SUBMISSION IN RESPONSE TO THE INDEPENDENT
SCIENTIFIC AUDIT OF MARINE PARKS, NSW.
Dr Janet Hunt
Centre for Aboriginal Economic Policy Research
Australian National University
19 June 2012
Introduction
I write to express my strong support for recommendation R10 of the Scientific Audit Panel’s report.
‘Local Indigenous knowledge and expertise of land and sea management to be explicitly
incorporated into the establishment and ongoing management of NSW marine parks and
the NSW Marine Estate. To facilitate this the Audit Panel recommends the employment of
an Aboriginal Liaison Officer in each marine park, along with ongoing support of the
Aboriginal Cadet Program in each marine park.’
In doing so, I wish to elaborate somewhat further what I believe to be necessary if the major
recommendation for the establishment of a new Coastal and Marine Management Authority is
accepted and such a body is subsequently established in New South Wales. I therefore make a
number of other comments relating to other recommendations of the Scientific Audit Panel.
Background
I am a Social Scientist currently undertaking research in New South Wales about the social and
economic benefits for Aboriginal people of engagement in natural resource management. Obviously,
the Audit panel received input from Aboriginal people involved in marine issues, and has responded
to some of their concerns. However, it seems to me that while Recommendation 10 is a very positive
recommendation, wider consideration of how to strengthen Aboriginal participation in coastal and
marine management is warranted as new arrangements are put in place. Apart from the fact that
such consideration is required by Australia’s international commitments such as under the UN
Convention on Biological Diversity, it can also contribute to a whole of government policy goal of
Closing the Gaps between the socio-economic status of Aboriginal people and other Australians.
As I was regrettably unable to make a submission to the Audit Panel, I have elaborated on some of
the background to my thinking in relation to the recommendations I make below.
Aboriginal Fishing in New South Wales
For Aboriginal people along the lengthy east coast of NSW sea country is extremely important, and
has historically been a significant part of Aboriginal livelihoods (for example see Cruse, Stewart and
Norman 2005, English 2002). Over time, Indigenous involvement in commercial fishing in NSW has
declined for a number of reasons and, ‘there is widespread concern among coastal Aboriginal people
that they are denied benefit from the commercialisation of marine resources that once belonged to
them, and without their consent’ (Barnett & Ceccarelli 2007:25; see also Cozens 2003).
Two major reports on Indigenous interests in sea country in south eastern Australia are relevant to
NSW and outline many of the key issues. In 2007 a major literature review ‘As far as the eye can see:
Indigenous interests in the East Marine Planning region’ was undertaken for the Department of the
Environment and Water Resources (DERW) (Barnett & Ceccarelli 2007), as a contribution to the
process of developing Sea Country: The South East Regional Marine Plan (National Oceans Office
2002a). These two documents highlight that Indigenous people in south eastern Australia continue
to assert their rights and responsibilities to their sea country, that they have always used and traded
marine resources, and that they have many issues of concern, among them:
-
‘recognition and understanding of rights to the sea and marine resources
-
education of the non-Indigenous community regarding cultural links between Indigenous
people and the sea
-
recognition of Indigenous people as sustainable managers of marine environments
-
equity in marine allocation and usage
-
representation in marine environmental and resource management decision making
-
capacity development of Indigenous people and other marine resource managers to work
collaboratively
-
development of marine industries, including Indigenous commercial fisheries and
aquaculture enterprises.’ (National Oceans Office 2002a:7; see also Cozens 2003)
The Sea Country report notes that ‘above all else the message from the consultations was that
issues of acceptance of culture, co-management and resource sharing, and a place at the
management table are about the health and well-being of Indigenous people’ (National Oceans
Office 2002a:7: 8). As Barnett and Ceccarelli (2007) point out, controls imposed by Australian laws
have contributed to a lost economy for Indigenous people, and their traditional knowledge has not
been recognised by fisheries managers and others. The situation has not significantly changed since
these two reports were written.
