Update 2 Dec 2021: NSW Government must recognise Aboriginal cultural fishing in line with parliamentary support
Update 20 October 2021: see also our joint media release prompted by the news of a decision to increase the commercial take.
Members of the Aboriginal community who have a right to fish under the Native Title Act 1993 are being prosecuted under the Fisheries Management Act 1994 (NSW) (FMA) contrary to those rights. Mounting a native title defence is both time consuming and expensive, meaning that a number of Aboriginal men have been incarcerated as they have been unable to defend themselves.
A legislative amendment that would resolve this situation was passed 11 years ago, but hasn't yet commenced. NSWCCL has written to the NSW Minister for Agriculture to urge him to immediately rectify this situation - rights that require a costly legal defence to enjoy are not worth the paper on which they're written.
Sections 17 and 18 of the FMA prohibit the taking and or possessing of fish otherwise than in accordance with the regulation. However, Section 211 of the Native Title Act 1993 (Cth) allows for native title holders to be exempted from laws which restrict their ability to exercise their native title rights, including rights to hunt, fish, gather, and take part in cultural and spiritual activities (with some exceptions, eg if the activity is for commercial purposes).
The FMA expressly excludes from its jurisdiction any act that affects the exercise and enjoyment of native title rights and interests. Section 287 of the FMA provides:
“This Act does not affect the operation of the Native Title Act 1993 of the Commonwealth or the Native Title (New South Wales) Act 1994 in respect of the recognition of native title rights and interests within the meaning of the Commonwealth Act or in any other respect.”
Approaching and taking Aboriginal people’s fish when they are fishing in accordance with their laws and custom is also a breach of their fundamental human rights. The International Covenant on the Civil and Political Rights provides:
- Art 1.1 - the right to self determination including the right freely pursue economic, social and cultural development
- Art 1.2 – the right to freely dispose of natural resources and wealth, and not to be deprived of the means of subsistence
- Art 6 – the right to life
- Art 7 – the right not to be subjected to cruel, inhuman or degrading treatment or punishment
- Art 17.1 – the right to be free from arbitrary or unlawful interference with privacy, family, home or correspondence, nor to unlawful attacks on their honour and reputation
- Art 18.1 – the right to freedom of thought conscience and freedom
- Art 26 – the right to equality before the law
- Art 27 – the right to enjoy their culture and enjoy and practice their religion
Unjust prosecutions leading to incarceration
Despite having these rights, a disproportionate amount of Aboriginal men have been incarcerated as they have not had the ability to mount a Native Title defence. They can also have their property seized, and be subjected to onerous prohibition orders which can prevent them from fishing and using inland waterways. Running a Native Title defence is complex and resource intensive. Legal aid and Aboriginal Legal Services are not funded to run Native Title defences. As a result, members of the Aboriginal community are having their freedoms and rights denied and undergo unnecessary convictions – which has long term ramifications on the lives affected.
Members of the Aboriginal community have rights under Native Title and should not have to rely on mounting a defence in these circumstances.
The burden of defending rights they are entitled to is leading to unacceptable injustice and hindrance of their right to enjoy their custom and source of food.
There has been an amendment of the FMA to include section 21AA of the Fisheries Management Act 2009 No 114 that authorises and provides special provisions for Aboriginal cultural fishing.
More than 11 years since this has been amended, it has yet to have commenced. Where this amendment could provide some certainty to both law enforcement and the Aboriginal community, the lag in commencing this provision has led to protracted and unnecessary injustice.
We have written to Adam Marshall, the Minister for Agriculture, to urge the NSW Government to:
- Commence section 21AA of the Fisheries Management Amendment Act 2009 No 114 immediately;
- introduce regulations under s. 21AA once commenced, only if necessary and where there is a strong justification;
- ensure that the Department of Regional NSW, in consultation with NSW Aboriginal Land Council and Aboriginal Fisheries Advisory Committee, revise the relevant prosecution guidelines to consider cultural safety, access to justice, and the need to ensure that a Native Title holders’ rights are properly considered at all steps in the prosecution; and
- in consultation with the Attorney General, consider how Legal Aid can be better resourced to assist Aboriginal persons accused of offences under the FM Act.