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The Traditional Owners of this land are those who identify as
Aboriginal and Torres Strait Islander Peoples.

Sovereignty was never ceded.

ANTAR pays respect to Elders past, present, and emerging through our dedicated advocacy for First Nations Peoples’ justice and rights.

ANTAR acknowledges the responsibility of committing to a truth-telling process that promotes an honest and respectful path forward for future generations to build upon.

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Cultural Heritage Native Title Cultural Fishing Rights (NSW)
12 minutes

Native Title Cultural Fishing Rights (NSW)

Last edited: November 24, 2022

At stake is the right for First Nations communities along the south coast of NSW to ‘fish as a traditional and primary way of living and practising culture, maintaining a connection with Country and passing on cultural knowledge’. Also at stake is the capacity for these communities to participate in the commercial aspects of the industry in NSW.

THE ISSUE

By the 1990’s, regulation of the fishing industry had resulted in Aboriginal fishers being slowly squeezed out. Relations between First Nations fishers and the NSW government has now deteriorated to the point of criminal prosecutions being brought against First Nations cultural fishers for taking catches deemed to be excessive. This despite the fact that no numerical limits have yet been specified for these traditional practices (see Government Submission to the current Enquiry for details). While First Nations communities on the NSW south coast comprise about four percent of the population, Oxfam research indicates that eight out of ten convictions (including jail terms) for fisheries offences, since 2009 have been of Aboriginal people. 

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. The current stalemate has a long and complex history.

Fishing activities of First Nations people and settlers near Ulladulla, New South Wales, approximately 1885, Mickey of Ulladulla.

CONTEXT

First Nations people on the south coast of New South Wales belong to a number of different groups, 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, Aboriginal and Torres Strait Islander peoples have fished the southern coasts of Australia for food. Over time, European colonisation of Australia has meant systematic restriction of the customary fishing practices and the eventual muscling out of Aboriginal communities from their ancient fishing rights by commercial and recreational fishing by non-Indigenous people. First Nations people along the length of the south coast of NSW were amongst those who bore the brunt of the early decades of the 1788 colonial invasion. Despite this reality, the coastal communities fared somewhat less catastrophically than the hinterland communities of the Sydney Basin, both westward and northward.

Nineteenth century colonial government records consistently confirm that, ‘relationships between south coast First Nations and various economies such as logging, whaling, and fishing were two-sided’. From the early nineteenth to the late twentieth centuries, south coast First Nations people engaged in survival fishing and at times participated in commercial fishing. A government briefing paper, recounts how the beach haul fishery industry, that began as forced labour for mission residents in the early twentieth century, over subsequent generations has become incorporated into customary fishing practices.

Children and adults pulling in nets on the beach at Wreck Bay, NSW, 1979-1980. AIATSIS Collection.

Since Federation, management of fisheries has been a shared responsibility between the Commonwealth and the States and recognition of ‘traditional’ fishing rights has varied significantly across Australia. From the 1970’s onwards, governments around the country began to strengthen regulation of fisheries (e.g. licencing, quotas, bag limits). Particularly in NSW, where regulations had always been strict for all citizens in coastal fishing, Aboriginal fishers have been slowly edged out. A 2000 research document that examined Native Title and Sea Rights provides evidence of First Nations sea rights continuing to take second place to other interest groups competing for an economic stake in sea rights. 

TIMELINE

1993: the Mabo High Court decision that ‘rendered terra nullius a fiction’ gave rise to National Native Title legislation. While never ceded by First Nations communities, recognition of sea rights has not been satisfactorily resolved in some Australian jurisdictions including NSW. 

2004: The National NativeTitle Tribunal (NNTT) facilitated the establishment of a set of National Indigenous Fishing principles. These principles were the outcome of 12 months work by experts from all relevant parties in the fishing industry as well as all State and Federal government representatives. The principles included a definition of customary fishing; that customary fishing wherever possible will translate into a share of the overall allocation of sustainable managed fisheries and that governments and other stakeholders at minimum, implement assistance strategies to increase Indigenous participation in fisheries-related businesses.

2005: These ‘Fishing principles to guide Indigenous involvement in marine management’ were endorsed by the Federal Government in the Commonwealth Fisheries Resources Sharing Framework. 

2009: The NSW parliament passed the Fisheries Management Amendment Act (114 NSW), that provided a general exemption for Aboriginal people from paying a fee for recreational fishing (section 37), exempted First Nations fishers from other sections (17&18 prohibitions  beyond certain limits) and incorporated the National Native Title Tribunal’s definition of 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.

Controversially Section 21AA of the Act, ‘Special provision for Aboriginal cultural fishing’ to the present day has never had a Commencement proclamation edict from the NSW government.

2009: Australia endorsed the United Nations Declaration of the Rights of Indigenous Peoples (including UNDRIP, Articles 20, 21, 25, 26).

2016: A Report, ‘Inquiry into economic development in Aboriginal communities of the NSW Legislative Council Standing Committee’ made a unanimous finding, ‘that there is a desperate and moral need for leadership and action on the deplorable outcomes for our Aboriginal communities’. It made 39 recommendations – the final one being,‘that the NSW Government proclaim section 21AA of the Fisheries Management Act 1994’.   

