Australian Indigenous Law Reporter
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The Commonwealth Government is currently addressing Indigenous Australians' interests in fisheries through the development of an Aboriginal and Torres Strait Islander Fisheries Strategy. The strategy was an initiative of the 1995 Commonwealth Coastal Policy and implements a recommendation of the 1993 Resource Assessment Commission's Coastal Zone Inquiry: Final Report. The strategy is being developed by the Ministerial Council on Forestry, Fisheries and Aquaculture, which includes State and Commonwealth Ministers with responsibilities for fisheries, with funding provided by the Department of the Environment, Sport and Territories (DEST). In February 1996 a Working Group for the strategy was established including representatives from Commonwealth, State and Territory Governments, the Australian Fisheries Management Authority, the Aboriginal and Torres Strait Islander Coastal Reference Group and the Australian Seafood Industry Council.
In September 1995, the Coastal Strategy Section in DEST, and the Fisheries Policy Branch in the Department of Primary Industries and Energy (DPIE), commissioned a consultant to prepare a report on studies, policies and legislation relevant to the development of the proposed strategy. The report is entitled Fisheries, Aquaculture and Aboriginal and Torres Strait Islander Peoples: Studies, Policies and Legislation. It includes sections on recognising Indigenous Australians' interests in fisheries, participating in fisheries management, economic development and employment opportunities, improving relationships, international considerations and comparative developments overseas.
Extracts from the report are presented here.*
...
Aboriginal and Torres Strait Islander peoples hold a range of interests in fisheries and aquaculture, which many have sought to have recognised and protected by participating in government inquiries and consultation processes that have occurred over the last decade or so. The extent to which these interests have been accommodated in law and policies varies markedly around the country. In addition, although there are many common aspirations amongst Aboriginal and Torres Strait Islander peoples, there is also considerable diversity. This reflects in part the heterogeneity of indigenous cultures and their geographic locations.
The report has found that since the RAC recommendations were made, little progress has been made by government agencies in assessing indigenous Australians' rights and interests in fisheries issues, or the impact of current or proposed management regimes on indigenous Australians' rights and interests. The Torres Strait, and to a lesser extent the Northern Territory, seem to be the only areas where detailed economic analyses of fisheries development issues for indigenous fishers have been undertaken.
There has been significant legislative activity in every jurisdiction associated with governments' responses to the High Court's recognition of native title. In Tasmania, Victoria, South Australia, the Northern Territory, Queensland, New South Wales and the Australian Capital Territory, and at the Commonwealth level, governments have confirmed their ownership of natural resources and their capacity to regulate water flows. They have also confirmed existing fishing rights and access to waterways (including beds and banks), beaches and public areas. Such confirmation does not, however, affect native title rights and interests or the conferral of land or water, or interests in land or water, upon Aboriginal peoples or Torres Strait Islanders. [1]
...
Consistent with the Native Title Act 1993 (Cwlth), licensing requirements have been waived for Aboriginal and Torres Strait Islander people(s) engaging in traditional and customary activities in Tasmania, Western Australia, the Northern Territory, and Queensland, but conservation regulations and management plans can still be applied. In South Australia there is a general exemption provision which may be exercised at the government's discretion for Aboriginal and Torres Strait Islander peoples, and in NSW fisheries legislation simply purports not to derogate from the relevant Federal native title legislation.
While the recognition of customary or traditional fishing rights and interests in the Native Title Act 1993 (Cwlth) is significant, it appears that important fisheries management issues that might arise from such recognition are not being widely addressed by the Commonwealth Government or State and Territory Governments. Such issues might include resolving conflict over rights of access to resources, and addressing the impacts of commercial and recreational fisheries activities or coastal development on species traditionally fished and hunted by Aboriginal peoples and Torres Strait Islanders, according to their native title rights and interests. This is despite the recommendation of the 1986 Australian Law Reform Commission (ALRC) Report on the Recognition of Aboriginal Customary Laws, that justifiable priorities for access to resources such as fisheries resources were: firstly, conservation measures and other overriding interests (such as safety and rights of innocent passage); secondly, traditional hunting and fishing; and thirdly, commercial and recreational hunting and fishing. The ALRC recommendations were given further support by the Resource Assessment Commission (RAC) 1993 Coastal Zone Inquiry, which recommended that the legislative reform needed to give greater recognition to traditional hunting, fishing and gathering rights be based on the principles, priorities and definitions recommended by the 1986 ALRC report.
Federal agencies responsible for protected area management, including the Australian Nature Conservation Agency and the Great Barrier Reef Marine Park Authority, continue to lead State and Territory agencies with their recognition of Aboriginal and Torres Strait Islander peoples' rights and interests, and their approaches to co-management of natural and cultural resources. Federal legislation for the co-management of Aboriginal-owned and leased-back areas in the Jervis Bay Territory enables a management plan to recognise Aboriginal interests. Regulation of non-Commonwealth, State areas in the Jervis Bay region is subject to continuing negotiation.
There is also the exciting prospect that negotiated regional agreements between stakeholders concerning natural and cultural resource issues will become increasingly common in future in Australia. There has also been an increasing number of conferences, workshops and publications discussing these issues. [2]
Some Federal policy developments are significant for their omissions; namely the release in 1994 of the National Policy for Recreational Fishing and the National Strategy on Aquaculture. Neither of these documents identify Aboriginal and Torres Strait Islander peoples as stakeholders with interests warranting specific attention.
This report has not included an assessment of the effectiveness or application of heritage legislation in each jurisdiction and offshore, as that was beyond the time-frame of the project. Only in the Northern Territory is there statutory provision for sea-closure inquiries and determinations for Aboriginal landowners. The extent to which existing fisheries management plans do recognise and protect waters and resources near to Aboriginal communities has not been explored either.
In relation to indigenous participation within fisheries management bodies at the Commonwealth level, it was found that there are no Aboriginal or Torres Strait Islander members on Management Advisory Committees established by the Australian Fisheries Management Authority, other than in the Torres Strait, although Aboriginal people may attend prawn fishery management advisory meetings. In the Torres Strait, the advisory and consultative structure is extensive and an important development in that region is the finalisation of several community-level environment and resource management plans. Aboriginal and Torres Strait Islander peoples are not represented on the inter-governmental Inland Fisheries Management Co-ordination Council, the Murray Darling Basin Fish Management Advisory Committee or the Murray-Darling Community Advisory Committee, or on the National Recreational Fisheries Management Network.
The Great Barrier Reef Marine Park Authority now has significant Aboriginal and Torres Strait Islander involvement in advisory committees and reef management processes. The Australian Nature Conservation Agency is developing innovative proposals to encourage the customary management of some Aboriginal and Torres Strait Islander land and sea country, and marine protection strategies are also being developed for the Arafura Sea and the Torres Strait under the Ocean Rescue 2000 program.
At the State level, there is no statutory requirement for Aboriginal participation in fisheries management in Tasmania, New South Wales or South Australia, and only in NSW is there reported to be an Aboriginal person on at least one committee (by chance rather than intent).
In Victoria, the new Fisheries Act 1995 acknowledges indigenous interests in fisheries to the extent that the membership of the newly established Fisheries Co-Management Council, which must reflect a range of expertise, must specifically include a member with knowledge and experience in `traditional fishing'. Fishery committees specific to the management of particular fisheries are also established under the Victorian legislation, and may include members with expertise on traditional fishing. While the Act requires the Minister to declare recognised peak bodies representing commercial fishing, recreational fishing, aquacultural and conservation interests, who must be consulted regarding appointments to the Fisheries Co-Management Council or fisheries committees, similar recognition of peak bodies representing indigenous interests is not specified.
In Western Australia, one Aboriginal person may be appointed to a 14-member Recreational Fishing Advisory Committee, but there is no statutory requirement for an Aboriginal person to be appointed to the Rock Lobster Industry Advisory Committee or the Aquaculture Development Council. The Department does consult with Aboriginal communities however and there is a proposal to involve Aboriginal communities in the Volunteer Fisheries Liaison Officer program.
With the approval of the Northern Territory Government, and after consultations with the Anindilyakwa Land Council and the Tiwi Land Council, the Northern Territory Fisheries Division has put in place the Anindilyakwa Consultative Committee and Tiwi Coastal Waters Consultative Committee. Both these committees are non-statutory. Aboriginal people are not yet represented on species-specific advisory committees in the Northern Territory, although the Minister for Primary Industry and Fisheries has approved Aboriginal membership on some Fishery Advisory Committees (FACs). Commercial licensees (including those of Aboriginal descent) are represented on species-based FACs (where they have been established) by a nominated person(s) elected by the licensees.
In Queensland there is significant Aboriginal and Torres Strait Islander representation on management advisory committees, zonal advisory committees and the Fisheries Policy Council.
There appears to have been negligible research done on fisheries development and resource sharing issues for Aboriginal people, although there has been some work done on the Torres Strait. Fisheries issues have not generated significant attention from the Aboriginal and Torres Strait Islander Commission. However, the Aboriginal and Torres Strait Islander Commercial Development Corporation has invested in an oyster lease joint venture in Ceduna, South Australia. Several other aquaculture projects employ Aboriginal staff on salaries available under the Community Development Employment Program (CDEP), administered by the Aboriginal and Torres Strait Islander Commission (ATSIC). In Western Australia special commercial fishing licences have been available to Aboriginal communities. Western Australia is also developing policies on Aboriginal interests in aquaculture. In April 1996 a landmark agreement was entered into between the Western Australian Government and a local Aboriginal company for a joint aquaculture park near Broome. [3] The non-commercial coastal licence which is available to Aboriginal communities living on land granted under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth) in the Northern Territory enables a specified range of fish to be taken for the licensee's community or group. Coastal licences do not permit commercial sale outside the community. High-cost, potential high-return fisheries are difficult for indigenous fishers to enter, but similar constraints also face non-indigenous interests. In Queensland some Torres Strait Islanders and the Aurukun community are involved in commercial fishing activities, and the Injinoo community may be shortly. Community fishing licences are also available in Queensland. The need for improved and more appropriate training opportunities have been identified as a particular need in the Torres Strait. New South Wales is developing some aquaculture projects with Aboriginal communities. The Victorian Government is negotiating with the Framlingham community over eel netting.
Policies, programs and activities being undertaken by the Council for Aboriginal Reconciliation, Ocean Rescue 2000 and by some State and Territory agencies promoting cross-cultural awareness training and conflict resolution are attempting to improve relationships between commercial fishers and indigenous Australians, and between enforcement agencies and indigenous fishers. Aboriginal and Torres Strait Islander peoples in several jurisdictions are seeking to be more closely involved in enforcement and patrolling activities. Some States already have Aboriginal fishery inspectors, and Kowanyama is often cited as a highly successful example of both co-operative and self-management of cultural and natural resources by an Aboriginal community. Cross-cultural awareness courses for fisheries managers and commemorations of indigenous Australians' contributions to fisheries industries are also important.
Current and emerging international human rights standards for indigenous peoples affirm rights to culture and customary use of resources, even in protected areas; rights to participate in decision-making and be included in management regimes which recognise customary resource use, and rights to benefit equitably in the returns generated by resource use. During the last ten years multilateral environmental and human rights treaties and international agencies have also recognised that indigenous and local people[s] and communities [4] have potentially useful traditional knowledge and techniques of natural/cultural resource management which can contribute to sustainable development. International human rights standards require that governments protect indigenous peoples' customary estates from commercial impacts which diminish customary usage rights, and those standards also recognise that cultural rights can include economic and social activities.
The report refers briefly to developments in New Zealand, Canada and the United States and finds that commercial fishing rights for indigenous communities are the norm rather than the exception. There is also a clear trend towards co-management of significant fisheries, but also growing conflict between commercial, recreational and customary fishers over increasingly scarce resources. Priority for indigenous peoples' fishing activities over recreational and commercial activities is policy in Canada.
There are many considerations which can be seen to justify the development of an Aboriginal and Torres Strait Islander Fisheries Strategy. Probably of foremost importance are the continuing representations from Aboriginal and Torres Strait Islander peoples in Australia that their `sea country' is important to them and that their needs and aspirations should be accommodated in its management. Such views have been recorded in many public inquiries and submissions by indigenous peoples' organisations in recent years.5 Some commonly voiced aspirations include:
* to have important cultural heritage places protected;
* to limit commercial and recreational fishers' access to customary fishing grounds where fish stocks are being depleted or the habitat is being damaged;
* to protect fishing areas from development impacts;
* to be exempt from licensing requirements for non-commercial fishing activities and to be able to discharge cultural obligations without risk of prosecution;
* to receive appropriate training for commercial activities;
* to have women's interests better recognised;
* to have royalties and other benefit-sharing arrangements in place where customary marine tenure areas are commercially exploited;
* to have customary marine tenure recognised;
* to participate in fisheries management structures (including co-management structures, fisheries patrols and enforcement activities);
* to be recognised as the customary custodians of traditional `sea country' and to apply customary law management;
* to have support for entry into commercial fishing and aquaculture activities;
* to be compensated for past extinguishment of native title rights with commercial fishing licences and boats/nets etc.; and
* to have traditional knowledge respected, and included in management regimes.
Peter Yu, the Director of the Kimberley Land Council, eloquently articulated his association with his `sea country' when speaking at a fisheries managers conference in 1995. He said:
Ironically, when I drop a line in a creek near Broome, many of those involved in fisheries resource management would probably say I am just another recreational fisherman. The reality is that, unlike recreational fishers, I fish on my traditional country for a subsistence food source which has always formed a significant part of my diet, and that of my extended family. I know about the fishing spot and others like it because they form part of my cultural and traditional knowledge. I didn't read about them in a `Welcome to Broome' handout.
