Legislation On Aboriginal Fishing Rights

The Commonwealth

942. Divided Responsibility. Constitutional authority over fisheries within Australia and in Australian waters is shared between the Commonwealth and the States. In particular the Commonwealth has specific power under s 51(x) over ‘fisheries in Australian waters beyond territorial limits’. Although Commonwealth legislation has recognised ‘traditional fishing’ as a special category for some purposes, the law has being going through a process of change. Special provision for ‘traditional fishing’ is made under the Torres Strait Treaty of 1978 and legislation to implement the Treaty has been enacted. The provision for ‘traditional fishing’ in the Fisheries Act 1952 (Cth) (which in this respect applied only to external territories) has been repealed. Special local provision for such fishing is made by local zoning plans under the Great Barrier Reef Marine Park Act 1975 (Cth). These three areas will be discussed in turn.

943. Torres Strait Treaty.[1681] The Torres Strait Treaty determines sovereignty over various islands and establishes fisheries and a seabed boundary between Australia and Papua New Guinea in the Torres Strait, and makes other provisions for the area. In particular, Part 4 of the Treaty establishes a ‘protected zone’, extending from the Papua New Guinea coast south to a line north of Wednesday Island off the tip of Cape York Peninsula and including most of the Torres Strait area. Art 10 provides that:

3. The principal purpose of the Parties in establishing the Protected Zone, and in determining its northern, southern, eastern and western boundaries, is to acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement.

4. A further purpose of the Parties in establishing the Protected Zone is to protect and preserve the marine environment and indigenous fauna and flora in and in the vicinity of the Protected Zone.

Traditional fishing is defined to mean ‘the taking, by traditional inhabitants for their own or their dependents’ consumption or for use in the course of other traditional activities, of the living natural resources of the sea, seabed, estuaries and coastal tidal areas, including dugong and turtle’.[1682] Although the traditional inhabitants of the zone are Torres Strait Islanders rather than Aborigines, and recognition of their traditional fishing rights might be regarded as outside the Commission’s Terms of Reference on the recognition of Aboriginal customary laws,[1683] this is one area where the interests and traditions of Aborigines and Torres Strait Islanders are closely related. Moreover, the provisions of the Treaty are of considerable interest as a carefully worked out international arrangement establishing priorities as between conservation, traditional fishing and commercial fishing. Art 11(1) of the Treaty provides that ‘free movement and the performance of lawful traditional activities in and in the vicinity of the Protected Zone by the traditional inhabitants of the other Party’ shall, subject to the other provisions of the Treaty, be permitted. Art 12 provides that:

Where the traditional inhabitants of one Party enjoy traditional customary rights of access to and usage of areas of land, seabed, seas, estuaries and coastal tidal areas that are in or in the vicinity of the Protected Zone and that are under the jurisdiction of the other Party, and those rights are acknowledged by the traditional inhabitants living in or in proximity to those areas to be in accordance with local tradition, the other Party shall permit the continued exercise of those rights on conditions not less favourable than those applying to like rights of its own traditional inhabitants.

The two Parties agree to take necessary measures to protect the marine environment (Art 13) and to identify and protect ‘species of indigenous fauna and flora that are or may become threatened with extinction’ (Art 14(1); cf Art 14(2)). Art 14(4) provides that:

In giving effect to the provisions of this Article each Party shall use its best endeavours to minimise any restrictive effects on the traditional activities of the traditional inhabitants.

Seabed mining and drilling are prohibited for 10 years after the Treaty enters into force (Art 15). The parties agree to consultation and liaison in the implementation of Part IV, in particular through a local representative (Arts 17, 18) who is required in the exercise of his functions to:

consult closely with representatives of the traditional inhabitants of his country, particularly in relation to any problems which may arise in respect of free movement, traditional activities and the exercise of traditional customary rights as provided for in this Treaty, and convey their views to his Government (Art 18(3)(a)).

A Torres Strait Joint Advisory Council consisting of members from each Party (3 of them representing the traditional inhabitants) is established; its functions involve reviewing the working of the Treaty, including:

any developments or proposals which might affect the protection of the traditional way of life and livelihood of the traditional inhabitants, their free movement, performance of traditional activities and exercise of traditional customary rights as provided for in this Treaty (Art 19(2)(b)).