2018: A Native Title Determination that encompasses the whole of the disputed fisheries region is made for an area of almost 17,000 square kms, from the Royal National Park south of Sydney, to south of Eden on the far south coast and extending three nautical miles out to sea. Fifty two family groups are associated with the claim and more than 500 First Nations people approved the submission in 2016. 

2021: In November a private members business item called on the NSW Perrottet Government to  ‘commence these provisions [s 21AA] without delay and without any further regulation’. The motion was passed and a Legislative Council ‘Inquiry into the Commencement of the Fisheries Management Amendment Act 2009’ was established to: ‘focus on why the section 21AA has not commenced and the impact of that non commencement… [on Aboriginal communities in NSW]. 

2022: The NSW government called for submissions from the public. All but four of the 44 submissions provided by individuals and organisations support the concept and enhancement of customary fishing for First Nations communities. 

WHERE IS NSW UP TO?

In reviewing the above history and legislative attempts to resolve this situation it is difficult to avoid the damning question put to the Inquiry by leading barrister, Tony McAvoy SC defending Cultural Fishing Rights. At one of the Inquiry public hearings McAvoy asks:

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?

This stalemate appears to hinge on recognition and definition of the three arms of the fishing industry – commercial, recreational and First Nations customary fishing.The Government has defended its tardiness in implementing Section 21AA that permits cultural fishing. It states that it has not yet reached agreement with Aboriginal peak bodies on what precisely constitutes sustainable limits consonant with Native Title rights of customary fishing practices.

In late September, a Media release from the Government announced the launch of ‘Aboriginal Fisheries Business Development program aims to Close the Gap’ a long term program designed in response to concerns raised in a parliamentary inquiry into cultural fishing.  This initiative heralds a positive response by the government to the Inquiry. It should be a matter of chagrin to the Government, that this kind of government support was first articulated in 2004 as one of the National Indigenous Fishing Principles produced by the National Native Title Tribunal. The principle states:

that governments and other stakeholders at minimum, implement assistance strategies to increase Indigenous participation in fisheries-related businesses.

In November 2022, the NSW government released its Report, ‘Inquiry into Commencement of Fisheries management Amendment Act 2009’. The Report recommends that commencement of  S21AA which would make provision for cultural fishing be completed by June 2023. The Report’s seven recommendations broadly align with the following summary of key recommendations from the Inquiry Submission, which included:

  • Immediate commencement of Section 21AA of the Fisheries Management Amendment Act 2009;
  • Immediate prohibition on prosecuting Aboriginal cultural fishers;
  • Immediate removal of current restrictions on Aboriginal cultural fishers;
  • That the NSW government provides fair compensation for wrongful convictions, loss of gear, fines paid, and the levels of harassment and harm that people have experienced over a long period since the non-enactment of S21AA of the 2009 Amendment of the NSW Fisheries management Act.

RECENT EVENTS

In November 2022,  in response to a July 2022 court case won by an Aboriginal fisher, the NSW government introduced a Fisheries Management Amendment (Enforcement Powers) Bill 2022. It is understood that the changes in this Bill provide for expansion of compliance powers. It has been roundly condemned by NSW Aboriginal land Council and other First Nations organizations as having a disproportionately negative impact on Aboriginal people. 

The Chair of the National Native Title Council (NNTC) and Co-Chair of the First Nations Heritage Protection Alliance, Kado Muir has 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.

The NNTC points out that the right to hunt and fish are recognised native title rights preserved under the Native Title Act. It also notes that whilst state governments have the right to ownership of natural resources, it can only do so providing it does not extinguish native title rights. The NSW legislation signifies to regulate not extinguish, but when that regulation disproportionately affects particular rights-holders it becomes discriminatory. The strong implication of the proposed NSW laws is the likely ‘net widening’ effect it has bringing First Nations into greater contact with the criminal justice system – a system where First Nations Peoples are already grossly overrepresented. In offering a solution to the proposed changes for NSW Fisheries Management, Kado Muir states

It is quite simple – don’t proceed with the NSW legislation or if so, exempt First Nations Peoples.

The word draconian has been used to describe this seemingly retaliatory and contrary move on the part of the NSW government. This development would seem to underscore the grave concern expressed in Tony McAvoy’s question above and which is elaborated further in the paper, What’s the catch? The criminalisation of Aboriginal fishing in New South Wales, namely:

When the NSW Parliament has passed laws to address a public interest outcome, what rights do agencies or Ministers have to ignore the will of the Parliament by failing to have them proclaimed?

TAKE ACTION

Write to:

  • The Premier, The Hon. Dominic Perrottet; 
  • The Hon. Benjamin Franklin MLC, Minister for Regional Youth, Minister for Aboriginal Affairs, Minister for the Arts; 
  • The Hon. Dugald Saunders MP, Minister for Agriculture, Minister for Western New South Wales.
  1. Commend the Government for its announcement of the Aboriginal Fisheries Business Development program;
  2. Commend the Government for the seven recommendations made in its Inquiry Report;
  3. As a matter of urgency request that the Government refrain from enforcing more compliance measures while Section 21 AA of the Fisheries Management Amendment Act 2009 is still not commenced.

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