The fishing in Broome has, historically, been good. But our plentiful food supply is increasingly threatened as tourism, residential, pastoral and other development pressures in the region escalate. My community has watched its traditional fishing areas being polluted, fenced off, over-fished, widely publicised, and irrevocably changed.
We are not recreational fishers. We are traditional owners of the country and its waters. We have fundamental, inherent indigenous rights to manage, use and protect our traditional country, including marine and inland waters. These rights arise out of our particular relationship to our country, our Native Title to our lands and waters.
We take seriously our responsibility to manage our country, including our waters and the resources within them. We do not view fish and other water dwelling creatures simply as `resources'. As with all living things, fish and the places where they live and breed, play an important part in the relationship we enjoy with the environment.
This relationship affects our views of `management' of sea resources -- views which do not always accord with non-Aboriginal resource managers who evaluate fish stocks in terms which they think are shared by all users of the `resource'. We are currently faced with a management model which allocates rights to use resources from the sea and waters in a way which takes no heed of the particular relationship Aboriginal people have with their country, and all the living things within it. We are not just another `user group' of a limited resource. [6]
Such cultural associations with the sea were brought before the Seaman inquiry into Aboriginal land rights in Western Australia, more than a decade ago. The inquiry reported in September 1984. It examined customary marine tenure and fishing rights. Amongst other things, it inquired into the need for the protection of waters adjacent to lands granted to Aboriginal people, and significant research and documentation on Aboriginal maritime culture was produced as a result -- both by the Inquiry and in submissions to it. [7] But the inquiry's terms of reference did not extend to an assessment of the effect on Aboriginal people of fishing and maritime laws. Commissioner Seaman did not accept a submission from the Kimberley Land Council that the seas should be closed for 200 nautical miles out from low water mark -- describing it as constitutionally untenable, and an `unreasonable aspiration'. [8] Seaman recommended:
Waters should only be protected for Aboriginal people for uses which are still part of traditional life. Traditional use should be defined to include access to and traditional activities connected with significant areas in or associated with the sea, or customary modes of foraging or fishing in or near the sea. An activity should not be treated as outside tradition merely because it is pursued with the latest technology. [9]
The commission heard evidence of traditional relationships to the sea from the Bardi, Mowanjum, Drysdale River, Beagle Bay, Kalumburu and Lombadina communities. Seaman reported:
Aboriginal people with coastal traditions at Kalumburu, Drysdale River and One Arm Point looked to their `country' in the sea and to the resources of the sea to sustain them spiritually and substantially to sustain them bodily. We saw evidence that traditional knowledge was being handed down to the Bardi children of today ...
From Beagle Bay to Kalumburu there was evidence that in and around particular islands in the Archipelagos there were sacred and often dangerous places. The Dampierland women said that there were whirlpool sites in the sea and the women were concerned that people would become sick if they were not kept away. [10]
Seaman recommended that `any incorporated Aboriginal land holder, or alternatively the regional Aboriginal organisation, should be able to apply to the Tribunal for an order for protection of waters adjacent to Aboriginal land. He considered that an order should follow where an applicant could show that others' use of waters was interfering with members' traditional use; that commercial, environmental and recreational interests should also be taken into account, and that the order need not amount to a sea closure. [11] The Aboriginal Land Bill 1985 (WA) which was developed in response to the Seaman recommendations did not secure passage through the Western Australian Parliament. [12]
Inquiry reports such as the Seaman inquiry (and the Woodward Aboriginal Land
Rights Commission report, discussed below) are just
one type of literature on
Aboriginal and Torres Strait Islander peoples' maritime cultures.
Palmer
[13] has identified four distinct types of research on
indigenous Australians' maritime cultures: the comments and observations of
early
explorers and settlers; writers on Aboriginal material culture who tended
not to address
socio-economic or economic analysis; professional
anthropological writings on maritime culture; and research commissioned by or
on
behalf of indigenous Australians in support of legal and political claims
and developments. Palmer's work,
[14] and that of other researchers
including Chase,
[15] Davis,
[16] Johannes and
McFarlane,
[17] and
Smyth
[18] has been described as
`seminal' by Cordell. Cordell has also noted that `Aboriginal sea rights
customs and marine domains in Arnhem
land, the Northern Territory sea closures
and home reef tenure questions emerging in Torres Strait were discussed at
length at the
International Union for the Conservation of Nature (IUCN) Parks
and Protected Area meetings in Bali in 1981, and at a Pacific maritime
institutions conference in Osaka in 1983'.
[19] Other contributors to
greater cross-cultural understanding of indigenous Australians' maritime and
inland fisheries cultures include
Beckett,
[20] Cordell,
[21]
Meehan,
[22] Smith,
[23] Bergin,
[24]
Nietschmann,
[25] Taylor
[26] and Sinnamon,
[27]
amongst others.
[28] On comparative developments, particularly in
circumpolar communities, Jull's publications are prolific.
[29]
It is unfortunately the case that court documents are also a fertile source of material on indigenous Australians' maritime cultures. Consider a case from Western Australia in 1994, which was brought before native title and fisheries Acts amendments had partially accommodated indigenous Australians' interests and aspirations. The facts of the case are as follows: in February 1993 about 300 people travelled to Drovers Rest, a small community near Port Hedland, for a wake to commemorate the passing of a prominent Aboriginal man. Several Aboriginal men netted fish in a nearby creek to help feed the congregation, contrary to a gazetted prohibition on certain types of fishing in the area. Professional fishermen could be declared exempt from such a prohibition. Fisheries patrol officers intervened. The Magistrate dismissed the charges against the Aboriginal fishermen, but the Fisheries Department of Western Australia took the case on appeal, and the charges were upheld. Justice Heenan of the Western Australian Supreme Court was not satisfied on the evidence that a native title defence could be made out, and commented that on the afternoon in question, the respondents had merely engaged in an `ordinary ... activity', and that the regulatory provisions of the Act should apply for the protection of both Aboriginal and non-Aboriginal Australians. Justice Heenan required evidence of the extent of the native title right asserted (whether it was an individual, family or communal right); who could exercise the right; its season, time and frequency; how the right was established and that the particular fishing in question was in fact an exercise of the traditional laws and customs bearing upon the right. [30]
Thus cases since the native title ruling have reaffirmed the limited recognition which the common law will give to indigenous Australians' cultural practices unless they are fully proved and can constitute a native title defence. It is simply not enough to argue that fishing for food for an important community wake is a cultural practice of much significance, and that fisheries legislation should be interpreted, or recommended for amendment, so as to accommodate that fact. [31]
A recurring theme in comments from fisheries officers contacted during the course of writing this report was that all Australians should be equal before the law, and that the sovereignty of the Crown is paramount. One officer suggested that analogies could be drawn between the criminal law, and natural resources law, and that following Walker v. New South Wales [32] (where a sovereignty defence to a criminal charge was rejected), it might be argued that no special privileges should be available to Aboriginal and Torres Strait Islander peoples. It is suggested further that non-native title holders should not be entitled to any special dispensations and that natural resource laws should be applied universally and without discrimination, so as not to offend s.10 of the Racial Discrimination Act 1975 (Cwlth). It is suggested that such issues are likely to be raised and argued in a constitutional defence to a fisheries prosecution by an aggrieved non-indigenous angler, or may be addressed in native title litigation. [33]
But there are a range of arguments to the contrary which also warrant airing. [34] If, when laws are applied uniformly they have a differential impact on social, economic and political groups, the law can be considered to involve indirect or structural discrimination. True equality before the law can require judicial officers to give relevant considerations, such as the desirability of supporting diverse cultures, their proper weight, and to disregard irrelevant considerations. To not take account of relevant differences between groups of people can continue the effects of past discrimination and can exacerbate underlying inequalities.
Moreover, the inclusion of special provisions in legislation, or the development of strategies on behalf of, or for the benefit of Aboriginal and Torres Strait Islander peoples, is not an infringement of the Racial Discrimination Act 1975 (Cwlth) (RDA). The RDA has incorporated into Australian municipal law the obligations created by Australia's ratification of the Convention on the Elimination of All Forms of Racial Discrimination. Section 9 of the RDA broadly follows the definition of racial discrimination in Article 1 of the Convention. It renders unlawful any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or other field of public life. Section 10 of the Act attempts to secure equality before the law by providing that where, under a Commonwealth, State or Territory law, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, the first-mentioned persons shall, by force of the section, enjoy that right to the same extent as persons of the other race, colour or national or ethnic origin. The section applies specifically to racially differentiating property management provisions.
Section 8 accommodates the `special measures' provisions of the Convention which allow positive measures to be taken by states to redress disadvantage. Such measures are not to lead to the maintenance of unequal or separate rights for different racial groups, nor be continued after the objectives for which they were taken have been achieved. In 1985 in Gerhardy v. Brown [35] the High Court held that the Pitjantjatjara Land Rights Act 1981 (SA) prima facie infringed the RDA for prohibiting non-Aboriginal persons from entering land vested in the Pitjantjatjara, but the Court held that the prohibition was valid as a `special measure' under the Convention and the Act.
Special measures, and the recognition of indigenous peoples' interests in fishing, are not founded on romantic, idealistic notions. [36] The weight of evidence supports the view that indigenous peoples and their leaders have fairly consistently and actively asserted the value of their cultural heritage and customary practices, and their wish to share in the benefits of the exploitation of customary natural/cultural resources (where sanctioned), amongst other rights. [37]
Traditional knowledge and practices should also be considered in support of greater involvement by indigenous Australians in natural/cultural resource management. A workshop in 1985 on traditional knowledge of the marine environment in northern Australia, convened by the Great Barrier Reef Marine Park Authority, Townsville, 1985 concluded that:
A considerable amount of traditional knowledge exists in the Northern Territory, Western Australia and Queensland Aboriginal and Islander communities related to marine biology, marine use and management ...
It is not always clear whether the `traditional management' of resources has been conscious conservation or whether it has been management by default. Indications of `worry' about declining or over-use of resources and subsequent reductions in exploitation of those resources suggests that such management may not always be management by default.
Existing traditional use and management of marine resources has changed, because of changing technology, culture and community social requirements. Existing traditional management needs to be related to what is required to ensure availability and sustainability of stocks. There needs to be assessment of what is needed from management agencies to close the gap between current traditional management and currently desirable management.
There needs to be some consideration of the Australian position vis à vis the world regarding resource availability with respect to target species, such as turtles, as the ranges of individual species extend beyond the area of Australian jurisdiction...
There is a great need for information on catches of target species involved in traditional fisheries by other than traditional communities...
There appears to be significant traditional knowledge of dugong in Western Australia and Torres Strait, green turtle populations particularly in Western Australia, rock lobster especially in the Northern Territory, trochus in Northern Territory and Western Australia, reef fish generally, sea birds and other fisheries. [38]
...
...
The Native Title Act 1993 (Cwlth)
The Native Title Act 1993 (Cwlth) came into effect on 1 January 1994, and was the Federal Government's response to the High Court's native title ruling. The Act defines `native title' as those rights and interests that are possessed under the traditional laws and customs of Aboriginal peoples and Torres Strait Islanders who, through those laws and customs have a connection with the land or waters. Those rights and interests must also be recognised by the common law: s. 223. In the Act, `rights and interests' include hunting, gathering, or fishing, rights and interests. [39]
The Native Title Act 1993 (Cwlth) envisages that native title may be recognised over waters, but a judicial determination is needed (and may follow overseas precedents). [40] Waters under the Act includes sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters, or the bed or subsoil under, or airspace over, any waters: s. 253. `Offshore place' is defined to mean any land or waters to which the Native Title Act extends, other than land or waters in an onshore place: s. 253. The Act extends to each external territory, to the coastal sea [41] of Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973. All future acts offshore are permissible under the Act, but native title holders have the same procedural rights in relation to offshore places as are available as non-native title rights and interests, except where the future act is a low impact future act: s. 23(6). Onshore places are land or waters within the limits of a State or Territory, and tidal foreshores are considered an onshore place, thereby conferring protection against future acts for native title holders. [42]
The issue of legal recognition of customary marine tenure and fishing rights, or native title to the seabed in nearshore and offshore areas is unclear at the moment, and the nature of native title fishing rights is also unclear. An attempt in New South Wales to appeal against a conviction for a breach of the Fisheries and Oyster Farms (General) Regulations 1989 (NSW) on the basis of a native title right was unsuccessful in the NSW Supreme Court and Court of Appeal in 1993 and 1994, but largely on evidentiary grounds. [43] The Derschaw case noted above was similarly unsuccessful as a native title defence, but the case may be taken again on appeal. [44]
In the Derschaw case Justice Heenan approved comments made by Chief Justice Gleeson in Mason v Tritton that:
Fishing is an activity which is so natural ... that some care needs to be exercised in passing from an observation that people have engaged in that activity to an assertion that they are members of a class who have exercised some form of right pursuant to a system of rules recognised by the common law. [45]
Justice Heenan also approved comments by Justice Kirby (who is now a justice of the High Court) in the Tritton case, that a `right to fish' based upon traditional laws and customs is a recognisable form of native title defended by the common law of Australia, but that its evidentiary requirements were exacting, and required that:
* traditional laws and customs extending the `right to fish' were exercised by an Aboriginal community immediately before the Crown claimed sovereignty over the territory;
* the appellant is an indigenous person and is a biological descendant of that original Aboriginal community;
* the appellant and the intermediate descendants had, subject to the general propositions outlined above, continued, uninterrupted, to observe the relevant traditional laws and customs; and
* the appellant's activity or conduct in fishing for (the fish in question) was an exercise of those traditional laws and customs. [46]
The Native Title Act 1993 (Cwlth) expressly permits native title holders
to hunt, fish, gather, carry out a cultural or spiritual activity, or do any
other kind of
prescribed activity for their personal, domestic or
non-commercial communal needs. The Act does not link these activities with
native
title to land. The Act also exempts native title holders from requiring
a license or permit to take flora and fauna if it is taken
for personal,
community or other traditional but non-commercial purposes, and the regulatory
legislation is not exclusively for the
benefit of Aboriginal peoples or Torres
Strait Islanders:
s. 211(1). In the 1995 High Court decision in WA v
Commonwealth, Wororra Peoples and Anor v WA, and Teddy Biljabu and Ors v
WA,
[47] the High Court upheld the recognition of hunting, fishing,
gathering and other rights in s. 211, saying that because of that section,
native title holders were exempted from statutory requirements under State
legislation to hold a licence, permit or other instrument
to exercise their
native title rights. State legislation requiring that such licences, permits or
other instruments be held, would
be suspended (inoperative) because of the
overriding Federal provision.
