For First Nations communities along the south coast of NSW, their right to fish as a traditional and primary way of living and practising culture, maintain a connection with Country and pass on cultural knowledge is at stake.
The Native Title Act 1993 enshrines the right of First Nations people to hunt, fish and gather for non-commercial ends, but First Nations people have long been criminalised for engaging in diving, fishing and gathering shellfish in their own Sea Country. The current stalemate between First Nations fishers along the south coast and the NSW government has a long and complex history.
First Nations people were the first custodians of Australia’s marine and freshwater environments. First Nations people on the south coast of New South Wales belong to a number of different nations, including those who identify as Brinja-Yuin, Budawang, Jerrinja, Murramarang, Walbunja, Wandandian, Wodi Wodi, Yuin, Yuin-Monaro, and more. For at least 20,000 years, they have sustainably fished and gathered shellfish along the southern coasts of Australia as an integral part of their culture and economies, as well as for sustenance.
The National Native Title Tribunal define Aboriginal cultural fishing as:
…fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational, ceremonial or other traditional purposes, and which do not have a commercial purpose.
First Nations people along the length of the south coast of NSW were amongst those who bore the brunt of the violence of the 1788 colonial invasion and the establishment of the settler colonial state which, over time, has led to systematic restriction of First Nations customary fishing rights and the exclusion of First Nations people from fishing as cultural practice, largely due to commercial and recreational fishing by non-Indigenous people.
From the early nineteenth to the late twentieth centuries, First Nations people along the south coast engaged in survival fishing and at times participated in commercial fishing. A government briefing paper recounts how the beach haul fishery industry – which began as forced labour for mission residents in the early twentieth century – over subsequent generations has become incorporated into customary fishing practices. Wally Stewart, on behalf of the south coast Aboriginal Fishing Rights Group (AFRG), provides a comprehensive account of fishing practices from the beginning of European settlement to the present day and outlines the AFRG’s campaign to have their fishing values recognised and respected.
Our fishing rights are our identity — it’s who we are. We’re saltwater people from the South Coast.
Danny Chapman
Fishing activities of First Nations people and settlers near Ulladulla, New South Wales, approximately 1885, Mickey of Ulladulla.
Since Federation, management of fisheries has been a shared responsibility between the Commonwealth government and the States, with recognition of ‘traditional’ First Nations fishing rights varying significantly across Australia. From the 1970’s onwards, governments around the country began to strengthen regulation of fisheries (including licensing, quotas and bag limits). Particularly in NSW, where regulations have always been strict for all citizens in coastal fishing, First Nations fishers have been slowly edged out. Increasing regulation of the fishing industry in the 1990s exacerbated this exclusion, with First Nations people precluded from participating in fishing as cultural activity as well as managing marine resources in self-determining ways.
In 2009, the Fisheries Management Act was amended by the NSW Government to acknowledge First Nations peoples’ unique cultural connection to sea and inland waters and to protect and promote First Nations cultural fishing. A special provision, section 21AA, was also introduced which was intended to protect First Nations people from compliance actions for fishing offences if they were undertaking cultural fishing. Section 21AA has still not been commenced.
Children and adults pulling in nets on the beach at Wreck Bay, NSW, 1979-1980. AIATSIS Collection.
First Nations fishers have been described as ‘poachers’ by industry and government, and have been jailed, fined and harassed for decades – even though analysis shows the First Nations catch is small when compared with the amounts taken by industry each year. Relations between First Nations fishers and the NSW government have continued to deteriorate over time.
Increasingly, criminal prosecutions have been brought against First Nations cultural fishers for taking catches deemed to be ‘excessive’. While First Nations communities on the NSW south coast comprise about four percent of the population, they are vastly overrepresented in incarceration for fishing offences. Between 2009 and 2020, First Nations people accounted for approximately 80% of jail terms for fisheries offences, and were more than nine times as likely to be incarcerated than non-Indigenous people.
This pattern of criminalisation and exclusion represents a broader critical issue facing First Nations people, whose rights to Sea Country continue to take second place to other interest groups competing for a commercial or economic stake in the sea. While rights to Sea Country were never ceded by First Nations communities, the proper recognition of these rights have not been satisfactorily resolved in most Australian jurisdictions, including NSW. In September 2024, a national Sea Country conference was held on Larrakia Country in Darwin, at which an alliance of Traditional Owners was formed to protect their Sea Country rights, signalling that First Nations people across Australia are asserting their rights to their Sea Country as never before. In May 2024, First Nations fishing rights advocates from Alaska, Canada, Taiwan, and Japan convened on the lands of Walbunga Yuin people for the International Indigenous Fishing Symposium to discuss their struggles and strategies and foster international collaboration to achieve their goals.
In March 2024, native title holders on the NSW south coast filed a class action in the Federal Court, claiming that the NSW Government has breached the Racial Discrimination Act, with devastating consequences for First Nations fishers and the entire community’s health, family cohesion and the passing down of saltwater culture across generations. This could result in more than 10,000 people being eligible for a compensation payout from the NSW Government for the criminalisation of traditional fishing practices that are protected under Commonwealth native title law.
A lot of our divers have no other criminal records except for diving, and they’re being sent to jail… It’s normalising jail for our kids.
Steve Clarke, Bidjigal-Wodi Wodi-Wandean man and diver
In November 2021, a NSW Parliament Inquiry into Commencement of the Fisheries Management Amendment Act 2009 was established to investigate why section 21AA was not commenced, and the impact of this non-commencement on First Nations cultural fishers.