In doing so the Advisory Council must consult with the traditional inhabitants and report their views to the Parties in any reports or recommendations made (Art 19(4)). The provisions of Part 5 of the Treaty deal with Protected Zone Commercial Fisheries. Art 20 describes the relative position of traditional fishing visa vis conservation interests in the following terms:

1. The provisions of this Part shall be administered so as not to prejudice the achievement of the purposes of Part 4 of this Treaty in regard to traditional fishing.

2. A Party may adopt a conservation measure consistent with the provisions of this Part which, if necessary for the conservation of a species, may be applied to traditional fishing, provided that that Party shall use its best endeavours to minimise any restrictive effects of that measure on traditional fishing.

944. Commonwealth Legislation Implementing the Treaty. These ‘striking and original’ provisions[1684] are implemented at the federal level by the Torres Strait Fisheries Act 1984 (Cth) and the Torres Strait Treaty (Miscellaneous Amendments) Act 1984 (Cth). The Torres Strait fisheries Act 1984 (Qld) is the counterpart legislation designed to implement the Torres Strait Treaty within Queensland waters, and outside those waters within the protected zone. The Torres Strait Fisheries Act (Cth) in effect creates four categories of fishing within the Zone, viz:

  • ‘traditional fishing’, which is stated to have the same meaning in the Torres Strait Treaty (except that the Minister may by notice declare the use of specified methods, boats or equipment not to be traditional fishing) (s 3(1)(2));[1685]

  • ‘community fishing’, which is commercial fishing by Australian ‘traditional inhabitants’ as defined (s 3(1));

  • ‘commercial fishing’, which includes community fishing but does not include traditional fishing (s 3(1)): and

  • ‘private fishing’ which does not include ‘traditional fishing’ as defined (nor, of course, commercial fishing) (s 3(1)(5)).

At the same time s 14 of the Torres Strait (Miscellaneous Amendments) Act 1984 (Cth) amended the Fisheries Act 1952 (Cth) so as to exclude from its operation fishing in the Protected Zone. There is no equivalent in the Torres Strait Fisheries Act 1984 (Cth) to s 5A(2) of the Fisheries Act 1952, which makes that Act exclusive of State law in relation to commercial fishing or fishing from foreign boats. Accordingly, Queensland fisheries legislation applies, subject to any inconsistent provisions in the Torres Strait Fisheries Act 1984 (Cth), to such fishing in the Protected Zone.[1686] The Torres Strait Fisheries Act 1984 (Cth) however does not apply at all to private fishing (i.e. private fishing, not being traditional fishing) from an Australian boat (s 7). It is intended that private fishing with the use of Australian boats will be regulated under Queensland law.[1687] Before describing the priorities which may result from these various distinctions, certain other features of the Torres Strait Fisheries Act 1984 (Cth) must be described.

945. Torres Strait Fisheries Act 1984 (Cth). That Act does not in terms create any right of traditional fishing. A traditional inhabitant has a right of traditional fishing in the zone if he is not prohibited from fishing under applicable Commonwealth or Queensland law. The Minister has extensive powers of regulation of fishing, including as to species, method or equipment used etc., in areas of Australian jurisdiction (s 16). These powers extend to traditional as well as commercial fishing, though s 16(m) enables the Minister to:

prohibit the taking of fish or fish included in a class of fish specified in the notice, otherwise than in the course of community fishing or traditional fishing.

The scope of the protection afforded to community fishing is unclear. Presumably the section applies only to the taking of fish, but not to matters of storage and the use of equipment.[1688] The Minister may prohibit the taking of turtle eggs (s 16(h)), but it may be possible for an exemption to be made for their taking by traditional people (s 16(6)). There is provision for consultation with traditional inhabitants who are members of the Joint Advisory Council established under Art 19, but, apart from s 8 there is no obligation to consult.[1689] Section 8 provides that:

In the administration of this Act, regard shall be had to the rights and obligations conferred on Australia by the Torres Strait Treaty and in particular to the traditional way of life and livelihood of traditional inhabitants, including their rights in relation to traditional fishing.

