Commonwealth Native Title Act and Qld fishing

[Ronje1]

The attached is a summary of the current state of play in Qld.

The effect is Qld wide and probably felt more outside the SE circle.

To me (as a rural legislative interpretative advocate) the relationship is simple. There is no inconsistency between the Commonwealth Act Native Title Act 1993 (NTA) and the Qld Fisheries Act 1994 in respect of native title holder fishing activities.

The NTA has a reputation of being complicated to the extent of only being able to be interpreted accurately by the High Court of Aus. My view is that is NOT the case in respect of a couple of prescribed native title holder activities (eg access to places to undertake traditional activities such as fishing, hunting, gathering, ceremonies..etc.

Naturally, traditional title holders using set gill nets illegally tend to raise the eyebrows of other fishers and the Qld Boating and Fisheries Patrol field staff receive many complaints along those lines.

In the end, everybody (rec fishers, commercial fishers, native title holders AND Qld Fisheries staff) ends up confused with what those laws actually provide and results in community angst, anger, dissatisfaction by the community and loss of credibility by Qld Fisheries.

Currently the subject is a mess in Qld exacerbated by Qld Fisheries Dept's failure to address the issue in 2008 and set the matter straight.

The mess is of Qld Fisheries own making and is now resulting in community calls to have the mess straightened out.

Interaction of the Commonwealth's Native Title Act occurs in EVERY State and Territory in Aus to varying degrees. As I live in Qld, I've examined the issue from a Qld perspective.

Attachment 122089

[gazza2006au]

The local non aboriginal people will know whos who and what the go is the anger will be coming from tourist and out of towners that dont see the reasons behind it

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[Ronje1]

No. The local non native title holders don't know. Nor do the native title holders. And especially the B&FP don't know either.

Native title holders in Qld are required to apply for a permit to use a net for special ocassions.

If there are no special activities like a traditional or customary ceremony, native title holders can still fish like everybody else BUT they must use recreational fishing gear (not a net). THAT'S the law.

If they want to use a net to gather fish for the ceremony, they need to apply for a permit like everybody else.

Yes there is anger here about it, but the anger is aimed at Qld Fisheries for not enforcing the law.

ALL members of the A&TSI communities in Qld are allowed by law to possess a net (80m long x 200mm mesh) but a permit is required for them to use it and then for special occasions only (ceremonies). Permits are only issued for the duration of the traditional ceremony (1 or 2 days).

These guys are running rampant believing they have unfettered rights to do what they want.

Here is the law S14 of the Qld Fisheries Act

14 Defence for Aborigines and Torres Strait Islanders for particular offences

(1)It is a defence in a proceeding against a person for an offence against this Act relating to the taking, using or keeping of fisheries resources, or the using of fish habitats, for the person to prove—

(a)the person is an Aborigine, who at the time of the offence was acting under Aboriginal tradition, or the person is a Torres Strait Islander, who at the time of the offence was acting under Island custom; and

(b)the taking, using or keeping of the fisheries resources, or the using of the fish habitats, was for the purpose of satisfying a personal, domestic or non-commercial communal need of the Aborigine or Torres Strait Islander; and

(c)depending on whichever of the following applies—

(i)for an offence relating to the taking or using of fisheries resources, or the using of fish habitats—the taking or using of the fisheries resources, or using of the fish habitats, was carried out using prescribed fishing apparatus in waters other than prescribed waters;

(ii)for an offence relating to the keeping of fisheries resources—

(A)the fisheries resources kept were taken using prescribed fishing apparatus in waters other than prescribed waters; and

(B)at the time of the offence, the fisheries resources were not in prescribed waters.

(2)However, subsection (1) is subject to a provision of a regulation that expressly applies to acts done under Aboriginal tradition or Island custom.

(3)In this section—

prescribed fishing apparatus means—

(a)fishing apparatus that is recreational fishing apparatus under a regulation or declaration; or

(b)fishing apparatus that is used under Aboriginal tradition or Island custom, and prescribed specifically under a regulation for the purpose of this section.

prescribed waters means waters—

(a)that are regulated waters under a regulated waters declaration; and

(b)that are prescribed specifically under a regulation for the purpose of this section; and

(c)where the taking of any fish, or the possession of any fish taken, by any person is prohibited.

