South Coast cultural fishermen feel persecuted and harassed

"I'm only allowed to go there and swim. I can't hunt and gather," John tells me. "There's no reason going and taking this boy because I can't show him, I can't catch a lobster and put it in a rock pool for him to play with."

"It's really affected my life."

John is a Walbunja man and an Aboriginal fisherman from the South Coast.

Listen to the full story on the podcast Voice of Real Australia.

John was fined $35,000 and given a two-year suspended jail sentence with 12 months probation after being apprehended with two bags of abalone weighing 9.67kg.

He's not allowed to fish for two years. He can't carry diving gear on him or in his car.

"He likes to take his little goggles to the beach," John says as he lifts James into his arms.

"[James] has a snorkel and a wet suit and little flippers. But I'm not allowed to hold any of it in my car."

Fishing and harvesting were big parts of John's life growing up, traditions he's passed on to his children.

John is appealing against the conviction.

The South Coast of NSW is famed for its cool sapphire waters and wild beaches. It is internationally acclaimed for its seafood: oysters, lobsters, abalone.

People have been fishing this coast for millennia. There's evidence of middens dating back 20,000 years. The South Coast people, the clans of the Yuin Nation, continue this fishing culture, passing on their traditions, knowledge and science.

Fishing remained an important part of Aboriginal culture after colonisation. Trading and selling seafood provided a way to survive dispossession.

Cultural fishing is recognised and protected at a Commonwealth level in the Native Title Act 1993.

But there's a disconnect between this Native Title protection and state legislation. The Fisheries Management Act 1994 recognises cultural fishing, but it doesn't consider it a defence.

John went into court ready to prove his genealogy and provide evidence of cultural fishing traditions. But, he tells me, the prosecution focussed on Fisheries bag limits.

John seemed particularly affected by the magistrates' accusation that he's harming his Sea Country.

"I'm going through a lot of stress now, depression and anxiety. The way they've put these allegations on me they make out I'm this bad person, I'm taking everything from the ocean, I'm destroying the marine environment."

A couple of hours down the coast at Kianga Beach near Narooma I meet Kevin Mason.

Kevin is a Yuin elder and at 75 years old he's still diving.

"I've been in the water all my life and I love it."

"Back in the early 50s I started diving when [my father and grandfather] shoved me in the water and they said 'you gotta swim if you don't swim you don't feed yourself'."

As a kid Kevin's family moved around a lot. When he was little he didn't understand why. Later he learnt they were on the run so that he and the other children couldn't be taken away.

"We were all hanging in the trees, about 15 of us. And these big cars came in, on the mission, and just grabbed kids randomly. Girls and boys. And just took them away, put them in the car, and I never seen them again."

Kevin feels like he's still being hunted down today. He has been prosecuted three times in five years with all prosecutions withdrawn. He gets picked up for offences he's only just had thrown out.

The great-grandfather made headlines after a video of his confrontation with a Fisheries officer in 2018 was leaked to the ABC.

Just like John, Kevin was caught with abalone.

The shellfish is traditional bush tucker but it's also $170 per kg on the commercial market. It's a $150 million dollar industry with most commercially caught abalone exported to Asia.

There are interim cultural bag limits for Aboriginal people which allow them to fish more than non-Indigenous recreational fishers. Cultural fishers can also request permits to collect even more for special events. The cultural bag limit for Abalone is 10.

Kevin doesn't recognise this limit.

"I've got 20 [people] in my mob. And not only that I've got some oldies, down in Bermagui, they live in Nowra, they live in Eden.

"These are people that can't get in the water. I'm the only one who's still doing it, I drop them off a feed."

Culturally there's an expectation that you share what you catch. Many families might rely on just a few good fishers in a community. Losing those providers can lead to social breakdown.

Kevin's experience of being charged and then having his charges dropped is not unique.

Crime data collated by Oxfam revealed in the last 18 months 70 Aboriginal fishers have been charged with Fisheries offences only to have their cases thrown out. And this pattern was not the same for non-Indigenous offenders.

"In an area just a couple of hours drive from Sydney you've got people living in a virtual stage of siege," says Paul Cleary, policy and advocacy lead for Oxfam's First Peoples program.

Walbunja man and cultural fishing rights advocate Wally Stewart says it amounts to harassment.

"They've got an abalone SWAT team down here and they run around chasing blackfellas around. We try to tell them we're traditional owners and they choose to ignore it."

The Oxfam data also found that Aboriginal people made up 80 percent of imprisonments for Fisheries offences since 2009. Considering they are 4 percent of the South Coast population, that's a huge overrepresentation.

"That's a pretty extreme case of injustice and also bias in the legal system and in the policing and enforcement of those laws," says Paul.

The Department of Primary Industries told Voice of Real Australia that it's a misconception that Aboriginal people are being targeted for fisheries offences.

DPI Fisheries says it's contributed significantly to supporting, protecting and fostering cultural fishing activity across the state. And that it manages fisheries resources on behalf of the whole community, to ensure that fish stocks are sustainable and shared equitably between all fishing sectors, including cultural, commercial and recreational fishers.

John Smythe, secretary of Abalone Association of NSW says it supports cultural fishing. He just wants it to be regulated.

"We certainly don't put pressure on the government to crack down on cultural fishing."

"But what we don't support is the large-scale taking of abalone, by anybody that's not within that regulated system because it threatens the stability of the resource."

John Smythe alleges cultural fishing has been used as a front for poaching.

Wally is one of the applicants for the South Coast Native Title claim filed in 2017. The claim is still being determined but it was registered with no objection from the state, and it looks likely they'll get it.

The claim covers 16,000 square kms of land and sea. It follows 450kms of coast from south of Botany bay to Eden near the Victorian border and goes 5.5km out to sea.

Wally is part of a call to stop prosecutions until the claim is determined.

He says the Native Title claim would not have been so strong if his people had stopped fishing.

"This is the beauty about my mob, we're a stubborn mob, it's in them to keep going back."

"And if they didn't and we let this government in New South Wales keep intimidating us and prosecuting us, that could have severed our Native Title."

Another thing Wally is pushing for is the enactment of Section 21AA of the Fisheries Management Act. This amendment from 2009 provides a cultural fishing defence. This is the legislation missing to recognise Native Title defence of Fisheries offences. Section 21AA was approved nearly 12 years ago but it's still waiting to be written into law.

Last week a motion to enact 21AA, brought by the opposition, was passed unanimously. But the motion doesn't provide any more power than the current government already has.

Alongside the motion an inquiry was announced looking into why 21AA hasn't been written into law. The inquiry is chaired by the shooters, fishers and Farmers Party's Mick Banasiak.

John Carriage hopes the motion will help with his appeal set for February.

Kevin says no one will stop him from diving.

"I'm just waiting for things to warm up then I'll get back in the water," he says.

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