A New South Wales parliamentary inquiry examining the 13-year-delay in commencing legislation to protect Indigenous cultural fishing has handed down its findings.
In its report released on Monday, it found that the government had "failed to effect the will of parliament" by not commencing the legislation, known as section 21AA of the Fisheries Management Amendment Act.
It also found compliance activity and prosecutions against Indigenous people for practising cultural fishing were "unacceptable and creating perverse outcomes" that were inconsistent with the government's own Closing the Gap targets.
The inquiry's chair, Mark Banasiak MLC, said it was clear a comprehensive training package was needed to better educate NSW Fisheries compliance officers about cultural fishing.
"To make sure that when they're dealing with this issue of cultural fishing that it's done in a respectful way and that compliance is done in a respectful way," he said.
"Because clearly, that hasn't been happening."
The report called for an independent review of the culture within the fisheries compliance division of the NSW Department of Primary Industries (NSW DPI) to identify any cultural problems and implement necessary changes.
The inquiry held two public hearings earlier this year and received dozens of submissions from stakeholders.
During the inquiry, Indigenous fishers detailed their experiences of targeting and harassment by compliance officers on the NSW South Coast.
In response to that evidence, the report recommended the NSW DPI immediately cease all surveillance and prosecutions of Aboriginal cultural fishers.
Data shows stark picture
Walbunja man John Carriage junior grew up witnessing his father and elders being repeatedly stopped and searched by fisheries compliance officers, and fined and jailed for practising the cultural traditions they passed down to him.
The 21-year-old narrowly escaped a criminal conviction himself when charges against him were dropped in September this year.
"It really has damaged me, it's sort of made me not want to jump in the water any more," Mr Carriage said.
"I've slowly stopped providing for my family because it's just got to the point where I'm going go to jail."
He is one of hundreds of Indigenous divers who have faced prosecution since section 21AA was passed to recognise Aboriginal cultural fishing.
Data obtained by Oxfam Australia from the NSW Bureau of Crime Statistics and Research showed that 563 charges were brought against Aboriginal fishers since the 2009 legislation was passed.
A third of those charges were later dismissed or withdrawn, more than double the rate for non-Indigenous people.
"In the past two years alone, there have been more than 80 charges against Aboriginal people that didn't proceed," said Paul Cleary, policy and advocacy lead at Oxfam Australia.
"That is really the government using the justice system as a form of harassment and intimidation."
Move to shore up enforcement powers
Ahead of the inquiry handing down its report, the government introduced a new amendment to the Fisheries Management Act to clarify the search and seizure powers of fisheries enforcement officers.
The move was met with fierce opposition from Indigenous fishing rights advocates.
In response to questions from the ABC, the NSW DPI said the proposed changes "will not impact on Aboriginal people practising cultural fishing and do not change how our Fisheries Officers undertake their compliance operations or increase their powers".
According to NSW DPI, fisheries compliance officers already have the power to enter premises without a warrant and require information relevant to potential charges, prior to charges or arrest.
Wirdi man and barrister Tony McAvoy SC was critical of the timing of the new amendment, while section 21AA had still not been enacted.
"We are in a situation where Aboriginal people, who have a lawful right [under Commonwealth native title law] to take fish in the quantities that their traditional lore and custom allow, are being subjected to very invasive processes," he said.
He added that fisheries officers were not subject to the regular oversights that police officers were subject to.
Call to act before NSW election
The report has recommended that the NSW government commence section 21AA by June 30 next year.
But Mr McAvoy said the government now has an opportunity to take action before the March 2023 election.
"To allow this issue to drag on and be dealt with by the next government would be a sorry indictment on the political process in New South Wales," Mr McAvoy said.
