The battle for ownership of the region's fisheries has reached a loggerhead, with the Commonwealth calling for a management plan to signed off by December 1 on the most lucrative industry: the tropical rock lobster fishery.
The issue of cultural rights has been keenly felt this year with Torres Strait Islander fishers suffering financial hardship when the fishery closed two months early on July 31. The total allowable catch limit, set from pre-season scientific research, had been met.
The formation of this management plan has been a contentious issue for the last decade. The Australian Fisheries Management Authority (AFMA) wants to implement a quota-based system which allocates a percentage of the annual catch to Torres Strait Islanders fishing under Traditional Inhabitant boat licences and the mostly non-Indigenous commercial sector.
But for many Torres Strait Islander fishers, this is an issue of sovereignty. They see the fishery as birthright that should not be shared with the commercial sector.
The other two fisheries in the Torres Strait are already 100 per cent Indigenous owned: since 2008 for the fin-fish; and 2014 for the bech de mer fishery.
The Torres Strait Regional Authority, the region's Commonwealth Indigenous representative body, has been actively trying to buy out the non-Indigenous commercial sector over the past four years, reducing its allocated licences to 37.88 per cent of total licences in the fishery.
However, even with just over a third of industry's licences, the non-Indigenous commercial fishers caught over 52 per cent of the stock.
That is because currently the total allowable catch comes under what's known as an Olympic quota, meaning it's a free-for-all until the quota is reached then the fishery is closed. Theoretically one licensed fisher could catch all or most of the stock in a season, and in the commercial non-Indigenous sector one licence holder, Kailis Seafoods, caught the lion's share this year.
With live-aboard vessels with large holding tanks, hookah lines, multiple tender boats and bigger budgets, the non-Indigenous commercial sector are able to catch stock quicker that the Traditional Inhabitant fishers who mostly freedive from dinghies.
The quandary the Commonwealth faces is that while agreeing to the aspiration of a 100 per cent ownership by Torres Strait Islanders, those with commercial fishing rights cannot be forced out of the industry.
Professor Stuart Kaye, Director at the University of Wollongong's Australian National Centre for Ocean Resources and Security, says the region's complex maritime laws makes it all a lot harder.
“The Torres Strait is probably the most complicated body of water in the world in terms of maritime law, the nearest comparison is the South China Sea,” he said.
“What is unique is not only the split jurisdiction between PNG and Australia, but also between state and federal governments overlaid with Native Title as well and the Torres Strait Treaty, which was formed by 14 pieces of legislation.”
Professor Kaye also said the Torres Strait Fisheries Act again makes this a “distinctive regime compared with the rest of Australia's fisheries, and now there are the implications of the Torres Strait Sea Claim as well”.
Torres Strait Islander fishers protesting in April. (Radio ‘4 Meriba Wakai’) Source: Facebook
The Torres Strait Sea Claim, a landmark 2013 High Court case that found that Traditional Inhabitants had non-exclusive Native Title Rights to fish commercially, is seen by many Torres Strait Islanders as proof of their sovereign rights to the fishery.
However the High Court also recognised the rights of the non-Indigenous commercial sector and that the Traditional Inhabitants licensees were still answerable to Australian fishing laws and regulations.
Since this case, Malu Lamar was formed, the prescribed body corporate that controls the 44,000 km of Torres Strait sea country recognised in the High Court ruling.
Malu Lamar successfully challenged AFMA's hookah ban earlier this year.
“We will be critically assessing the management plan and be giving our very strong views with our legal team,” Chair of Malu Lamar Maluwap Nona said.
“Malu Lamar as a trustee, it's our responsibility, our duty of care – every reef and every species on them is ours.
“This is a new chapter and what we need is a mindshift – we have the commercial rights of all these resources."
The Torres Strait Treaty ratified in 1985 also adds a layer of complexity, as not only does it recognise the shared territory between PNG and Australia in Torres Strait waters, but there is also a percentage split of the fishery as well, where PNG is entitled to 25 per cent.
This shared territory in known as the Protected Zone and covers nearly all the Torres Strait. It is managed by the the Protected Zone Joint Authority (PZJA), whose board consists of the TSRA Chair and the state and federal fisheries Ministers.
The PZJA has the authority to sign off on a management plan, but the TSRA has been resistant due to their constituents not agreeing to the plan.
However after this year's season, it seems the TSRA is coming to the table and agreeing to a quota-based management plan.
“To honour the words of Uncle Koiki Mabo, the sea, the fish, the prawns belongs to me and my people.”
Former Assistant Minister for Agriculture and Water Senator Anne Ruston said last month she is expecting the outcome of the plan will result in an Olympic quota system for the Traditional Inhabitant fishers and an Individual Transferable quota for the mostly non-Indigenous commercial fishers.
There is a concern the transferable quotas could drive up the price, as has happened in many other markets this system has been introduced, and would make buying the remaining non-Indigenous commercial fishers out of the industry until buy-out unattainable.
“They are all really legitimate concerns and are certainly concerns that have been raised with this particular debate about a management plan of the tropical rock lobster that's been on the table for a very long time,” Ms Ruston said.
She said Indigenous Affairs minister Nigel Scullion is working to ensure the buy-out for 100 per cent Indigenous ownership.
Following the Liberal party's leadership change, Senator Richard Colbeck was made the new Assistant Minister for Agriculture and Water. Mr Colbeck is reportedly a supporter of a quota-based system.
TSRA Chair Napau Pedro Stephen supports the aspiration of 100 per cent ownership of the fishery, but has agreed in principal to the management plan.
“To honour the words of Uncle Koiki Mabo, the sea, the fish, the prawns belongs to me and my people.”
As part of the consultation process, the TSRA held a fisheries summit on Thursday Island to discuss the aspiration of 100 per cent Indigenous control.
Gur A Baradharaw Kod Sea and Land Council is the PBC represents all the Torres Strait island communities, and its Chair, Ned David said it feels like they've been forced into a corner to accept the management plan.
“The government bails out farmers, why can't they just come one time and buy them out, instead of trying to rush us to make a decision – it just feels like groundhog day,” he said.
Traditional Islander fisher participants supported by Malu Lamar at the summit put forward a resolution that the PZJA implement a guaranteed sectoral split based on the percentage of license holders (66.18 per cent) before the commencement of the next season and that the aspiration of 100 per cent Indigenous ownership be given a prominent place in the development of the management plan.
It is expected the PZJA will draw up the plan next month and will be signed off before December 1, in time for the 2018-2019 fishing season, whether or not this resolution will be included remains to be seen.
