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Hawkins, Scott --- "Water Rights Special - Caught, Hook, Line and Sinker: Summary of the AJAC Report into Aboriginal Fishing Rights in NSW" [2004] IndigLawB 4; (2004) 5(29) Indigenous Law Bulletin 8


Caught, Hook, Line and Sinker:

Summary of the AJAC Report into Aboriginal Fishing Rights in NSW

by Scott Hawkins

The Aboriginal Justice Advisory Council (AJAC) was recently made aware of the detrimental impact provisions of New South Wales’ Fisheries Management Act 1994 (the Act) were having on Aboriginal peoples ability to practice traditional forms of fishing in coastal communities. The Act, designed to maintain and preserve fishing stocks in New South Wales through the regulation of commercial and recreational fishing, is enforced by a system of criminal sanctions (including terms of imprisonment and heavy fines) and management regulations that do not define or offer a practical protection of Aboriginal fishing practices.

This lack of recognition has created a fundamental problem for many Aboriginal people and their communities. For them to be able to continue traditional practices that revolve around fishing, such as providing for extended families and communities, participating in cultural, community and family events as well as perpetuating traditional beliefs and structures, the amount and types of fish they catch has the potential of bringing them under the licensing requirements for commercial fishing.

This type of fishing is not done for profit or any other commercial means. Nor does it damage the environment or impact on the growth and regeneration of species or other sectors of industry, including recreational and commercial fishing interests. Indeed, conservation of the resource is one of the fundamental principles of traditional Aboriginal fishing practices.

What then results are prosecutions of Aboriginal people for engaging in what is essentially a long held cultural practice. It criminalises cultural belief, which then prevents people from continuing the traditions of that belief, and thus contributes to the destruction of that culture.

Offences under the Act are punishable by hefty fines and terms of imprisonment as well as bonds and probation. Yet there are little of the same protections that are afforded to Aboriginal people in the wider criminal justice system when they are suspected or convicted of an offence. Such protections include diversions from the system through cautioning right through to sentencing with options such as circle sentencing.

The Fisheries Officers who administer the Act are also not required to take into account special considerations in dealing with Aboriginal people, as the police are in administering the wider criminal justice system. Anecdotal evidence supplied to AJAC from Aboriginal communities suggests that Aboriginal people are being heavily prosecuted for fishing offences, receiving substantial penalties for offences under the Fisheries Management Act.

Individuals in many Aboriginal communities have reported to AJAC that they feel targeted by fisheries officers, and penalised for continuing what they see as a vital cultural tradition.

Concerns with the Fisheries Management Act

This has led AJAC to hold a number of concerns with the Fisheries Management Act, in particular:

The Fisheries Management Act 1994, with its guiding principles of sustainability of fishing resources, could benefit from the knowledge that has been passed down from generation to generation of Aboriginal people. Traditional Aboriginal fishing practices are based on the preservation of the resource for the generations to come, and is a practice that has been successful in both coastal and inland communities for many thousands of years. With the increasing controversy surrounding the depletion of this resource, it may be an ideal opportunity for the Department of Fisheries to accept the knowledge and experience of a people who successfully managed fishing resources long before protective measures such as the Fisheries Management Act were even contemplated.

Possible Recommended Actions

Below is a list of possible recommended actions for reform of the Fisheries Management Act based on the information contained in this report. As the paper has been developed to raise discussion and awareness concerning traditional Aboriginal fishing rights and practices it is hoped that once the report has been released these ‘possible’ recommendations can be built on through the submissions of interested parties to become final recommendations.

1. That the Fisheries Management Act be amended to create a separate reference to customary
fishing and provide for it to be a separate class of fishing activity.

2. That the legislation recognise the continuation of Traditional Aboriginal Fishing Practices, including concepts of barter, exchange and communal sharing by exempting these activities from legislation.

3. That the fishing gear used and species taken not be measured by whether it is traditional, but by its association and history of use and whether it has a detrimental impact on fish stocks and other fishing interests.

4. That the Fisheries Management Act be amended to bring the Investigative Powers of Fisheries Officers in line with that of the NSW Police Service

5. That the same protections afforded to Aboriginal people in their contact with police under the Crime Amendment (Detention After Arrest) Act 1997 and the Crimes (Detention After Arrest) Regulation 1998 are afforded to them under the Fisheries Management Act.

6. That the Cultural Awareness initiatives currently being established by NSW Fisheries be made compulsory for all employees and that it be competency based and allow for localised training to cater for the cultural diversity across Aboriginal communities.

7. That Section 8 of the Young Offenders Act 1997 which states that the only offences that will be covered by the Young Offenders Act will be summary offences and indictable offences that may be dealt with summarily under chapter 5 of the Criminal Procedures Act 1986, be amended to include offences under the Fisheries Management Act 1994. This will allow fisheries officers to have the same diversionary options available to them as the police.

That the same pre-court diversionary programs used by police be utilised by Fisheries Officers. This includes the diversion to Community Justice Groups.

That Fisheries Officers identify whether alleged offenders are Aboriginal at the point of charging.

Conclusion

The position AJAC holds is that there should be a clear distinction made between commercial fishing and Aboriginal fishing practices. As has been shown in other states and territories, protection of Aboriginal rights does not mean the elimination of commercial interests; both can live side by side. Inclusion of the recommended actions mentioned above through legislative reform of the Fisheries Management Act 1994 would mean not only a reduction of Aboriginal people coming into contact with the criminal justice system and the protection of Aboriginal fishing rights, but also a more rounded and inclusive regulatory framework for all stake holders in this industry.

For the full report go to www.lawlink.nsw.gov.au/ajac

Scott Hawkins was born in Bourke, far North West NSW, and is a descendent of the Ngemba people. He has been employed as a Policy officer at AJAC for the last 2 years.


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