In recently published submissions to a New South Wales parliamentary inquiry, Indigenous fishers have described being exposed to aggressive treatment and targeting by fisheries NSW officers working on the state's south coast.
Section 21AA of the NSW Fisheries Management Amendment Act makes special provision for an Aboriginal person to take or possess fish for cultural fishing purposes, despite other limits.
A parliamentary inquiry was launched late last year into why the legislation, passed in 2009, has sat on the shelf for over a decade, and the impact the stalled process has had on Aboriginal fishers and their families.
Personal accounts have detailed instances of Indigenous fishers being approached at their home, chased while fishing, and having their catch and diving gear confiscated, with legal proceedings repeatedly delayed and in many cases eventually dismissed.
Divers 'dragged through the courts'
Walbunja Yuin man Stewart Davison said he has had several run ins with Fisheries officers, prompting him to make a submission to the inquiry.
Mr Davison said charges laid against him and his uncle for exceeding bag limits and alleged trafficking were dismissed in late 2021, after being "dragged through the court for four years".
The single father moved to Tweed Heads in northern NSW after being charged, and made several 14-hour trips to attend court in Narooma on the south coast, afraid that missing a court appearance would risk a guilty verdict.
"With the [cost of] accommodation and stuff, it was easily up to $2,000 at least," Mr Davison said, adding that his catch and diving gear had been confiscated and not returned.
"It's come to a point where I won't go and get nice diving gear,” he said. “I'll get hand-me-down down stuff because I'm too scared to go and buy a nice $600 wetsuit in fear of it being taken off me, innocent or guilty."
In a statement, a spokesperson for the NSW Department of Primary Industries said that there has been only one occasion where diving gear has been seized and the fishers were eventually found not guilty.
"At the conclusion of this matter the seized gear was returned at the request of the fishers," the spokesperson said.
This is disputed by solicitor Kathryn Ridge, who has successfully defended nine native title holders and said she knows personally of at least five instances of divers who had gear confiscated and charges later withdrawn or dismissed.
Yuin elder Kevin Mason was apprehended by a Fisheries NSW officer and police officer on the beach in October 2018. The confrontation was captured in footage obtained by the ABC. Charges were not laid until two years after the incident.
In his submission to the NSW parliamentary inquiry, Mr Mason described elders being chased and hunted off their own sea country.
"Our right to fish is sacred, it connects our people to our ancestors and unites our community," Mr Mason said.
Catch limits an 'insult' to cultural practice
In its own submission into the inquiry, the NSW government said it "supports the rights of Aboriginal cultural fishers".
The submission states that it can’t currently commence section 21AA of the legislation because it has not reached an agreement with Aboriginal peak bodies on what limits should be in place for cultural fishing.
"The NSW government position has been clear and consistent since 2009, namely, that limits must be applied across all fishing sectors, including cultural fishers," the submission said.
But Wally Stewart from the NSW Aboriginal Fishing Rights Group said it was an insult for the state government to insist on imposing catch limits when Aboriginal people never gave away their right to fish sustainably under their own law and custom.
In January 2018, a native title claim was successfully registered that covers the entire south coast of NSW. Kathryn Ridge said that while the NSW government did not oppose the native title claim, the rate of prosecution of Aboriginal people by NSW Fisheries has increased tenfold since it was registered.
Treatment a 'human rights abuse'
Policy and advocacy lead with Oxfam Australia Paul Cleary said the heavy level of policing and surveillance of Indigenous fishers on the NSW south coast was "a form of human rights abuse" and one of the most extreme examples he had seen in his work with Indigenous communities across Australia.
"People have been systematically and quite aggressively denied a right to their traditional food sources," he said.
According to data from the NSW Bureau of Crime Statistics and Research, Aboriginal people are being disproportionately prosecuted for fisheries offences. More than 200 Indigenous fishers have been prosecuted in NSW since the legislation to protect cultural fishing was passed in 2009.
In its submission to the inquiry, Oxfam Australia said the "targeting and harassment" of Aboriginal fishers has led to loss of employment opportunities, marriage breakdowns, homelessness, and widespread physical and mental health problems.
The parliamentary inquiry will hold a community hearing on the south coast on July 28, with hearings in other locations scheduled in August.
Mr Davison said despite the threat of prosecution, he will continue to pass on the practice of cultural fishing to his children.
"It does break the spirit a bit, but I'm pretty stubborn," he said.