The recognition in the Federal native title legislation of traditional fishing rights and protection against prohibitions, licensing and permit requirements has been welcomed as a positive advance for the recognition of cultural rights by several indigenous leaders. [48] But the issue of priority for Aboriginal and Torres Strait Islander traditional fishing, as previously recommended by the Australian Law Reform Commission and the Resource Assessment Commission, has been only partially addressed in current native title legislation. Commercial fishing interests are affirmed, and native title rights and interests are recognised and exempted from licensing requirements, but the Act does not address other important fisheries management issues. For example, if commercial fishers have high levels of bycatch this may impinge on species traditionally fished, hunted or harvested by Aboriginal and Torres Strait Islander peoples, and particularly on dugong and turtle. [49] The Turtle Rescue Plan Code of Practice in Queensland is an example of a specific management strategy which is designed to protect species, and thereby also protect Aboriginal and Torres Strait Islander interests. [50] In Queensland the Queensland Fisheries Management Authority (QFMA) and the Great Barrier Reef Marine Park Authority have been facilitating greater communication between commercial fishing interests and coastal indigenous communities on bycatch issues. The QFMA has produced a leaflet on turtle resuscitation for commercial fishers and negotiations have resulted in an agreement to remove gillnets from Shoalwater Bay which have been impacting on dugong particularly. [51]
Whether native title rights will be found by Australian courts to include commercial activities is unclear, although again there are overseas precedents. [52] If native title rights and interests have in the past been converted into statutory rights and interests in relation to the land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression `native title' and `native title rights and interests': s. 223(3).
Past grants by the Commonwealth Government are affirmed by the Native Title Act 1993 (Cwlth). The Commonwealth Government and the State and Territory Governments are also enabled by the Act to validate past grants and to confirm that fishing access rights in place at 1 January 1994 prevail over any other public or private fishing rights. This will not extinguish or impair any native title rights and interests, and does not affect any conferral of land or waters, or an interest in land or waters, under a law beneficial to Aboriginal peoples or Torres Strait Islanders: s. 212(3). Cassidy has identified the relevant provisions in State and Territory native title legislation which have confirmed Crown ownership of natural resources, the regulation of water flow and existing fishing rights; and access to waterways, beds and banks of such, coastal waters, beaches and public areas which were public at the end of 31 December 1993. [53]
Compensation may be payable by the Commonwealth Government or State and Territory Governments under the Act for the past extinguishment of, or adverse impact on, or future (not low) impact of an act affecting offshore [54] native title (including rights of renewal under pre-1 January 1994 rights to renew): Native Title Act 1993 (Cwlth), ss. 17, 20, 23, 25, 45.
...
Tasmania
In recent years Tasmania has witnessed significant changes in policy and legislation concerning issues of importance to Aboriginal people. In addition to the restoration of title to some former Aboriginal land, cultural activities associated with the sea have been recently recognised. The Living Marine Resources Management Act 1995 (Tas) (due for proclamation in April 1996) states that all living marine resources in state waters (except marine farm stock) are owned by the State: s. 9. An authorisation under the Act does not extinguish or impair any native title rights and interests, as defined under the Native Title Act 1993 (Cwlth), or `preclude any Aboriginal cultural activity by an Aborigine so long as that activity is not likely to have a detrimental effect on living marine resources and is consistent with this Act' (s. 10); however, such an authorisation takes precedence over any other public or private fishing rights.
...
The Aboriginal Lands Act 1995 (Tas) establishes the Aboriginal Land Council of Tasmania, in which titles to selected Aboriginal land is to be vested. The Act also amended the National Parks and Wildlife Act 1970 (Tas) (NPWCA) to provide that nothing in the NPWCA precludes customary Aboriginal hunting, fishing or gathering on Aboriginal Land, so long as the Minister considers the activity unlikely to have a detrimental effect on fauna and flora and the activity is consistent with the NPWCA.
Victoria
The Fisheries Act 1995 (Vic) has reformed the law in Victoria relating to fisheries, having repealed the Fisheries Act 1968. The purpose of the new Act is to provide a modern legislative framework for the regulation, management and conservation of Victoria's fisheries including aquatic habitats ...
The legislation was drafted to complement the Native Title Act 1993 and other relevant legislation. ... The purpose of a management plan is to specify policies and strategies for the management of the fishery to which the plan applies, on an ecologically sustainable basis, having regard to relevant commercial, recreational, traditional and non-consumptive uses: s. 29.
...
South Australia
The Fisheries Act 1982 (SA) does not explicitly recognise Aboriginal rights and interests in fisheries. It does however include a broad exemption provision which enables the Minister, by notice published in the Gazette, to exempt any person or class of persons from any specified provisions of the Act, subject to prescribed conditions: s. 59. Only one exemption has been granted under s. 59 -- concerning a type of net for the Coorong community. [55]
...
Western Australia
...
The Fish Resources Management Act 1994 (WA) provides that an Aboriginal person [56] is not required to hold a recreational fishing licence for fishing in accordance with continuing Aboriginal tradition for non-commercial, and personal or family purposes: s. 6. The Minister also has wide powers to grant exemptions from the Act: s. 7. There is also power in the Act for the Minister to grant an exclusive licence `to any person to take fish from a specified area of coastal waters and the foreshore above high water-mark' (s. 251) but not for fishing in a marine nature reserve or marine park: s. 252.
The Fish Resources Management Act 1994 (WA) also provides for the declaration of fish habitat protection areas outside marine nature reserves and marine parks (ss. 115-6). Regulations may provide for any matter necessary for the protection or management of a fish habitat protection area, including fishing or aquatic ecotourism or other activity that may affect the fish habitat protection area: s. 120.
Marine nature reserves and marine parks can be declared under various Acts in Western Australia, including the Conservation and Land Management Act 1984 (WA).
...
Northern Territory
The Fisheries Act 1995 (NT) protects non-commercial, traditional resource use. (See s. 53)
...
Under the Fisheries Regulations permanent residents of land granted under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth) who have the approval of the relevant council under the Local Government Act (or if there is no council, the approval of persons accepted by the majority of the community or group to be its leaders) may apply to the Director for an Aboriginal coastal licence. Only one, non-transferable Aboriginal coastal licence is available to each community or group: ss. 184, 185. ... Fish taken with an Aboriginal coastal licence may only be sold within the licensee's community or group, and not for resale: Regs. 188-191.
...
In the Northern Territory, claimable land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth) extends to the low water mark, and claims have included `reefs exposed at low tide, a number of river islands, a sandspit and sandbar'. [57] This Act enables the Northern Territory Government to legislate on the entry of persons into, or controlling fishing or other activities in, sea waters within two kilometres of Aboriginal land, consistent with Aboriginal traditional uses of sea-country. [58]
Marine sacred sites are protected under the Aboriginal Sacred Sites Act 1989 (NT) but Ganter noted in 1994 that `the few instances in which protection has been successfully provided have only been achieved by laying marine markers (buoys) with the assistance of the Australian Navy. This is a time consuming and highly resource intensive operation. To date there have been three successful prosecutions for offences relating to marine sites located off the Arnhem Land coast and there are a number currently before the courts'. [59]
Queensland
The Fisheries Act 1994 (Qld) is concerned with the management, use, development and protection of fisheries resources and fish habitats and the management of aquaculture activities, and with related purposes. The Act was developed following government consideration in August l993 of recommendations from the Recreational Fishing Inquiry, established in December 1992. It held public hearings and invited submissions to its 15 member consultative committee, which included an Aboriginal appointee.
The Act recognises a limited right for Aboriginal and Torres Strait Islander peoples to take fisheries resources in accordance with tradition and custom. It provides:
14(1) An Aborigine may take, use or keep fisheries resources, or use fish habitats, under Aboriginal tradition, and a Torres Strait Islander may take, use or keep fisheries resources, or use fish habitats, under Island custom.
(2) However, subsection (1) is subject to a provision of a regulation or management plan that expressly applies to acts done under Aboriginal tradition or Island custom.
(3) A regulation or management plan mentioned in sub-section (2) may be developed only after cooperating with Aborigines or Torres Strait Islanders, considered by the fisheries agency to be appropriate, to reach agreement, or reasonably attempt to reach agreement, about the proposed regulation or plan.
...
The ability of the Queensland Fisheries Management Authority (QFMA) to consult only with those `considered by the fisheries agency to be appropriate' has been criticised by Smyth as follows:
The requirement to consult with Aboriginals and Torres Strait Islanders considered by the fisheries agency to be appropriate is potentially disempowering of indigenous peoples' interests and obligations. This requirement falls far short of recognising indigenous peoples as legitimate partners in marine resource management; it relies on the ongoing goodwill of the fisheries agency and industry rather than securing a guaranteed role for indigenous peoples in fisheries management commensurate with their unique customary and historical relationship with their maritime estates. [60]
...
The Marine Parks Act 1982 (Qld) provides for the making of zoning plans for declared marine parks, and such zoning regulates the types of activities which may be undertaken in the zone with and without a permit. Zones include general use; habitat protection, estuarine conservation; conservation park, buffer, national park and no structure zones. Aboriginal Management areas are provided for in some park plans, and these envisage the involvement of local Aboriginal and Torres Strait Islander people in the planning and management of the area. In the general use, habitat protection, estuarine conservation; conservation park, buffer, and national park zones traditional fishing and hunting and collecting is permitted once permission has been obtained.
The Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld) permit land claims to tidal lands in limited circumstances ...
The waters of the sea, the seabed, other than tidal land under s. 21, cannot be claimed under the Aboriginal Land Act 1991: s. 25.
New South Wales
The Fisheries Management Act 1994 (NSW) does not include any special recognition for non-native title Aboriginal rights and interests. Section 287 provides that it does not affect the operation of Federal or NSW native title legislation `in respect of the recognition of native title rights and interests within the meaning of the Commonwealth Act or in any other respect'.
...
The philosophy of the legislation is that all persons are treated equally regardless of race, gender, or ethnicity, and there has been no systematic attempt to assess the nature of Aboriginal fishing rights and interests in New South Wales. There is some continuing conflict with Aboriginal abalone harvesters, particularly regarding shucking on the beach which is contrary to regulations, and there are several outstanding prosecutions of Aboriginal people for abalone poaching. [61] There is thought to be a significant number of Aboriginal commercial fishermen, but there is no identification requirement during licensing processes, and statistics which identify `race' and ethnicity are not collected. The Department has employed a couple of Aboriginal fisheries officers, and it is also trying to ensure that MACs are more representative of fishing groups.
Jervis Bay Territory
The Aboriginal Land Grant and Management (Jervis Bay Territory) Legislation Amendment Act 1995 (Cwlth) follows the Uluru-Kata Tjuta and Kakadu National Park models of joint management by conferring title to the Jervis Bay National Park and the Jervis Bay Botanic Gardens on the Wreck Bay Aboriginal Council, subject to a lease-back arrangement with the Australian Nature Conservation Agency. The transfer of title was effected on 14 December 1995. ...
Australian Capital Territory
The ACT Parks and Conservation Service is reviewing recreational fishing management in the ACT, including current freshwater fishing laws. It is seeking public comment on proposed changes and has released a discussion paper for public comment. ... The discussion paper which has been released for public comment does not identify Aboriginal fishing interests in the ACT as an issue.
Regional agreements are being promoted increasingly by indigenous peoples' organisations, the national native title tribunal, and commentators [62] as a potential mechanism for achieving a range of policy objectives. Regional agreements can address participation in the management of natural and cultural resources, access and usage rights and strategic and operational directions, for example. The Aboriginal and Torres Strait Islander Social Justice Commissioner, Michael Dodson, has argued that regional agreements are one mechanism for achieving social justice for indigenous Australians. He has suggested that regional agreements could include any (or all) of the following topics:
* settlement of native title claims under the Native Title Act 1993 (Cwlth) and non-native title claims outside the Act;
* legislative reforms to over-ride inconsistent State and Federal laws;
* to create new institutions and processes which give Indigenous peoples a legal and practical right to participate in planning, development control, environmental and social impact assessment, resource allocation policies and decisions for an area which is considerably larger than that which they own;
* to provide for Aboriginal control or co-management over their land, sea, natural resources and wildlife;
* to ensure Aboriginal control or co-management of national parks, conservation and world heritage issues; and
* participation in resource development and other economic initiatives; to provide the framework for Indigenous enterprises and joint ventures. [63]
As part of a social justice strategy, Commissioner Dodson recommended that the Commonwealth Government fund trial projects in at least four regions (in northern and southern Australia), where communities resolve to pursue negotiated settlements on a regional basis. Following those trial projects, he suggested that indigenous organisations be funded to negotiate Agreements-in-Principle, and be provided with interest free loans for the finalisation of agreements. [64]
The Native Title Act 1993 (Cwlth) provides mechanisms for negotiated agreements regarding native title. For example, section 21 provides that native title holders may, under an agreement with the Commonwealth, State or a Territory, surrender their native title rights and interests in relation to `land' [65] or `waters', [66] or authorise future acts which may affect their native title, including on a regional and local basis. Under s. 227 `an act `affects' native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise'. Regional agreements can also be made conditional, and can involve the payment of lawful consideration.