Section 39 provides that the Protected Zone Joint Authority (the body charged in the management of particular fisheries) shall, where it considers appropriate, seek the views of those members of the Joint Advisory Council who are traditional inhabitants and Australian citizens. There is no requirement to consult these members or traditional inhabitants generally, nor is there express provision for direct representation of traditional inhabitants on the Protected Zone Authority or bodies established to advise it.

946. Resulting Priorities. Although the Torres Strait Fisheries Act 1984 (Cth) seeks to ensure the traditional inhabitants’ ‘rights in relation to traditional fishing’, it is capable, unless carefully administered, of creating a priority for non-traditional over traditional means of fishing, or a priority in favour of ‘non-traditional inhabitants’ over traditional inhabitants. These problems arise because the Torres Strait Fisheries Act 1984 (Cth) does not apply to ‘non-traditional’ fishing by traditional inhabitants of the zone, and because it refers ‘non-traditional’ fishing, and private fishing generally, to Queensland law. In fact the fishing notices issued relating to the taking of mackerel, rock lobsters and dugong pursuant to Torres Strait Fisheries Act 1984 (Cth) s 16 have already placed traditional fishermen at a disadvantage.[1690] Only if Queensland law makes the same provision as does Commonwealth law, applicable throughout the zone to private fishing and to ‘traditional fishing’ by prohibited means, will these problems be avoided. It cannot be anticipated that Queensland will make such provision. Nor is it necessarily appropriate that the Commonwealth be required to legislate on the whole subject of private as well as commercial fishing to cover this particular difficulty. But it is not desirable that traditional fishermen be placed (even unintentionally) at a disadvantage visa vis private fishermen. Indeed, this is contrary to the spirit, if not the letter, of the Torres Strait Treaty itself. Amendments should be made to the Commonwealth Act to provide that a traditional inhabitant shall not be liable for an offence in contravention of a notice under Torres Strait Fisheries Act 1984, s 44 where the act would not have constituted an offence had it been done by a person who was not a traditional inhabitant.

947. Community Fishing Licences. Section 17 of the Commonwealth Act makes provision for a licence to be taken out for community fishing. Community fishing is defined by s 3(1) as fishing by:

(a) a person who is, or 2 or more persons each of whom is, both a traditional inhabitant and an Australian citizen (not being a person who is, in the course of that fishing, under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of another person who is not both an Australian citizen and a traditional inhabitant); or

(b) a person or persons of the kind referred to in paragraph (a) and another person or other persons employed by –

(i) the first-mentioned person or persons; or

(ii) the Commonwealth, Queensland, an authority of the Commonwealth or an authority of Queensland,

to provide the first-mentioned person or persons with training or advice in relation to fishing techniques.

The Act provides for regulation of both commercial fishing generally and by traditional inhabitants (i.e. community fishing), but it would be possible to make special provision for the latter independently of the former: indeed the Act expressly envisages this.[1691]

948. Fisheries Act 1952 (Cth). The Fisheries Legislation Amendment Act 1984 (Cth) s 6(c), 10(l)(d) removed the special protection previously afforded to traditional fishing by inhabitants of external territories, in proclaimed waters.[1692] This is without prejudice to the protection of traditional fishing by indigenous inhabitants of the ‘Protected Zone’ under the Torres Strait Treaty, which is subject to the Torres Strait Fisheries Act 1984 (Cth).[1693] In proposing the repeal of the earlier provisions of the Fisheries Act 1952, the Minister for Primary Industry commented that:

Traditional fishing as defined in the Fisheries Act relates to fishing by indigenous inhabitants of Australia’s external territories, with particular application to Papua New Guinea. With the granting of independence to that country several years ago, that term is no longer necessary for fisheries management under the Act.[1694]

The repeal is of little direct relevance for the purposes of this Report since the exemption for traditional fishing only extended to fishing by indigenous inhabitants of an external territory.[1695] There has never been any special provision in the Act to cover commercial fishing by Aborigines and Torres Strait Islanders within Australia.

