A native title holder who was caught with 200 illegally harvested abalone cannot be afforded protection under the Native Title Act because the fish were taken for a birthday party, a NSW South Coast court has heard.
Yuin man Charles Nye, 48, was handed a two-year community corrections order, 250 hours of community service and fined $3,000 after being found guilty of four offences, including possession and shucking of abalone and threatening a fisheries officer.
Mr Nye pleaded not guilty to the charges in the Batemans Bay Courthouse, claiming a defence under native title, and said he had taken the fish for a community gathering.
His lawyer Nicholas Allan told the court he had also used the harvest to hand down the practice of cultural fishing to his 11-year-old son.
But Magistrate Doug Dick said that while he accepted that fishing for abalone was a traditional practice, he was not convinced that the taking of the abalone satisfied all the elements of a native title defence in this case.
Fisheries officers caught Mr Nye with the abalone in his car at Bermagui in November 2019, after he harvested them from Cowdroys Beach in the Mimosa Rocks National Park.
Court documents show Mr Nye told the court he had harvested the fish for a surprise 30th birthday party for his daughter.
"I thought it was a beautiful idea because it brings all my family and the community together, to have a good laugh and a drink," Mr Nye told the court.
Mr Nye believed it was his right as a native title holder to take the fish.
Magistrate Dick said in his judgement that because the abalone was taken for a party to which many invitees were not Aboriginal, it did not satisfy communal needs as required by the legislation.
He also said the location of the party, which was to be held in Mogo, could not be considered a traditional Aboriginal settlement.
"I am not satisfied the venue of the birthday party was a traditional Aboriginal settlement existing at the time of sovereignty," Magistrate Dick said.
"A birthday party in such circumstances would not be regarded as a cultural or spiritual activity."
Traditional fishing practice examined
Mr Nye told the court he had been showing his 11-year-old son traditional fishing practices and gathering the fish for the party, which was to be held 16 days after the harvest.
He said he went diving that day because conditions were ideal and he had planned to freeze his catch.
Of the 200 abalone found, 157 were undersized.
Mr Nye told the court he measured the size of the abalone with his hand, which was a traditional practice.
"You take what you think will provide for your family and friends and elders," he said.
"That's why you leave the breeders. Just what I think's edible. I don't go on measurements."
Magistrate Dick agreed that measuring abalone by hand was a traditional Aboriginal practice, but because Mr Nye did not take the abalone for traditional purposes, he could not be afforded protection from prosecution.
Court documents also showed Mr Nye threatened one of the officers during the search, which was captured on a body-worn camera.
"Stop being such a joker, or I'll punch you in the f***ing head," Mr Nye said.
Magistrate Dick accepted that the threat was at the lower end of seriousness and the video showed a somewhat resigned Mr Nye.
"I'm not going to lecture you," Magistrate Dick said.
"The whole law is designed to protect fisheries stock. Fisheries, I think, have been very kind by not pushing [a] prohibition order."
