Biodiversity Conservation Act 2016

This section does not affect the operation of the CALM Act.

It is a defence to a charge of an offence under this Act of taking fauna or flora to prove —

the accused is an Aboriginal person; and

the accused took the fauna or flora for an Aboriginal customary purpose; and

in taking the fauna or flora the accused complied with —

section 156(1) or 175(1), as the case requires; and

any regulations that restrict or exclude the operation of this subsection;

if the offence is alleged to have been committed on land other than CALM Act land, the person who has control or management of the land consented to the taking of the fauna or flora; and

if the offence is alleged to have been committed in an area in relation to which exclusive native title exists, the accused either —

held the exclusive native title alone or with other persons; or

took the fauna or flora with the permission of the exclusive native title holder for the area.

It is a defence to a charge of an offence under this Act of disturbing fauna to prove —

the accused is an Aboriginal person; and

the accused disturbed the fauna for an Aboriginal customary purpose; and

in disturbing the fauna the accused complied with —

section 156(1); and

any regulations that restrict or exclude the operation of this subsection; and

if the offence is alleged to have been committed on land other than CALM Act land, the person who has control or management of the land consented to the disturbance of the fauna; and

if the offence is alleged to have been committed in an area in relation to which exclusive native title exists, the accused either —

held the exclusive native title alone or with other persons; or

disturbed the fauna with the permission of the exclusive native title holder for the area.

If, but for this subsection, the defence provided by subsection (2) or (3) would entitle an Aboriginal person to do an act that is inconsistent with the continued existence, enjoyment or exercise of any native title rights and interests (as defined in the NT Act section 223) held by another Aboriginal person, the defence does not apply to that act unless it is proved the accused did the act in order to obtain fauna or flora sufficient only for food for the accused and the accused’s family, but not for sale.

The defences provided by subsections (2) and (3) are in addition to the defences provided by sections 151(1) and (2), 153(3) and (4) and 174(1) and (2).