Law protecting marine areas have historically excluded Aboriginal people from managing NSW Sea Country. From 1997 there has been some gradual recognition in law of Aboriginal connections and rights in the management of marine parks in NSW.

Before British colonisation began, Aboriginal people had established a ‘comprehensive network of sustainably managed and protected marine estates’. These networks included ‘no-take zones’ and carry many characteristics found in contemporary marine protected areas (DOC4741). Many Aboriginal people ‘regard the sea as an inseparable extension of coastal land estates’, subject to the same characteristics of traditional ownership, custodianship, exclusive use and customary law...’ (DOC4741). This is distinct from the colonial conceptualisation of marine areas as common property, or areas managed by the government on behalf of the public (DOC4741).

In 1879, the Royal National Park was the first protected area in NSW (DOC3315). It included marine areas (DOC3820). For more on national parks see SUB0450.

From 1879 to 1979, while there were restrictions on fishing and marine areas within national parks, there were no areas set aside for the purpose of protecting marine ecosystems in NSW law. For more on fishing laws, see SUB0348. The lack of comprehensive marine management led to environmental damage (DOC5145, DOC5146, DOC5144, DOC5141).

In 1979, the Fisheries and Oyster Farms (Amendment) Act 1979 (NSW) introduced the ability for the Minister to declare aquatic reserves, and ‘prohibit or regulate the taking of fish from waters on any aquatic reserve’ and ‘provide for the management, protection and development of any aquatic reserve’ (DOC4904). The law did not consider Aboriginal people’s interests.

In 1980, in response to the ‘serious’ environmental degradation of Sydney’s northern beaches (DOC4865), the first aquatic reserve in NSW, Long Reef Aquatic Reserve, was declared on the lands of the Garigal and Gannagal (Cannagal) peoples of the Eora Nation (DOC4865, DOC4869). Aboriginal people were not considered.

In 1982, Bushranger's Bay aquatic reserve within the Bass Point Reserve was established without recognition of the area’s high significance to local Aboriginal people (DOC4860, DOC4913).

In 1989, local Aboriginal communities protested in support of the establishment of a marine park near Jervis Bay and opposed naval bombardments in the area (DOC4877).

In 1993, a Commonwealth Government inquiry noted that Aboriginal interests were rarely and poorly represented in coastal management (DOC4883).

In 1994, the Fisheries Management Act 1994 (NSW) (DOC4890) replaced the Fisheries and Oyster Farms Act 1935 (NSW). Existing aquatic reserves continued under the new Act, without reference to Aboriginal people’s interests.

In 1997, the Marine Parks Act 1997 (NSW) (DOC0452) provided a limited role for Aboriginal people in marine protected area laws for the first time. The Act empowered the Governor to declare specific areas as marine parks to conserve marine biodiversity, maintain ecological processes, and support sustainable use and enjoyment. It established the Marine Parks Authority, responsible for conserving marine biological diversity within these parks.

The Act also created the Marine Parks Advisory Council to serve as the principal advisory body to the relevant Ministers and the Marine Parks Authority. It required one member (appointed by the Minister) to represent the interests of Aboriginal people (DOC0452).

Additionally, the Act mandated the formation of local advisory committees for each marine park. These committees were appointed by the authority and were to include at least nine members that represented a range of interests, including the interests of Aboriginal people. These committees were tasked with assessing and advising the Marine Parks Authority on operational and zoning plans (DOC0452).

Regulations subsequently made under the Act specified that a marine park could be zoned to permit traditional use activities. This meant 'a use that satisfies personal, domestic or non-commercial communal needs of Aboriginal people’ (DOC4840).

In 1998, the Solitary Islands and Jervis Bay Marine Parks were established (DOC4918). Subsequently four more parks were declared: Lord Howe Island (17 February 1999), Cape Byron (23 October 2002), Port Stephens-Great Lakes (30 November 2005) and Batemans Bay (5 April 2006) (DOC5758).

The zoning plans for Jervis Bay (2002) (DOC4839), Solitary Islands (2002) (DOC4843), Cape Byron (2006) (DOC4840), and Batemans (2007) (DOC4841) Marine Parks included provisions for ‘traditional use’.

The Marine Estate Management Act 2014 (NSW) (DOC3815) repealed the Marine Parks Act 1997 (NSW) and brought existing aquatic reserves and marine parks under the new law. This law added explicitly that a secondary purpose of a marine park and an aquatic reserve is to support Aboriginal cultural uses.

The Act abolished the Marine Parks Authority and local advisory committees and placed decision making power with the Marine Estate Management Authority, which did not require Aboriginal representation, and with the Minister for Primary Industries, jointly with the Minister for the Environment. Although not required by law, the Government has continued to form advisory committees for each park with aims for Aboriginal representation, although Aboriginal membership is not always fulfilled (DOC5800). There are currently 12 aquatic reserves and six marine parks under the Act (DOC4920, DOC5758).

In 2017, a marine estate threat and risk assessment report commissioned by the Marine Estate Management Authority identified various threats to Aboriginal cultural heritage and use, which was defined as including ‘traditions, practices, knowledge, places, items, sources of food, spiritual values’ (DOC4828). These findings informed the Marine Estate Management Strategy 2018-2028, which includes initiatives to protect Aboriginal cultural values and increase Aboriginal participation in marine estate management (DOC4825).

In 2021, the NSW Government consulted on a draft management plan for marine park management, proposing to manage marine protected areas on the basis that native title exists in Sea Country and engage Aboriginal people in planning and management based on their rights and cultural interests. Submissions closed in early 2022 with no further updates (DOC4834).

Commentators have criticised the NSW marine parks regime for only allowing Aboriginal peoples to participate in management as stakeholders rather than as co-managers (DOC4846). See the Case Study and Discussion and Analysis documents for Aboriginal people’s advocacy related to caring for Sea Country, the importance of marine areas to Aboriginal people and other commentary on relevant laws and policies.