At one of the public hearings, leading barrister and Wirdi man, Tony McAvoy SC, asked:
What is going on in the administration of this Government that matters done for the benefit of Aboriginal people are routinely overlooked by the administration? Because it looks and smells like systemic and structural discrimination against Aboriginal people, and is certainly being experienced by Aboriginal People as discrimination. And you need to ask yourself, if this Parliament is a parliament for all people in New South Wales, how is it that, when the Parliament decides that things ought to be done to alleviate the disadvantage that has been caused by the occupation of their lands, the administration doesn’t carry out Parliament’s will?
All but four of the 44 submissions provided by individuals and organisations supported the concept and enhancement of customary fishing for First Nations communities.
The NSW Fishing Rights Group submission called for:
In November 2022, the Portfolio Committee No. 4 – Customer Service and Natural Resources – who had been tasked with the Inquiry released its Final Report. In the report, the Committee stated they were “extremely concerned to hear of the level of damage inflicted by compliance actions on Aboriginal people whose lives and culture are expressed and defined by their cultural fishing practices”, and that they “repeatedly heard stories of Aboriginal people being harassed, prosecuted, and fined for practising cultural fishing”.
The report published four findings from the Inquiry, including that the NSW Government had failed to effect the will of the Parliament by not commencing Schedule 1 of the Fisheries Management Amendment Act 2009 to make special provision for cultural fishing. It also found that the compliance activity and prosecutions against First Nations people practising cultural fishing, particularly on the South Coast of NSW, are unacceptable and creating perverse outcomes inconsistent with the NSW Government’s commitments to the Closing the Gap Agreement.
Among other things, the report recommended that the NSW Government commence Schedule 1 of the Fisheries Management Amendment Act 2009 by 30 June 2023, which would make provisions for cultural fishing. This has not yet occurred.
The ongoing stalemate appears to hinge on recognition and definition of the three arms of the fishing industry – commercial, recreational and First Nations customary fishing. The NSW Government has defended its tardiness in implementing Section 21AA that permits cultural fishing, stating that it has not yet reached agreement with First Nations peak bodies on what precisely constitutes sustainable limits consonant with Native Title rights of customary fishing practices.
In late September 2022, a media release from the NSW Government announced the launch of a new initiative – an Aboriginal Fisheries Business Development program – designed in response to the many concerns raised in the NSW parliamentary inquiry. While this initiative heralds a positive response by the Government, it comes after considerable delay. This kind of government support was first articulated and called for in 2004 as part of the National Indigenous Fishing Principles produced by the National Native Title Tribunal. In particular, Principle 6 states:
Governments and other stakeholders will work together to, at minimum, implement assistance strategies to increase Indigenous participation in fisheries-related businesses, including the recreational and charter sectors.
In November 2022, in response to a July 2022 court case won by a First Nations fisher, the NSW government introduced a Fisheries Management Amendment (Enforcement Powers) Bill 2022, proposing expansion of compliance powers. These proposed changes have been widely condemned by the NSW Aboriginal Land Council and other First Nations organisations as having a disproportionately negative impact on First Nations people. In particular, the ‘net widening’ effect of the proposed laws is of grave concern, given the already crisis level overrepresentation of First Nations people in criminal legal systems in Australia.
The NNTC has pointed out that the right to hunt and fish are recognised native title rights preserved under the Native Title Act. The Chair of the National Native Title Council (NNTC) and Co-Chair of the First Nations Heritage Protection Alliance, Kado Muir said in response to the proposed amendments:
This conversation must always be based on the reality that First Nations are exemplars of sustainable hunting and fishing, as demonstrated over millennia. It is just not the physical act of fishing or hunting, but the cultural significance of the way we do it and the cultural sharing to our family and community. This not only carries health benefits and ensures community cohesion, but also reinforces culture in terms of maintenance and the passing down of cultural practices to future generations.
In offering a solution to the proposed changes for NSW Fisheries Management, Kado Muir stated:
It is quite simple – don’t proceed with the NSW legislation or if so, exempt First Nations Peoples.
In November 2024, the Department of Primary Industries (DPI) in the NSW Government produced a discussion paper about a Draft Aboriginal Fishing regulation intended to replace the Aboriginal Cultural Fishing Interim Access Arrangement (ACFIAA) that has been in place since 2010. The paper claims that the new regulation will provide ‘extended take and possession limits in recognition of the importance of fishing for cultural purposes by Aboriginal peoples and communities.’ First Nations fishers along the south coast have pointed out that the new regulation makes no change to current bag limits in the ACFIAA in relation to important species like abalone.
Consultation with communities about the discussion paper’s proposal closed on 16 February 2025. To date there is no indication that there will be any change to the draft regulation despite many concerns expressed by First Nations people during the consultations. Meanwhile, prosecutions continue, with the NSW Government laying charges and then often dropping them when the case finally gets to court.
In a further development, representatives of the abalone – or muttonfish – industry are pushing the NSW Government for a ‘buy out’ of their licences, as abalone stocks have fallen so far as to make businesses unviable. First Nations fishers are being unfairly blamed and scapegoated for the abalone depletion, with the Abalone Council of Australia chief executive claiming that “a small group of recidivist offenders are stealing abalone from state waters and hiding behind native title and/or cultural fishing rights”.
On a more positive note, the NSW Government’s Aboriginal Fisheries Business Development Program has provided support for two years (2023-2025) to three Aboriginal fishing enterprises in NSW, including the new Walbunja Aboriginal Fishing Cooperative which is forming on the south coast.
Watch below to learn more on the significance of abalone, or muttonfish, for Saltwater people on the South Coast.
