Moriarty v Nye [2024] NSWCCA 116

Moriarty v Nye [2024] NSWCCA 116

Section 211(2)(a) of the Native Title Act 1993 (Cth) refers to needs that can be satisfied directly by the activity (sustenance or consumption) and does not extend to indirect satisfaction of broader needs by sale or trade outside the household or community. Receiving fish taken by others and selling them to persons outside the native title community is not protected as 'fishing' or 'gathering' under s 211(3). When s 211 is invoked, the legal burden of proof lies with the opposing party to negative its application, on the standard otherwise applicable to them.

Jurisdiction
Australia
Judgment Date
08 July 2024
Procedural Posture
Appeal Stated Case (criminal) / Court of Criminal Appeal Answering Questions of Law From District Court Prior to Appeal Determination
Outcome
Questions answered as set out; unnecessary and inappropriate to answer further.
Legal Topics
['native Title' 'burden of Proof' 'interpretation of Federal Immunity Provisions' 'indigenous Fishing Rights' 'fisheries Regulation']
['land Law' 'criminal Law' 'evidence'] ['native Title' 'burden of Proof' 'interpretation of Federal Immunity Provisions' 'indigenous Fishing Rights' 'fisheries Regulation']

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Procedural Posture

Appeal Stated Case (criminal) / Court of Criminal Appeal Answering Questions of Law From District Court Prior to Appeal Determination

Legal Issues

  1. 1 ["What is the meaning of 'for the purposes of satisfying their personal, domestic or non-commercial communal needs' in s 211(2)(a) of the Native Title Act 1993 (Cth)?" "Can receiving and assembling fish for sale obtained from others constitute 'fishing', 'gathering', or 'a cultural or spiritual activity' under s 211(3) of the Native Title Act 1993 (Cth)?" 'Who bears the legal burden of proof when s 211 is relied on in criminal or civil proceedings?']

Ratio Decidendi

Section 211(2)(a) of the Native Title Act 1993 (Cth) refers to needs that can be satisfied directly by the activity (sustenance or consumption) and does not extend to indirect satisfaction of broader needs by sale or trade outside the household or community. Receiving fish taken by others and selling them to persons outside the native title community is not protected as 'fishing' or 'gathering' under s 211(3). When s 211 is invoked, the legal burden of proof lies with the opposing party to negative its application, on the standard otherwise applicable to them.

Court Disposition

Questions answered as set out; unnecessary and inappropriate to answer further.

Orders

  • ['Section 211(2)(a) of the Native Title Act 1993 (Cth) covers needs satisfied directly by the protected activity, not by trade or sale outside the community.' "Receiving/assembling fish for sale outside the community is not 'fishing', 'gathering' or 'a cultural or spiritual activity' within s 211(3)." 'The legal...