Indigenous fishing rights caught in the net
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In late winter, when the coastal wattle blooms yellow, Wayne Carberry knows it’s time to collect lobster. His education in the ways of the sea began as a boy. Camping on the coast with his extended family from the Walbunga clan, the elders taught the young the indicator plants for individual fish species and the bays and estuaries where they were to be found.
“There’s a missing part of me when I don’t go diving,” says Carberry, who’s now in his late 30s and living away. “It’s a part of me. Whenever the ocean is calm I jump in and get a feed.”
Despite widespread dispossession and the degradations of mission life that marked the 20th century for Aboriginal people on the south coast of New South Wales, culture here is still strong. For the Yuin, a term covering Aboriginal clans from about 150 kilometres south of Sydney to the Victorian border, fishing is central to culture. It’s about more than getting a feed.
“Look at all the midden sites,” says Carberry of the piles of discarded shells dating back tens of thousands of years that mark this section of the coast. “These things I do now, these are things my ancestors did in the Dreamtime.” If Wayne comes home and dives, cultural obligation means he must provide for his aunties and uncles, “because they are the ones who showed me, and because they are not mobile enough to go and get them anymore”.
But all along this coast there is deep-seated anger and resentment within Aboriginal communities at the way the modern owner of ocean resources, the NSW state government, is controlling Aboriginal access to the sea. Aboriginal people say Department of Primary Industries (DPI) regulations – such as proscribed catch sizes and designated fishing exclusion zones – are too restrictive and amount to a criminalisation of cultural practices.
A zeal for prosecuting breaches of these regulations is wreaking havoc upon already marginalised communities. Back in 2010, the NSW parliament passed an amendment to the Fisheries Management Act that allows for what is called Aboriginal cultural fishing. Named Section 21AA, it was a landmark legislative acceptance that Aboriginal people have a right to fish for cultural purposes and to have a say over fisheries management. Five years on though, Section 21AA has yet to be enacted. In that time, there have been more than 500 regulatory actions against Aboriginal people, including fines, warnings, confiscation of gear and about 250 prosecutions.
Leaders of the disparate and sometimes fractured Aboriginal communities along this long stretch of coastline are now taking unprecedented collective action to try to improve their rights. For the past year, protests have been held on beaches and headlands; acts of civil disobedience have occurred, such as a traditional community-wide hauling in of a fishing net with dozens of non-licensed people touching the net.
At a recent gathering, at a community centre at Bingie, a swath of flowering coastal scrub 300 kilometres south of Sydney, hundreds of people from across the Yuin nation gathered. The mood was one of anger but also sadness.
“It’s destroyed all our lives,” says Danny Chapman, a Walbunga man from Batemans Bay. “They are changing our way of life, destroying our culture.”
Aboriginal people here say they feel harassed by police and Fisheries NSW officers. They talk of families destroyed and futures ruined by heavy fines and jail sentences. A $10,000 fine can cripple a poor household: failure to pay can lead to a driver’s licence and car registration being cancelled, then driving offences, then jail.
Chapman, who’s had two sons fined and a brother-in-law sent to jail, says too many Aboriginal people end up with a criminal offence “stapled to every job application they ever [submit]”.
The most contentious resource is abalone. Traditionally a staple food for Aboriginal people, it’s now a multimillion-dollar export industry, thanks to its popularity in Asia. High market demand has placed pressure on stocks, and the DPI rigorously monitors abalone collection. Compliance officers patrol the coast and conduct undercover surveillance; rewards are offered to members of the public who dob in illegal divers.
Community leaders acknowledge not all fishing is for cultural purposes. Some divers are lured by the temptation of collecting abalone to sell on the lucrative black market.
“There’s not a lot of jobs here, but all the young fellas know how to dive,” says Wally Stewart, one of the campaign organisers. Chapman says some get caught in a vicious cycle of poaching abalone as a quick fix to pay off past fishing fines. However, while poaching certainly exists, many others who find themselves caught in the criminal justice system are simply fishing for themselves and family, in accordance with custom.
The stalled NSW amendment, Section 21AA, is not the only law that would allow for cultural fishing. The 1993 Commonwealth Native Title Act says Aboriginal people have a right to fish in accordance with law and custom for personal and communal purposes. However, the NSW government has largely ignored this right in its approach to fisheries management.
The case of Wayne Carberry tested this neglect. In 2013, he was diving for abalone off a headland near the small town of Dalmeny. Looking up from the water he saw police and Fisheries NSW officers standing on the hill looking down at him. He wasn’t surprised. “People see black people getting in the water,” he says, “and they ring Fisheries.” Carberry was charged with having an excessive abalone catch and, like many before him, faced almost certain conviction.
Sydney solicitor Kathryn Ridge examined Carberry’s case and believed there were grounds that he was exerting his native title right to fish. Ridge says many Aboriginal people have this right, but lack the money to run lengthy native title defences in court to prove it. “The right is there but the state government ignores it, and they continue to prosecute people in circumstances where they are entitled to be protected by that right,” she says. “The government knows that neither the Aboriginal Legal Service or Legal Aid solicitors are resourced to run expensive native title defences … it is a free kick.”
Ridge and her husband, barrister Tony McAvoy, agreed to represent Carberry pro bono. It was a massive undertaking, requiring extensive community interviews and expert anthropological reports, costing about $80,000. Then, on the eve of Carberry’s trial in 2014, the prosecution withdrew all charges. While Ridge was happy to see her client absolved, she believes the state withdrew because it wanted to avoid any legal precedent that asserted native title rights over the state’s fisheries.
There has been only one other occasion in NSW where Aboriginal fishers employed a native title defence, and the result was the same as the Carberry case – the prosecution withdrew all charges on the eve of the trial.
The withdrawal of charges against the few men fortunate enough to receive a proper native title defence raises the question of how many other Aboriginal people have been fined or sent to jail simply for want of a defence to which they were legally entitled.
Barrister John Waters, who represented the defendants in the second case and who has also prosecuted for the DPI, says that while a proportion of defendants are taking abalone to sell on the black market, and are therefore not covered by native title, “without doubt” there would be others who’ve gone to jail for genuine cultural fishing. “It is a layer of control on Aboriginal people that has no place in this day or age,” he says.
Following the Carberry case, and the direct lobbying of the state government by Ridge and Aboriginal leaders, there appears to have been a shift in approach on the ground. In the past six months, Aboriginal fishers who face a regulatory intervention are receiving a letter from the DPI asking if they were fishing in accordance with their law and custom. In other words, they are being given an opportunity to assert their native title rights.
In a series of questions The Saturday Paper put to NSW DPI, a spokesman said there is no “new policy” and the Native Title Act has always applied to the management of fisheries. He said Section 21AA will be enacted when cultural fishing regulations that are being developed to go with the law are finalised.
Ridge says Aboriginal communities can’t wait any longer and need Section 21AA enacted now. She believes the government is stalling and lacks the political will to endorse genuine cultural fishing rights. She questions the need for further regulation, pointing out that there is no evidence Aboriginal cultural fishing has a negative impact on these resources. Why regulate what is not a problem, she asks.
Meanwhile, at the Bingie gathering, fear and confusion reign. A young Aboriginal woman stands up from the crowd with a question for Ridge. A recent storm washed fresh abalone onto the beach: “We wanted to take it, but we were scared to touch it, we didn’t know what to do. Could we take it?”
This article was first published in the print edition of The Saturday Paper on Sep 26, 2015 as "Caught in the net ".
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