s.22 of the Code apply to an offence under s.54(1) of the Fauna Conservation Act? Justices Brennan, Deane and Dawson considered that the claim of right is not applicable, because s.54 is a general conservation provision protecting native fauna and is not concerned with property interests.

Justices Toohey and Gaudron would have applied the claim of right defence (particularly since s.7 of the Fauna Conservation Act makes protected fauna property of the Crown except during prescribed "open seasons"). This would allow evidence of Aboriginal law to go to the issue of liability and not merely to mitigation. As Justice Gaudron wrote (at p.58):

the foundation of Mr Walden's claim of right is based on his membership of an Aboriginal community and the customs of that community ... A right must mean a right in law, and not merely one which owes its existence to a moral order, religious code or other non-legal regimen. A claim of right predicted on the customs of the Aboriginal community does not, without more, constitute a claim of right within the contemplation of s.22 of the Code. However, should such a claim of the Aboriginal community in question are recognised by law, the claim will be brought within the purview of the section.

Justice Toohey also referred to the facts that (at p.47) "foraging rights of Aborigines have been recognised in a variety of statutes - federal, state and territory - some of which go back to the first half of the nineteenth century", and that this topic was discussed at length in the ALRC Report on The Recognition of Aboriginal Customary Laws (1986) ch.35.

On the question of penalty, all of the Justices agreed that in view of Walden's good character and the relative triviality of the offence, Walden should be discharged pursuant to s.657A of the Queensland Criminal Code. As Justice Brennan wrote (at p.1 9):

To deprive an Aboriginal without his knowledge of his traditional right to hunt for bush tucker for his family on his own country and then to convict and punish him for doing what Aborigines had previously been encouraged to do would be an intolerable injustice. It adds the insult of criminal conviction and punishment to the injustice of expropriation of traditional rights. It can and should be avoided by discharging the appellant absolutely under s.657A.

Thus, the High Court took the unusual step of re-imposing sentence itself, rather than remanding the matter to the Queensland courts.

Although the High Court failed to seize the initiative and take on the broader issues of the relationship between Aboriginal customary law and European law, all of the judgements indicate that where the claim of right defence is available, it may be founded on an honest belief in the lawfulness of a person's actions under custom. Until Aboriginal customary law is recognised in the courts - and it appears this will require legislation - there are some limited avenues such as this for introducing matters of custom through the back door.

[Ed. note: For the successful use of the claim of right defence to the alleged theft of Aboriginal sacred bark paintings, see [1981] AboriginalLB 11; 1(1)pg8)