Indigenous Law Bulletin
by Mick Leon
The NSW Government, through the Department of Fisheries (‘the Department’), is preparing to implement certain policies, including the Indigenous Fishing Strategy (‘the IFS’), in relation to recreational fishing. While the Department has recognised that they must have local Indigenous input into this process, they have not consulted with local Indigenous communities sufficiently nor have they taken into consideration that not all Indigenous communities have ‘native title status’. Native title status, or the ability to make a native title claim, is relevant because, under the proposed Indigenous Fishing Strategy:
Aboriginal persons are required to pay a fee to fish in saltwater, unless that person is party to a registered native title claim or that person is taking part in a traditional cultural activity, as identified under the indigenous fisheries strategy.
Aboriginal people are not ‘recreational fishers’, no matter where they are.
What I believe to be defined as a traditional cultural activity would be to take fish for the sole purpose of sharing this resource with the local Indigenous community. In some places this strategy is already being implemented under the Fisheries Management Act 1994 (NSW). In other places, it has not been correctly implemented by Fisheries Officers and Indigenous communities are being victimised right along the NSW coastline.
In some places, Aboriginal people are being requested to return fish to the water or face the threat of being prosecuted. Some reports mention elderly Aboriginal people (who are traditional custodians) having to literally tip their catch of pipis back into the surf. After practising this cultural inheritance as long as they can remember, they are placed in a position where they cannot carry out what they have been taught. The actions of the Department’s Compliance Officers are causing a disruption to our traditional education systems. It also promotes the degradation of Aboriginal people’s health and well-being.
Indigenous communities are asking: ‘why can’t any human rights instruments be used to right the wrongs?’ As was the case with the Regional Forestry Agreement process in NSW, why wasn’t the consultative process inclusive of human rights for Aboriginal people?
The current political environment that surrounds fisheries issues tries to address the needs of the general non-Indigenous community and commercial sector. There needs to be further input on how Aboriginal communities manage and maintain their cultural affiliation with this natural resource.
The NSW Minister for Minerals and Fisheries, the Hon. Eddie Obeid has insisted that the Indigenous Fishing Strategy includes the concerns of Indigenous communities. Why then are Indigenous people being prosecuted for taking fish in a way that they have been practising since long before any non-Indigenous person laid a foot on the continent?
Academic research into how Aboriginal people manage fisheries is not a true statement from Aboriginal people. It is statistically based and comes from systematic question and answer surveys rather than face to face discussions in specific communities. Attendance at some meetings convened by the Department was very minimal compared to verbal comments communicated in a social environment in Aboriginal communities.
At the same time, many Aboriginal people mistakenly understood the issues to be of a commercial fishing nature and requested that commercial Aboriginal fisherpersons attend the consultative meetings. The views of some Aboriginal people to the proposed fisheries legislative changes include ideas like ‘they can’t do that to us’ and ‘just let them try and we’ll see what happens’.
Based on low attendance figures at meetings convened it is possible that not all Aboriginal people are aware of the importance of the issues to be discussed.
Since 1997, the representative heads for Aboriginal affairs have attempted to address Indigenous fisheries issues. The Standing Committee on Parliamentary Issues, in particular Jennifer Gardner, made recommendations to appropriately consult with Aboriginal people and communities in accordance with the International Covenant on Economic, Social and Cultural Rights, signed by the Australian Government in 1975.
Aboriginal people who were working within the peak Aboriginal advisory bodies were contacted for comment on the Indigenous Fisheries issue. Further consultation between Aboriginal communities and the Department was conducted by Helen Carpenter of the Department’s Indigenous Policy Unit in 1998. This consultation was carried out with select communities and was not, for example, advertised in the Koori Mail. Larger Aboriginal communities in Northern NSW and in Western regions of NSW were not consulted. The discussion paper from this process was provided to all stakeholders whom the Department saw as being active on fisheries issues, including commercial operators, amateur fishing bodies and environmental agencies. Because Ms Carpenter did not look at localised issues but had a broader focus and because of the way that the paper was written, many Aboriginal communities did not interpret the issues to be of particular concern to them and did not respond.
In 1998 the issue was raised again and some Ministers responded that the IFS should be fully addressed before the legislation was passed. The Minister for Minerals and Fisheries, the Hon. Eddie Obeid, insisted that the matter was being addressed at a local level and that his Department should and would have a draft IFS to go to the Aboriginal community for comment before mid-1999.
The Department must develop some kind of a working agreement with all local Aboriginal people within NSW if this issue is to be properly dealt with. So far this has not happened. If there continues to be a lack of negotiation with Aboriginal cultural fishers it will continue to dramatically affect our social status and identity within Australian society.
Mick Leon is a descendant of the Worimi people (centered around Forster- Port Stephens area, NSW). He has been an advocate for Aboriginal Cultural Heritage issues in NSW over the past 10 years and may be contacted at the Jali Local Aboriginal Land Council, Cabbage Tree Island via Wardell Far North Coast NSW, where he is currently an Aboriginal Cultural Heritage Officer.
 New South Wales, Questions and Answers, Legislative Council, 29 June 2000, #473.
 New South Wales, Hansard, Legislative Council, 10 December 2000, 9181.
 This refers to knowledge of local Aboriginal protocol - pers com various Aboriginal communities NSW.
 Pers com from Aboriginal people in Karuah, Forster, Taree, Kempsey, Port Macquarie, Coffs Harbour, Maclean, Yamba and Ballina in NSW, 2000.
 Pers com Elders at Cabbage Tree Island, 2001.
 During the Regional Forestry Agreement process NSW, Aboriginal people were asked to provide community input. The process asked for all key stakeholders to include their comments on management of Forests and National Parks. Aboriginal people were represented at these consultative meetings but those comments were not fully listened to.
 Hansard, above n 2.
 Parliament of NSW Legislative Council Standing Committee on State Development, Report on Fisheries Management and Resource Allocation in NSW (1997), Recommendation 30.
 Ibid 324.
 Pers com, 2000.
 Hon. Eddie Obeid, Proposed Amendments to Fisheries Management Act 1994, New South Wales Cabinet Minute 162-00.