Australia Kevin Mason's backyard becomes battleground for Aboriginal fishing rights, native title

04:06  15 september  2021
04:06  15 september  2021 Source:   abc.net.au

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Kevin Mason's mates always ask why he has never been taken by a shark — he has swum with them all over seven decades, dodging white pointers and tiger sharks.

As a child, his grandfather showed him "the old tribal ways": how to read the ocean, duck and weave in and out of the currents, and, most importantly, how to catch a feed.

However, lately the ocean has become a battleground for his people, and the elder is getting weary.

"If I'm not around, who's going to feed my people?" he said.

This battleground came to a head in a confronting moment — something that "scared the daylights" out of this 74-year-old Aboriginal great-grandfather — and was all captured on camera.

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As Mr Mason dived in the ocean at Narooma, on the New South Wales South Coast, in October 2018, a Fisheries NSW compliance officer was watching on the cliffs above. He then chased Mr Mason into the sea.

In body-worn camera footage of the incident obtained by the ABC, the Yuin elder — who was hunting to feed his family — pleads to keep the abalone he has caught.

"You know the rules here. I'm a native title holder. Don't touch my food," Mr Mason says in the video. "Don't get nasty with me please."

The officer replies: "Kevin, I'm not going to hurt you, just stop obstructing me."

Two years after the incident, Mr Mason was charged.

But he wasn't charged with a fisheries offence.

Instead, he was charged with resisting arrest and swearing at the compliance officer and a police officer on the beach.

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Mr Mason's case will go before court this week. If found guilty, he faces conviction and a fine for allegedly obstructing the compliance officer.

The Department of Primary Industries (DPI) deputy director-general Sean Sloan defended the officer's actions, and said abalone was a "high-value species, susceptible to illegal activity".

"Our fisheries officers are there in the field," he said. "They've obviously got a difficult job."

However, Mr Mason insists, he had done nothing wrong because he was catching food for his "grannies" — his great-grandchildren -- a practice passed down to him from his ancestors.

'It's just destroyed our way of life'

Mr Mason's fight is at the heart of a long-running dispute over Aboriginal people's right to hunt and gather in the waters where they have lived for tens of thousands of years.

His case is a window into the strained relations between the state government's fisheries officers, the abalone industry and First Nations people.

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There are strict bag limits for catching abalone — Aboriginal people are permitted 10 abalone per catch per person in New South Wales.

Fisheries NSW officers are constantly clashing with Yuin people, who insist they are exercising their rights under Commonwealth native title legislation to take what they like on their country.

Dozens of Aboriginal people were charged last year, according to the NSW Bureau of Crime Statistics.

Mr Sloan told the ABC fisheries officers would continue to monitor Aboriginal divers to make sure their catch was being used for "cultural" and not "commercial" means.

He said the government needed to manage the stocks on behalf of the "whole community".

"We absolutely support and respect the rights of all Aboriginal communities and people to practise native title on their sea country," Mr Sloan said.

Hundreds of Yuin people have had interactions with fisheries officers in the past decade, according to Wally Stewart, a fishing rights advocate.

He said these interactions have led to fines, cautions and jail time.

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"It's basically nearly severed two generations of cultural fishing," Mr Stewart said. "It's just destroyed our way of life."

Lawyers for Indigenous people being charged under the Fisheries Management Act say the state government is using its considerable resources to prosecute people trying to feed their families.

The nation's first Indigenous senior counsel, Tony McAvoy, said what had happened on the South Coast could make Yuin people reluctant to carry out their cultural practices.

"The right of peoples to engage in subsistence activities to obtain their food is something that's recognised in international law," he said.

"It's as if the offices of the Department of Primary Industries, the fisheries enforcement officers and the police officers [have] not been trained to understand what native title fishing rights are."

The DPI said its fisheries officers were required to undertake cultural awareness training.

Industry vs traditional ownership

The Yuin are adamant their people have a right to decide what happens with their resources and how they are used, including for commercial purposes.

Mr Sloan said the state government was working towards a "stronger pathway for Aboriginal communities to participate in commercial fisheries".

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However, traditional owners are looking at another way to regain full fishing rights on their country.

The Yuin people have registered a native title claim covering a huge swath of the New South Wales coastline.

Stretching from southern Sydney down to the Victorian border, the claim also goes three nautical miles out to sea.

The state government has not opposed the Yuin people's native title claim, but Mr Stewart says Aboriginal people are still being harassed.

"We'll probably get a determination, but it hasn't slowed Fiisheries [NSW] down," he said.

"[The charges] are still the same. They just keep looking after that abalone industry."

NSW Abalone Association secretary John Smythe said Aboriginal people had been prosecuted because they took more than what was "allowed".

"It doesn't matter whether [they're Aboriginal] or not, any person exceeding those sustainable limits set for both the recreational or the cultural fishing sector, it's illegal and they should face court," he said.

Mr Smythe argued that quotas were necessary to ensure sustainable fishing practices but, he said, he would be open to increasing bag limits for Aboriginal people for feeding their families.

"Our understanding has always been that [Aboriginal people] do have a native title right, however, it's not for sale," Mr Smythe said.

The abalone industry takes 100 tonnes a year in New South Wales, according to Mr Smythe.

Mr Stewart said his people had been fishing for thousands of years before the Fisheries Management Act was established and before the arrival of the commercial abalone industry.

"This is my country and they're telling me they can just come here, take my resources away and tell me that I can't do this and I can't do that," he said.

"They put a bag limit on us to feed our whole families.

"Our mob would be lucky to take three or four tonnes between the whole lot of us.

"I've always had that right by my people [to hunt] and to gather."

'Who's going to feed my people?'

In 2018, the ABC followed Mr Mason's case as he prepared to use a native title defence to fight allegations he had taken too many abalone.

The charges were dropped at the 11th hour.

"[My law] has always been there," he said.

"Whether there's a licence or not, I've always had that right by my people to hunt, gather and feed my family."

Even after prosecutions and multiple interactions with compliances officers and police, Mr Mason is refusing to give up fishing and diving.

"I'd be giving up my culture, my rights to be who I am. I would never give that away," he said.

"They'll never take that away from me."

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