Fisheries Management Amendment Bill 2009
I speak as a Family First member on the Fisheries Management Amendment Bill 2009, which amends the Fisheries Management Act 1994 to make further provision for the management of fishery resources. The bill also amends other Acts, including the Criminal Procedure Act 1986, the Land and Environment Court Act 1979, the Local Court Act 2007, the Local Courts Act 1982 and the Marine Parks Act 1997.
The Fisheries Management Act seeks to maintain and preserve fish stocks in New South Wales by regulating both commercial and recreational fishing with a system of offence provisions and penalties. The bill has been informed by two reviews of fisheries legislation and practice in New South Wales—namely, the “Report on Illegal Fishing for Commercial Gain or Profit in NSW”, or the Palmer report, and the review of the New South Wales indigenous fisheries for New South Wales Fisheries by Tyagarah Consultants.
The Palmer report found that illegal harvesting and black market selling of fish in New South Wales is widespread, deeply entrenched and poses significant economic and environmental threats to the sustainability of the New South Wales fishery. The Palmer report made a number of recommendations to address this issue, including increasing the powers of the courts in relation to those convicted of fisheries offences, increasing the powers of fisheries officers to act on suspected illegal fishing activity, imposing higher penalties for a range of offences and giving the courts and the Minister the power to order an offender to restore fish habitat if they are found to have damaged it.
As stated in the agreement in principle speech, the customary association of Aboriginal people with fisheries resources is recognised for the first time through the proposed amendments. I congratulate the Government on introducing these amendments. I will spend most of my remaining time looking at the amendments rather than the bigger issues of fisheries offences, the powers of fisheries officers to act on illegal fishing activities, the higher penalties and so on. I think they are fairly straightforward and I support what the Government is doing in this regard.
The bill amends the Fisheries Management Act to formally recognise Aboriginal cultural fishing and amends the objects of the Act:
to recognise the spiritual, social and customary significance to Aboriginal persons of fisheries resources and to protect and promote Aboriginal cultural fishing.
Aboriginal cultural fishing is defined in the bill as:
fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational, ceremonial or other traditional purposes, and which do not have a commercial purpose.
The bill also allows permits for Aboriginal cultural fishing to be issued to a group, as well as to an individual, making it easier for Aboriginal communities to fish for large ceremonies, such as weddings or birthdays, as more than one person will be able to fish under one permit. Aboriginal people in New South Wales who have discussed this issue with me have continually asserted their customary rights and responsibilities with respect to all land and waters, including access to marine resources such as fisheries.
These customary rights are recognised and protected in international law and in policy at the national level through Close the Gap. The New South Wales Government also acknowledges these rights through the State Plan, Two Ways Together, and the requirement to operate in accordance with ecologically sustainable development. Furthermore, the Government is a party to the indigenous fishing principles, which establish a consistent policy framework for the recognition of Aboriginal customary rights with respect to fisheries and the need to improve access to commercial opportunities in fisheries.
The principles on indigenous fishing state, first, that indigenous people were the first custodians of Australia’s marine and freshwater environments. Australia’s fisheries and aquatic environment management strategies should respect and accommodate this. Secondly, customary fishing is to be defined and incorporated by governments into fisheries management regimes so as to afford it protection. Thirdly, customary fishing is in accordance with relevant indigenous laws and customs for the purpose of satisfying personal, domestic or non-commercial communal needs. Fourthly, recognition of customary fishing will translate, wherever possible, into a share in the overall allocation of sustainable managed fisheries.
Fifthly, in the allocation of marine and freshwater resources, the customary sector should be recognised as a sector in its own right, alongside recreational and commercial sectors, ideally within the context of future integrated fisheries management strategies. Sixthly, governments and other stakeholders will work together to, at a minimum, implement assistance strategies to increase indigenous participation in fisheries-related businesses, including the recreational and charter sectors. Finally, increased indigenous participation in fisheries-related businesses and fisheries management, together with related vocational development, must be expedited.
The recognition of Aboriginal rights and interests in New South Wales waters and fisheries for commercial and non-commercial—subsistence, cultural and spiritual—purposes is a necessary component of the recognition of Aboriginal traditional practices. I will not go into that in further detail except to say that I remember the continuing arguments put forward and the legislation passed by the New Zealand Parliament regarding the relationship of Maori people and indigenous fishing.