In September 1995 the National Native Title Tribunal, the Council for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Commission jointly convened an international conference in Darwin -- the Indigenous Land Use Agreements Conference. Presentations addressed co-management of living resources and workshops were intended to produce model forms of agreement or to identify key issues for resolution. Parks and reserves, and sea claims (including fisheries, pearl producing, recreational access) were addressed in two workshops. This conference followed closely after the 1995 Ecopolitics Conference which had indigenous peoples and land management as a theme. It may be possible for conservation agencies and native title holders in protected areas to negotiate cooperative management agreements under native title legislation, whether the application for a determination of native title is made by a claimant or a non-claimant.
If native title is recognised in law, it would also be possible for ANCA to enter into cooperative management arrangements regarding that land, under Section 18 of the National Parks and Wildlife Conservation Act, as native title holders can enter into agree to future acts which may affect their native title, as discussed above.
In February 1996 an initial step towards the conclusion of a regional agreement under s. 21 of the Native Title Act 1993 (Cwlth) was taken in Cape York Peninsula. A head of agreement was endorsed by the Cape York Land Council (CYLC) and the Peninsula Regional Council of the Aboriginal and Torres Strait Islander Commission (ATSIC), (representing traditional Aboriginal owners on Cape York Peninsula), the Cattlemen's Union of Australia Inc. (CU), (representing pastoralists on Cape York Peninsula), and the Australian Conservation Foundation (ACF) and The Wilderness Society (TWS), (representing environmental interests in land use on Cape York Peninsula). The heads of agreement recognised the interests of Aboriginal people and pastoral landholders in the region; that there are areas of significant conservation and heritage value in the region; that all parties are committed to work together to develop a management regime for ecologically, economically, socially and culturally sustainable land use on Cape York Peninsula (including a continuing cattle industry), and to develop harmonious relationships amongst all interests in the area. It was also agreed that Aboriginal people may exercise native title rights in a way that will not interfere with the rights of pastoralists, while pastoralists agreed to continuing rights of access for traditional owners to pastoral properties for traditional purposes. It was also agreed that a code of conduct would be developed to guide relations between pastoralists and Aboriginal people in the Cape. [67]
Regional agreements can also be an integral part of bioregional planning. [68] Regional planning, strategies and agreements for indigenous Australians fall within the ambit of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cwlth), the Native Title Act 1993 (Cwlth), and the Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995 (Cwlth).
An example of regional planning relevant to Aboriginal and Torres Strait Islander peoples and fisheries management has occurred in the Torres Strait, where a marine strategy for a more community-based, comprehensive and cross-sectoral approach to the management of the environment and resources of the Torres Strait region, `consistent with the needs of indigenous Torres Strait Islanders, ecologically sustainable development, and minimal environmental disturbance' has been developed. [69] The Island Coordinating Council (ICC) [70] proposed the concept of a marine strategy in 1991, and received funding for it under the Commonwealth's Ocean Rescue 2000 program. Drawing on Ocean Rescue 2000 funds, plus support from the Australia Nature Conservation Agency (CEPANCRM Program) and the Queensland Department of Family Services and Aboriginal and Islander Affairs, the Island Coordinating Council and others developed a Marine Strategy for Torres Strait (MaSTS). The strategy recognises the centrality of local decision-making, so as to `provide the foundation for future public policy and economic development in the Torres Strait region'.
The Marine Strategy for the Torres Strait (MaSTS) is founded on a number of principles. The Strategy recognises the limited resource base of the region; recognises Torres Strait Islanders' fundamental rights to participate in the conservation, sustainable use and management of the environment and its resources; seeks to respect `traditional ecological knowledge' and reflect that knowledge in management arrangements, and it also advocates an holistic and integrated approach to the management of the region. The MaSTS coordinator, Geoff Dews, has described some of MaSTS' aims as follows:
* to develop locally based arrangements to coordinate the use of marine resources;
* to develop environmental planning and management;
* to develop practical solutions to local problems; and
* to investigate issues relating to the Torres Strait Protected Zone and the Torres Strait Treaty; and to reconcile the differences between technical and cultural and traditional management concepts. [71]
The MaSTS principles support a comprehensive approach to resource and environmental management and recognise that a `healthy and productive marine environment is the key to Torres Strait Islander well-being and future prospects, and must be managed as such'. [72] ... Consistent with the MaSTS strategy, community-based, comprehensive environmental resource management strategies are being developed on many of the Islands in the Strait. Two are complete, a third is close to completion and another five are more than two-thirds complete. [73] The Field Assistant to MaSTS and the President of the Torres Strait Islander Commercial Fishermen's Association, Joe David, has been assisting with the development of the plans and has reported that the most important issues raised by the communities involved were commercial and recreational fisheries; heavy reliance upon seafood and the subsequent concerns regarding marine pollution and overfishing. [74]
...
The Great Barrier Reef Marine Park Act 1975 (Cwlth) is the leading management Act for marine parks in Australia regarding the potential for indigenous Australians' involvement in management, although the Great Barrier Reef Marine Park Authority (GBRMPA) has worked with the multiple users of the park since its creation. Representation on the Great Barrier Reef Marine Park Authority for Aboriginal communities adjacent to the Park and provision for joint management agreements are two features of recent amending Federal legislation. One of the four members of the Great Barrier Reef Marine Park Authority is to be `a member appointed to represent the interests of the Aboriginal communities adjacent to the Marine Park'. [75]
Smyth has traced the changes within Park management which recognise indigenous Australians' interests, as follows:
* appointment of an Aboriginal person to the Great Barrier Reef Marine Park Consultative Committee from 1988 onwards;
* appointment to the GBRMPA staff of a full time Aboriginal Liaison Officer in 1992;
* adoption of legally binding marine park regulations (Regulations 13AC(4)(b) and 13AC(5)) relating to, respectively, the protection of cultural and heritage values in the marine park and criteria for assessing applications to engage in traditional fishing, hunting and gathering activities;
* support for Aboriginal Community Ranger training, through participation of GBRMPA staff in delivering training modules;
* part time employment by the GBRMPA of Community Rangers on four communities, including Hopevale, and Lockhart River on Cape York Peninsula, to assist in local marine park management and monitoring of dugong and turtle catches;
* development and adoption of a 25 Year Strategic Plan for the Great Barrier Reef World Heritage Area in which Aboriginal interests are substantively recognised; and
* commitment by the GBRMPA to a process of joint planning with Aboriginal and Torres Strait Islander peoples of the Far Northern Section of the marine park with a view to establishing joint management arrangements in all or parts of the Section. [76]
Joint management possibilities for the park were put on a legislative footing in 1995, although the Authority already had in place some co-management arrangements concerning the administration of its permit system for indigenous communities with both native title and historic associations. These arrangements involved the formation of Councils of Elders and some delegated authority. [77] The 1995 amendments to the Great Barrier Reef Marine Park Act 1975 (Cwlth) provided that `The Authority may enter into an agreement or arrangement ... with a group of people who are representative of a community group that has a special interest in an area of the Marine Park': s. 39ZA.(1). [78] The agreement or arrangement may relate to the development and/or implementation of a plan of management for a species or ecological community, and may provide for joint management with the Authority in accordance with the plan: s. 39ZA.(2). The interests of native title holders, and the interests of others who have `some other special identification with the area or its resources' are recognised in the Act as special interests for the purposes of park management plans: s. 39V.(1).
The GBRMPA is able to prepare management plans for one or more areas, species or ecological communities in the park: s. 39X. The Authority must notify the public that management plans are to be prepared and invite submissions, and those submissions must be taken into account: s. 39ZE. The interests of native title holders, and the interests of others who have `some other special identification with the area or its resources' are recognised in the Act as special interests for the purposes of park management plans. The Authority must notify the public that management plans are to be prepared and invite submissions, and those submissions must be taken into account. The Authority has been progressing towards the development of joint management arrangements for the Far Northern Section, the Cairns offshore area, Low Isles, the Whitsunday region and Shoalwater Bay. [79]
The GBRMPA has recognised Aboriginal and Torres Strait Islander peoples' interests in its Strategic Plan, Corporate Plan, Turtle and Dugong Management Strategy, and in consultative and advisory committees and zoning plans. Non-statutory regional advisory committees have also been formed `from Bundaberg North to Cooktown', comprising representatives of Aboriginal and Torres Strait Islander, tourism, commercial fishing and local government stakeholders, and these committees contribute to planning and discuss ad hoc issues as they arise. [80]
The GBRMPA's Strategic Plan for the Great Barrier Reef World Heritage Area and its Corporate Plan 1994-1999 [81] provide goals and strategies relevant to the recognition of Aboriginal and Torres Strait Islander peoples' interests in the management of the Park. The Strategic Plan did not address the implications of the High Court's 1992 native title decision, and when the Strategic Plan was released Aboriginal and Torres Strait Islander groups declined to endorse the plan. [82] The plan does recognise Aboriginal and Torres Strait Islander peoples' interests however, and it includes as a 25-year objective:
To have a community which recognises the interests of Aboriginals and Torres Strait Islanders so that they can pursue their own lifestyle and culture, and exercise responsibility for issues, areas of land and sea, and resources relevant to their heritage within the bounds of ecologically sustainable use and consistent with our obligations under the World Heritage Convention and other Commonwealth and State laws. [83]
The Strategic Plan also identifies a range of broad and more particular strategies and 5-year objectives towards the recognition of Aboriginal and Torres Strait Islander peoples' interests. The broad strategies address participation in the development of management plans for ecologically sustainable use of traditional resources; responses to the native title decision; participation in decision-making and consultative bodies; access to employment; community education about cultural heritage and aspirations; the development of culturally-appropriate and understandable formats for regulatory and informative material that is distributed to Aboriginal and Torres Strait Islander communities. [84] The Authority's Corporate Plan identifies as its highest priorities: maintaining the ecology of the Great Barrier Reef Marine Park, and providing for reasonable use of the park. In the `reasonable use' priority area, `developing cooperative management arrangements with Aboriginals and Torres Strait Islanders' is identified. [85]
...
Tasmania
The Living Marine Resources Management Act 1995 (Tas) provides that the Minister may establish advisory committees to provide information and advice to the Minister on matters related to the administration of the Act: s. 27.
...
Victoria
Part 6 of the Fisheries Act 1995 (Vic) deals with `co-management' of fisheries, which appears to refer to the involvement of the full range of stakeholders and interested parties in the management of fisheries. The Act establishes a Fisheries Co-Management Council (s. 90) of up to 11 members appointed by the Governor in Council on the recommendation of the Minister. The Minister is required to consider the need for the members of the Council to hold between them relevant experience and knowledge in the following areas: commercial fishing, fish processing, fish marketing, recreational fishing, traditional fishing uses, aquaculture, conservation and fisheries science: s. 90(3)(c). The Minister is also empowered to declare recognised peak bodies of commercial, recreational, aquacultural and conservation interests (s. 95). Similar recognition of peak bodies representing indigenous interests is, however, not specified.
...
South Australia
The consultative structure for fisheries in South Australia has been reviewed recently, but the resulting report is not yet publicly available. [86]
...
Western Australia
The Fish Resources Management Act 1994 (WA) enables one person of Aboriginal descent, who in the Minister's opinion represents the interests of Aboriginal people, to be appointed by the Minister to the 14-member Recreational Fishing Advisory Committee: s. 33(2)(i).
...
The Act also creates several other advisory committees which need not include Aboriginal or Torres Strait Islander persons. These include:
...
The Policy Officer -- Native Title in the Fisheries Department of Western Australia has advised that the Department's approach to involving Aboriginal people in fisheries management has been as follows:
The Department is taking steps to consult with Aboriginal communities and employs a Policy Officer dedicated to native title and indigenous fisheries policy issues. Activities include consultation with Pilbara and Kimberley communities on the new FRMA and discussion of their special fishing requirements, particularly for community and ceremonial purposes. For example, special permits may be a good way to deal with situations where large numbers of fish are needed to feed a traditional gathering.
Aboriginal communities in the Kimberley and the Pilbara were consulted about a proposal to ban set netting north of Beadon Creek, just north of Onslow. Set netting is already banned from Point Cunningham, in King Sound, north to the State border. The majority of Aboriginal people consulted believe that set netting is an undesirable practice which should not continue. The Minister for Fisheries has recently signed a Notice bringing the ban into effect. ...
Northern Territory
...
The Northern Territory Government has approved Aboriginal membership on some Fishery Advisory Committees (FAC's), but in early 1996 no agreement had been reached as to what FAC's would be involved or how the three coastal Land Councils would nominate members or agree on membership, and discussions were continuing. It should also be noted also that not all Aboriginal interest groups wish to be consulted through the FAC process.
Queensland
The Fisheries Act 1994 (Qld) establishes a Fisheries Policy Council (s. 15) to examine and advise the Minister on issues of concern to fisheries resources, fish habitats, on achieving the Act's objectives, on strategic planning and to perform other functions as required: s. 16. That Council must meet at least once every six months, and can establish advisory committees. The Queensland Fisheries Management Authority (QFMA) has advised that the Council includes traditional fishing interests. [87]
...
The QFMA has implemented a system of fisheries management plans based on widespread community consultation. The major avenues for this consultation are the Management Advisory Committees (MACs) and Zonal Advisory Committees (ZACs). ZACs are intended to provide local input to the Board of the QFMA on fisheries management issues. There are six MACs established ...
All have Aboriginal and Islander representation of one person per committee.
There are 10 ZACs ...
