"Aboriginal cultural fishing means fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational or ceremonial purposes or other traditional purposes, and which do not have a commercial purpose".
The ALRA was established to return land in NSW to Aboriginal peoples through a process of lodging a claim(s) for certain Crown lands.
The NSW Aboriginal Land Councils (NSWALC) advocacy for Aboriginal peoples cultural fishing rights are intertwined with culture and heritage via the following section of the ALRA:
(7) Aboriginal culture and heritage
The New South Wales Aboriginal Land Council has the following functions in relation to Aboriginal culture and heritage —
- to take action to protect the culture and heritage of Aboriginal persons in New South Wales, subject to any other law,
- to promote awareness in the community of the culture and heritage of Aboriginal persons in New South Wales.
More information about the Aboriginal Land Rights Act is available by clicking here.
The NSW Aboriginal Land Council (NSWALC) is the largest member-based Aboriginal organisation in Australia, representing over 30,000 members across a network of 121 Local Aboriginal Land Councils (LALCs). As the peak-elected Aboriginal community-controlled representative body for the more than 330,000 Aboriginal people in NSW, NSWALC has a critical role in advocating for Aboriginal rights, particularly in relation to land, sea, water, and fisheries resources.
Aboriginal peoples are not just one stakeholder among many. We hold inherent, pre-eminent rights to land and water, with Traditional Ecological Knowledge and Traditional Fishing Knowledge accumulated over millennia. Any regulation affecting these rights must be developed in genuine partnership with and supported by our communities.
NSWALC strongly opposes the introduction of the Regulation and instead calls for the urgent and immediate commencement of section 21AA of the Fisheries Management Act 2009 (NSW) (FMA) without regulations. Furthermore, we demand an immediate end to the unjust and harmful prosecutions of Aboriginal people for practicing their culture and providing for their communities.
The NSW Government’s ongoing policing and control of Aboriginal cultural practices is both abhorrent and unacceptable. Aboriginal communities have successfully self-regulated our cultural practices for millennia, and we do not support the Government’s imposition of unnecessary regulatory frameworks that undermine our rights.
NSWALC is deeply concerned that the NSW Government intends to legislate the Aboriginal Fishing Interim Access Arrangements (AFIAA) as the Regulation. The AFIAA has already caused significant harm to Aboriginal communities by enabling the continued prosecution of Aboriginal people for undertaking cultural fishing practices. We ask the Government: How will legislating these arrangements change the status quo, other than to further entrench harm and injustice?
Furthermore, the NSW Governments approach to consultation is extremely disappointing, especially on such a critical issue. Holding consultations over the Christmas and New Year period was entirely inappropriate and demonstrated a lack of respect for Aboriginal communities. NSWALC made this clear to the Department of Primary Industries and Regional Development (DPIRD), the Aboriginal Fishing Advisory Council (AFAC), and the Facilitator. These concerns were echoed by the consultation facilitator Grant Sarra, as well as LALC representatives and community participants.
This flawed process does not reflect genuine engagement or good-faith consultation. Aboriginal communities must be meaningfully included in decision-making that affects our rights and cultural practices. The NSW Government must engage with communities in a respectful, transparent, and culturally appropriate manner.
NSWALC urges the NSW Government to:
- Change course and not implement flawed Regulations. A new approach must be designed in partnership with us and Aboriginal communities.
- Conduct in-person, on-Country consultations that allow Aboriginal communities to lead discussions on our own cultural practices.
- Listen to and act on community needs, rather than imposing preconceived restrictive regulatory measures including as bag and possession limits.
The NSW Government must place trust in Aboriginal communities to govern our own cultural fishing practices, just as we have done for thousands of years. Any regulation must be developed with Aboriginal communities, not imposed upon us. Detailed comments and recommendations are provided below.
Summary of recommendations
- Given NSWALC’s legislative functions relating to Aboriginal culture and heritage, and to represent Aboriginal people in NSW, the NSW Government must listen, partner, appropriately, transparently and in good faith, with NSWALC and Aboriginal peoples of NSW, to support the implementation of s.21AA and all policy, programs or activities relating to Aboriginal cultural fishing.
- NSWALC calls for the NSW Government to immediately commence s.21AA of the FMA without regulations.
- NSWALC calls for the NSW Government to recognise Aboriginal peoples history of and ability to self-regulate fishing resources as has been done for thousands of years and allow them to do so.
- The NSW Government must recognise and support Aboriginal people’s cultural connection to fisheries resources and our inherent rights to practice cultural fishing.
- The NSW Government must honour its commitment to the National Agreement for Closing the Gap including delivering social, cultural and economic outcomes for Aboriginal people, which includes the commencement of s.21AA without regulations. By failing to commence s.21AA, and while prosecutions continue, the NSW Government is not making good on commitments to closing the gap.
