Indigenous Law Bulletin
By Dermot Smyth
Long before the Croker Island sea rights claim was lodged, or even before the Murray Island native title high court decision in 1992, the Commonwealth Government had been made aware of the customary and continuing relationship between Australia’s Indigenous people and the sea. In 1984 the Fisheries Division of the then Commonwealth Department of Primary Industries produced a report, authored by Belinda Lawson and courageously titled Aboriginal Fishing and Ownership of the Sea.
The report begins with plain statements about the existence of Aboriginal customary marine tenure and inherent fishing rights, and the possibility that these rights extend to the commercial fishery:
There can be no denial of the fact that Aborigines do have systems of sea tenure but these are currently not recognised as forms of title to the sea. Perhaps less fundamental but of more direct relevance to the survival of Aboriginal culture and lifestyle, at least in the short term, is their right to exploit marine resources for subsistence purposes, and their right to control access to territory which is of sacred significance to them. The entitlement of Aborigines to special commercial fishing rights is another issue to be resolved, particularly in the light of North American experience. In this context it is not related to the issue of assistance to Aborigines to “develop”, although commercial fishing ventures are a means of achieving this. Rather commercial fishing rights, as opposed to concessionary treatment, are a natural consequence of recognition of traditional and unrelinquished ownership of the sea.
This is as neat a summary of Indigenous sea rights as you’ll find anywhere, and it came from a Commonwealth Government report in 1984. The report was never published, and there is no evidence of the further policy development and research that the report recommended.
Seven years later, the report reappeared as a reference in another Commonwealth Government report with the equally optimistic title, Managing Sea Country: Tenure and Sustainability of Aboriginal and Torres Strait Islander Marine Resources. The report was the product of a consultant to the Ecologically Sustainable Development (‘ESD’) Working Group on Fisheries, part of the Hawke Government’s push to get ESD from the green fringes into mainstream thinking.
The ESD Working Group on Fisheries comprised senior government officers, academics and representatives of commercial and recreational fishing interests. Despite the findings of the 1984 report, there were no representatives of Australia’s Indigenous fisheries on the Working Group. Lobbying by a non-government conservation group member resulted in the report on Indigenous fisheries being prepared by an anthropologist with international experience in documenting customary marine tenure, Dr John Cordell.
Cordell’s report, like its 1984 predecessor, laid out plainly the nature and scope of Indigenous peoples’ relationships with Australia’s seas and aquatic resources:
Customary Marine Tenure (CMT) systems, and ways of managing sea country, vary from community to community around Australia, but they have a critical common denominator. They consist of collective or communal domains – discrete, culturally defined, territories, controlled by traditional owners.
Sufficiently persuasive was the evidence produced in Cordell’s consultancy report, that the Final Report of the ESD Working Group on Fisheries contained clear recommendations for action to develop Indigenous policies and to provide an equitable voice for Indigenous people in fisheries management.
Specifically the ESD Working Group on Fisheries recommended that governments:
(a) Undertake a comprehensive evaluation of government relationships to indigenous coastal communities, with regard to fisheries management issues and arrangements, laws, obligations, local needs and customs, and traditional environmental knowledge;
(b) Integrate the indigenous sector in a national framework for coastal
fisheries and marine management;
(c) Investigate new co-management procedures with indigenous communities;
(d) Ensure that indigenous communities have membership on management advisory committees of appropriate fisheries.
The recommended comprehensive evaluation of Indigenous fisheries interests was not one of the outcomes of the ESD process. A year later, however, a Commonwealth Government Commission of Inquiry into the management of Australia’s coastal zone brought the national focus back to Indigenous marine and fisheries issues.
The terms of reference for the Coastal Zone Inquiry made no mention of Indigenous issues. However, a few months into the Inquiry, the commissioners approved funding for a report on Aboriginal and Torres Strait Island interests in the coastal zone. A few months later the High Court brought down the Mabo native title decision and Indigenous issues were suddenly front page news.