949. Great Barrier Reef Marine Park Act 1975 (Cth). This Act provides for the control and development of a marine park within the Great Barrier Reef Region (s 5). The Governor-General may declare an area of the Great Barrier Reef a Marine Park (s 3), and the Great Barrier Reef Marine Park Authority is then required to prepare a zoning plan in respect of that area (s 32). To date Marine Parks have been declared in the Far Northern Section, the Cairns and Cormorant Pass, Central, Townsville, Southern, Inshore and Southern Capricornia Sections of the Reel making an area of 384,700 sq km. Zoning plans for the Capricornia, Cairns and Cormorant Pass Sections are now in force. The Far Northern Section zoning plans are well advanced. In the preparation of the plan, the Authority, is required to have regard to certain objects (s 32(1)), none of which specifically take account of Aboriginal and Islander interests. However the Authority seeks public participation in the preparation of the plans, both before preparation (s 32(2)) where the Authority is required to allow not less than one month for public representations, and immediately after preparation and before submission to the Minister (s 32(8)(9)) where not less than one month (in practice currently three months) for submissions is allowed. There is no requirement for consultation with traditional inhabitants, over and above the general requirement for public consultation. In preparing the zoning plans the Authority is required to have regard to the interests of conservation, the need to regulate the exploitation of resources of the Great Barrier Reef, public appreciation and enjoyment of the reef, and the needs of scientific research (s 32(7)). No reference is made to traditional hunting and fishing interests nor is it suggested that certain areas should be preserved for traditional use, though such a possibility is suggested in relation to scientific needs (s 32(7)(e)).

950. Cairns and Cormorant Pass Zoning Plans. The Cairns and Cormorant Pass Zoning Plans define traditional fishing and hunting in terms of taking otherwise than for the purposes of sale and trade.[1696] The zoning plans divide the regions into a series of specific areas in which certain activities may occur. For example, within General Use ‘A’ and ‘B’ Zones and except within a Replenishment Area, Reef Appreciation Area or Reef Research area, traditional fishing is not regulated and would be permitted as ordinary fishing (not specifically as traditional fishing); traditional hunting (of dugong) could occur with the permission of the responsible agency.[1697] No hunting and fishing of any kind may take place within a preservation zone. In other zones, the permission of the responsible agency is required in certain cases and in granting such permits the agency must have regard to a number of matters relating to the orderly and proper management of the zone,[1698] and in particular to:

(a) the need for conservation of endangered species;

(b) the methods of traditional hunting or fishing;

(c) the numbers to be taken.[1699]

A permit will be issued ‘only on conditions relating to recording catch and levels of stock of limited species’. Thus where the zoning plans and regulations enable a permit to be granted for traditional fishing, considerable control is left in the hands of the responsible agency.[1700] The approach taken is to identify conservation needs in each specific area and to make particular regulations for that area. While this approach best serves the interests of conservation, it could involve invidious distinctions between different Aboriginal and Islander communities:[1701]

The current attempts by the Great Barrier Reef Marine Park Authority to limit the traditional harvest of dugongs by the Aborigines of Hope Vale community (near Cooktown) have already been adversely affected by the lack of corresponding controls in other communities. During a two-week stay at Hope Vale in January 1984, one of us was asked repeatedly: ‘Why are there restrictions on our hunting but not on hunting by other communities?’[1702]

An anomaly has arisen where the need for a permit for traditional fishing has resulted in traditional fishing receiving a lower priority than ordinary fishing in the Marine National Park ‘A’ Zone. Within the Marine National Park ‘A’ Zone, and except within a Reef Appreciation Area or a Reef Research Area, traditional fishing and traditional hunting may take place with the permission of the responsible agency.[1703] By contrast in Marine National Park ‘A’ Zone general line fishing, gill netting, bait netting, and spear fishing did not require a permit. In this instance the need for a permit for traditional fishing might be avoided if the activity could be classified as ‘ordinary fishing’. The reason for treating traditional fishing more strictly than recreational fishing is unclear.[1704]

The Northern Territory

951. Fisheries Generally. Section 26(7) of theFish and Fisheries Act 1979 (NT) creates certain offences, e.g. for exceeding bag limits, the use of fish traps, and selling fish, without a licence. Section 93 states that:

(1) Subject to this section, the provisions of this Act and the regulations regulating or prohibiting the entry of persons into, or controlling fishing or other activities in, waters do not, unless and to the extent to which they are expressed to do so, operate to limit the right of Aboriginals to enter, and to use the resources of, those waters in accordance with Aboriginal tradition.

