Aboriginal Fishing and Legislation
Fisheries Management Act 1994
With increasing population and greater pressure on the marine environment, Government intervention in fishing activity has been necessary to maintain sustainable use of the State’s fisheries resource. Unfortunately, this regulation has also impacted on Aboriginal peoples’ association with the resource.
The Fisheries Management Act 1994 (the Act) is the principle piece of legislation related to the management of the fishery resource in NSW.
A number of sections of the Act provide for the making of regulations to support the Act and ensure that its various provisions operate to their fullest extent. The Fisheries Management (General) Regulation 2010 is one of the legislative avenues for ensuring that the objects of the Act are met in conjunction with commercial fishery specific regulations.
In recognition of Aboriginal peoples’ cultural fishing needs and traditions, several significant Act amendments commenced in early 2010. They included:
- Extending the objects of the Act to now explicitly recognise the connection Aboriginal people have with the fisheries resource;
- The addition of a definition of Aboriginal Cultural Fishing to enable Aboriginal people to take fish or marine vegetation for cultural fishing purposes;
- The establishment of the Aboriginal Fishing Advisory Council (section 229) to ensure that Aboriginal people play a part in future management of the fisheries resource;
- Specific provisions under Section 37(c1) of the Act for issuing authorities for cultural events where fishing activities are not consistent with current regulation. This provision caters for larger cultural gatherings and ceremonies.
- Aboriginal persons becoming exempt from paying a recreational fishing fee under 34C of the Act.
Note: There remains one amendment passed by Parliament (Section 21AA) which is yet to commence. Section 21AA provides for regulation making powers that allow limits (including bag and possession limits) and/or other management options to be applied to the special cultural fishing provisions. This section has not commenced as regulations cannot be made until the Minister has consulted with the Aboriginal Fishing Advisory Council. An interim compliance policy is currently in place to capture the spirit of section 21AA.
|Aboriginal Fishing interim compliance policy
Marine Park Act 1997
Cultural resource use involving the taking of fisheries resources, such as fin fish and invertebrates, in marine parks is subject to the Fisheries Management Act 1994 and the Marine Parks Act 1997.
The Marine Parks Act 1997 provides the legislative framework for the establishment and management of the Marine Park Authority (MPA) and marine parks within NSW. The MPA reports jointly to the Minister for the Environment, and the Minister for Primary Industries. However, the day to day management of marine parks is overseen by the MPA and the Minister for Primary Industries.
The Minister for the Environment and the Minister for Primary Industries are also jointly responsible for administering the Marine Parks Act 1997 and the regulations made under this Act.
The Marine Parks Act 1997 currently allows for cultural resource use within marine parks where the activity:
- is undertaken in accordance with the provisions of the Fisheries Management Act 1994;
- is permitted by the marine park zoning plan as described within the Marine Parks (Zoning Plans) Regulation 1999;
- does not involve targeting protected species; and
- is not contrary to a marine park closure.
Cultural resource use that is contrary to the above may be authorised under marine parks permit; however, a marine parks permit cannot authorise activities contrary to the Fisheries Management Act 1994.
Aboriginal involvement in the management of marine parks is facilitated by the MPA, and implemented in accordance with the Aboriginal Engagement and Cultural Use of Fisheries Resource Policy (www.mpa.nsw.gov.au).