[shaungonemad]

I like how they use their Tinny’s to chase turtles for food in a traditional way. And believe they can keep undersized fish.


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[gazza2006au]

No. The local non native title holders don't know. Nor do the native title holders. And especially the B&FP don't know either.

Native title holders in Qld are required to apply for a permit to use a net for special ocassions.

If there are no special activities like a traditional or customary ceremony, native title holders can still fish like everybody else BUT they must use recreational fishing gear (not a net). THAT'S the law.

If they want to use a net to gather fish for the ceremony, they need to apply for a permit like everybody else.

Yes there is anger here about it, but the anger is aimed at Qld Fisheries for not enforcing the law.

ALL members of the A&TSI communities in Qld are allowed by law to possess a net (80m long x 200mm mesh) but a permit is required for them to use it and then for special occasions only (ceremonies). Permits are only issued for the duration of the traditional ceremony (1 or 2 days).

These guys are running rampant believing they have unfettered rights to do what they want.

Here is the law S14 of the Qld Fisheries Act

14 Defence for Aborigines and Torres Strait Islanders for particular offences

(1)It is a defence in a proceeding against a person for an offence against this Act relating to the taking, using or keeping of fisheries resources, or the using of fish habitats, for the person to prove—

(a)the person is an Aborigine, who at the time of the offence was acting under Aboriginal tradition, or the person is a Torres Strait Islander, who at the time of the offence was acting under Island custom; and

(b)the taking, using or keeping of the fisheries resources, or the using of the fish habitats, was for the purpose of satisfying a personal, domestic or non-commercial communal need of the Aborigine or Torres Strait Islander; and

(c)depending on whichever of the following applies—

(i)for an offence relating to the taking or using of fisheries resources, or the using of fish habitats—the taking or using of the fisheries resources, or using of the fish habitats, was carried out using prescribed fishing apparatus in waters other than prescribed waters;

(ii)for an offence relating to the keeping of fisheries resources—

(A)the fisheries resources kept were taken using prescribed fishing apparatus in waters other than prescribed waters; and

(B)at the time of the offence, the fisheries resources were not in prescribed waters.

(2)However, subsection (1) is subject to a provision of a regulation that expressly applies to acts done under Aboriginal tradition or Island custom.

(3)In this section—

prescribed fishing apparatus means—

(a)fishing apparatus that is recreational fishing apparatus under a regulation or declaration; or

(b)fishing apparatus that is used under Aboriginal tradition or Island custom, and prescribed specifically under a regulation for the purpose of this section.

prescribed waters means waters—

(a)that are regulated waters under a regulated waters declaration; and

(b)that are prescribed specifically under a regulation for the purpose of this section; and

(c)where the taking of any fish, or the possession of any fish taken, by any person is prohibited.

And how do u know its not for a ceremony?

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[shaungonemad]

You can’t tell me that an 80m net is a traditional fishing method


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[gazza2006au]

Ron where in S14 does it say there allowed to use a 80 meter net? Above that is your own quote do u have anything to back this up? Also have u asked the people using the net if in fact they are commercial fisherman? I bet u havent

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[TheRealPoMo]

How do you know they are an Aborigine or Islander?
What's the criteria?
Do you just have to live in a recognised community?

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[gazza2006au]

I dont agree with a 80m net if its true but relying solely on traditional fishing no fish would be caught

300 years ago there would be bountifull fish in creeks and rivers where aboriginals would be able to spear the fish

A bit hard to spear a fish today without snorkles and a rubber ban loaded spear gun

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[gazza2006au]

Ron next time u see people out tradittionally fishing just pull them up and dont be a rude .... but talk to them ask questions learn about it rather than just judging them doing the wrong thing

For all u know they may have a commercial fishing license

I really dount someone in this day will use a drag net on a beach in front of 10's or hundreds of people illegally

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[Ronje1]

gazz, which State are you in?