Again Aboriginal and Islander representation is provided for on these bodies.
...
Whilst the MACs and ZACs provide an important source of input by Aboriginal and Islander people, it is acknowledged by the QFMA that more direct consultation with Aboriginal and Islander people is required, particularly at the local community level. At present an annual meeting is held by the QFMA with Aboriginal elders from the Gulf of Carpentaria and western side of the Cape. It is hoped to be able to extend these types of meetings so that they occur on a similar scale and more comprehensively around the coast.
New South Wales
The Fisheries Management Act 1994 (NSW) establishes a Total Allowable Catch Setting and Review Committee (TAC Committee) which comprises at least 4 members, including a chairperson appointed by the Minister (who is neither engaged in the administration of the Act nor engaged in commercial fishing); a natural resource economist; a non-government fishery scientist and persons appointed by the Minister who have appropriate fisheries qualifications: s. 27. Before setting total allowable catches, public consultation is required: s. 31.
The Act also establishes a New South Wales Commercial Fishing Advisory Council
(CFAC). Its membership is to comprise a chairperson
appointed by the Minister,
2 members representing each of the regions prescribed by regulations and one
member representing each
of the sectors of the fishing industry prescribed by
the regulations:
s. 230. Regional members are to be appointed by the
elected members of the CFAC Regional Advisory Committee:
s. 230(3). CFAC
Regional Advisory Committees are to comprise 10 (or as prescribed by
regulation) elected by persons holding commercial
fishing licences.
The Act also establishes a NSW Recreational Fishing Advisory Council appointed by the Minister from members of prescribed organisations: s. 238. Those organisations include the New South Wales Game Fishing Association Inc., New South Wales Fishing Clubs Association Inc.; Australian National Sportfishing Association (New South Wales Branch); The North and North West Amateur Fisherman's Association; Institute of Freshwater Anglers (New South Wales Branch) and the Australian Fishing Tackle Association Inc.: Reg. 267.
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Tasmania
... Some Aboriginal organisations and individuals have expressed considerable interest in aquaculture as a means of fostering community economic development, particularly in the Furneaux Group.
Victoria
In Victoria there has been little policy development specifically addressing Aboriginal involvement in the commercial fisheries sector. The Fisheries Branch of the Department of Conservation and Natural Resources is in the process of developing an aquaculture strategy which examines issues such as employment generation and regional development, but it does not identify particular social groups for assessment of their interests (such as Aboriginal peoples). [88]
Only the Framlingham Aboriginal community in the west of the State has applied for a commercial fisheries licence, to net eels. An Eel Fishery Management Plan was issued by the Victorian Department of Conservation and Natural Resources in 1995 which includes objectives for ecologically sustainable management. The plan was developed with public input. The plan notes that provision for the traditional fishery of eels by the Aboriginal community at Framlingham was one of the terms of reference of the original review of the fishery, but that:
This is now being considered as part of discussions taking place with the Aboriginal community concerning the wider implications of Aboriginal fishing rights in a number of fisheries.
This issue will be resolved in that wider forum and the term of reference has therefore not been developed further at this stage. However, the Department is prepared and willing to resume negotiations and further develop the initiatives proposed in the earlier review. [89]
South Australia
The Aboriginal and Torres Strait Islander Commercial Development Corporation (ATSICDC) entered into a joint venture for the development and operation of two 10 hectare oyster leases at Ceduna in South Australia in April 1993. [90] The joint venture involves Tjutjunaku Worka Tjuta Incorporated, the ATSICDC and the Stott family companies. The Tjutjunaku Worka Tjuta Incorporated includes representatives of all local Aboriginal groups and is the umbrella organisation for the Community Development Employment Program (CDEP) for the Ceduna area. According to the ATSICDC:
The Ceduna Clearwater Oysters Joint Venture is now one of South Australia's major growers of the Pacific Oyster, producing 24% of the State's output last year. The venture will sell 3,000,000 oysters in the forthcoming year ... Markets have been established in Adelaide, Perth and Melbourne and trial exports into Asia have been undertaken. Ceduna Clearwater Oysters has recently joined in the formation of OYSA Ltd (the marketing arm of the South Australian Oyster Growers Association), which will handle the sales side for the venture as well as for the majority of oyster growers in South Australia. The venture has been independently valued at $1.6 million. [91]
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Western Australia
According to the Policy Officer (Native Title) in the Fisheries Department of Western Australia, Ms Summerfield, the Fisheries Department has the following approach to economic development for Aboriginal communities interested in fishing and aquaculture:
... Since 1989 the Fisheries Department of Western Australia has provided Special Commercial Fishing Licences for Aboriginal Communities in the trochus, beche-de-mer and mud crab fisheries. Furthermore, in 1992, the trochus fishery was reserved to Aboriginal communities -- though including the opportunity for joint ventures. These three fisheries are currently being examined to fit into the Interim Managed Fishery model provided for in the FRMA. The FRMA allows policies to be developed for classes of persons (in the instance of trochus for example with a history of participation in the fishery, resident in the location of the fishery) and species of fish. [92]
She also advised that:
The ability of Aboriginal people to participate in the commercial fishing industry is mainly dependent on access to funding for commercial licences which now command market prices in excess of $45,000. In 1989 the Department developed a policy for Special Commercial Fishing Licences for Aboriginal Communities ... which allowed for participation in the trochus, beche-de-mer and mud crab fisheries. Access to the trochus fishery is reserved to Aboriginal communities. In 1992 the then Minister for Fisheries expanded participation in the trochus fishery to a number of other specified Aboriginal communities and their joint-venturers on a developmental basis for 24 months. The Minister's initiative was specifically directed at encouraging value-adding of product and providing economic opportunities for Aboriginal communities. This arrangement is currently under review as provided for in the initial agreement ...
Broome, in the Kimberley, is a key location for indigenous interests and the majority of coastal native title claims. It is also the site for development of a Tropical Aquaculture Park which is encouraging Aboriginal participation, especially in a trochus hatchery, and has received financial support from ATSIC. An aquaculture field officer based in Broome is giving particular attention to programs involving Aboriginal interests. [93]
...
Northern Territory
The Northern Territory Government has developed a `Future Directions' strategy for the sustainable development of fishing industries in the Territory. It refers to the need to address Aboriginal interests, and to a strengthening of relationships between Aboriginal people, industry and the Government; the need to survey recreational, tourist and traditional Aboriginal catches and other measures. Its goal in five years is to have in place a management framework which will facilitate continued commercial development involving all interested participants; recognise the interests of Aboriginal people and include them as participants in fisheries consultation processes and management arrangements; overcome present legal uncertainties and establish a viable approach to sustainable fisheries, taking into account Aboriginal knowledge and traditional practices and aspirations; and complement management arrangements established for the coastal zone by Aboriginal people. [94] ...
Queensland
The Aurukun community is currently engaged in commercial fishing in north Queensland, although Palm Island has had an oyster farm. [95] In 1990 Aurukun obtained a fully endorsed barramundi licence. Six Aurukun people hold Master Fishermen's Licences, and social and economic interest in commercial fishing is reported to be growing locally and in the region. [96] The Injinoo community was offered a 15 ton trochus quota licence in 1995. [97] The Queensland Fisheries Management Authority (QFMA) also issues Community Fishing Licences to community chairpersons for commercial fishing activities undertaken by Aboriginal and Torres Strait Islander communities. According to the QFMA the licences are generally issued `for a defined area and for the use of specific apparatus as required by each community'. [98] The Torres Strait Island Coordinating Council is in the process of buying up fishing licences so as to better the islands' long term economic prospects. [99] ...
Torres Strait
...
The peoples of the Torres Strait have long asserted the importance of the marine environment to their social and economic well-being, both in the Strait and on the mainland. [100]
...
In 1994 a report was prepared for consideration by the Torres Strait Protected Zone Joint Authority in response to conflict between the peoples of the eastern Torres Strait Islands and commercial fishing interests which had erupted into the declaration of an economic zone around the islands by the Torres Strait Islanders. [101] The report explained that the key issue leading to the dispute was `the desire of the indigenous people particularly on Mer for economic independence and to manage the seas in accordance with their traditional laws'. It noted that aspirations for local control and autonomy were strong, particularly following the High Court's recognition of native title and the uncertainties about offshore rights. Islanders were seen to be frustrated by the lack of economic benefits accruing from commercial fishing activity in their region. Other exacerbating factors were found to be:
* native title issues, especially the unresolved question of off-shore rights;
* the complexity of fisheries management arrangements in the Torres Strait and their perceived ownership by bureaucrats;
* the related perception by Torres Strait Islanders on Mer and elsewhere that the current consultative arrangements of the PZJA do not adequately recognise indigenous peoples' status in the Torres Strait ... or provide for the adequate representation of their views and culture;
* political and economic rivalry in the Torres Strait [with Mer being relatively disadvantaged following the withdrawal of ATSIC Community Development Employment Program (CDEP) funding in 1989]; and
* the March 1994 round of elections for the Torres Strait Regional Council (soon to be Regional Authority) and for local government.
On economic development issues, the report recommended:
* That the PZJA note that increased effort should be made to facilitate greater Torres Strait Islander involvement in the commercial fishing industry in the Torres Strait and in particular:
(a) agree that a proposal be developed through the proposed Torres Strait Islander Working Group, in conjunction with the Torres Strait Regional Authority and the Queensland Department of Primary Industries, for the appointment of training and development officers (two) with the role of facilitating and supporting Torres Strait Islander participation in the commercial fishing industry; and
(b) recommend to the Queensland Minister for Employment, Vocational Education, Training and Industrial Relations that additional effort should be made by TAFE to meet the training needs of Torres Strait Islanders in the commercial fishing industry. This should be done in conjunction with the PZJA, the ICC and the Torres Strait Regional Authority.
* That the PZJA support, in principle, the training program being developed by the Torres Strait Prawn Fishermen's Association with the assistance of the Australian Fisheries Management Authority and in conjunction with Island communities, with the aim of increasing Torres Strait Islander participation in the Prawn Fishery.
The Torres Strait Regional Authority is seeking administrative control of funding currently administered by other Commonwealth and Queensland departments as an important step towards self-determination. The Commonwealth Government is considering this request. It is also seeking to negotiate a regional agreement or agreements with the Queensland government on self-determination. It has also sought:
* support for claims to rights over seas and marine resources;
* acknowledgement of the Torres Strait Development Plan and marine strategy as providing the framework for a comprehensive and integrated approach to development in the Torres Strait area and in particular to promote sustainable economic development to increase the self sufficiency of the people of the Torres Strait as an essential underpinning of self determination; and
* continuing discharge of responsibilities and obligations to the people of the Torres Strait under the Torres Strait Treaty with their full involvement at all levels of decision-making in relation to the Torres Strait Protected Zone. [102]
...
New South Wales
Under the Fisheries Management Act 1994 (NSW) the Minister for Fisheries may develop a commercial aquaculture industry development plan. As the aquaculture industry is so diverse, plans will be developed for each sector in the industry, and estuary by estuary.
New South Wales Fisheries is involved in a variety of projects involving Aboriginal people in aquaculture. In 1994 the Fishing Industry Training Council and NSW Fisheries were jointly involved in six programs which involved ninety Aboriginal people at Wallaga Lake, Mogo, Moruya, Batemans Bay, Ulladulla and Greenwell Point. The six-month programs involved sourcing leases and stock; and training in oyster husbandry, farm management, quality control, licences and permits. The South Coast Aboriginal Aquaculture Corporation was formed recently with association members from the six programs. In 1995 there has been a project at Crookhaven which involves some Aboriginal participants who are assisting in the restructuring of the oyster industry, rebuilding existing leases, and pursuing other measures in an attempt to make the local industry viable. [103]
...
The need for improved relationships between Aboriginal and Torres Strait Islander peoples and the wider community has been a theme at some conferences and workshops in recent years on fisheries issues. Many Aboriginal and Torres Strait Islander people consider that they have been treated unfairly under fisheries laws when their customary rights and important heritage areas are not recognised, and they consider that the hurdles for recognition of their native title are overly stringent. Many Aboriginal groups in New South Wales were disappointed by the failure of a native title defence in the abalone case of Mason v. Tritton. [104] The apparent inability of the wider community to understand some Aboriginal and Torres Strait Islander peoples' diverse interests in their `sea country' also causes concern.
Many Aboriginal and Torres Strait Islander peoples' organisations suggest that reconciliation will only be possible if the wider community recognises indigenous Australians' cultural practices, and aspirations to maintain those practices, in an environment of mutual respect and equitable access to resources. Moreover, if traditional ecological knowledge regarding fisheries were to be better documented and integrated within fisheries planning and monitoring processes, that may be one means for generating mutual respect and improved relationships in the fisheries sector. Job creation for indigenous fisherpersons in the sector can also alleviate the despair and discrimination associated with long-term unemployment.
Many Aboriginal and Torres Strait Islander fisherpersons and commentators are concerned that commercial interests are given priority over indigenous interests, and that some particular fishing practices, such as trawling, can cause habitat degradation and undue stock decline. The Aboriginal and Torres Strait Islander Social Justice Commissioner, Michael Dodson, for example, has criticised the provisions of the Native Title Act 1993 (Cwlth) (NTA) for the priority they accord to existing and future commercial fishing interests, stating:
The NTA offers only limited protection for the fishing rights of Indigenous peoples. The principal ways in which the NTA affects Indigenous fishing rights are:
(1) it allows for validation of invalid fishing leases and licences;
(2) where validation occurs, native title holders may be entitled to compensation;
(3) the principle of non-discrimination applies to future grants of fishing interests; and
(4) s. 211 provides protection for some subsistence fishing rights.
As far as interference with the present operations of commercial fishermen is concerned, the limited protection that is available to native title holders does not impair the existing activities of the fishing industry ...
