Parliamentary Paralysis Continues To Gut First Nations Fishing Rights

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Seven years after amendments were drafted in NSW to recognize the cultural fishing rights of Australia’s First Peoples, the legislation sits idle, and some Aboriginal people sit in jail. Greens MLC Justin Field says it’s time for the inaction to end.

I’ve fished my whole life, and all over the country. From beaches on the South Coast of NSW, spearing on reefs in North West of Australia, throwing a bait net for live mullet in the Calliope River near my childhood home in Gladstone and chasing Barramundi on lures in Cape York.

My father fishes and so did my grandfather. Fishing is part of my upbringing and no doubt seen as a cultural practice to many Australians.

But imagine you are part of the longest living continuous culture on earth and your family for hundreds of generations have fished in the same area. It’s a fundamental part of your diet and social life, an integral part of ceremony and of your spiritual belief system as well as being a tradable commodity.

That is a cultural connection that warrants a different sort of consideration when it comes to making laws and managing our fisheries resources.

Six years ago, the NSW Parliament passed laws recognising cultural fishing rights for Aboriginal people. Today, those laws agreed to by the Parliament are yet to be enacted. Because of this delay, Aboriginal people across the NSW coast continue to face the threat of prosecution and fines for doing what they have done for hundreds of generations.

This essentially criminalises culture.

Everyone I talk to in politics tells me they support recognising cultural fishing in our laws. The problem is that in practice the complexity of this issue has created a paralysis of consensus within the political classes and the bureaucracy.

Aboriginal communities are frustrated and Aboriginal people today are in jail for fisheries offences, despite acknowledgement of cultural fishing in NSW law and protections under federal Native Title law.

The 2009 amendments to the NSW Fisheries Management Act recognised the spiritual, social and customary significance to Aboriginal people of fisheries resources and sought to protect and promote the continuation of Aboriginal cultural fishing.

Aboriginal cultural fishing is defined in the Act today as “fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational or ceremonial purposes or other traditional purposes, and which do not have a commercial purpose”.

Up until 2009, and since the early 90s, permits had been available to Aboriginal people for cultural fishing activities that were outside of general recreational fishing rules like bag limits. Aboriginal people had to apply for a permit in the same way a researcher or aquaculture operator did. Understandably most Aboriginal people did not see it as fair or necessary to have to apply for a special permit for an activity that they considered to be a right.

Amendments moved by the Government during the debate in the Parliament included a new section (21AA) to the Act, which was designed to put in place a regime under which regulations could be developed for cultural fishing, as long as there was appropriate consultation with Aboriginal people.

At the nub of this issue is a concern that open rights to the resource as part of cultural fishing could impact the rights of commercial fishers and recreational fishers. That concern reflects the historical patronising approach to native title rights generally. Or put another way the Parliament was saying “we recognise your right to use the resource but we don’t trust you to use it responsibly and don’t want your right to impact the rights of people we’ve sold commercial and recreational licences to”.

It’s out of date thinking and fails to recognise the unique connection of Aboriginal communities to local fisheries.

Greens MLC Ian Cohen put this case in the Parliamentary debate in 2009 saying, “The rights of Aboriginal people, those traditional owners of our State, to customarily fish their waters as they have from time immemorial is not a right to be circumscribed by permit or licence – it is a birthright….”

The impact of this outdated thinking was that the section 21AA never got enacted and the Government, as an interim response, issued specific bag limits for Aboriginal people which allowed more of certain species to be taken.

The limit increases were modest and haven’t resolved the core conflict between recognising a right, and then constraining that right without regard to the practical use of that resource for cultural purposes.

For Aboriginal communities, cultural fishing doesn’t draw lines between fishing for food for oneself to fishing for the extended family or community, for ceremony or for trading purposes.

This tension is now being played out in the courts.

Greens MLC, Ian Cohen, flagged this potential when the amendments were debated in the NSW Upper House, noting that: “It must be remembered that Aboriginal fishing rights are protected by section 211 of the Native Title Act 1994 of the Commonwealth, which commenced prior to the New South Wales Fisheries Management Act 1994, and as such provides a defence to a prosecution for fishing in accordance with their custom.”

In NSW, a number of cases where native title rights have been used as a defence for fisheries offences have seen the NSW Government drop the cases to avoid a judgement on these questions.

Despite this, a number of Aboriginal people have suffered custodial sentences as a result of non-payment of fines or prosecutions under the fisheries management act. Access to legal assistance to run a Native Title defence seems to be one of the determining factors.

The Government does appear to have recognised these inherent issues and prosecutions have slowed or ceased in recent times, however Aboriginal people are still receiving notices from Fisheries in relation to potential offences, with demands for the individuals to prove that they are Traditional Owners in order for any action to be stopped.

The current situation is far from satisfactory and bad will is growing. Aboriginal communities just want this issue sorted so they can move forward.

It is a complicated issue. There are challenges in fisheries management from having different rules for Aboriginal and non-aboriginal people and pressures from some who might see cultural fishing, without regulated limits, as a threat to their access to some fisheries. Certainly abalone is a critical species in regards to this question.

Importantly cultural fishing was recognised and supported by the recreational and commercial fishing sectors through the adoption of Indigenous fishing principles in 2004. One of the key principles is, wherever possible, to translate cultural fishing needs into a share in the overall allocation of sustainably managed fisheries, and encourage the increased participation of Aboriginal participants in fisheries related business.

I raised these issues recently in Parliament in response to a report into Economic Development in Aboriginal Communities tabled last month. The report makes a number of recommendations including that Section 21AA of the Act be enacted to improve economic opportunities for Aboriginal communities through fisheries related business.

The current position is untenable. Aboriginal people have a right to use this resource for the benefit of their communities. We have to trust that Aboriginal communities will manage that resource appropriately as they have done for millennia.

It’s long past time that the NSW Government fixed this so that Aboriginal people can freely engage in cultural fishing, and we can start the process of working with Aboriginal communities to develop the economic opportunities possible through the responsible use of fisheries resources.

It’s time for the paralysis of consensus on this issue to end.

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Justin Field

Justin Field is a Greens member of the NSW Legislative Assembly.

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