Traditional

Aboriginal and Torres Strait Islander people have developed a close, interdependent relationship with the land, water and living resources of Australia through traditional fishing practices over tens of thousands of years. That relationship includes customary rights and responsibilities of particular indigenous groups to particular areas of land, water and resources. Some of these customary rights and responsibilities are now recognised in Australian common law and through native title legislation.

Commercialisation of fisheries and expansion of recreational fishing have affected some traditional fishing. For example, commercialisation of intertidal molluscs in the 1970s, on top of their heavy harvesting by recreational gatherers in some areas, led to restrictions being imposed on what had been an Aboriginal subsistence fishery for thousands of years. Expensive commercial licences and strict recreational bag limits have made it difficult for some Aboriginal fishers to continue their traditional fishing.

Social factors relating to the traditional sector

Many Aboriginal and Torres Strait Islander people share traditional marine and freshwater foods among extended families. This practice helps to continue the customary relationship between indigenous people and their environments, and to strengthen their ties of kinship.

Traditional fishing is increasingly being addressed in fisheries management plans. Fisheries legislation provides varying recognition of native title fishing rights, in many cases without specifying what those rights may be.

In some Australian jurisdictions, Aboriginal and Torres Strait Islander fishers are exempt from fisheries regulations when they fish according to customary laws and traditions. These exemptions typically apply only to subsistence fishing.

Since the 1992 decision by the High Court of Australia in the Mabo Case, which recognised the existence of native title in Australia, there has been increasing impetus for implementation of indigenous access to fisheries. The Native Title Act 1993 provides for the possibility of native title in the sea, while confirming government ownership of water and minerals and restricting native title rights to non-commercial, subsistence use of living resources. The courts have decided that non-exclusive right can be claimed over parts of the sea and that this right includes hunting living marine resources according to local customary laws and traditions.

Further, a 1999 High Court decision (the Yanner Decision) confirmed that Aboriginal and Torres Strait Islander people may claim a right under native title to hunt living resources according to local customary law. This decision has implications for recognition of indigenous people's rights and interests in fisheries management.