[T]he NTA does not provide substantial protection for native title and it does not interfere with past grants or seriously impact on the grant of new rights. Notwithstanding this, a considerable amount of concern over the operation of the NTA has been voiced by commercial fishermen. The primary concerns of the industry appear to be that, first, they are concerned that their licences may be impaired or devalued; second, they may be excluded from certain areas; and third, they are opposed to ownership of waters whether they be inland waters or offshore.
I believe that some of this criticism is premised on a misunderstanding of the provisions of the NTA and their potential impact. [105]
On the other hand, many non-indigenous Australians consider that Aboriginal and Torres Strait Islander peoples should be subject to exactly the same fisheries laws as they are, and that to create special rights or exemptions for indigenous Australians is discriminatory, as noted above.
...
Information was unavailable regarding conflict resolution strategies in Victoria, South Australia, New South Wales and the ACT.
Tasmania
Preliminary discussions have occurred between the Department of Primary Industry and Fisheries in Tasmania. Aboriginal groups and the State's Office of Aboriginal Affairs, regarding implementation of the Living Resources Management Act 1995 (Tas). These are expected to be formalised in due course. [106]
Western Australia
The fisheries administration in Western Australia has been reviewed and restructured in recent times and there is now a greater emphasis on service delivery in the regions and the placement of more senior officers in key regional offices. The Policy Officer (Native Title) in the Department of Fisheries has advised:
Alongside the introduction of the FRMA [Fish Resources Management Act 1994 (WA)]the Department itself has been reviewed and is currently being restructured. As part of the review, there is a greater emphasis on service delivery in the regions and the placement of more senior officers in key regional offices. The first three to be phased in are Broome, Albany and Fremantle during the coming year, followed by Carnarvon and Geraldton in 1997. [107]
This restructuring may improve relationships with local Aboriginal groups as service delivery is improved. Some staff in the fisheries department also attend cross-cultural awareness courses.
Northern Territory
At the August 1995 workshop organised by the Northern Land Council in Darwin on Aboriginal interests and commercial fishing, workshop participants discussed the issue of enforcing fisheries legislation. Enforcement is currently the responsibility of the Northern Territory police. Nigel Scullion of the Northern Territory Fishing Industry Training Council said that it was inappropriate that the police were enforcing the Fisheries Act; that enforcement should be a Fisheries matter, and that there should be paid Aboriginal guides on all patrols and a delegation of enforcement powers to outstations. Responses were mixed. The comment was made that relations between police and Aboriginal communities needed to improve before Aboriginal people would willingly take on policing functions. [108] But it was also suggested that saltwater people with saltwater totems had a cultural interest in protecting the marine environment and that Aboriginal enforcement could address the lack of coastal surveillance. Marcia Langton suggested that the example of Kowanyama's Aboriginal land and natural resources management office in Queensland might be followed in the NT.
The fishing industry in the Northern Territory has developed a code of practice which provides that the non-commercial portion of the catch should be handed over to traditional owners, but apparently there is a problem with fishermen not knowing who the traditional owners are. [109] Iain Smith of the Northern Territory Fishing Industry Council told the workshop that he was developing an information kit for commercial fishermen to explain to them cultural sensitivities such as the importance of sacred sites. Waste fish is a significant issue in the Northern Territory and it is agreed that any crocodile, dugong or turtle caught accidentally in fishing nets should be handed over to traditional owners.
Queensland
In Queensland most of the 50 community rangers who are currently working with Community Councils have received accredited training as community rangers. Their presence within communities is reported to have `resulted in improved liaison and co-operation with fisheries managers and enforcement officers'. [110]
The work of the Kowanyama Land and Natural Resources Management Office is widely recognised as a particularly sound approach to ecosystem management and an empowering situation for the local Aboriginal community involved. One of Kowanyama's central wishes is to sustain traditional subsistence fishing and the resource base of Aboriginal lands and waters. This is being achieved following the closure of parts of the Mitchell River system to non-indigenous fishers so as to conserve fish stocks; the issuance of camping permits for recreational fishers, and the introduction of an active Ranger Service, amongst other activities. [111]
Viv Sinnamon suggests that in developing co-management and self-management strategies, governments must recognise and respect indigenous peoples' rights and responsibilities; have the political will to realise genuine community-based approaches to resource management, and to understand that governments `have no monopoly upon the management of planetary or national resources'. [112] Traditional aspects of indigenous and non-indigenous sciences for resource use and management are taught at Kowanyama. According to Sinnamon, traditional ecological knowledge can include information on topics such as increase ceremonies, seasonal condition, and availability of natural resources which complement water cycles, food chains, riparian ecology, and other concepts. [113]
According to Sinnamon:
Contemporary indigenous land management strategies have begun to develop at Kowanyama. This includes the maintenance of fish increase ceremonies, the consolidation of the traditional ecological knowledge base in the school curriculum, through to the establishment of a sophisticated geographic information system. Mapping of both cultural landscape and natural resources inventories will form the basis for future management of aboriginal lands and waters.
Sinnamon also suggests that mutual respect can be developed between recreational and commercial fishers, and indigenous communities, if preferences and interests in the various local resources are identified. [114] This is being achieved at Kowanyama because the Council has developed a sound working relationship with the Queensland Fisheries Management Authority. Kowanyama's Fisheries Officer has the powers of a Fisheries Inspector under State fisheries legislation and will be able to exercise powers under the Kowanyama Aboriginal Council's by-laws. Kowanyama undertakes joint enforcement exercises with the Queensland Boating Fisheries Patrol, and is also involved in developing regional strategies with the Mitchell River Watershed Management Group. [115] Kowanyama covers the costs of a helicopter surveillance program through the fees it levies on recreational fishers camping on Aboriginal lands and this had proven to be both a good management strategy and a useful lever in the community's negotiations for river closures. According to Sinnamon:
Helicopter surveillance has concentrated on commercial fishing activity on coast waterways of the delta but more recently has been used in the observation of recreational fishing activity. Last season the program resulted in the prosecution of individuals gillnetting freshwater on the Alice River adjacent to the Alice and Mitchell Rivers National Park. Close co-operation between Fisheries Officer at Kowanyama and Queensland Boating and Fisheries Patrol ensured the success of the operation. [116]
Copies are available from the Community Information Unit, The Department of the Environment, Sport and Territories, PO Box 787, Canberra ACT, 2601; toll free phone number: 1800 803 772, fax: (06) 274 1970. Copies will also be available on the Internet through the Environmental Resources Information Network (ERIN) on their World Wide Web Server (contact: http://www.erin.gov.au/sea/sea.html).
Endnotes
* (It should be noted that the views expressed in these extracts, and in the report, are not necessarily those of the Commonwealth of Australia, nor does the Commonwealth accept responsibility for any advice or information in relation to this material.)
[1]
For specific references to legislative provisions see: J Cassidy, `Federal
and State Land and Resource Use Management and Allocation
Regimes', Paper
presented at the Indigenous Land Use Agreements Conference, Darwin 24-29
September 1995,
pp. 1-44.
[2] See for example: Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report: July 1994-June 1995, Australian Government Publishing Service, Canberra, 1995, ch. 5; Aboriginal and Torres Strait Islander Social Justice Commissioner, Indigenous Social Justice: Strategies and Recommendations: Submission to the Parliament of the Commonwealth of Australia on the Social Justice Package: Vol 2: Regional Agreements, Sydney, 1995; B J Richardson, D Craig and B Boer, `Indigenous Peoples and Environmental Management: A Review of Canadian Regional Agreements and Their Potential Application to Australia -- Part 2', Environmental and Planning Law Journal, Vol. 11, No. 5, 1994, pp. 357-381; B J Richardson, D Craig and B Boer, `Indigenous Peoples and Environmental Management: A Review of Canadian Regional Agreements and their Potential Application to Australia -- Part 1', Environmental and Planning Law Journal, Vol. 11, No. 4, 1994, pp. 320-343; ATSIC, Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures, Australian Government Publishing Service, Canberra, 1995.
[3] M Irving, `Venture signals Court's softer line on native title', The Australian, April 1, 1996, p. 2.
[4] The use and meaning of the terms indigenous populations/communities/people[s] is not yet agreed in international law, with existing instruments and UN agencies using different terms. The chairperson of the Working Group on Indigenous Populations, Mme Daes, in 1993 urged acceptance of the term `peoples' as a political, social, cultural and ethnological reality: E I Daes, Discrimination Against Indigenous Peoples: Explanatory Note Concerning the Draft Declaration on the Rights of Indigenous Peoples, Sub-commission on Prevention of Discrimination and Protection of Minorities, Commission on Human Rights, Economic and Social Council, 45th Session, Item 14 of the provisional agenda, UN Doc. E/CN.4/Sub.2/1993/26/Add.1.
[5]
See for example: ATSIC, Recognition, Rights and Reform: A Report to
Government on Native Title Social Justice Measures, Canberra, 1995; Council
for Aboriginal Reconciliation, Going Forward: Social Justice for the First
Australians: A Submission to the Commonwealth Government. Canberra,
Australian Government Publishing Service, 1995; Australia, Parliament, House of
Representatives Standing Committee on
Environment, Recreation and the Arts,
Inquiry into the Role of Protected Areas in the Maintenance of Biodiversity,
Submissions -- Vols. 1-4, 1992; Australia, Parliament, House of
Representatives Standing Committee on Aboriginal and Torres Strait Islander
Affairs, Culture
and Heritage Inquiry, Submissions -- Vols. 1-3, 1994,
1995, D Smyth,
A Voice in All Places: Aboriginal and Torres Strait
Islander Interests in Australia's Coastal Zone, Revised Edition,
Consultancy report commissioned by the Resource Assessment Commission, 1993;
Council for Aboriginal Reconciliation,
ATSIC and Office of the Social Justice
Commission, Towards Social Justice: Compilation Report of First-Round
Consultations, Australian Government Publishing Service, Canberra, 1994;
Australia, Parliament, House of Representatives. Standing Committee on
Environment, Recreation and the Arts, Biodiversity: the Role of Protected
Areas, Australian Government Publishing Service, Canberra, 1993; Australia,
The Law Reform Commission, The Recognition of Aboriginal Customary Laws,
Report No. 31, Vol. 2, Australian Government Publishing Service, Canberra,
1986.
[6] P Yu, `Native Title and its Potential Impacts on Fisheries Management', Paper Presented at the 3rd Australasian Fisheries Managers Conference, 1-4 August 1995, p. 2.
[7]
Bardi Aboriginal Association Inc., Lombadina Community Inc. and Beagle Bay
Aboriginal Council Inc., A Submission of Oral Evidence to the Aboriginal
Land Inquiry, 1984, Regarding Traditional Aboriginal Rights and Use of the Sea,
unpublished, 1984, and Bardi Aboriginal Association Inc., Lombadina
Community Inc. and Beagle Bay Aboriginal Council Inc., Aboriginal Rights to
the Sea in the Dampierland Peninsula -- King Sound -- Buccaneer Archipelago
Area of Western Australia, A Joint
Submission for Sea Closure to the Aboriginal
Land Inquiry (compiled by N Green and J Turner), unpublished: cited in B C
Campbell and
B V E Wilson, The Politics of Exclusion: Indonesian Fishing
in the Australian Fishing Zone, Indian Ocean Centre for Peace Studies
Monograph No. 5, 1993, p. 210.
[8] P. Seaman, The Aboriginal Land Inquiry: Vol.1, Government Printer, Perth, 1984, pp. 219, 221.
[9] Seaman, The Aboriginal Land Inquiry, p. 222.
[10] Seaman, The Aboriginal Land Inquiry, pp. 227, 228. See also: N. Green, `Aboriginal Affiliations with the Sea in Western Australia', in F. Gray and L. Zann (ed), Traditional Knowledge of the Marine Environment in Northern Australia: Proceedings of a Workshop held in Townsville, Australia, 29 and 30 July 1985, Great Barrier Reef Marine Park Authority, Townsville, 1988, pp. 19-29.
[11] Seaman, The Aboriginal Land Inquiry, pp. 229-231.
[12] H McRae, G. Nettheim and L. Beacroft, Aboriginal Legal Issues: Commentary and Materials, The Law Book Company Limited, Sydney, 1991, p. 157.
[13] K Palmer, `Status of Documentary Information on Aboriginal and Islander Fishing and Marine Hunting in Northern Australia', in Gray and Zann (eds), Traditional Knowledge ..., pp. 4-18.
[14] See for example: K Palmer, Report prepared in support of an application to control entry onto seas adjoining Aboriginal land North Groote Eylandt ... on behalf of the Umbakumba and Angurugu Aboriginal Communities and other traditional owners, unpub. Northern Land Council, Darwin, 1983; K Palmer and M Brady, Report prepared in support of an application to control entry onto seas adjoining Aboriginal land. ... on behalf of the Minjilang Aboriginal Community and other traditional owners, Northern Land Council, unpub. Darwin, 1984.
[15] See: A Chase, Which Way Now? Tradition, Continuity, and Change in a North Queensland Aboriginal Community, PhD thesis, University of Queensland, 1980; A Chase and P Sutton, `Hunters and Gatherers in a Rich Environment: Aboriginal coastal exploitation in Cape York Peninsula', in A Keast (ed.), Biogeography and Ecology of Australia, Junk & Co., The Hague, 1981; A Chase, `Dugongs and Australian Indigenous Cultural Systems: Some Introductory Remarks', in H Marsh (ed), The Dugong, James Cook University of North Queensland, Townsville, 1985.
