Friends argue ‘reciprocal rights’ over turtle kill
Two mates fighting a $2000 fine over illegally harpooning a green turtle for a wedding feast have had their push to adduce fresh evidence rejected.
Jaffa Godfrey Ahwang and Patrick John Sabatino had been hunting near Murray Creek, about 60km north of Mackay, when a Queensland Boating and Fisheries Patrol crew stopped their boat on April 16, 2017.
On the floor of the vessel, officers spotted a turtle with its front flippers bound together and a puncture wound through the top of its shell.
It was conceded the men, who are Torres Strait Islander, do not have native title over the area.
The turtle was taken for a wedding in accordance with traditional and customary methods of hunting, "which they had exercised themselves in that area for over 40 years".
Representing themselves, the pair denied the charge of taking a protected species, but were found guilty in Mackay Magistrates Court last year, each fined $2000 and ordered to pay $750 legal costs. Convictions were not recorded.
The pair have applied to adduce new evidence to establish "an honest claim of right" including by an anthropologist in relation to the rights and customs of Torres Strait Islanders living in Mackay.
District Court Judge Deborah Richards, in a recent judgment, said Ahwang also wanted to give evidence that his grandfather, father and uncle had been "given permission to hunt turtle and dugong outside traditional waters and he has also always done so with approval of the local Aboriginal traditional owners".
"The (men) acknowledge correctly that they do not have a claim to native title as they are not the traditional owners of the land," Judge Richards said.
"They seek to claim that there is the existence of reciprocal rights arising out of the affiliation of saltwater people generally and that this is a law that entitled them to kill turtles in a traditional manner."
The pair have also argued they were unable to present their evidence properly as they were unrepresented in the hearing.
"The evidence of the (men) was that they had sought a permit and been denied it so they knew that the traditional owners of the land were not giving them permission to fish for the turtle on this particular occasion," Judge Richards said.
"They now seek to assert a general right under Customary Law to fish the waters."
However Judge Richards said "it would seem that they did not have a belief that they have a right to fish without the permission of the traditional owners" and the fact the traditional owners had denied permission "would be a factor against an honest and reasonable belief that reciprocal rights existed".
"Reciprocal rights can only exist as long as both parties acknowledge their existence," Judge Richards said.
"That would seem to have not been the case on this occasion.
"In those circumstances the application to adduce fresh evidence should be denied."