How diving for abalone could have landed this great-grandfather in prison
The ocean is Kevin Mason’s “medicine”. It heals him, clears his mind and keeps this quiet, 71-year-old Aboriginal elder fit.
He often pulls on a hooded wetsuit and dives deep into the blue on cold winter days, gathering seafood for his family at Narooma, on the far south coast of New South Wales.
“I love the ocean. Fresh water, salt water, I love it. It’s a place where you can hunt and gather quite easily for our mob, we’re sea people,” he said.
But hunting and gathering from the ocean — a practice he learned decades ago from his parents and grandparents — landed the great-grandfather in trouble with the law.
“I’m just feeding my mob, that’s all I’m doing, I share my catch with my family and people around me. They put a stop to that sort of thing,” he said.
Mr Mason’s case, which could have landed him in jail, has deeply angered Indigenous elders who want better legal protection for their community.
He was accused by Fisheries NSW of taking too many abalone and periwinkles in 2015, in breach of state regulations.
In NSW, bag limits give Aboriginal divers the right to take 10 abalone per catch, but fisheries officials alleged Mr Mason was found with 28 abalone.
He was charged with three offences, and if found guilty he faced a prison sentence.
Mr Mason was due to begin fighting his case in court this week, but two days before his hearing the Crown dropped the charges.
“The prosecutor considered the material and Mr Mason’s representations, and formed the view that the prosecution should be discontinued,” a spokeswoman for the Department of Primary Industries said.
For Mr Mason, who comes from a long line of Indigenous divers and hunters, this has been “another battle, another hurdle”.
He said he had regularly been in trouble with fisheries officers over the years.
“The stress of being prosecuted for what I’ve done nearly all my life, is mind-boggling,” Mr Mason told the ABC.
‘Native title right’ to fish
Mr Mason’s case, which has been watched closely by the Aboriginal community on the south coast, is one of dozens that have upset the Yuin people.
They are the traditional owners of that region of NSW, and have lodged a native title claim over their land and waters.
Australia’s first Indigenous senior counsel, Tony McAvoy, represented Mr Mason in his matter, as well as two other local men charged with similar offences.
He said there was a conflict between state fishing laws and federal native title legislation.
“The problem arises that compliance officers on the south coast of NSW are constantly clashing with Aboriginal people who are exercising their rights, their native title rights,” he said.
“Those compliance officers are bound by a system that doesn’t assume that those native title rights exist.”
He said the Aboriginal community on the south coast was under “immense pressure”.
“The tax on individuals and families and the community as a whole is significant,” Mr McAvoy said.
“People are doing what that they believe they’re entitled to do. They believe it’s their inherent right that’s passed down from their ancestors, and that they are being persecuted for exercising that right.”
Fishing laws adding to over-representation of Indigenous prison population
This issue has also caught the attention of Oxfam Australia, which analysed NSW crime data to reveal that dozens of Aboriginal people have been jailed for fishing offences in the past decade.
“NSW’s crime data shows that since 2010, 85 per cent of the people jailed for fishing offences are Aboriginal,” Indigenous policy adviser Paul Cleary said.
“The effect of this on families and communities is devastating, and this is yet another factor contributing to the appalling over-representation of Aboriginal and Torres Strait Islander people in jail.”
Wally Stewart, a Yuin community leader, said his people were known to have “a long relationship to the ocean”, and prosecutions for fishing offences had rattled the community.
“The Government’s nearly severed two generations of cultural fishermen and our culture down here, and we’re saying enough is enough, you’re destroying our way of life,” Mr Stewart said.
“Our diet has changed, we’ve got health issues, we’ve got people sent to jail for something that was natural to us.”
The number of Aboriginal people prosecuted for fisheries offences has reduced significantly since 2009, a spokeswoman for the NSW Department of Primary Industries (DPI) said.
But Oxfam Australia pointed to the increased number of prison sentences. In 2012, 10 Indigenous people were jailed for fisheries offences, compared with no non-Indigenous people.
After years of lobbying, the former state Labor government passed legislation in 2009 to allow for greater access to cultural fishing.
Almost a decade later, the laws have never been enacted.
Indigenous fishers are permitted under an interim arrangement to have greater bag and possession limits, the department said.
“Despite extended bag and possession limits, it is important the quantity of the catch is known as it can affect existing and future fish stocks, and how resources are shared between different stakeholders,” a spokeswoman said.
“This includes for abalone, which is particularly susceptible to overfishing.”
‘Abuse’ of cultural fishing limits
The commercial abalone industry, which was established in the 1970s across the New South Wales and Victorian coast, has a very different perspective to the Indigenous community.
It argues that illegal recreational or cultural fishing must be regulated.
“The big failure of the cultural fishing policy is that I don’t believe it’s being used for cultural reasons, the abalone is being caught in huge quantities, in commercial quantities,” said John Smythe, from peak industry group the Abalone Association of NSW.
A recent assessment by the DPI found about 40 per cent of abalone commercial fisheries were not complying with regulations.
Mr Smythe said there had been frequent cuts to commercial catch quotas during the past decade to protect the species from over-fishing, and the rules must apply to everyone.
“There’s got to be controls on what we can take, we’re controlled with our size limits, and our quotas, and our bag limits,” Mr Smythe said.
“To just open slather on any species is doomed for disaster.
“We’re seeing that improvement [in abalone numbers] and it certainly can be shared with recreational and Indigenous fishers, but it’s got to be under fair management.”