(2) Sub-section (1) does not authorize a person to

(a) trespass on a lease;

(b) interfere with, or remove fish from, a net, trap on the property of another person; or

(c) engage in a commercial activity.

Should the Department of Fisheries wish to prohibit the taking of undersized fish or the taking of endangered species altogether, the regulations must specifically and expressly prohibit Aborigines as well as non-Aborigines from doing so. For example reg 7B expressly so prohibits the use of gill nets in certain estuaries, a prohibition which would apply to any Aboriginal community wishing to take out a Class D Licence.

952. Commercial and Community Fishing Licences. Section 14 of the Act enables an Aboriginal community, or persons or groups of persons who claim to be traditional Aboriginal communities, living in the vicinity of traditional land to apply for a commercial fishing licence (i.e. a Class A1 license). Though laudable in aim, this procedure has not proved particularly useful in practice. Among other things, the licence fee can be as high as $1000. The Department of Fisheries has consequently proposed a special licence which would enable Aboriginal people to trade within their own community. This licence is intended to enable the distribution of fish through the kinship system or the wider clan or ritual group, as distinct from on the open market. To achieve this aim, reg 7B, gazetted in March 1984, enables fish to be supplied to an Aboriginal community. It may be that this provision is wider than intended, for it would appear to allow fish to be traded, for example, between a remote community and the Aboriginal community in Darwin. Regulation 7B is narrower than s 93, in that it does not allow for gill netting exceeding 200 metres in length, nor the use of gill netting in certain areas. It is not clear why the trading of fish within Aboriginal communities according to customary fishing practices should not fall within s 93 of the Act, which allows for Aboriginal people to ‘use the waters in accordance with Aboriginal tradition’, thus rendering reg 7B unnecessary in such circumstances. However it may be that for use to be made of s 93, the method of fishing would have to accord with Aboriginal tradition (i.e. traditional fish traps and fishing spears). In another aspect, therefore, reg 7B may be wider that s 93C, in that it is not limited to traditional fishing methods.

953. Closures of the Seas. The Aboriginal Land Act 1978 (NT) s 12(1) empowers the Administrator to close the seas adjoining and within 2km of Aboriginal land, to others who are not Aborigines entitled by tradition to enter and use the seas in accordance with that tradition. Before doing so he may (and in case of dispute he must) refer a proposed sea closure to the Aboriginal Land Commissioner, to inquire into and report on:

(a) whether, in accordance with Aboriginal tradition, strangers were restricted in their right to enter those seas;

(b) whether the use of those seas by strangers is interfering with or may interfere with the use of those seas in accordance with Aboriginal tradition by the Aboriginals who have traditionally used those seas;

(c) whether the use of those seas by strangers is interfering with or may interfere with the use of the adjoining Aboriginal lands by the traditional Aboriginal owners;

(d) whether any person would be disadvantaged if the seas were closed to him;

(e) the commercial, environmental and recreational interests of the public; and

(f) such other matters as the Aboriginal Land Commissioner considers relevant to the closure of those seas.[1705]

Once seas are closed it is an offence for a person to enter or remain on these seas without a permit issued by the relevant Land Council (s 15) or in certain other circumstances.[1706] Holders of commercial fishing licences issued prior to a sea closure notice may enter and fish the areas of the closed seas, provided the relevant Land Council is notified (s 18(1), (2)).[1707] The Milingimbi (Glyde River) Seabed claim has been heard and the seas were closed in July 1983.[1708] Other seabed applications are in progress.[1709] During the course of the hearings much anthropological evidence is presented on the traditional fishing practices of the local people, both as to the customary practices associated with the catching, distribution and consumption of the fish and to the areas of the seabed in which different clans may fish.[1710] The Northern Territory Act is so far the only legislative provision for closure of the seas in Australia.[1711]

