May 2021

The Nation Reviewed

A load of abalone

By Paul Cleary
Illustration by Jeff Fisher
The trial of Keith Nye highlights how fisheries laws unfairly target Indigenous people

If Australia was a fair-go country for First Peoples, Yuin nation elder Keith Nye, 64, might be a multi-millionaire looking forward to a comfortable retirement after decades of fishing for abalone in his traditional waters on the New South Wales South Coast. Instead, Nye is impoverished and looking down the barrel of a second jail term for trafficking them.

Since licences for the lucrative shellfish first became available in the early 1960s, the families that obtained them have made fortunes. But because Aboriginal people weren’t recognised as citizens at the time, the coastal people whose ancestors had fished for tens of thousands of years were locked out of the resource by aggressive fisheries authorities.

Aboriginal fishers are described as “poachers” by industry and government, and they have been jailed, fined and harassed for decades – even though analysis shows the Aboriginal catch is small when compared with the 100 tonnes of abalone officially taken by industry each year.

In a western Sydney police sting in January 2017, Nye was found with 434 undersize abalone after having just sold 128 to a Chinese restaurant. He was handcuffed, and his new car, which he had won in a raffle, was seized and has not been returned.

Previously sentenced to 17 months’ imprisonment for trafficking seafood, Nye could have cut a deal with prosecutors by pleading guilty. Instead, in a hot and stuffy courtroom in Liverpool, he chose to assert his right as a native title claimant to fish and trade on behalf of his community.

The Native Title Act 1993 enshrines the right of Aboriginal people to hunt, fish and gather for non-commercial ends. In August 2017, Nye’s community filed the “South Coast People” native title claim, covering about 16,000 square kilometres of land and sea, making it one of the most ambitious claims over populated areas in Australia. Taking in parts of southern Sydney and following the coast for 450 kilometres, it also reaches west into the Great Dividing Range and out to sea by three nautical miles. The National Native Title Tribunal accepted that “at least some of the claimed rights and interests have been established on a prima facie basis”. Native title cases generally take about a decade to come before the court.

The NSW government was given the opportunity to oppose the claim but declined to do so. In the meantime, it appears to want to make an example of Nye, and much is riding on the trafficking case, before the NSW Local Court, including whether there is a “common law right that may arise from Mabo” (as Magistrate Imad Abdul-Karim posed in relation to Nye’s activities).

To fight the case, the NSW government has engaged Dr Sarah Pritchard SC, who has an extensive background in human rights and Indigenous justice. (Pritchard says she accepted the brief in accordance with the “cab rank rule”, adding that it was not her decision to engage an additional junior counsel.) As many as six government legal and research officers have been glued to their screens as they followed the case via video link.

Nye is represented by a single barrister, John Waters. His defence centres on three key facts. First, the abalone found in the boot of his car was frozen because the load was the result of fishing by numerous Yuin people over a period of several weeks, with no evidence that any of them had exceeded their individual “bag limit” of 10 abalone per day. Second, the taking of undersize rather than large abalone is a sustainable approach practised by the Yuin because it spares the breeders, thereby allowing the abalone to recover. (The government’s rule of only allowing large adult abalone to be taken is potentially harmful to maintaining the stock.) And thirdly, numerous Aboriginal witnesses attested that the practice of trading seafood with non-Indigenous people had helped the Yuin survive the era of dispossession. This trading goes back to the early contact with white people, such as in 1811 when Governor Lachlan Macquarie visited the region and the Yuin traded fish for biscuits and tobacco.

Pritchard obtained a series of admissions from one witness about how Aboriginal custom emphasised harvesting no more than was needed, and she asserted that unnamed Yuin elders were opposed to trading. But Leanne Parsons, born in Moruya in 1961, told the court that “everyone done it to survive”. She described her traditional upbringing living at the North Head camp near the present location of Moruya Airport, 300 kilometres south of Sydney. The people living there had no power or water, said Parsons, and they regularly sold seafood to non-Aboriginal people.

Anthropologist Dr Natalie Kwok, who has researched the Yuin lifestyle and history extensively, told the court that many Aboriginal people were still uncomfortable in negotiating with Westerners but that Nye was able to move between both worlds. “He’s playing a role as a middleman and a leader in that way,” she said.

Like many other Aboriginal fishers along the coast, Nye is admirably fit and healthy. Traditional abalone fishing is a demanding task as it involves free diving around rocky headlands where each abalone is prised off with a knife. Some of the Yuin who dive with Nye are in their seventies, such as Kevin Mason, a great-grandfather who in 2018 was due to face court for taking 28 abalone in one catch. (The state dropped the case on the morning of the trial’s commencement.)

Data from the Bureau of Crime Statistics show that Nye and Mason’s predicament is sadly common: Indigenous people dominate criminal convictions for NSW fisheries offences. In the 10 years to 2017 (the latest available data), 25 of the 32 people jailed for these offences identified as Indigenous (or 78 per cent). As Indigenous people make up 3.4 per cent of the state’s population, this makes them 23 times over-represented. Of the 60 people convicted with bonds whose Indigenous status was recorded in the data, half identified as Indigenous, making them 15 times over-represented. 

More recently, the state government has been relentless in its prosecutions, even when it appears the intent is not to proceed to court. In the first nine months of 2020, 40 Aboriginal people were charged with fisheries offences that did not proceed, compared with only eight for non-Indigenous people. These charges are often accompanied by the confiscation of property, such as fishing gear. Tony McAvoy SC, a Wirdi man and Australia’s first Indigenous senior counsel, describes this large number of charges as “a form of racial discrimination”, with Aboriginal fishers “subject to harassment, arrest, [and] seizure of their property at a rate different to the rest of the population because of their Aboriginality”. He says this also amounts to a denial of the right to life because it is taking away food sources, adding that these rights are protected in binding United Nations human rights treaties to which the Australian government is a signatory.

The real issue is that governments around Australia have never sought to develop a policy to engage First Nations people in the fishing industry so that prosecutions might be avoided. Earlier this year, the South Australian government unveiled a so-called historic agreement with the Narungga people on the Yorke Peninsula for cultural fishing. But the chief executive of the Narungga Nation Aboriginal Corporation, Klynton Wanganeen, says his people are still locked out of the commercial catch. The abalone industry in his region was controlled by just six licences, with some worth as much as $8 million. He said nothing would change unless the federal government showed leadership. “Fishing is part of your blood, but you’ve grown up knowing you are locked out,” Wanganeen says.

Danny Chapman, a Walbunga man who represents Nye’s region on the NSW Aboriginal Land Council, says that state law has “turned Aboriginal people into criminals”. He says governments have to find a way to get Aboriginal people into the commercial industry “otherwise they will keep on being prosecuted”. The NSW minister for agriculture, Adam Marshall, declined to respond to questions, including on the extent to which fisheries enforcement prevented overfishing by commercial operators.

Speaking over lunch during a break in the case, Nye articulately summed up his aspirations. He appealed for justice and a fair slice of the prosperity of this country. “We want recognition of who we are. We don’t want the world; we don’t want the whole of Australia. We want to put our two bob into what goes on in this country.”

The case returns to court in July.

Paul Cleary

Paul Cleary is a policy analyst and author of five nonfiction books. He has a doctorate from the ANU for a thesis on Australia’s policy framework for managing its resources wealth and outcomes for Indigenous communities in the Pilbara.

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