Policy developments
In the 1990s the federal government supported the development of a national Aboriginal and Torres
Strait Islander (ATSI) Fisheries Strategy, which in NSW led to the development of its own NSW
Indigenous Fishing Strategy in 2002 (DPI n.d). This started to be implemented slowly, but funding
ceased in 2004 and although a number of actions have followed, no concerted implementation of
the strategy occurred (Barnett and Ceccarelli 2007). Furthermore, despite a number of other
initiatives, the 2005 national Securing Our Future fishing industry package made no effort to transfer
fishing rights to Indigenous people, nor to specifically assist Indigenous communities affected by
fishing industry restructuring (Durette 2007). Instead restructuring based on share increases, rather
than output control, contributes to the exclusion of small Indigenous fishers from the industry.
In July 2003 the NSW Fisheries commissioned a report about the participation of Indigenous people
in commercial fishing, through holding a workshop with some 20 commercial fishers (of a possible
30-60 in NSW)1 which developed nine strategic options to pursue, many of which required further
investigation. However follow up action on this report is unclear (Bruce Callaghan and Associates Pty
Ltd 2003).
1
There is no data on the total number of commercial Indigenous fishers in NSW, which presents a significant
information gap.
The latest development is the announcement in 2010 of an Aboriginal Fishing Advisory Council to
advise the Minister on issues relating to Aboriginal fishing (Aboriginal Fishing Advisory Council 2010)
It is focussing on development of a cultural fishing policy, allowing non-market, customary fishing as
well as commercial fishing opportunities for Aboriginal people (NSW Aboriginal Land Council 2010a).
Should a new Coastal and Marine Authority be established, it should have a formal link with the
Aboriginal Fishing Advisory Council, which should provide the new Authority with advice, and a
representative from this Council should be included in the highest governance level of the new
Coastal and Marine Authority. One further consideration is that whereas to date, native title rights
to fish in the ocean have not been granted in New South Wales, the Gumbaynggirr claim may do so
when it is finalized and this is a factor which needs to be taken into consideration in any new
structures and processes. Native Title rights are statutory rights which would need to be respected.
A new cultural fishing policy was announced in NSW in 2010, and has had some minor amendment
since, particularly in relation to compliance arrangements. In a development which pre-dated the
Aboriginal Fishing Advisory Council, OEH is researching and mapping Indigenous fishing, identifying
the range of marine resource species which have customarily been used, and are still in
contemporary use. Prof Stephan Schnierer of Southern Cross University is also carrying out a
number of very valuable research projects relating to Indigenous fishing. All this research should be
of value to any new authority.
Marine Parks
The marine parks legislation required an Aboriginal representative on each of the six Marine Park
Advisory Committees, yet in early 2012 only two of the six parks had an Aboriginal representative on
its formal Advisory Committee, indicating some problems with implementation.i Furthermore, in
this model, Aboriginal people are simply viewed as one group among many other marine park
stakeholders and the effectiveness of this approach to Aboriginal consultation and engagement is
questionable. The special status of Aboriginal people as First Peoples of the land and sea is not
appreciated.
In terms of a key concern of Aboriginal people, cultural use of marine resources, in 2010 the Marine
Park Authority released its new Aboriginal Engagement and Cultural Use of Fisheries Resources
Policy. It was using Special Purpose Zones and negotiating Cultural Resource Agreements for
Aboriginal cultural purposes. For example, Solitary Islands Marine Park, working with local elders,
developed a Conservation Management Plan at Arrawarra Headland for a customary fish trap and
men’s site. The site is now a designated Special Purpose Zone, in which cultural resource use is
agreed (New South Wales Marine Parks Authority and Yarrawarra Aboriginal Corporation 2006). This
Marine Park also sponsored an Aboriginal ranger to complete university study in natural resource
management and has employed him. While Cape Byron and Solitary Island Marine Parks have been
leading the way on Aboriginal engagement, much more could be done elsewhere.