- The NSW Government must embed the principles of the United Nations Declaration on the Rights of Indigneous Peoples (Article 25 and 32.2) in its approach to the management of fisheries resources.
- The NSW Government must retract and apologise for divisive, unsubstantiated, misleading and defamatory statements and approaches.
- NSWALC does not support the indefinite legislation of the Aboriginal Fishing Interim Access arrangement which inappropriately sets take and possession limits, does not support Aboriginal cultural fishing and has resulted in Aboriginal cultural fishers continuing to be prosecuted.
- NSWALC maintains that s.21AA should be immediately commenced, without regulations. Regulations that set take and possession limits are not necessary, are inappropriate and are inflexible.
- The LMP program and approach must urgently be redesigned in partnership with NSWALC, and an independent agency should oversight this.
- The NSW Government must urgently clarify the efficiency and effectiveness of LMPs and their relationship to s.21AA.
Click below to download the full submission.
NSWALC Submission - Draft Aboriginal Fishing Regulation signed ceo
NSWALC, the network of Local Aboriginal Land Councils (LALCs), and Aboriginal peoples of NSW are key stakeholders in relation to land, sea, water and fisheries resources and are holders of specific Traditional Ecological Knowledge and Traditional Fishing Knowledge accumulated over millennia. Aboriginal peoples are not merely one stakeholder among others, we possess inherent and pre-eminent rights, values and interests in the lands and waters on account of our status as Australia’s First Peoples.
NSWALC welcomes the Inquiry. We seek the urgent commencement of s.21AA (without regulations), and the cessation of the abhorrent and unjust prosecutions of Aboriginal people for undertaking cultural practices and providing for our communities. NSWALC calls on the NSW Government to:
- End the criminalisation of cultural practices1 and support Aboriginal people’s cultural fishing rights.
- Place an immediate prohibition on prosecuting Aboriginal cultural fishers and ensure Aboriginal cultural fishers are protected from prosecution
- Remove restrictions on Aboriginal cultural fishers and cultural fishing activity
- Immediately commence section 21AA of the FMA
Furthermore, any future actions regarding the FMA, in particular s.21AA, must ensure the following:
- Acknowledge Aboriginal peoples’ inherent rights to water, specifically, so we can maintain our culture through the sharing of oral histories regarding Traditional Ecological Knowledge and Traditional Fishing Knowledge
- Include strong safeguards and actions to protect Aboriginal cultural heritage, Aboriginal fishers, and the environment.
- Foster partnerships with all Aboriginal peoples and communities including NSWALC and LALCs in the implementation of the FMA.
Click below to download the full submission.
The NSWALC Fishing Fund is a partnership with the Commonwealth Governments’ National Indigenous Australians Agency (NIAA) and aims to support the growth and development of the NSW Aboriginal fishing industry to achieve long term economic and employment opportunities.
Click below to learn more.
In 2009 the NSW Parliament amended the Fisheries Management Act 1994 (FMA) to recognise and provide for Aboriginal cultural fishing. The Aboriginal Cultural Fishing Interim Access Arrangement (s 21AA) amendments have not been fully commenced.
NSWALC has repeatedly sought the NSW Government’s commitment to commencing section 21AA. NSWALC has also called on the NSW Government:
- To place an immediate moratorium on prosecuting Aboriginal cultural fishers and develop reforms in genuine partnership with Aboriginal organisations and peoples, to ensure Aboriginal cultural fishers are protected from prosecution;
- To remove restrictions on Aboriginal cultural fishers and cultural fishing activity;
- To work in partnership with Aboriginal community-controlled organisations and Aboriginal people to develop alternative management options rather than imposing inappropriate regulations on cultural fishing activities.
Click below for more information regarding s21AA.
 Aboriginal Cultural Fishing Interim Access Arrangement (s 21AA)
The NSWALC calls on the NSW Government to support Aboriginal cultural fishing practices by ending the prosecutions of Aboriginal people exercising their cultural fishing rights.
Media Release: End Prosecutions for Aboriginal Cultural Fishing
Fishing has always been an important part of the cultural and economic life of Aboriginal communities. For many Aboriginal people fishing is an integral component of connection to their traditional country.
Aboriginal culture traditionally recognises extended family. Quite often it is a few family members who fish for many, especially in circumstances where members of the family are elderly or are unable to participate in the fishing activity.
Protecting and promoting cultural fishing activities of Aboriginal communities is recognised in managing our fisheries resources with measures that provide for continued access to and involvement of Aboriginal people in management of the NSW fisheries resource.
NSW Aboriginal Land Rights Act (ALRA) 1983
The ALRA was established to return land in NSW to Aboriginal peoples through a process of lodging a claim(s) for certain Crown lands.
