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Common(wealth) Knowledge #9: Aboriginal cultural fishing rights

Updated: Apr 7, 2023

An in-depth look at a topic you might not know much about.

Two weeks ago, I wrote Common(wealth) Knowledge #6, which looked at protections given to Aboriginal and Torres Strait Islanders in constitutional law. Due to ongoing public conversations about the Indigenous Voice to Parliament, 6 News has decided that this series will also continue to look at the development of Aboriginal and Torres Strait Islander rights.

Several weeks ago, it was discovered that the New South Wales government had failed to enact legislation passed in 2009 to decriminalise Aboriginal cultural fishing. Therefore, in this edition of Common(wealth) Knowledge, I will look at the development of protections for cultural fishing rights, especially post-Mabo v Queensland (No 2) (1992).

There are protections for Aboriginal and Torres Strait Islander fishing rights under both statute law (legislation) and common law (court decisions). The Commonwealth’s legislative jurisdiction comes from Section 51(x) of the Constitution, allowing it to pass laws regarding fisheries that are outside of Australia’s territorial seas.

Section 53(1) of the Fisheries Act 1988 (NT) provides that if the Northern Territory government wants to limit the traditional fishing rights of Aboriginal peoples, they must make it expressly clear that the limitations apply to them. Traditional fishing rights, including means used to fish and related practices, are protected unless the government says otherwise. Section 51(2) makes it clear that the provision applies only to traditional fishing, by excluding “commercial activity” from the exception. While it is possible to create fishing reserves, within 2 kilometres of the beach, that are limited to Aboriginal people, Section 12(1) of the Aboriginal Land Act 1978 (NT) requires that public “commercial, environment and recreational interests” that may be affected by giving exclusive access to Aboriginal peoples must be considered, along with whether the exclusive access is consistent with traditional laws and customs.

Statutory fishing rights in the Torres Strait have become particularly complicated, as both Queensland and the Commonwealth government have jurisdiction. The Torres Strait was annexed by Queensland in 1879, but the Torres Strait Regional Authority, which has administrative responsibility in the region, answers to the Minister for Indigenous Australians, via the Department of the Prime Minister and Cabinet. To make things even more complicated, the Torres Strait Island Region was established under the Local Government (Community Government Areas) Act 2004 (Qld), as a council-level government in Queensland.

Under Section 16(m) of the Torres Strait Fisheries Act 1984 (Cth), the Minister for Agriculture, Fisheries and Forestry can prohibit fishing certain wildlife, but cannot prohibit the taking of those fish for “community fishing or traditional fishing” by Torres Strait Islander peoples. However, the means for carrying out traditional fishing can be limited. In addition, the Australian Law Reform Commission points out that the Act does not regulate “non-traditional” fishing by Torres Strait Islander peoples, leaving that to the Queensland government, meaning non-traditional fishing can be given more freedom if Queensland chooses not to regulate how it is carried out.

Aboriginal and Torres Strait Islander peoples in Queensland, outside of the Torres Strait, which is governed by the Torres Strait Fisheries Act 1984 (Qld) (yes, it has the same name as the Commonwealth law), are generally subject to the same licencing requirements as other Queenslanders. However, Section 14 of the Fisheries Act 1994 (Qld) provides that it is a valid defence for an Aboriginal or Torres Strait Islander to prove that they were taking fish or other resources from fisheries to satisfy a “personal, domestic, or non-commercial communal need” under their traditional customs. As with the Commonwealth law, the Queensland government can regulate the “fishing apparatus[es]” used. It also recognises a distinction between “commercial fishing” and “indigenous fishing.”

A common theme amongst these provisions is whether Aboriginals and Torres Strait Islanders should be subject to the same licencing restrictions as other Australians. With the High Court of Australia recognising native title in Mabo (No 2), Aboriginals and Torres Strait Islanders began exploring new legal avenues to challenge these restrictions. The essence of native title, for practical purposes, was whether the rights traditionally held by Australia’s original inhabitants under their ‘traditional laws and customs’ had been ‘extinguished’ or limited by government actions. In other words, did the actions of the government validly prevent Aboriginal and Torres Strait Islander peoples from practicing their traditional laws and customs, by leading them to lose their connection with the land?

Although initially focused on grants of land, native title expanded in scope. Section 223(2) of the Native Title Act 1993 (Cth) mentioned that fishing fell under ‘native title rights and interests.’ So, if it could be demonstrated that fishing was a traditional part of their culture, and the government didn’t extinguish it, then granting those people native title would recognise their right to continue that fishing.

In Commonwealth v Yarmirr (2001), the Aboriginal community of Croker Island in the Northern Territory asserted that they had traditional rights to fish, and use the resources of, the sea and sea-bed surrounding their island. The High Court considered evidence of their rights and customs, and whether they had maintained a continuous connection to the land, and concluded that they did have fishing rights. As you’ll recall from above, exclusive control over the sea can be granted under the statute for 2 kilometres. The High Court held that exclusive possession could not be granted, as it was inconsistent with the interests of the government and public, including fishing and navigation of the waters. Other rights granted included the right to travel in the claimed land and the freedom to carry out traditional spiritual and cultural practices. However, the High Court refused to recognise commercial fishing rights as being consistent with traditional laws and customs, so those were not granted. Kirby J alone also called for the government to consult the Croker Island community on any matters affecting them, in a manner not too dissimilar from the Indigenous Voice to Parliament, although he did also mention a “power of veto.” To learn why the Voice won’t have a veto power, check out our fact-check on it here.

The decision in Yarmirr was revisited in Akiba v Commonwealth (2013), which dealt with Queensland and Commonwealth laws. Here, Leo Akiba led a group of Torres Strait Islanders, just like Mary Yarmirr had led a group from Croker Island, in arguing for the recognition of native title fishing rights. The issue raised by the Islanders was that the licencing schemes and other fishing regulations had limited fishing rights. This included commercial fishing rights. Although the Federal Court of Australia Full Court had held 2:1 that Yarmirr excluded any grant of commercial fishing rights, when it was appealed to the High Court all five justices disagreed. It was not that Yarmirr excluded commercial fishing rights, it was just that the facts of the case and interests of other parties meant they were excluded in that case. The test, according to French CJ and Crennan J, was whether the legislation had intended to extinguish the rights. Bell, Kiefel and Hayne JJ, as the majority judgment, held that the true test was whether the activity which arose from the native title right was consistent with the legislation. Therefore, commercial fishing rights did exist, albeit in a limited fashion.

One final thing worth mentioning is that if fishing rights are granted by native title, Aboriginal and Torres Strait Islanders are not necessarily limited to traditional fishing techniques and tools. In Yanner v Eaton (1999), the High Court held that technology develops with time, and as long as the essence of the activity has not changed, things that are incidental to it, like the tools, are not bound to remain unchanged. In that case, it was held that hunting crocodiles, not hunting with spears, was the traditional activity, and so it was possible to hunt with spears.

I would like to conclude with a quote taken from Kirby J in Yarmirr, at [320], which sums up how the relationship between Australia and its original inhabitants has changed over time, especially since Mabo (No 2): “They rely on, and extract, resources from, the sea and accord particular areas spiritual respect. The sea is essential to their survival as a group. In earlier times, they could not fight off the ‘white man’ with his superior arms; but now the ‘white man’s’ laws have changed to give them, under certain conditions, the superior arms of legal protection.”

Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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