In April 2011, management of marine parks, though formally shared between the Office of
Environment and Heritage and the Fisheries Section of the Department of Primary Industry, moved
from the former to the latter. Since the management changes, relations with Aboriginal people have
deteriorated. In particular the loss of the Marine Parks Aboriginal Liaison Officer position in 2011 has
reduced the parks’ ability to build community relations and help conserve traditional knowledge
(Independent Scientific Audit of Marine Parks in NSW 2011). This officer had been helping to
develop some informal Aboriginal advisory committees at a number of parks and building trust
between Marine Parks and Aboriginal people.ii Unlike land-based national parks, the marine parks
legislation does not enable joint management. Cape Byron Marine Park developed a Memorandum
of Understanding with the Bunjalung people of Byron Bay in 2007 focussing on their role in the
management of that park (Bunjalung People of Byron Bay (Arakwal), The Bunjalung Byron Bay
Aboriginal Corporation (Arakwal) and NSW Marine Parks Authority. n.d), but it was still awaiting
formal endorsement by the Marine Parks Authority when that body was dismantled in 2011. This is
a very unfortunate situation, as trust had been building between Marine Parks and Aboriginal people
but that process has now been undermined by recent developments. It is extremely important that
the new arrangements make extra efforts to re-establish relations and trust with Aboriginal people
and respond positively to their calls for recognition as sustainable managers of marine environments
and for genuine representation in marine environmental and resource management decision
making.
I earlier mentioned the Convention on Biodiversity, which is referred to in relation to the Audit
Committee Report’s Recommendation 1. The new arrangements for management of marine parks
should incorporate the Indigenous-related commitments made by the Australian Government on
behalf of all States and Territories, in relation to the Convention on Biological Diversity (CBD). The
CBD is an important international legal instrument that recognises Indigenous peoples’ knowledge
and use of biodiversity as well as the dependence of many Indigenous communities on biological
resources (National Biodiversity Strategy Review Task Group 2009). Specifically, Article 8(j) commits
parties to the Convention to respect, preserve and maintain Indigenous knowledge, innovations and
practices with respect to biodiversity; Article 10(c) commits support to the continuation of
customary use of biodiversity by Indigenous peoples (National Biodiversity Strategy Review Task
Group 2009). Whatever new arrangements are put in place should comply with this Convention.
At present certain aspects of current Marine Parks management which restrict Aboriginal people’s
use of marine biodiversity and cultural practices do not comply with this Convention (see for
example, NSWALC 2010b). Thus the assumption that ‘current arrangements pose no risk to the NSW
Government that in regard to its management of marine parks it will be found in breach of
international conventions’ ( Report of Independent Scientific Audit of Marine Parks in NSW 2011,
p.viii) is not correct. The current arrangements are not meeting the requirements of articles 8(j) and
and 10(c) of the Biodiversity Convention, and the development of new arrangements presents an
opportunity to correct this problem.
New South Wales in comparison to international developments in relation to Indigenous people
and marine management.
In Canada and New Zealand in particular Indigenous people have been able to generate significant
economic opportunities from participation in commercial as well as ‘customary’ non-market fishing.
Since the early 1980s, Canadian courts have established jurisprudence relating to both customary
and commercial fishing rights, among them an inherent right for Aboriginal people to fish for food,
social and ceremonial purposes (s35 Constitution Act 1982) where such rights existed prior to 1982
and have not been extinguished. After conservation, Aboriginal rights have priority over other
commercial or recreational fishing (R v Sparrow). This case led to a Department of Fisheries and
Oceans (DF&O) allocation policy reflecting this priority in 1999 (Durette 2007).
The law regarding Indigenous rights to trade in fish is more complex, and hinges on Indigenous
trading practices prior to colonisation. However, commercial fishing developments have proceeded.