South Australia

954. Fisheries Generally. Under the Fisheries Act 1971 (SA), Aboriginal people are subject to the same restrictions as to the numbers of fish caught, the size of fish caught and the methods of catching fish as are all other citizens. Aboriginal people require a permit to catch fish for sale. The Aboriginal Legal Services have received few if any complaints relating to prosecutions under the Act. Discussions have taken place between the South Australian Government and the Point Pearce Aboriginal Community over requests to close the stretch of water between Point Pearce and Wardang Island to trawlers engaged in net fishing, and to exempt Aboriginal people from commercial licence fees.

Western Australia

955. Fisheries Generally. In 1979 s 56 of the Fisheries Act 1905 (WA) was repealed and a new section substituted which, subject to certain restrictions, allows ‘a person of Aboriginal descent’ to take ‘in any waters and by any means sufficient fish for food for himself and his family, but not for sale’. The Governor may however suspend or restrict this right if he is satisfied that:

(a) the power to take fish conferred by … this section is being abused; or

(b) the population of any species of fish which is being taken under the power to take fish conferred by … of this section is becoming or is likely to become excessively depleted …[1712]

Under s 56(1) traditional fishing is subject to s 9, 10, 23, 23A, 24 and 26 of the Act. These sections enable the Minister to gazette special regulations prohibiting the taking of particular species of fish, outlawing the use of illegal devices, and restricting the taking of rock lobsters. While there is in principle a recognition of the right of Aboriginal people to fish for food, this recognition may be restricted by regulations under the Act. For example, suggestions have been made that Aboriginal people in the Broome area have had considerable difficulty in getting rock lobsters for their own consumption under the regulations controlling the taking of lobsters. It has also been suggested that the Act presents difficulties for some Aborigines in Broome who wish to obtain a commercial fishing licence under s 17. To receive a licence it is necessary to obtain a coxswains licence which entails passing a test of the rules of the sea. Aboriginal people claim to have had difficulties with these tests. The Pearling Act 1912 (WA) has also been subject to some criticism. This Act regulates pearling operations, and requires licences for most of the different operations involved (pearl dealers’ licences, divers’ licences, divers’ tenders’ licences, pearl cleaners’ licences, shell buyers’ licences, ship licences and beach combers’ licences). Apparently difficulties have arisen with Aboriginal people collecting the shell for their use from the seashore. The Pearling Act 1912 (WA) s 109 forbids the removal of pearl shell from the seashore (including any reef or island uncovered at low tide) north of the Tropic of Capricorn. Commercial resource harvesting by traditional inhabitants occurs north of Derby where the Fisheries Department have issued the Bardi Aborigines Association with a professional fishing licence to enable trochus shell to be taken for the purposes of sale. As the Department points out, such taking cannot be said to be traditional.[1713]

956. Closures of the Seas. The Western Australian Aboriginal Land Inquiry, in examining ways in which Aboriginal interests in the sea adjacent to Aboriginal land could be protected, recommended that the Tribunal be able to make recommendations for exceptions from fishing or other maritime laws to allow Aboriginal claimants to benefit from land rights and associated fishing interests.[1714] The Report recommended that:

waters should only be protected for Aboriginal people for uses which are still part of traditional life. Traditional use should be defined to include access to and traditional activities connected with significant areas in or associated with the sea, or customary modes of foraging or fishing in or near the sea. An activity should not be treated as outside tradition merely because it is pursued with the latest technology.[1715]

However claims for the vesting of sea-bed or seashore in Aboriginal applicants were rejected.[1716] Instead the Minister and the Tribunal should have power to:

grant protection of waters upon the application of the traditional interests provided that the applicants show that the use by others of the waters interferes or may interfere with their traditional use … It is not appropriate to use the term ‘sea closure’ because the Tribunal should create no more exclusivity than is necessary to protect the particular traditional interests. For example a seasonal fishery need not be closed twelve months in the year. Sailing might be compatible with some traditional interests and not with others.[1717]