[16] See: S Davis, `Aboriginal tenure of the sea in northern Arnhem Land', in Gray and Zann (eds), Traditional Knowledge..., pp.68-98; S Davis, `Aboriginal Tenure of the Sea in Arnhem Land, Northern Australia', in J Cordell (ed.), A Sea of Small Boats, Cultural Survival, Cambridge, 1989; S L Davis and J R V Prescott, Aboriginal Frontiers and Boundaries in Australia, Melbourne University Press, Melbourne, 1992; S Davis, `Research Proposal: Aboriginal Subsistence Fishing and Tenure of the Sea', Northern Territory Industry Research and Development Trust Fund, 1983; But cf: P Sutton, Country: Aboriginal Boundaries and Land Ownership in Australia, Aboriginal History Monograph 3, Aboriginal History Inc., Canberra, 1995.
[17]
See: R E Johannes, `Traditional Ecological Knowledge of Fishermen and
Marine Hunters', in N M Williams, G Baines and
A. Brownlee (eds),
Traditional Ecological Knowledge: Wisdom for Sustainable Development: Based
on the Traditional Ecological Knowledge Workshop, Centre
for Resource and
Environmental Studies, Australian National University, Canberra, 18-29 April
1988, Centre for Resource and Environmental Studies, Australian National
University, Canberra, 1993, pp. 144-146; R Johannes and W MacFarlane,
`Torres
Strait Traditional Fisheries Studies: Some Implications for Sustainable
Development', in D Lawrence and T Cansfield-Smith
(eds), Sustainable
Development for Traditional Inhabitants of the Torres Strait Region:
Proceedings of the Torres Strait Baseline Study Conference, Kewarra Beach,
Cairns, Queensland, 19-23 November, 1990, Great Barrier Reef Marine
Park Authority, Townsville, 1991, pp. 389-401; R E Johannes and J W MacFarlane, Traditional Fishing in the Torres Strait Islands, CSIRO Division of Fisheries, Hobart, 1991; K Ruddle and R E Johannes, The Traditional Knowledge and Management of Coastal Systems in Asia and the Pacific, UNESCO, Jakarta, 1985.
[18] D M Smyth, Aboriginal Maritime Culture in the Far Northern Section of the Great Barrier Reef Marine Park, Report to the Great Barrier Reef Marine Park Authority, Townsville, 1992; D M Smyth, Aboriginal Maritime Culture in the Cairns Region of the Great Barrier Reef Marine Park, Report to the Great Barrier Reef Marine Park Authority, Townsville, 1990; D Smyth, A Voice in All Places: Aboriginal and Torres Strait Islander Interests in Australia's Coastal Zone: Revised Edition, Consultancy Report, Resource Assessment Commission: Coastal Zone Inquiry, 1993.
[19] J Cordell, `Indigenous Peoples' Coastal-Marine Domains: Some Matters of Cultural Documentation', in Turning the Tide: Conference on Indigenous Peoples and Sea Rights, 14 July-16 July 1993, Faculty of Law, Northern Territory University, Darwin, NT, Australia, 1993, pp. 159-174, at pp. 159-160.
[20] J Beckett, Torres Strait Islanders: Custom and Colonialism, Cambridge University Press, Sydney, 1987.
[21]
J Cordell, `Lines in the Water: Sea Tenure as "Custom Today" in
Western Oceania', in Lawrence and Cansfield-Smith (eds), Sustainable
Development for Traditional Inhabitants, pp. 509-516; Cordell,
`Indigenous peoples' coastal-marine domains...;
J Cordell,
Managing Sea Country: Tenure and Sustainability of Aboriginal and Torres
Strait Islander Marine Resources: Report on Indigenous Fishing,
Ecologically Sustainable Development (ESD) Fisheries Working Group, 1991; J
Cordell, A Sea of Small Boats..., J. Cordell, `Negotiating Sea
Rights', Cultural Survival Quarterly, Vol. 15, No. 2, 1991, pp. 5-10; J.
Cordell, `Defending Customary Inshore Sea Rights', in K. Ruddle and T. Akimichi
(eds), Maritime Institutions of the Western Pacific, Senri Ethnological
Studies, National Museum of Ethnology, Osaka, 1984, pp. 301-326.
[22] B Meehan, Shell Bed to Shell Midden, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1982.
[23] A Smith, Usage of Marine Resources by Aboriginal Communities on the East Coast of Cape York Peninsula, Report to the Great Barrier Reef Marine Park Authority, 1987.
[24]
See A Bergin, `Aboriginal Sea Claims in the Northern Territory of
Australia', Ocean and Shoreline Management, Vol.15, 1991,
pp.
171-204; A Bergin, `Aboriginal and Torres Strait Islander Interests in the
Great Barrier Reef Marine Park', Consultancy report
to the Great Barrier Reef
Marine Park Authority, Townsville, 1992; A Bergin, `A Rising Tide of Aboriginal
Sea Claims: Implications
of the Mabo Case in Australia', The International
Journal of Marine and Coastal Law, Vol. 8, No. 3, 1993, pp .359-37; A
Bergin, `A rising tide of Aboriginal sea claims: implications of the Mabo case
in Australia',
Australian Law Journal, Vol. 67, No. 8, 1993, pp.
616-620. See also I. Keen, `Aboriginal Tenure and Use of the Foreshore and
Seas: An Anthropological Evaluation
of the Northern Territory Legislation
Providing for the Closure of Seas Adjacent to Aboriginal Land',
Anthropological Forum, Vol. 5, No. 3, 1984-5, pp. 421-439.
[25]
B. Nietschmann, and J Nietschmann, `Good dugong, bad dugong; bad turtle,
good turtle', Natural History, Vol. 90, No. 5, 1981,
pp. 54-63,
86-87; B Nietschmann, `Traditional Sea Territories, Resources and Rights in
Torres Strait', in J Cordell (ed.) Sea of Small Boats, Cultural
Survival, Cambridge, 1988, pp. 60-93.
[26] J. Taylor, An Overview of Traditional Fishing Rights in Queensland, Report to the Under-Secretary, Queensland Department of Community Services, cited in D. Smyth, A Voice in All Places..., p. 12.
[27] The Kowanyama Community near the west coast of Cape York Peninsula is working with Viv Sinnamon on fisheries resources and watershed management. See V Sinnamon, `Self-Governance: Planning for a Future', CYPLUS Talkback, Vol. 5, July 1994, pp. 18-21; V Sinnamon, `Fisheries of the Lower Mitchell River, North Queensland', in J Cordell (ed.), Indigenous Management of Land and Sea and Traditional Activities of Cape York Peninsula, Cape York Peninsula Land Use Strategy, Department of the Premier, Economic and Trade Development, Brisbane; Department of the Environment, Sport and Territories, Canberra; University of Queensland, St Lucia, (forthcoming), 1995, pp. 1-31 (and publications cited therein). See also: E Young, H Ross, J Johnson and J. Kesteven, Caring for Country: Aborigines and Land Management, Australian National Parks and Wildlife Service, Canberra, 1991, pp. 168-170.
[28]
D Allen, `Some Shadow of the Rights Known to Our Law', in Turning the
Tide ..., pp. 53-64; D Allen, `Salt-water Dreaming', in P Jull, et al.
(eds), Surviving Columbus: Indigenous Peoples, Political Reform and
Environmental Management in North Australia: Conference Sponsored by
the
Central Land Council, Northern Land Council, Island Co-ordinating Council and
the North Australia Research Unit, North Australia Research Unit,
Casuarina, 1994, pp. 39-46; D Briggs and R Zigterman, `Aboriginal and Torres
Strait Islanders' Involvement
in Managing the Great Barrier Reef Marine Park
and Queensland Marine Parks', in
J Birckhead, T De Lacy and L Smith
(eds), Aboriginal Involvement in Parks and Protected Areas, Australian
Institute of Aboriginal and Torres Strait Islander Studies Report Series,
Aboriginal Studies Press, Canberra, 1992, pp.
275-280;
D Mowaljarlai,
`Wayrrull-Aboriginal Traditional Responsibility in Cultural Resource Management
in the Northwest Kimberleys of Western
Australia', in Birckhead, De Lacy and
Smith (eds), Aboriginal Involvement in Parks .., pp. 179-189; B
Nesbitt, `Aboriginal `Joint' Management of Northwest Kimberley Conservation
Reserves: -- Achievable Under Existing
Legislation but is there the Political
Will?', in Birckhead, De Lacy and Smith (eds), Aboriginal Involvement in
Parks ..., pp. 251-261.
[29] P Jull and N Bankes, `Inuit Interests in the Arctic Offshore', in National and Regional Interests in the North: Third National Workshop on People, Resources, and the Environment North of 60 Degrees, Canadian Arctic Resources Committee, Ontario, 1983, pp. 557-586; P Jull, `Internationalism, Indigenous Peoples and Sustainable Development', in Lawrence and Cansfield-Smith (eds), Sustainable Development for Traditional Inhabitants..., pp. 451-460; P Jull, A Sea Change: Overseas Indigenous -- Government Relations in the Coastal Zone, Consultancy Report, Resource Assessment Commission, Coastal Zone Inquiry, 1993.
[30]
Sutton v Derschaw, Clifton and Murphy, Appeals SJA 1175-1177, 1994,
Supreme Court of Western Australia, unreported,
15 August 1995.
[31] It is worth noting comments in a handbook from Western Australia that in Aboriginal communities `Death is a community concern, not a private affair ... and involve everyone. Funeral ceremonies take precedence over most other things. When it comes to meetings, it is a good idea if you can regard deaths as similar to rainy days for builders': F Crawford, Jalinardi Ways: Whitefellas Working In Aboriginal Communities, Centre for Aboriginal Studies and the School of Social Work, Curtin University of Technology, 1989, p. 56, (with thanks to Pat Brady of the AIATSIS library for the reference).
[33] Personal communication, Tony O'Connor, Department of Fisheries WA, 26 September 1995.
[34] See Justice Mary Gaudron, `Equality Before the Law with Particular Reference to Aborigines', The Judicial Review, Vol. 1, No. 2, 1993, pp. 81-89.
[35] [1985] HCA 11; (1985) 159 CLR 70.
[36]
See this concern in, for example: C Tennant, `Indigenous Peoples,
International Institutions, and the International Legal Literature
from
1945-1993', Human Rights Quarterly, Vol. 16, 1994, pp. 1-57;
L Sackett, `Promoting Primitivism: Conservationist Depictions of
Aboriginal Australians', The Australian Journal of Anthropology, Vol. 2,
No. 2, 1991, pp. 233-246; K Palmer Aborigines, values and the
environment, Fundamental Questions Paper No.7, Centre for Resource and
Environmental Studies, Australian National University, 1991; N Thomas,
Colonialism's Culture: Anthropology, Travel and Government, Polity
Press, Oxford, 1994, ch. 6;
N Thomas, Entangled Objects: Exchange,
Material Culture, and Colonialism in the Pacific, Harvard University Press,
Cambridge, 1991, p. 10; R M Keesing, `Creating the Past: Custom and Identity in
the Contemporary Pacific',
The Contemporary Pacific,
Vol. 1, Nos. 1
and 2, Spring and Fall, 1989, pp. 19-42 at pp. 23, 29-30.
[37] J Sutherland, `Representations of indigenous peoples' knowledge and practice in modern international law and politics', Australian Journal of Human Rights, Vol. 2, No. 1, Oct-Nov. 1995, pp. 39-57; and see the content of submissions made to various public inquiries by Indigenous Australians on these issues.
[38] Gray and Zann, Traditional Knowledge ..., pp. 191-192.
[39] `Interest' in relation to land or waters is defined under the Act to mean `a legal or equitable estate or interest in the land or waters' or `any other right (including a right under an option and a rights of redemption), charge, power or privilege over, or in connection with the land or waters or an estate or interest in the land or waters, or `a restriction on the use of the land or waters, whether or not annexed to other land or waters': s. 253.
[40] See for example Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development [1980] 1 F.C. 518; R v Sparrow (1990) 70 DLR (4th) 385; Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680.
[41] Section 15B(1) of the Acts Interpretation Act 1901 (Cwlth) provides that except so far as the contrary intention appears, (a) the provisions of every Act, whether passed before or after the commencement of this section, shall be taken to have effect in and in relation to the coastal sea of Australia as if the coastal sea of Australia were part of Australia ... `Coastal sea': in relation to Australia, means the territorial sea of Australia, and the sea on the landward side of the territorial sea of Australia and not within the limits of
a State or internal Territory; and includes the airspace over, and the sea-bed and subsoil beneath, any such sea ... In 1994 amendments to the Seas and Submerged Lands Act 1973 (Cwlth) `territorial sea' was defined as having the same meaning as in Articles 3 and 4 of the United Nations Convention on the Law of the Sea. The Convention provides that each State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from the baselines determined in accordance with the Convention: Art. 3. The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea: Art. 4. The Australian territorial sea was proclaimed to extend to 12 nautical miles from the established baselines of low water mark in 1990.
[42] E Ganter, `Northern Territory Sea Closures: A Discussion of Alternatives for Aboriginal Participation in Coastal Management', Conference paper presented at the Coast to Coast: National Coastal Management Conference, Hobart, 29 June-2 July 1994, p. 12.
[43] Mason v Tritton (1993) A Crim R 28.
[44]
Sutton v Derschaw, Clifton and Murphy, Appeals SJA 1175-1177, 1994,
unreported, Supreme Court of Western Australia,
15 August 1995. See D
Ritter, `Casenotes: Native Title and the Fisheries Act 1905 (WA), Sutton v
Derschaw, Clifton and Murphy', Aboriginal Law Bulletin, Vol. 3, No. 77,
1995, p. 18.
[46] Sutton v Derschaw, Clifton and Murphy, pp. 12-13.