In British Columbia (BC), the Nisga’a Nation finalised negotiations on a treaty with the BC
Government and the Canadian Government in 2000 which, among other things, ‘the Nisga’a Nation
is allocated just over one quarter of the salmon stock in the Nass Valley area, including the rights to
sell the catch’ (Durette 2007:5). The Nisga’a Fisheries Program, (a partnership with the Canadian
DF&O), also established a C$13m trust fund for species conservation and the Nisga’a received
C$15m towards purchase of fishing boats and licenses. This arrangement is generating significant
income to Nisga’a fishers and the Nisga’a government, and the Program continues to expand
(Durette, 2007).
Nationally, Canada has developed an Aboriginal Fisheries Strategy (AFS) to enhance Aboriginal
participation in fisheries, through fishing agreements with Indigenous fishers, a program to transfer
licences to them (the Allocation Transfer Program ATP), and an Aboriginal Aquatic Resource and
Ocean Management program to support Indigenous engagement in the fishing industry. The ATP
enables commercial licenses to be retired and the equivalent capacity to be reissued as ‘communal
commercial licenses to eligible Aboriginal groups. Since its launch in 1994, approximately 900
commercial licences have been issued to Aboriginal groups under the ATP.’ (Durette 2007: 6). By
2003, there were 595 First Nation-owned or operated fishing vessels in BC and the landed value of
First Nations catches amounted to C$52m, with some 40 per cent of the landed value of the salmon
catch earned by Aboriginal commercial fishers (Durette 2007).
In New Zealand, major changes in Maori fishing rights occurred in the mid-1980s, following legal
challenges, including to the quota management system on the grounds that it did not take into
account pre-existing Maori fishing rights. Following legislation in 1992, customary and commercial
regimes were established – the former through the Minister designating traditional fishing reserves
and a local guardian to manage their use. The commercial regime settled a number of outstanding
fishing claims, allocated 20 per cent of new species quota to Maori, provided a fund of NZ$22m,
delivered increased involvement in management, and most importantly financed the purchase of a
50 per cent share of Sealord Products Ltd, New Zealand’s largest fishing company, with 27 per cent
of the total resource quota (Durette 2007:13). The subsequent Maori Fisheries Act 2004 established
Te Ohu Kaimoana to manage the Maori Fisheries Trust, to fund appropriately mandated tribes and
to manage Aotearoa Fisheries Ltd which now has a 50 per cent holding in Sealord Products and fully
owns three other fisheries-related companies. It is estimated that today ‘Maori control an
estimated 40 per cent of the New Zealand seafood industry’(Durette 2007:14).
This international situation contrasts strongly with the loss of economic opportunities which have
faced Aboriginal fishers in New South Wales over recent years. This represents lost opportunities to
improve the health and wellbeing of Aboriginal people in New South Wales and Close the Gaps in
line with Federal and State government policies and targets, particularly relating to employment.
Recommendations
Whilst strongly supporting Recommendation 10 from the Audit Panel’s report, I would add some
further recommendations, which I have grouped in relation to the relevant recommendations in the
Audit Committee’s report.
Rec 1.
That the new arrangements for Coastal and Marine management comply with the
Convention on Biological Diversity (CBD), particularly Article 8(j) which commits parties to
the Convention to respect, preserve and maintain Indigenous knowledge, innovations and
practices with respect to biodiversity; and Article 10(c) which commits support to the
continuation of customary use of biodiversity by Indigenous peoples.
Rec 3
That a representative of the Aboriginal Fishing Advisory Council be represented on the
proposed Scientific Committee which is established to oversee strategic research. This will
enable Indigenous knowledge to be contributed to this Committee. This recommendation
also indicates that this Committee should consult with the community. It is important that
consultation with Aboriginal people is considered to be an important part of such
consultations and that consultations with Aboriginal communities are conducted in a
culturally appropriate way. An AFAC member on the Committee would be able to provide
advice on how to conduct such consultations.
