Since 1865, fisheries laws in NSW have regulated fishing with limited recognition of Aboriginal fishing practices, rights and interests. Despite more recent laws that aim to recognise these rights, the government has continued to criminalise Aboriginal cultural fishing.

For tens of thousands of years, Aboriginal people have practiced sustainable fishing and managed what is now considered NSW fisheries resources. Fishing holds profound cultural, economic and social importance for Aboriginal communities in NSW, and provides essential resources (DOC2152). Fishing is also closely tied to many Aboriginal people’s identity and personal wellbeing (DOC2152).

Upon arrival of European colonists, fish became a crucial food source for the new colony, leading to compromised fish stocks and food scarcity, which adversely impacted local Aboriginal people. In July 1788, Governor Phillip noted that the local Aboriginal people were 'finding it very difficult to support themselves' and that the colony's catch of fish always be shared (DOC4922).

The Fisheries Act 1865 (NSW) (DOC0151) and Oyster-beds Act 1868 (NSW) (DOC0155) regulated fisheries activities, including by creating offences related to the fishing methods and taking oysters without a lease, but made no reference to Aboriginal fishing rights or interests.

Aboriginal people continued fishing in NSW regardless, with some Aboriginal people involved in fisheries economies and related trade with non-Aboriginal people (DOC2166, DOC0548). In the 1870s and 1880s, Aboriginal fisheries lobbied for and received boats and nets from the Government (DOC2166, DOC0548).

To address declining fish populations, the Fisheries Act 1881 (NSW) (DOC0166) aimed to protect marine resources by establishing rules for fishing activities. It also included a provision to allow Aboriginal people to catch undersized fish for personal use.

The Fisheries Act 1902 (NSW) (DOC0358) recognised Aboriginal fishing by exempting Aboriginal people from certain regulations. It expressly permitted Aboriginal people to take undersized oysters from public oyster reserves, as well as undersized fish, provided they were mature enough and for personal consumption.

Exemptions for Aboriginal people were taken away when the Fisheries Act 1902 was replaced by the Fisheries and Oyster Farms Act 1935 (NSW) (DOC0496), which did not acknowledge Aboriginal people’s fishing rights and interests. The law introduced a range of offences concerning fishing methods, fishing specific species of fish, fishing in designated areas and licensing requirements. The penalties included fines and imprisonment.

In the early 1990s, the High Court decision in Mabo & Ors v The State of Queensland (No 2) (Mabo) 1992 175 CLR 1 acknowledged the pre-existing native title rights of Aboriginal people (DOC1308). The Native Title Act 1993 (Cth) (DOC1341) made clear that native title rights and interests can include fishing rights. It also stated that certain fishing prohibitions imposed by Commonwealth or State laws would not affect the exercise of native title. For more information on native title and its relationship to hunting and fishing see SUB0068.

In 1994, the Fisheries Management Act 1994 (NSW) (DOC4890) replaced earlier fisheries legislation. While the Act confirmed it did not affect the Native Title Act 1993 (Cth) (DOC1341), it did not make any other reference to Aboriginal people’s fishing rights and interests. The law included various offences relating to fisheries resources, such as offences outlining where and when fish could be caught, with fines and imprisonment as penalties.

In 2002, the NSW Government committed to maintaining ongoing access to fisheries resources for Aboriginal people for traditional cultural purposes (DOC4844).

A 2005 report commissioned by the NSW Government highlighted the negative impact of the commercial abalone industry on Aboriginal fishing rights and recommended measures to uphold those rights (DOC5022).

In 2009, the Fisheries Management Act was amended (DOC0544) to include section 21AA, which authorised Aboriginal people to take or possess fish for cultural fishing purposes, despite general fishing offences created elsewhere in the Act.

However, section 21AA has never been commenced by the NSW government. The Commencement Proclamation that gave effect to the 2009 amendments explicitly excluded Schedule 1, containing section 21AA (DOC5137).

In 2011 the NSW Government established the Aboriginal Fishing Advisory Council (AFAC). One priority of the Council was to work with government to develop regulations that would support the operation of section 21AA (DOC5143). The regulations were never developed; there are differing views about the reasons for this (DOC4923).

The government has continued to pursue fisheries charges against Aboriginal people, resulting in prosecutions for cultural fishing practices (DOC5014, DOC4923).

While some charges laid against Aboriginal fishers are eventually dropped when native title rights are raised by defendants, defending against the charges is a costly, time-consuming, and stressful process (DOC5014). Over this period, at least 561 criminal charges were laid against Aboriginal people for fisheries offences, with over two-thirds of people imprisoned for fishery offences being Aboriginal (DOC5014).

In 2015, following advocacy from Aboriginal fishers, the government announced that prosecutions for exceeding bag limits, not involving sale, would stop (DOC5014). As a result, the number of prosecutions against Aboriginal fishers decreased from 26-100 per year to just two in 2015 (DOC5014).

The Fisheries Management Amendment Act 2015 (NSW) established the Aboriginal Fishing Trust Fund protect Aboriginal cultural fishing and provide economic development opportunities for Aboriginal communities (DOC3731).

In 2020, the government created an interim access arrangement for Aboriginal cultural fishers (DOC5015). The regulation maintained bag limits and required abalone be shucked within 100 metres from the highwater mark. However, this arrangement has been criticised for insufficient bag limits to meet the needs of Aboriginal cultural fishers and prosecutions increased again from 10 in 2017 to over 50 in 2020 (DOC5014).

In 2021, the Legislative Council held an inquiry into the non-commencement of section 21AA and its impact on Aboriginal fishers (DOC4923). The inquiry revealed that the delay in implementing section 21AA had significant negative consequences for Aboriginal fishers and communities. Evidence to the inquiry highlighted harassment, prosecution, fines in the thousands of dollars and jail time for Aboriginal people practising cultural fishing, resulting in adverse effects on mental health, well-being, and cultural transmission (DOC4923, DOC5014). The inquiry recommended ‘immediate’ commencement of section 21AA and for prosecutions to stop (DOC4923).

The Fisheries Management Amendment (Enforcement Powers) Act 2022 (NSW) (DOC4949) introduced new enforcement powers for fisheries officers, requiring them to ascertain whether a suspected fisheries offence committed by an Aboriginal person is cultural fishing or the exercise of native title rights and interests before taking action. However, this law does not offer the same level of protection as section 21AA.

In 2022, trial local management plans were implemented in Hastings and Tweed to regulate cultural fishing. They include criteria for recognition as a ‘local cultural fisher’ (with both automatic eligibility and eligibility by application) and provide for different permitted gear and increased bag limits for the purposes of offences under the Fisheries Management Act (DOC5045, DOC5046).