The Report also recommended that river beds and banks adjacent to Aboriginal land should be able to be protected for use of Aboriginal people. Public access along a water course would be restricted where land on both sides of the river was granted as Aboriginal land.[1718] Had the Aboriginal Land Bill 1985 (WA) been enacted it would have enabled Aboriginal organisations or land corporations acting on behalf of Aborigines with entitlements in accordance with local Aboriginal tradition to an area of the seas contiguous to Aboriginal land, to apply for access and activities in that area of the sea to be regulated. In determining the application the Tribunal would have had to be satisfied that the Aboriginal claimant had entitlements according to local Aboriginal tradition, that their use of the seas was being interfered with, that no one would suffer undue detriment and in particular that commercial and recreational interests would not be unreasonably interfered with (cl 92). The regulations were not to regulate access and conduct to a greater extent than necessary to enable the area to be used in accordance with local tradition (cl 83(3)(a)). Bona fide transit vessels, and interests or rights which a person has in the area, would have been protected (cl 83 3(b)(c)). The Bill would have made it an offence to obstruct or hinder an Aborigine traditionally using the seas, or to enter and remain in the protected area without being entitled to do so (cl 93).[1719]


957. Fisheries Generally. Section 5 of the Fisheries 1976 Act (Qld) provides that the Act does not apply to:

the taking, otherwise than by the use of any noxious substance or explosive, of fish or marine products in Queensland waters for private purposes by any Aboriginal or Torres Strait Islander who at the material time is resident on a reserve …

There is now also the exemption from fisheries legislation for reserve residents, contained in the two Community Services Acts of 1984.[1720] This is expressed to apply ‘notwithstanding any other Act …’ (s 77(1)). It would appear that the terms of this legislation would enable reserve residents to take fish, for example, with the use of any noxious substance or explosive. The Fisheries Act 1976 (Qld) is to be gradually phased out with the introduction of the Fishing Industry Organisation and Marketing Act 1982 (Qld). The latter Act deals with the taking of fish for commercial purposes. It makes arrangements for the marketing of fish and provides that a person may not take fish for commercial purposes unless he is the holder of a licence (s 36). Section 31 provides that a ‘community’ fisherman’s licence may be granted. A ‘community’ is defined as ‘the inhabitants of a reserve for the benefit of Aboriginals and Torres Strait Islanders’. The purpose of s 31 is to allow for community licences to a fluctuating group of Aboriginal people rather than a licence being taken out by a corporation or by individual persons.[1721] A feature of both the Fishing Industry Organisation and Marketing Act 1982 (Qld) and the Fisheries Act 1976 (Qld) is that Aborigines who are not ‘inhabitants of a reserve’,[1722] or who are not ‘at the material time a resident of a reserve’[1723] are subject to all the provisions of the fisheries legislation, and are not able to take out a community licence under the Fishing Industry Organisation and Marketing Act 1982 (Qld). There is no indication that the Acts will be extended to apply to Aborigines not living on reserves. The Fisheries Act 1976 (Qld) and the Fishing Industry Organisation and Marketing Act 1982 (Qld) do not apply to the taking of fish for the purposes of a fishery within the Torres Strait area as provided by the Torres Strait Fisheries Act 1984 (Qld) s 5(2). The Torres Strait Fisheries Act 1984 (Qld) provides for the implementation of the Torres Strait Treaty, and for the conservation and management of Queensland’s fisheries. The State Minister is empowered to exercise any of the powers and to perform any of the functions conferred on the Commonwealth Minister under Part V of the Torres Strait Treaty (cl 1(2)). However regard is to be had to the traditional ways of life of the traditional inhabitants including their rights in relation to traditional fishing (s 7).[1724]