Overall, Indigenous knowledge of coastal marine environments should be recognised and
given much higher value along with western scientific knowledge in the management of
coastal and marine environments.
Rec 4 (4.2)
That in developing data which would enable a better understanding of the social and
economic costs and benefits of marine parks, Aboriginal people participate in determining
the relevant data to be collected; that the social and economic costs and benefits of marine
parks to Aboriginal communities is clearly incorporated as part of this research agenda, and
the research is conducted in a culturally appropriate way, preferably by Aboriginal
researchers.
That educational strategies to enhance the management of the marine estate incorporate
Indigenous knowledge, and is two-way. That is, the educational work within the Aboriginal
community is carried out in a culturally appropriate way and Aboriginal people contribute to
the education of the wider community, particularly in relation to their customary sustainable
use of marine resources and the obligations of governments under the Biodiversity
Convention. Improved relations between marine park management and Aboriginal
communities is essential to achieving this.
Rec 5
In line with the point that Indigenous knowledge of coastal marine environments should be
recognised, Aboriginal people with traditional attachment to sea country and relevant
cultural knowledge should be involved in monitoring, evaluating and reporting on marine,
estuary and inshore environments.
Rec 6
More research is also required about the cultural fishing sector in addition to commercial
and recreational fishing, and Aboriginal people should be supported to develop greater
capacity to conduct this research themselves.
Aboriginal people should be involved in zoning decisions and wherever possible marine park
boundaries should coincide with Aboriginal traditional owner boundaries.
Rec 7
That in developing data which would enable social impact assessment and a better
understanding of the social and economic costs and benefits of marine parks, Aboriginal
people participate in determining relevant data to be collected; that the social and
economic costs and benefits of marine parks to Aboriginal communities is clearly
incorporated as part of this research agenda, and this social and economic research is
conducted in a culturally appropriate way, preferably by Aboriginal researchers.
Rec 8
There remain significant issues in relation to zoning in more than one marine park and these
are affecting Aboriginal people now. It seems somewhat unreasonable to make them wait,
at a minimum, another three years before these begin to be resolved. In light of the fact
that these issues have social and economic implications for highly disadvantaged Aboriginal
communities at least these matters should be dealt with as a priority.
Rec 9
Indigenous knowledge of coastal marine environments should be recognised and given
much higher value along with western scientific knowledge in the management of coastal
and marine environments. To this end, Aboriginal people with relevant cultural knowledge
should be represented on local scientific committees for the five marine zones proposed.
Rec 10
Whilst fully supporting this recommendation, there will be a need to support Aboriginal
Liaison Officers and Aboriginal Cadets through more senior Aboriginal staff placed within the
new Authority in a senior supervisory capacity. Such senior staff could be tasked with an
overall responsibility for advising across the Authority to ensure that Aboriginal matters
relating to marine and coastal management are fully incorporated into the policies and
practices of the new Authority. Capacity building of all staff of the new Authority in relation
to Aboriginal customary knowledge of sea country and cultural matters will be essential.
Recs 12-15
That the Aboriginal Fishing Advisory Council be formally recognised in any new Coastal and
Marine management arrangements to provide advice to any new Authority on Aboriginal
Fishing.
That a representative of the Aboriginal Fishing Advisory Council and a representative
nominated by Aboriginal people associated with NSW Marine Parks be represented on the
highest governance level of any new Coastal and Marine Authority.
That provision be made in legislation for future joint management of Marine Parks with
Aboriginal traditional owners , in line with the type of joint management arrangements in
place for selected National Parks.
That any new Authority work closely with the Aboriginal Fishing Advisory Council to
investigate ways to strengthen Aboriginal participation in marine biodiversity conservation
and marine economic development.
Rec 16
That compliance officers are educated about new regulations in relation to Aboriginal
cultural fishing, and that Aboriginal people be given the opportunity of employment in
compliance roles.