[47]
Western Australia v The Commonwealth, The Wororra Peoples and the Yawuru
Peoples v Western Australia, and Biljabu, Gibbs, Roberts,
Fry, Morgan, Samson,
and Williams v Western Australia [1995] HCA 47; [1995] 128 ALR 1; Western Australia v The
Commonwealth; The Wororra Peoples and Anor v Western Australia; Biljabu and Ors
v Western Australia (Native
Title Act Case) [1994-5] 183
CLR 373;
[1995]128 ALR 1.
[48] Aboriginal and Torres Strait Island Social Justice Commissioner, Native Title Report: January-June 1994, Australian Government Publishing Service, Canberra, 1995, p. 43; N. Pearson, `Native title and fisheries management: Where is it heading?', Australian Fisheries, Vol. 53, No. 5, 1994, pp. 14-15 at p 15.
[49] A Reynolds, `Fishers Ban Gill Netting in Shoalwater Bay', Northern Regional Ripples, North Australia Special Edition, Supplementary, September, 1995, p. 1; A Bergin, `International Legal Policy Developments on Bycatch', Australian and New Zealand Society of International Law: Proceedings of the Third Annual Meeting of the Australian and New Zealand Society of International Law, 7-9 July 1995, Australian National University, Canberra, 1995, pp. 181-190; W Craik, J Glaister and I Poiner (eds), The Effects of Fishing, CSIRO, 1990.
[50] Anon, `Turtle Conservation and the Turtle Rescue Plan, Will it Work?', Northern Regional Ripples, North Australia Special Edition, Supplementary, September, 1995, p. 2.
[51] Reynolds, `Fishers Ban Gill Netting in Shoalwater Bay...'.
[52]
R v Van der Peet 83 CCC (3d) is an important adverse precedent for
indigenous commercial fisher persons. The British Columbia Court of Appeal held
that commercial salmon sales to non-indigenous buyers was qualitatively
different to pre-colonial fish trading and therefore was
not a traditional
aboriginal practice which was protected under the Canadian Constitution Act
1982. In contrast the Waitangi Tribunal's reports on fisheries issues in
New Zealand do regard significant Maori fisheries interests as
commercial. The
Nova Scotia Supreme Court is being asked to rule on whether the Micmacs have a
treaty right to fish commercially
without licences and a decision is expected
in 1996. Written arguments were due by February 1996: `R v Donald
Marshall', noted in
G Berssenbrugge and B Cottam, SSAHRE/ÉRASSH,
Vol. 3, No. 2, Fall/Winter 1995, p. 14,
[53] Cassidy, `Federal and State Land and Resource Use Management and Allocation Regimes'.
[54]
`Offshore place' is defined to mean any land or waters to which this Act
extends, other than land or waters in an onshore place:
s. 253.
[55] D Mackie, Fisheries Department, South Australia, personal communication, 15 September 1995.
[56] Aboriginal person is defined as having the same meaning as in the Land (Titles and Traditional Usage) Act 1993 (WA). The effect of the High Court declaration on the invalidity of the Land (Titles and Traditional Usage) Act 1993 (WA) is uncertain. Courts may simply substitute another definition for Aboriginal person to prevent the unavailability of the beneficial exemption from licensing requirements for Aboriginal people.
[57] G Neate, Aboriginal Land Rights Law in the Northern Territory, Vol.1, Alternative Publishing Co-operative Ltd, 1989, p. 94.
[58] Under s. 73(1)(d) of the Aboriginal Land Rights (Northern Territory) Act 1976. This legislation was introduced following the reports of the Woodward land rights commission.
[59] Ganter, `Northern Territory Sea Closures ...', p. 5.
[60] D Smyth, `Indigenous Peoples and the Marine Environment of Cape York Peninsula', in Cordell (ed), Indigenous Management of Land and Sea ..., unpaged typescript chapter.
[61] Steve Dunn, Gordon Harris, Gary Henry, NSW Fisheries, personal communications, 22, 27 September, 3 October 1995.
[62]
See for example, R S French, `Discussion Paper on a Process for Reaching
Agreements About Future Developments on Native Title Land
and the Possibility
of Regional Framework Agreements', Paper presented at the Indigenous Land Use
Conference, Darwin, September,
1995, pp. 1-12; R S French, `Regional Agreements
and the Native Title Act 1993: Paper presented at the ATSIC Regional Agreements
Seminar, Cairns, 29-31 May 1995', pp. 1-18; A Harris (ed), A Good Idea
Waiting to Happen: Regional Agreements in Australia: Proceedings from the
Cairns Workshop July 1994, Cape York Land Council, Cairns, 1995;
P
Jull, `The Concept of Regional Agreements and Torres Strait: A Resource Paper
Prepared for the Island Coordinating Council (ICC)
of Torres Strait', unpub,
1995, pp. 1-32; C Wickliffe, `The Co-Management of Living Resources and Maori
Customary Fishing Rights,
Paper presented at the Indigenous Land Use Agreements
Conference, Darwin, September 26-29, 1995', 1995,
pp 1-39; R S French,
`Pathways to Agreement', Paper presented at the Indigenous Land Use Agreements
Conference, Darwin,
26-29 September 1995, pp. 1-24; Richardson, Craig,
Boer, `Indigenous Peoples and Environmental Management: A Review of Canadian
Regional
Agreements and their Potential Application to Australia ...', [Parts 1
and 2].'
[63] Aboriginal and Torres Strait Islander Social Justice Commissioner, Indigenous Social Justice: Strategies and Recommendations: Submission to the Parliament of the Commonwealth of Australia on the Social Justice Package: Vol. 1: Strategies and Recommendations, Sydney, 1995, pp. 26-27.
[64] Aboriginal and Torres Strait Islander Social Justice Commissioner, Indigenous Social Justice: Strategies and Recommendations ..., pp. 29-30.
[65] `Land' is defined to include the airspace over, or subsoil under, land, but does not include waters: s. 253 Native Title Act 1993 (Cwlth).
[66] `Waters' is defined to include: `(a) sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters; or (b) the bed or subsoil under, or airspace over, any waters (including waters mentioned in paragraph (a)): s. 253. An amendment has been proposed by the Federal Government to the Act to make it clear that `waters' will include the area between high and low water marks: Dept of the Prime Minister and Cabinet and Attorney-General's Dept, Outline of Proposed Amendments to the Native Title Act 1993, typescript copy, 1995, p. 14.
[67] J Downey, N Pearson, J Purcell, G Sargent, et al, Media Release: Historic Land Agreement, Cape York Peninsula, The Cape York Land Council, The Cattlemen's Union of Australia, The Australian Conservation Foundation, The Wilderness Society, The Peninsula Regional Council of ATSIC, 1996.
[68] See generally: H Fourmile, Making Things Work: Aboriginal and Torres Strait Islander Involvement in Bioregional Planning: Draft Consultant's Report for the Department of Environment, Sport and Teritories, Canberra, (forthcoming).
[69] M Mulrennan and N Hanssen, with the Island Coordinating Council, Marine Strategy for Torres Strait: Policy Directions, Australian National University North Australia Research Unit and the Torres Strait Island Coordinating Council, Darwin, 1994, p. 10.
[70] The ICC comprises the elected council chairpersons of each of the deed of grant in trust communities under the Community Services (Torres Strait) Act 1984 (Qld).
[71] Aboriginal and Torres Strait Islander Programs Section and Reserve Systems Unit, Draft Minutes from Working Group Meeting, Alice Springs, 13-16 June, 1995, ANCA, unpub, pp. 30-31.
[72] Mulrennan, Hanssen et. al, Marine Strategy for Torres Strait ..., p. 67.
[73] Geoff Dews, Marine Strategy Coordinator, Island Coordinating Council, Torres Strait, personal communication, 4 October 1995. See: T Leary and J David, Coconut (Poruma) Community Environment and Resource Management Plan, Island Co-ordinating Council, Torres Strait, 1994; T Leary, and J David, Saibai Community Environment and Resource Management Plan, Island Co-ordinating Council, Torres Strait, 1994.
[74] Aboriginal and Torres Strait Islander Programs Section and Reserve Systems Unit, Draft Minutes from Working Group Meeting, Alice Springs, 13-16 June, 1995, ANCA, unpub, p. 31.
[75] See the Environment, Sport and Territories Legislation Amendment Act 1995 (No. 25/95) (Cwlth) which was assented to and commenced operation in April 1995.
[76] Smyth, `Indigenous Peoples and the Marine Environment ..., pp. 20-21.
[77] C Cook, `Aboriginal and Torres Strait Islander Traditional Hunting and Native Title', Reef Research, June 1994, pp. 6-8.
[78] Environment, Sport and Territories Legislation Amendment Act 1995 (Cwlth).
[79] Great Barrier Reef Marine Park Authority, Annual Report: 1994-1995, Great Barrier Reef Marine Park Authority, Townsville, 1995, p. 11.
[80] C. Cook, personal communication, 13 October 1995.
[81] Great Barrier Reef Marine Park Authority, Corporate Plan 1994-1999, with specific one year objectives 1994-1995, typescript copy, Townsville, 1994.
[82]
Great Barrier Reef World Heritage Area Strategic Planning Team, The
Great Barrier Reef: Keeping It Great: A 25 Year Strategic Plan for the Great
Barrier Reef World Heritage Area, 1994-2019, Great Barrier Reef Marine Park
Authority, Townsville,
1994, p. 11.
[83] Great Barrier Reef World Heritage Area Strategic Planning Team, The Great Barrier Reef: Keeping It Great: A 25 Year Strategic Plan for the Great Barrier Reef World Heritage Area, 1994-2019, p. 35.
[84] Great Barrier Reef World Heritage Area Strategic Planning Team, The Great Barrier Reef: Keeping It Great: A 25 Year Strategic Plan for the Great Barrier Reef World Heritage Area, 1994-2019, p. 35.
[85] Great Barrier Reef Marine Park Authority, Corporate Plan 1994-1999 ..., pp. x, 12-14.
[86] Don Mackie, Acting Manager, Legislation and Policy, SA Fisheries Department, personal communication, 15 September 1995.
[87] R Clarke, QFMA, personal communication, 5 October 1995.
[88] Ross Winstanley, Manager, Recreational Fishing and Aquaculture, Department of Conservation and Natural Resources, Victoria, personal communication, 6 October 1995.
[89] Dept of Conservation and Natural Resources, Eel Fishery Management Plan 1995: Victorian Fisheries, 1995, pp. 8-9.
[90] Aboriginal and Torres Strait Islander Commercial Development Corporation, Ceduna Clearwater Oysters Joint Venture, Ceduna South Australia -- Investment Portfolio Introduction, May 1994, pp. 1-2 at p. 1.
[91] Aboriginal and Torres Strait Islander Commercial Development Corporation, Ceduna Clearwater ...
[92] P Summerfield, Management Implications of the Native Title Act: A Western Australian Perspective, Conference Paper delivered at the Australasian Fisheries Managers Conference, 1-4 August 1995, pp. 1-7 at pp. 6-7.
[93] P Summerfield, personal communication, 26 September 1995, Ref. 1161/94, pp. 2-3.
[94] Northern Territory Government, Future Directions: The Fishing Industry in the Northern Territory, Government Printer of the Northern Territory, Darwin, n.d.
[95] Anon, `Palm Island Oyster Farm Ready for Commercial Production', Australian Fisheries, Vol. 38, No. 9, 1979, pp. 56-57.
[96] Smyth, `Indigenous Peoples and the Marine Environment ..., pp. 1-36.
[97] Ross Williams, Great Barrier Reef Marine Park Authority, personal communication, 26 September 1995.
[98] Ray Clarke, QFMA, personal communication, 5 October 1995.
[99] Aboriginal and Torres Strait Islander Programs Section and Reserve Systems Unit, Draft Minutes from Working Group Meeting, p 31.
[100] G Mye, `Address by Torres Strait Islander Leaders to the Torres Strait Fisheries Seminar', in Torres Strait Fisheries Seminar, Port Moresby, 11-14 February, 1985, Australian Government Publishing Service, Canberra, 1986; Anon, `Islanders planning "export" fishery', Australian Fisheries, Vol. 35, No. 4, 1976, p. 26.
[101] Ellims, McGregor, Turner, Mye, et al, Report of the Committee on Fishing in the Eastern Islands of the Torres Strait, pp 1-8.
[102] Torres Strait Regional Authority, An Act of Self-Determination for the People of the Torres Strait: A Framework for Achieving the Aspirations of the People of the Torres Strait: Response to the Social Justice Task Force, typescript copy, n.d., pp. 2,4.
[103] Ian Lyle, NSW Fisheries, personal communication, 3 October 1995.
[105] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report, pp. 153-154.
[106] A Schaap, Acting General Manager (Marine Resources), Department of Primary Industry and Fisheries Tasmania, 20 February 1996.
[107] P Summerfield, personal communication, 26 September 1995, Ref. 1161/94, pp. 2-3.
[108] Northern Land Council, `Minutes: `Commercial Fishing and Aboriginal Interests in the Sea', p. 3.
[109] Northern Land Council, `Minutes: `Commercial Fishing and Aboriginal Interests in the Sea'.
[110] Smyth, `Indigenous Peoples and the Marine Environment ...', at p. 15.
[111]
V Sinnamon, `Fisheries of the Lower Mitchell River, North Queensland', in
Cordell (ed), Indigenous Management of Land and
Sea ..., pp. 1-31 at
pp. 20, 24.
[112] Sinnamon, `Fisheries of the Lower Mitchell River ...', p. 26.
[113] Sinnamon, `Fisheries of the Lower Mitchell River ...', p. 15.
[114] Sinnamon, `Fisheries of the Lower Mitchell River ...', p. 6.
[115] Sinnamon, `Fisheries of the Lower Mitchell River ...', p. 14.
[116] Sinnamon, `Fisheries of the Lower Mitchell River ...', pp. 18, 27.
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