The NSW Aboriginal Land Councils (NSWALC) advocacy for Aboriginal peoples cultural fishing rights are intertwined with culture and heritage via the following section of the ALRA:
(7) Aboriginal culture and heritage
The New South Wales Aboriginal Land Council has the following functions in relation to Aboriginal culture and heritage —
- to take action to protect the culture and heritage of Aboriginal persons in New South Wales, subject to any other law,
- to promote awareness in the community of the culture and heritage of Aboriginal persons in New South Wales.
More information about the Aboriginal Land Rights Act is available by clicking here.
NSWALC Fishing Fund
The NSWALC is seeking expressions of interest for the NSWALC Fishing Fund 2020-21.
For more information click here to visit the NSWALC Fishing Fund page.
Fisheries Management Act (FMA) 1994
In 2009 the NSW Parliament amended the Fisheries Management Act 1994 (FMA) to recognise and provide for Aboriginal cultural fishing. The Aboriginal Cultural Fishing Interim Access Arrangement (s 21AA) amendments have not been fully commenced.
NSWALC has repeatedly sought the NSW Government’s commitment to commencing section 21AA. NSWALC has also called on the NSW Government:
- To place an immediate moratorium on prosecuting Aboriginal cultural fishers and develop reforms in genuine partnership with Aboriginal organisations and peoples, to ensure Aboriginal cultural fishers are protected from prosecution;
- To remove restrictions on Aboriginal cultural fishers and cultural fishing activity;
- To work in partnership with Aboriginal community-controlled organisations and Aboriginal people to develop alternative management options rather than imposing inappropriate regulations on cultural fishing activities.
NSWALC MEDIA RELEASE - End Prosecutions for Aboriginal Cultural Fishing
The NSWALC calls on the NSW Government to support Aboriginal cultural fishing practices by ending the prosecutions of Aboriginal people exercising their cultural fishing rights.
Department of Primary Industries - Aboriginal fishing
Fishing has always been an important part of the cultural and economic life of Aboriginal communities. For many Aboriginal people fishing is an integral component of connection to their traditional country.
Aboriginal culture traditionally recognises extended family. Quite often it is a few family members who fish for many, especially in circumstances where members of the family are elderly or are unable to participate in the fishing activity.
Protecting and promoting cultural fishing activities of Aboriginal communities is recognised in managing our fisheries resources with measures that provide for continued access to and involvement of Aboriginal people in management of the NSW fisheries resource.
Aboriginal people have a spiritual, social and customary association with fisheries resources. Aboriginal community members have continued their tradition of fishing consistent with their cultural beliefs, which fundamentally include customary sustainable fishing parameters.
NSW Industry and Investment are inviting Expressions of Interest for the inaugural membership of the Aboriginal Fishing Advisory Council (AFAC).
AFAC has been established under Section 229 of the Fisheries Management Act 1994 to provide the Minister with advice about Aboriginal fishing issues.
In line with requirements prescribed in the Fisheries Management (General) Regulation 2002, AFAC is to be composed of up to fourteen members of which thirteen are voting members. Specifically membership is to consist of: Aboriginal persons appointed to represent different regions of the State (not more than ten in total); one other Aboriginal person; one person appointed as a representative of Native Title Services Corporation Limited (NTSCORP); one person appointed as a representative of the New South Wales Aboriginal Land Council (NSWALC); and a senior officer of the Department (non-voting).
If you are interested in membership on the Council please contact Ms Laura Best on (02) 9527 8574 or by email at laura.best@industry.nsw.gov.au for further information and an application pack.
Expressions of Interest will close 5pm on Friday, 13 August 2010 and must be mailed to:
Aboriginal Fishing Advisory Council EOI
C/- Industry & Investment NSW
PO Box 21
CRONULLA NSW 2230
Aboriginal Cultural Fishing Rights
On 03 December 2009 amendments to the Fisheries Management Act 1994 (NSW) [the Act] which acknowledge Aboriginal cultural fishing were passed by both houses of NSW Parliament.
These amendments provide a long-awaited definition of Aboriginal cultural fishing along with the platform to provide for Aboriginal cultural fishing.
NSWALC Chairperson and others have been part of wider delegations who have been involved in negotiations with the Minister for Primary Industries and the Department of Industry and Investment NSW (I&I NSW), to amend the Fisheries Management Act 1994 to recognise Aboriginal cultural fishers.
The new definition in respect of cultural fishing, states:
"Aboriginal cultural fishing means fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational or ceremonial purposes or other traditional purposes, and which do not have a commercial purpose".