Unlike the two previous reports, this consultancy had access to the resources of a well-funded national Inquiry and involved extensive consultation, with visits to Aboriginal and Torres Strait Islander communities in most coastal regions of Australia, including Flinders Island in Bass Strait and many islands of the Torres Strait. The Inquiry Commissioners also met with Aboriginal people on beaches, under trees and in community halls at several locations in northern Australia and at national meetings in Canberra and Sydney. Importantly, the Coastal Zone Inquiry provided opportunities for far distant coastal Indigenous groups to meet and discuss marine and sea rights issues, and to develop strong recommendations for consideration by the Inquiry. The consultancy report summarised the outcomes of all these discussions, and issues raised in Indigenous submissions to the Inquiry.
The Final Report of the Coastal Zone Inquiry devoted a chapter to Indigenous coastal issues, which begins with the following observation:
Aboriginal and Torres Strait Islander people were the earliest owners and managers of Australia’s coastal zone. Today many indigenous communities maintain an active interest and involvement in coastal zone management; in some areas they retain ownership rights.
The Final Report contained ten recommendations relating to recognition of Indigenous customary rights to use and manage traditional estates in the coastal zone, to benefit commercially from the exploitation of coastal zone resources and to be involved at all levels of coastal zone management. With respect to Indigenous fisheries, the Inquiry called for the development of an Aboriginal and Torres Strait Islander Fisheries Strategy. In particular, it called for the involvement of the Aboriginal and Torres Strait Islander Commission (‘ATSIC’), Land Councils and other Indigenous organisations in working out the Strategy. It was recommended that the Strategy include a number of measures similar to those proposed previously by the ESD Working Group. It additionally called for measures to improve economic development and employment opportunities for indigenous communities in fisheries and mariculture venture, and for measures to improve relations between indigenous communities, fisheries agency staff and commercial fishers.
The concept of an Aboriginal Fisheries Strategy for Australia came from Canada, which was at that time in the early stages of implementing its own Aboriginal Fishery Strategy. The Canadian Federal Government devoted CAN$140 million to its Aboriginal Fisheries Strategy over a seven year period. In 1996, three years after the Coastal Zone Inquiry, the Australian Government allocated $300,000 to initiate the Aboriginal and Torres Strait Islander Fisheries Strategy.
The money was distributed to State and Territory fisheries agencies in 1997 to embark on consultations leading to strategic enhancement of Indigenous peoples’ involvement in fisheries and fisheries management. In some states workshops were held to bring Indigenous people, fisheries managers and commercial and recreational fishing representatives together for the first time. Recommendations were made at the regional and state levels and reports were sent to Commonwealth Government from state fisheries agencies. By the time these reports reached Canberra in 1998 and 1999, however, the Government had apparently lost interest and no further funding has been allocated to this Strategy.
Another Federal government had come to power. It instituted its own course of action, in place of the initiatives planned by the previous Federal government. In 1997, the National Aboriginal and Torres Strait Islander Rural Industry Strategy (‘NATSIRIS’) was announced as a joint commitment by the Minister for Agriculture, Fisheries and Forestry and the Minister for Aboriginal Affairs. NATSIRIS contains many explicit commitments relating to Indigenous fisheries issues, but is silent on matters of inherent rights and customary marine tenure. Suggestions for Indigenous marine fishing relate to issues such as subsistence fishing, codes of practice, means for increasing Indigenous participation in specific industries, preferential licensing, reservation and buy back of licences, market opportunities, and development of infrastructure. There are also suggestions relating to Indigenous freshwater fishing and aquaculture.
Inquiries in recent weeks have revealed that to date no funding has been allocated by either the Department of Agriculture, Fisheries and Forestry – Australia, or ATSIC, for the implementation of the fisheries components of NATSIRIS, though other components of NATSIRIS have been funded.
Meanwhile, in 1998 the Commonwealth Government announced Australia’s Oceans Policy, which contains the following assurance:
The Government will continue to:
|•||implement the National Aboriginal and Torres Strait Islander Rural Industry Strategy as it is relevant to ocean-based industries, and the National Aboriginal and Torres Strait Islander Tourism Industry Strategy as it is relevant to marine tourism;|
|•||remove barriers to indigenous groups practising subsistence fishing on a sustainable yield basis consistent with conservation of species; and|
|•||provide increased opportunities for Aboriginal and Torres Strait Islander peoples to be involved in commercial fishing.|
What does this latest commitment mean? How can the government ‘continue’ what it has not begun?
