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The convergence of tradition and law – cultural fishing and criminal justice

18th May 2023

Fishing always has, and always will be, a critical component of the relationship between Aboriginal and Torres Strait Islander peoples and Country. Cultural fishing also involves ‘providing for extended family’, ‘connecting with younger community members by teaching them fishing skills’ and ‘barter of fish for other goods, particularly meat or vegetables’.[i] Aboriginal and Torres Strait Islander peoples have accumulated traditional knowledge and managed our natural resources sustainably for millennia.

Fishing is also one of Australia's favourite pastimes and part of our national identity. Recreational fishing adds $11 billion to the economy annually, according to a national survey. Australia's fisheries are protected through laws specifying the maximum quantity of fish of a specified species or class that a person may take on any one day, enforceable through fines, confiscation of gear, and jail terms for the most serious offences. First Australians all too often feel the full force of these laws. For example, although First Australians only account for approximately 3% of NSW’s population, they have, according to Oxfam Australia, accounted for 33% of fishing-related prosecutions since 2009.

Current defences

Currently, cultural fishers have a limited defence to fishing-related prosecutions under s211 of the Native Title Act 1993 (Cth) (NTA). However, such a defence is often beyond the means of Aboriginal and Torres Strait Islander peoples, especially those in marginalised communities.

An alternative remedy is found within the permit system empowered by s37(1)(d) of the Fisheries Management Act 1994 (NSW). However, this mechanism is also unsuitable, largely because of the foresight needed to obtain such a permit. The amount of information required, when the exact date of fishing may not be known at the time of application, is a community concern, as is the slow, complicated nature of the process.[ii]

Neither defence provides meaningful protection for cultural fishing practices.

A new era

Practical protection is within reach of our legislators. Section 21AA of the Fisheries Management Amendment Act 2009 (NSW) arguably offers the most effective protection. As currently drafted, s21AA states that '[a]n Aboriginal person is authorised to take or possess fish, despite sections 17 and 18, if the fish are taken or possessed for Aboriginal cultural fishing.'

Although 14 years have passed since its introduction, s21AA is yet to be enshrined in law – the subject of a recent parliamentary inquiry and report. Commencing s21AA would negate the need to rely on defences under the NTA or permit system. 

Queensland and the Northern Territory have already enacted similar legislation to s21AA, providing meaningful protections to Aboriginal and Torres Strait Islander communities.

Community management initiatives

Indigenous protected areas (IPAs) and similar community-led management programs provide an alternative policy pathway.

The first IPA was introduced in the late 1990s and, since then, more than 80 IPAs have been implemented nationwide. IPAs empower First Australians to make rules and decisions about fishing resources, including catch quotas, size limits and fishing methods, with the support of government stakeholders.

The NSW Government has been trialling a similar policy initiative, local management plans (LMPs), along the NSW coast, including in the Hastings Region. These LMPs focus on protecting culturally significant species in specific geographical and biological regions, as well as ensuring fisheries management processes are culturally appropriate and recognising local practices. LMPs are empowered by Ministerial direction under s37(3)(b) of the Fisheries Management Act 1994 (NSW). Furthermore, an LMP provides a potential defence to prosecution under s17 and 18 of the Act, that is, against offences related to possessing fish exceeding current catch quotas and size limits.

The way forward

We must find a timely solution to protect cultural fishing practices and the wellbeing of Aboriginal and Torres Strait Islander peoples, ensure knowledge and customs continue to be shared with younger generations, and ultimately reduce the number of Aboriginal and Torres Strait Islander peoples in prison. LMPs may be the best way forward, as they strengthen and empower communities to manage Country using traditional knowledge alongside current scientific methods and protect themselves from unjust fishing-related prosecutions.

Dion Bull has as a Bachelor of Environment (Marine) Science and Management as well as an Honours degree in law. He works in the Forster office of Stacks Law Firm on personal injury and workers compensation matters. Believing that everyone has a right to justice, he has a strong interest in criminal law. Dion appreciates the importance of the natural and built environment and enjoys working on environmental law and local government matters. He is an advocate for Indigenous rights, sustainable development and water security and is passionate about protecting our environment for future generations.

The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Access to justice Indigenous rights Indigenous justice Aboriginal and Torres Strait Islander peoples Dion Bull community management initiatives Section 21AA Fisheries Management Amendment Act 2009 (NSW) Indigenous protected areas