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The Right to Fish

The management of freshwater and inshore fisheries is mostly a responsibility of the states, so laws on where and how people can fish differ across the country. When the states first began bringing in laws to manage fisheries in the early 20th century, Aboriginal and Torres Strait Islander people were often exempted from having to get fishing licences, as it was acknowledged that they needed to fish to feed their families.

As time went on and fisheries legislation was updated, many states removed special exemptions for Aboriginal people. In recent years most states have recognised Aboriginal rights to fish in some way. This recognition has come in a variety of different forms, including introducing customary fishing permits (Victoria), recognising Aboriginal customary fishing as its own sector with its own regulations (Western Australia), and mostly exempting Aboriginal people fishing on their traditional lands and waters from fisheries regulations (Northern Territory).

Native title has played an important role in securing Aboriginal and Torres Strait Islander peoples’ rights to access and manage their traditional fisheries free from regulation.

What is native title?

Native title is how the Australian legal system acknowledges the fact that Aboriginal and Torres Strait Islander people have their own systems of law which pre-date European colonisation, and that these systems give them specific rights and interests over their traditional lands and waters. This means that native title is not 'granted'; instead a successful native title claim is the formal recognition of an already existing set of rights and interests based on traditional laws and customs.

The High Court’s decision in Mabo & Others v State of Queensland (No 2) [1992] HCA 23 was when native title was first recognised in Australian law. Eddie Koiki Mabo and four other Meriam men brought legal proceedings against the Queensland and Federal Governments, claiming they had ‘native title’ over their traditional lands: Mer (Murray Island) in the Torres Strait. In doing so they challenged two fundamental assumptions of the Australian legal system at the time:

  • That Aboriginal and Torres Strait Islander peoples had no concept of land ownership before the arrival of British colonisers in 1788 (known as the doctrine of terra nullius – ‘nobody’s land’)
  • That the British claim to Australia had abolished any pre-existing rights that Aboriginal and Torres Strait Islander peoples might have held over their lands.

Six of the seven High Court judges found in Mabo’s favour, and the doctrine of native title became part of the Australian legal system.

The following year the Keating Government passed the Native Title Act 1993 (Cth), which created processes for other Aboriginal and Torres Strait Islander peoples to claim their native title and have it recognised and protected. An important part of the new system is that in order to have their native title recognised, a group needs to prove that they continue to observe traditional laws and customs which give them rights to the land or waters they are claiming. Once this is proved, a native title determination is made which recognises the group’s rights and interests to the land.

Native title and fishing rights

Mabo and the other Meriam men’s claim originally included an area of sea around Mer Island, but in the end they did not pursue it. The first recognition of native title over sea was in Commonwealth v Yarmirr [2001] HCA 56, over waters near Croker Island in Arnhem Land. The specific rights that people get through their native title are different from group to group, but for native title sea claims it usually includes a right to take marine resources for non-commercial purposes, such as fishing to feed your family.

An important case in native title sea rights was when a group of traditional owners from the Torres Strait jointly claimed 44,000 square kilometres of sea country. This case also made its way to the High Court, which decided in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33 that not only did the group have native title over the claimed seas, but that they also had a right to take resources from those seas ‘for any purpose’ – including for commercial purposes. This is consistent with the evidence that the laws of many Aboriginal and Torres Strait Islander societies did, and continue to, allow traditional owners to take resources regardless of their intended use, including for trade and sale. Historically there were extensive trade networks across Australia, and Aboriginal and Torres Strait Islander peoples regularly traded with people from what is now Papua New Guinea and Indonesia.

Section 211 of the Native Title Act 1993 (Cth) allows for native title holders to be exempted from laws which restrict their ability to exercise their native title rights, including rights to hunt, fish, gather, and take part in cultural and spiritual activities. There are, however, quite a few situations where this section does not apply, including if the activity is for commercial purposes.

The extent to which section 211 applies was famously challenged in Yanner v Eaton [1999] HCA 53. Gangalidda man Murandoo Yanner was charged with hunting crocodiles without the licence required by Queensland law, but he was successful in arguing that as a native title holder he did not need a licence to hunt crocodiles for domestic consumption.

An important case for fishing rights and native title which relied on section 211 and the precedent set by Yanner v Eaton was when Narungga men Owen Karpany and his son Daniel were charged with taking 24 undersized abalone. They argued that as native title holders who had taken the shellfish in accordance with their traditional laws and customs, their right to fish for non-commercial purposes under the Native Title Act 1993 (Cth) exempted them from the size restrictions brought in by a South Australian law. In Karpany v Dietman [2013] HCA 47 the High Court unanimously found in favour of the men that their native title rights were unaffected by that particular law.

Each state and territory has its own fisheries laws, and each native title determination is different. This means we don’t know for sure what native title holders can and can’t do legally in many places, as their rights haven’t been tested in court. But we do know that native title can protect the ability of Aboriginal and Torres Strait Islander peoples to fish on their country in line with their laws and customs.

Land rights and the sea

Alongside native title, many state and territory governments have statutory land rights systems, where governments can hand back Crown Land to Aboriginal communities. These are different from native title in that communities are usually given the land as freehold – meaning that they legally own and control the land.

The Northern Territory’s land rights system is the oldest, established by the Aboriginal Land Rights (Northern Territory) Act  1976 (Cth). About 50% of land in the Northern Territory has been handed back to Aboriginal communities through the land rights process.

In addition to handing back land, the Territory’s system lets traditional owners apply for what are called ‘sea closures’. Where a group owns coastal land, they can make an application to prevent outsiders from entering and fishing in seas within two kilometres of their land without their permission. Whether the closure is successful or not depends on the group proving that their traditional laws give them the right to exclude strangers from those waters.

So far there are only two sea closures: the Milingimbi, Crocodile Islands and Glyde River area, and the Howard Island and Castlereagh Bay area. These areas border each other, and both closures were prompted by concerns over non-Indigenous fishers taking too many fish and disturbing sacred sites.

About 84% of the Northern Territory’s coastline is now owned by Aboriginal communities through the land rights system. The High Court found in Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29, known as the Blue Mud Bay case, that this ownership includes water above the low-tide mark. Negotiations over which intertidal areas non-Indigenous commercial and recreational fishers will be able to access without a permit are continuing until July 2017.

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AIATSIS acknowledges the traditional owners of country throughout Australia and their continuing connection to land, culture and community.

We pay our respects to elders past and present.