[gazza2006au]

gazz, which State are you in?

NSW im also Aboriginal but trying to be neutral on this topic

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[Ronje1]

That's fine gazz.

I can assure you that in Qld, traditional owners (each and every one) can possess a gill net of up to 215mm mesh and up to 80m in length. I'll show you the law about it.

But if they want to use the net, it can only be for obtaining food for a traditional or customary ceremony AND it can only be in accordance with a permit for 1 off use issued by Qld Fisheries.

TOs misunderstand what the laws actually are. So they go out by boat or beach and set the nets giving people who do as you recommend (talking to them) the raspberry (to put it politely).

They're not simply using a dragnet on a beach. If they were, good luck to them. In addition, that's legal for everybody.

They can already lawfully use the same recreational fishing apparatus as everybody else. If they want extra fish for a ceremony or such, then they can get a one-off permit for 2 days or so to collect fish. Fair enough.

But some of these TOs simply want to catch fish to sell commercially and that's against the fisheries laws in Qld. They go around taking orders, then go netting to fill the orders.

They can approach Fisheries Qld to obtain a fisheries development permit to allow full scale commercial operations. Commercial operations have conditions attached to them I don't have a problem with that either. But they won't.

My problem (and that of many others) is that the sustainability of fish stocks that are being taken like that is simply not supportable.

We want Fisheries Qld to explain to TOs what the laws are all about, why and to stop the current rape and pillage of the stocks. Barramundi and threadfin.

At the same time, we want Fisheries Qld to explain to non-TOs what the laws are (they don't know either). Fisheries Qld don't want to do that (so far) so things are heating up.

The situation is a community mess of Fisheries Qld's making and we (the average fishing Joe) want it sorted out.

Can I send you a PM seeking some advice?

[Lovey80]

So in short. If you aren't a commercial fisherman with a licence for the net, being aboriginal is a defacto licence for being in possession of the net. But unlike a commercial fisherman an aboriginal needs to obtain a permit every time said net is used. The permit is granted for ceremonial purposes. No permit and get caught using it and you should be prosecuted as per any other person illegally using commercial fishing equipment.

Does that sum it up?

[gazza2006au]

That's fine gazz.

I can assure you that in Qld, traditional owners (each and every one) can possess a gill net of up to 215mm mesh and up to 80m in length. I'll show you the law about it.

But if they want to use the net, it can only be for obtaining food for a traditional or customary ceremony AND it can only be in accordance with a permit for 1 off use issued by Qld Fisheries.

TOs misunderstand what the laws actually are. So they go out by boat or beach and set the nets giving people who do as you recommend (talking to them) the raspberry (to put it politely).

They're not simply using a dragnet on a beach. If they were, good luck to them. In addition, that's legal for everybody.

They can already lawfully use the same recreational fishing apparatus as everybody else. If they want extra fish for a ceremony or such, then they can get a one-off permit for 2 days or so to collect fish. Fair enough.

But some of these TOs simply want to catch fish to sell commercially and that's against the fisheries laws in Qld. They go around taking orders, then go netting to fill the orders.

They can approach Fisheries Qld to obtain a fisheries development permit to allow full scale commercial operations. Commercial operations have conditions attached to them I don't have a problem with that either. But they won't.

My problem (and that of many others) is that the sustainability of fish stocks that are being taken like that is simply not supportable.

We want Fisheries Qld to explain to TOs what the laws are all about, why and to stop the current rape and pillage of the stocks. Barramundi and threadfin.

At the same time, we want Fisheries Qld to explain to non-TOs what the laws are (they don't know either). Fisheries Qld don't want to do that (so far) so things are heating up.

The situation is a community mess of Fisheries Qld's making and we (the average fishing Joe) want it sorted out.

Can I send you a PM seeking some advice?

Im probably not the best person to talk to maybe u should take it up with the people within the community speak to your local elders

Elders dont and wont support illegal fishing they want to respect the land and seas i think if people were selling the fish on the black market the older generation would simply not deal with that kind of take

Have u been to any group meetings in your area?

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