It is a significant social justice issue that has implications for the social, cultural and economic development of Aboriginal communities in New South Wales. Aboriginal people should not have to apply for a permit to conduct customary fishing. Aboriginal people have the right to practise their traditional laws and customs without regulation by any legislative regime. To introduce a permit scheme is to unnecessarily criminalise Aboriginal customary law and practice.
Any introduction of a regulatory scheme to manage environmental or fishery impacts should occur through properly resourced negotiation, and should provide some compensatory measures to Aboriginal persons whose rights are affected. Until such a time as the policy and regulatory framework is agreed, Aboriginal people fishing in accordance with law and custom for non-commercial purposes should not be required to hold a permit.
The policy of the Department of Primary Industries is directly opposite to the Federal and State governments’ commitments to increase health and socioeconomic benefits to Aboriginal people. Fisheries are the source of healthy, low-cost protein to Aboriginal communities across New South Wales. That has been the case from time immemorial. To scare Aboriginal people with an unnecessary regulatory barrier on a policy basis as an interim measure is heavy handed, incorrect at law, and immoral when the socioeconomic impacts of that policy are considered.
Both peak Aboriginal representative bodies, the New South Wales Aboriginal Land Council and NTS Corporation, submitted their primary position was that cultural fishing activities should be defined in the legislation and exempt from the requirement for a permit, licence or other form of approval. Several current and relevant international agreements are related directly to those issues. First, article 1 of the International Covenant on Civil and Political Rights [ICCPR] states:
the State party should take the necessary steps in order to secure for the indigenous inhabitants a stronger role in decision making over their traditional lands and natural resources.
Article 27 of the ICCPR makes reference to the rights to enjoy and practice culture and religion. Secondly, article 5 of the International Convention on the Elimination of Racial Discrimination makes reference to the following:
Serious concern remains at the extent of the continuing discrimination faced by indigenous Australians in the enjoyment of their economic, social and cultural rights.
The United Nations Declaration on the Rights of Indigenous People is particularly relevant to fisheries, as stated in the following:
States have an obligation to protect the lands, territories and natural resources of indigenous people from infringement by any institution, company or individual. There must be penalties for those who carry out harmful activities on indigenous people’s lands and territories. Indigenous peoples shall be entitled to compensation for such activities.
The principles communiqué relating to customary fishing clearly identifies the need to define and incorporate customary fishing into fisheries management regimes and, where possible, to translate customary fishing into a share in the overall allocation of sustainable managed fisheries. Further, the principles call for the recognition of the customary sector as a sector in its own right, which implies resourcing of the customary sector similar to that of the recreational and commercial sectors.
Most importantly, there is recognition of the need to increase indigenous business and vocational outcomes, which are known as principles 6 and 7. Native titleholders in New South Wales are exempt from the requirement to obtain a fishing licence or permit when undertaking customary fishing in accordance with their traditional law and custom—section 211 (2) of the Native Title Act 1993.
The “Cultural Fishing in New South Wales” discussion paper makes no mention of this very important provision. In particular, the Githabul people of New South Wales are not required to obtain a permit pursuant to section 37 of the Fisheries Management Act 1994 when exercising their customary rights as determined by the Federal Court, with the consent of New South Wales.
I support Greens amendments Nos 1 to 3 to collectively remove the requirement for permits to be issued under sections 37 and 37A of the Fisheries Management Act 1994 for the exercise of Aboriginal cultural fishing rights. There are practical difficulties with the current permit system as proposed in the bill by this Government. People exercising Aboriginal cultural fishing rights have no real security in utilising these fishing rights issued under permits.
I will probably support amendments Nos 4 and 5 for Aboriginal people to have a 2 per cent share in existing share management fisheries and a 10 per cent share in new share management fisheries. The allocation of shares in share management fisheries is much less compared with other common law jurisdictions such as New Zealand, with a 20 per cent share base, and Canada, with 27 per cent of commercial fisheries licenses held by First Nations people.
I believe that there is a broader need to establish measures that support economic development for Aboriginal people. These amendments are critical in supporting the wellbeing and livelihood of the State’s indigenous communities by ensuring an equitable distribution of fishery rights. I support the bill and commend it to the House.
