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Indigenous cultural fishing should be supported, not criminalised

  • 21 November 2022
The prevailing view of Australia’s colonial history is that dispossession of First Peoples mainly occurred in the early decades after 1788 and was completed within the first century of British settlement, yet very recent conflict between authorities and Aboriginal fishers in New South Wales shows that this process has been occurring in recent decades and is still ongoing.

Despite the commitments by government to Closing the Gap over the past decade, and more recent progressive moves towards constitutional recognition, voice and treaty, the reality on the ground for many First Peoples is that they experience extreme and often racially biased enforcement by the State, as shown by the massive over-representation of Aboriginal people in the youth and criminal justice systems.

One example of this neo-colonial reality is an intense and often ugly battle over marine resources that has been unfolding between State authorities and Aboriginal people along the NSW coast. The battle has the hallmarks of a dim chapter in Australia’s colonial past.

At the heart of the conflict is the NSW government’s refusal to acknowledge the right to cultural fishing by Aboriginal people, unlike other states and the federal Native Title Act (1993).

The NSW Parliament passed an amendment known as Section 21AA to support cultural fishing in 2009 that has never been allowed to take effect. This has resulted in more than 560 charges for fisheries offences against Aboriginal people since then, with 45 Aboriginal prosecutions underway in August this year. And the government has now doubled down by securing even stronger enforcement powers through an amendment passed by Parliament in mid-November. The amendment was condemned by leading Aboriginal groups in the NSW as ‘a broad expansion of powers, particularly search powers, for fisheries officers, which will disproportionately impact Aboriginal Peoples’.

A NSW parliamentary inquiry report released earlier this month has at last acknowledged the uncomfortable truth about the enforcement against Aboriginal fishers in the state. The NSW Legislative Council committee report found that the State’s enforcement, which has seen Aboriginal people fined, prosecuted and jailed in massively disproportionate numbers, are ‘unacceptable and creating perverse outcomes inconsistent with the NSW Government's commitments to the Closing the Gap Agreement’.

'Given the benefits to health and wellbeing that are evident, governments should work to support cultural fishing, and to introduce and grow the Torres Strait model in NSW and around Australia.'

Significantly, the report called for a review of prosecutions, although it stopped short of supporting