Over the last ten years and more, Aboriginal and Torres Strait Islander people have travelled thousands of kilometres to talk with dozens of consultants, bureaucrats, commissioners, judges and Ministers to patiently explain the meaning of seacountry. To explain what it means to belong to the saltwater, to know the stories of the land beneath the sea and to have inherited rights and duties to look after the important places on land and water and to be sustained by their resources. These explanations have been eloquently told and they are readily understood.
And yet our courts insist that these inherited rights are somehow inferior to those of the tourist, the recreational fisher and the commercial fisher, and that they must yield to these more recently bestowed rights. And our policy makers have grown less and less courageous as they turn a blind Orwellian eye to the distinctiveness of Indigenous peoples’ relationship with the sea. Instead they see only disadvantaged rural citizens whose equality must be respected by denying them the core of their inheritance – an inheritance, which could, as pointed out in the 1984 Lawson report, hold out the prospect of joining the wider economy as holders of rights to resources, rather than the grateful beneficiaries of an unfunded government policies.
Not surprisingly, coastal Indigenous peoples have lost patience with governments’ failure to implement recommendations of their own inquiries, and failure to fund their own policy commitments. Regional Indigenous initiatives, such as Sea Forum in Queensland and the Indigenous Aquaculture, Fishing and Sea Rights Forum in South Australia, and a national Indigenous sea rights conference held Hobart in 1999, are developing their own strategic approaches to gaining recognition of saltwater inheritance.
At some point, however unwillingly, governments must respond to these initiatives. The current status of marine native title law, which recognises native title rights in the sea as coexisting in an inferior relationship with other rights, has lulled policy makers into inaction. It appears we must wait for a High Court decision to clarify Indigenous peoples’ legal claims to seacountry and saltwater resources.
In the meantime we can gaze across the Pacific where the Canadian Supreme Court has established a very different regime of coexistence, where Indigenous subsistence fishing rights take priority over other resource users. Such a decision here would undoubtedly result in a great deal of policy revision and a new enthusiasm to fund neglected commitments.
But why must we wait for these interminable determinations, when we have plenty of evidence, and even government commitments, to begin the process of saltwater reconciliation now?
Dermot Smyth is an Honorary Research Fellow at the Dept of Tropical Environment Studies and Geography, James Cook University firstname.lastname@example.org
 The first judgment was Mary Yarmirr & Ors v Northern Territory of Australia & Ors 
1185 FCA (4 September 1998). The most recent appeal was Commonwealth v Mary Yarmirr & Ors; Mary Yarmirr & Ors v Northern Territory & Ors  FCA 1668; 168 ALR 426.
 Mabo v Queensland [No 2]  HCA 23; (1992) 175 CLR 1 (‘Mabo’).
 Belinda Lawson, Aboriginal Fishing and Ownership of the Sea, Fisheries Division, Dept of Primary Industries, Canberra (1984).
 Ibid 1.
 John Cordell, Managing Sea Country: Tenure and Sustainability of Aboriginal and Torres Strait Islander Marine Resources. Report on Indigenous Fishing, Ecologically Sustainable Development Fisheries Working Group, Canberra (1991).
 Ibid 2.
 Commonwealth of Australia, Ecologically Sustainable Development Final Report – Fisheries, Australian Government Publishing Service, Canberra (1991) 153.
 Ibid 153.
 I was employed to undertake the consultancy, and to write the report: D.M. Smyth, A Voice In All Places: Aboriginal and Torres Strait Islander Interests in Australia’s Coastal Zone, Resource Assessment Commission, Canberra (1993).
 Commonwealth of Australia, Coastal Zone Inquiry: Final Report, Resource Assessment Commission, Canberra (1993) 165.
 Commonwealth of Australia, Australia’s Oceans Policy – Specific Sectoral Measures, Environment Australia, Canberra (1998) 24.