References
Aboriginal Fishing Advisory Council (2010) NSW Department of Primary Industries, Sydney.
<http://www.dpi.nsw.gov.au/fisheries/aboriginal-fishing/afac> viewed 29 November 2011.
Barnett, B. and Ceccarelli, D. 2007. As far as the eye can see: Indigenous interests in the East Marine
Planning Region. A report produced by C&R Consulting, Department of Environment and Water
Resources, Canberra.
Bruce Callaghan and Associates Pty Ltd 2003. A draft discussion document and action plan:
Developing the participation on Indigenous people in commercial fishing: A report commissioned by
NSW Fisheries, Fisheries, NSW
Bunjalung People of Byron Bay (Arakwal), The Bunjalung Byron Bay Aboriginal Corporation (Arakwal)
and NSW Marine Parks Authority. n.d. Memorandum of Understanding concerning the Cape Byron
Marine Park between The Bunjalung People of Byron Bay (Arakwal), The Bunjalung Byron Bay
Aboriginal Corporation (Arakwal) and The NSW Marine Park Authority, NSW Marine Park Authority,
NSW.
Cozens, Z. 2003. Involving Kooris on Marine Area Management: Improving relations and facilitating
communication, School of Resources, Environment and Society, Australian National University,
Thesis submitted for Bachelor of Arts (hons) Degree.
Cruse, B. Stewart, L. and Norman, S. 2005. Mutton Fish: The surviving culture of Aboriginal people
and abalone on the south coast of New South Wales, Aboriginal Studies Press, Canberra.
Durette, M. 2007. Indigenous property rights in commercial fisheries: Canada, New Zealand and
Australia compared, CAEPR Working Paper No.37, CAEPR, ANU, Canberra.
Department of Primary Industries (DPI). (n.d). Indigenous Fisheries Strategy and Implementation
Plan - December 2002, DPI, NSW, available at <www.dpi.nsw.gov.au/fisheries/info/nsw-ifs/nsw-ifs>,
accessed14th April 2009.
English, A. 2002. The Sea and the Rock Gives Us A Feed: Mapping and managing Gumbaingirr wild
resource use places, NSW National Parks and Wildlife Service.
Independent Scientific Audit of Marine Parks in NSW. 2011. Workshop 17 Summary. 2 December
2011, Parliament House, Sydney.
NSW Aboriginal Land Council. 2010a. New Fishing Laws – The first step in the right direction for
Aboriginal Fishers in New South Wales, Fact Sheet, New South Wales Aboriginal Land Council,
Sydney.
NSW Aboriginal Land Council. 2010b Response to Questions on Notice by Bev Manton, Chairwoman
for NSWALC, to NSW Legislative Council’s Select Committee on Recreational Fishing, Sydney, 26
October 2010.
New South Wales Marine Parks Authority and Yarrawarra Aboriginal Corporation (2006) Arrawarra
Headland and Stone Fish Traps: Meeting Place of Many Stories, NSW Marine Park Authority and
Yarrawarra Aboriginal Corporation, New South Wales.
National Oceans Office (NOO) 2002a. The South-East regional marine plan, National Oceans Office,
Hobart .
i
The two were Solitary Islands Marine Park and Cape Byron Marine Park. See Marine Park Authority website,
under ‘Consultation and Management’ for each park. http://www.mpa.nsw.gov.au/ accessed 21 March 2012.
ii
The Cape Byron MP has an Aboriginal advisory group, although it has not had many meetings; At Port
Stephens-Great Lakes the Worimi Knowledgeholders Aboriginal Corporation acts as an advisory group; at
Bateman’s Bay and Jervis Bay MPs, Aboriginal Advisory Groups were being developed but progress has now
stalled. Arrangements for Solitary Island Marine Park are complex because it covers many Aboriginal
communities. Information provided by Wally Stewart, former Aboriginal Liaison Officer, Marine Parks
Authority, by phone 13/3/2012.