This change means that Aboriginal people in NSW do not need to apply for a licence or pay a fee - regardless of whether fishers are fishing from freshwater or saltwater - if they are fishing within the provisions of an Aboriginal cultural fisher under the Act and its Regulations.
Apart from the definition of a cultural fisher, other welcomed improvements include the establishment of a Ministerial Advisory Council - the Aboriginal Fisheries Advisory Council - to advise the Minister on all Aboriginal fishing matters including - but not limited to:
(a) Streamlining of the process for obtaining a section 37 permit to catch fish for larger cultural and ceremonial purposes, outside of limits of a "deemed permit"
(b) The development of Regulations for the management of Aboriginal cultural fishing.
The Regulations addressing Aboriginal cultural fishing will provide greater freedoms than have previously existed within NSW legislation. These provisions will be provided for within the Regulations which are to be devised in conjunction with the AFAC.
At a minimum these provisions are expected to include:
- Possession limits being changed (anticipated to be doubled) for small scale cultural fishing practices
- Shucking of abalone, rock lobster and turban shell near the waters edge being permitted in certain circumstances of Aboriginal cultural fishing
- An individual Aboriginal fisher may fish for a small group of up to 15 Aboriginal people who are within 20 metres of the high water mark, whereas previously Aboriginal fishers could only fish for themselves. This means 'the possession limit' or the number of fish that may be taken will be based on the number of people at the cultural event regardless of whether all are fishing.
NSWALC is currently working closely with I&I NSW on the establishment of the AFAC, and is further encouraged by the Minister's commitment to increase opportunities for Aboriginal communities in the commercial fishing sector.
While the Aboriginal cultural fishing parameters have not yet taken effect via regulation, I&I NSW have formally advised NSWALC that - in the spirit of the cultural fishing amendments - I&I NSW has implemented an Interim Compliance Policy to provide for cultural fishing practices in this interim period.
These compliance provisions include additional measures to allow for communal needs and small cultural events.
Please note that the section 37Â 'Taking fish for Aboriginal Cultural or Ceremonial Use'Â permit is still required for large cultural fishing events.
NSWALC has developed a fact sheet:Â Fishing Rights Fact Sheet 1 - Aboriginal cultural fishing in NSWÂ (amended version TBC)Â which outlines the amendments to the NSW fishing legislation and more information on the Interim Compliance Policy.
NSWALCÂ has also developed a fact sheet outlining the laws and policies relating to Aboriginal cultural activities in Marine Parks:Â Fishing Rights Fact Sheet 2 - Marine Parks and Aquatic Reserves: Management, Access and Cultural Activities.
If you have any questions the amendments, please contact the Policy and Research Unit of NSWALC on 02 9689 4444.
More Background Information
In May 2009, the NSW Government released the discussion paper 'Cultural Fishing in NSW.' The discussion paper notes the importance of cultural fishing to Aboriginal communities.
The Department of Primary Industries (DPI) highlights that the Fisheries Management Act NSW 1994 "does not specifically recognise or provide for cultural fishing."
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The discussion paper addresses two areas of proposed amendment to the Fisheries Management Act NSW 1994: AMENDMENT 1:  The inclusion of a definition of cultural fishing. AMENDMENT 2: Willingness to streamline the process of obtaining a section 37 - 'Taking Fish for Aboriginal Cultural or Ceremonial Use Permit Application.' In July 2009, NSWALC released the submission "Reel Cultural Fishing Rights" which details its' response to the discussion paper. |
Reel Cultural Fishing Rights makes 5 Key Recommendations:
- That the NSW Government through the DPI, delineate between 'Aboriginal Cultural Fishing' and the 'Aboriginal Subsistence Fisher'.
- That both 'Cultural Fishing' and are defined and these definitions are written into the NSW Fisheries Management Act (NSW) 1994.
- That the 'Aboriginal Subsistence Fisher' is written into the NSW Fisheries Management Act (NSW) 1994 as a class of fisher, separate to the recreational and commercial fisher.
- That the 'Aboriginal Subsistence Fisher' is afforded the freedom to continue to practice the craft of fishing in a traditional manner consistent with Aboriginal culture.
- Standing Permits to be granted for cultural events that are permanent calendar events.
NSWALC is committed to pursue its research on Aboriginal interaction with the fisheries resource in NSW. The NSWALC believes that there are many avenues to be explored surrounding Aboriginal involvement in fishing statewide.
Some areas of Aboriginal involvement that NSWALC intends to research are:
- Capacity building
- Marine Park Ranching
- Habitat management
- Stock enhancement programs
- Employment
- Graduate positions within the industry
NSWALC will continue these studies consistent with its Corporate Plan and would welcome collaborative involvement with the DPI to explore some options that we believe exist for greater Aboriginal participation in the NSW fishing sectors.