Can Aboriginal People Fish Without a License in NSW, Australia?

Aboriginal people in New South Wales, Australia have long practiced sustainable fishing as part of their cultural traditions. However, colonial laws and policies have often restricted these practices, leading to ongoing challenges for First Nations communities. In 2024, the NSW government has taken steps to recognize and protect Aboriginal cultural fishing rights, but questions remain about the implementation and impact of these changes.

The History of Aboriginal Fishing Rights in NSW

Since the colonization of Australia began in 1788, First Nations people have faced significant barriers to practicing their traditional fishing methods. Governor Arthur Phillip noted in 1788 that Aboriginal people were finding it “very difficult to support themselves” after the arrival of the British, and ordered naval officials to share a portion of their fishing catch with local communities.

Early NSW legislation, such as the Fisheries Act 1881 and its 1902 update, contained some recognition of First Nations people’s connection to fishery resources. The acts exempted Aboriginal people from certain restrictions if they were taking or possessing fish for their own consumption. However, these exemptions were limited and did not fully protect cultural fishing practices.

In the 1990s, the historic Mabo case and the Native Title Act 1993 affirmed that native title rights included cultural fishing practices. However, First Nations people continued to face prosecution for exercising these rights, with research showing that between 1996 and 2021, two-thirds of people locked up for fishery offenses in NSW were Aboriginal.

Recent Changes to Aboriginal Cultural Fishing Laws

In 2009, the NSW Parliament passed amendments to the Fisheries Management Act, which included a new section 21AA authorizing Aboriginal people to take or possess fish for cultural fishing purposes. This section would provide a blanket exemption from prosecution for First Nations people practicing cultural fishing. However, due to government inaction, this section has never become law, despite a 2022 Parliamentary Inquiry finding that it “need[ed] to be commenced immediately”.

In 2024, the NSW Department of Primary Industries announced that Aboriginal people in NSW do not need to apply for a license or pay a fee to fish, regardless of whether they are fishing from freshwater or saltwater, if they are fishing within the provisions of an Aboriginal cultural fisher under the Act and its Regulations. This change means that removing barriers to accessing the resource is in keeping with recognition under the Act of the spiritual, social, and customary significance of fishing to Aboriginal people.

However, the implementation and impact of this change remain to be seen. First Nations people continue to face challenges in exercising their rights, with the ABC reporting that they have been left to shoulder the burden of proof to access exemptions under federal law.

The Ongoing Fight for Aboriginal Rights

The fight for Aboriginal fishing rights is part of a broader struggle for recognition and self-determination. Research by the Public Interest Advocacy Centre’s Towards Truth project has revealed how governments since 1788 have forced assimilation through housing policies and restricted Aboriginal cultural fishing, with devastating consequences.

In 2024, First Nations people in NSW continue to face barriers to accessing safe and adequate housing, with a history of containment, segregation, and assimilation under the guise of “protection”. The Towards Truth project has also highlighted how First Nations people have been prosecuted and locked up for exercising their lawful fishing rights.

As the NSW government takes steps to recognize and protect Aboriginal cultural fishing rights, it is crucial that these changes are implemented effectively and in consultation with First Nations communities. The ongoing fight for Aboriginal rights is a complex and multifaceted struggle, but the recognition of cultural fishing practices is an important step towards justice and self-determination.