958. The Problem of Dugong. The issue of dugong hunting in Commonwealth waters off the Queensland coast, together with the operation of the Great Barrier Marine Park Act 1975 (Cth) and the Torres Strait Fisheries Act 1984 (Cth) (and related Acts) have already been discussed.[1725] The interrelation of these Acts is complicated. Under Queensland law, the Fisheries Act 1976 (Qld) provides that only reserve residents are permitted to hunt dugong, while Commonwealth law does not prohibit the taking of dugong. In certain areas under the zoning plans, no hunting and fishing of any kind (including the taking of dugong) is permitted. In other areas traditional hunting of dugong may be allowed subject to a permit being granted. Nothing in the Zoning Plan is to be construed as permitting the taking of any plant or animal protected under Commonwealth or Queensland law, nor as permitting any activity prohibited under Commonwealth law (cl 14, 15). Thus, if permission is given by the responsible authority for the taking of dugong in a particular zone, this would only permit the taking of dugong by residents of a trust area. (former reserves) in Queensland waters. An Aborigine living off a trust area who is prohibited from taking dugong would still be precluded from taking dugong, in Queensland waters, even if he had a permit to do so. In Queensland, particular problems have been raised about the taking of dugong by Aborigines not resident on a reserve.[1726] The Commission has been advised that since 1972 six Aborigines and Islanders not residents of the reserve have been convicted of taking dugong.[1727] The position in relation to dugong is particularly sensitive given their scarcity and their extremely low reproductive rate.[1728] The Queensland Fish Management Authority advises that an Interdepartmental Committee has been established to study the taking of dugong and turtles by Aborigines and Islanders. At the federal level research is also being conducted under the auspices of the CSIRO, the Great Barrier Reef Marine Park Authority, the Department of Primary Industry, the Australian National Parks and Wildlife Service, and the Department of Science and Technology’s Marine Science and Technology Grant Scheme.

959. Marine Parks. The Marine Parks Act 1982 (Qld) provides for the setting apart of tidal lands and tidal waters as marine parks. It applies, for example, to the inter-tidal zones between a cay (to which the Queensland national parks legislation would apply) and the surrounding reef (which would be likely to fall within the Great Barrier Reef Marine Park Act). Given the narrow geographical line between areas subject to the operation of these different Acts, questions of administration are minimised by the fact that the management of all three areas is undertaken by the Queensland National Parks Authority. No special provision is made for Aborigines and Torres Strait Islanders, either under the Marine Parks Act 1982 (Qld) itself nor under the regulations made under it. Draft Zoning plans prepared for the Capricornia section similarly make no provision for Aboriginal or Torres Strait Islanders and traditional fishing.[1729]

New South Wales

960. Fisheries Generally. Under the Fisheries and Oyster Farms Act 1935 (NSW) as amended, the only special recognition of traditional fishing rights is an exemption for Aborigines (as defined under the Aborigines Act 1969 (NSW)) from the requirement of an inland angling licence to fish in inland waters (s 25(a)). Thus neither Aborigines nor non-Aborigines are permitted, for example, to take fish for sale without a licence, catch undersized fish, use a net in certain areas, use dynamite, or take restricted species of fish.[1730] Similarly, the taking of oysters from certain Crown land and from public oyster reserves is prohibited unless taken for personal consumption in the immediate vicinity from which they are taken (s 83, 85). Specific problems are created in New South Wales because of the shortage of abalone, their commercial popularity, and pressures from commercial fishing interests. In 1980 when the Fisheries Department introduced abalone licences a licence was granted to the only two Aborigines who were applicants. Current policy is to renew existing licenses and not to create additional new licenses. Regulation 181 allows the taking of 5 crayfish or 15 abalone a day by an unlicenced person.[1731] Publicity was given to charges laid against Aborigines for alleged breach of this Regulation in several instances,[1732] and calls have been for the amendment of the Fisheries and Oyster Farms Act 1935 (NSW).[1733] It is interesting to compare the provisions of the New South Wales Act with the relevant Western Australian provisions. While Western Australia has a specific exemption for Aboriginal people, that exemption is subject to other provisions of the Act such those relating to size, netting, lobster fishing, the devices that may be used in catching fish, prohibitions on dynamite. In the result there may be little practical difference in the operation of the two Acts.

Victoria and Tasmania

961. Fisheries Generally. There are no special provisions for Aboriginal fishing under the Fisheries Act 1968 (Vic), nor under the Fisheries Act 1959 (Tas).