Frequently Asked Questions

‘Aboriginal cultural fishing’ is defined in the Fisheries Management Act 1994 as “fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational, ceremonial or other traditional purposes, and which do not have a commercial purpose”.

To find out more visit Aboriginal fishing

The purpose of the draft regulation is to support the commencement of section 21AA (a special provision for Aboriginal cultural fishing) and specify daily take and possession limits for Aboriginal cultural fishing purposes.

The draft regulation amends the Fisheries Management (General) Regulation 2019 to insert a separate new schedule that prescribes daily take and possession limits for fish and invertebrates to support Aboriginal cultural fishing.

The draft regulation is based on the current limits under the Aboriginal Cultural Fishing Interim Access Arrangement (Interim Access Arrangement) which have been in place since 2010. The final regulation, informed by public consultation, will replace the Interim Access Arrangement on commencement.

Specifically, the draft regulation will:

• prescribe daily take and possession limits for fish and invertebrates for Aboriginal cultural fishing.

• apply a general combined daily take and possession limit of 20 native freshwater finfish and 40 marine or estuarine fish, shellfish, worms, cunjevoi or any species not listed in the draft regulation.

• allow the shucking of invertebrates, such as abalone, rock lobster and turban shell, within 100 metres of the high-water mark if the invertebrates are consumed within that area.

• clarify that the daily take and possession limits for Aboriginal cultural fishing that are considered commercial quantities under the Fisheries Management Act 1994 do not apply if fishing under the Aboriginal Fishing Regulation.

The draft regulation is intended to apply statewide to Aboriginal people who are undertaking Aboriginal cultural fishing as defined by the Fisheries Management Act 1994 (FM Act).

The draft regulation will not change what native title holders can currently take.  Section 211 of the Native Title Act 1993 (Cth) provides native title holders with – in substance - an immunity from the limits in the draft regulation, where they are fishing in the exercise or enjoyment of their native title rights for the purpose of satisfying their personal, domestic or non-commercial communal needs.

The draft regulation will also not apply to Aboriginal people that have been provided extended access to fisheries resources through other Aboriginal cultural fishing support measures, such as permits or Ministerial Orders under section 37 of the FM Act or cultural use permits within marine parks and aquatic reserves under the Marine Estate Management Act 2014 (MEM Act).

‘Aboriginal cultural fishing’ and ‘Aboriginal person’ are defined, for the purposes of the FM Act as follows:

Aboriginal cultural fishing means fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational, ceremonial or other traditional purposes, and which do not have a commercial purpose.

An Aboriginal person is defined for the purpose of the FM Act as someone who:

(a)  is a member of the Aboriginal race of Australia, and

(b)  identifies as an Aboriginal person, and

(c) is accepted by the Aboriginal community as an Aboriginal person.

Once commenced the regulation will be periodically reviewed and if needed, revised in line with maintaining sustainable fisheries resources and meeting Aboriginal cultural needs. A formal review and remake of the regulation is required within five years of it being made.

Reviews of the limits for Aboriginal cultural fishing will involve consultation with the Aboriginal Fishing Advisory Council, Aboriginal stakeholders and communities, and seek to establish if any revisions would better protect and accommodate cultural traditions and practices while protecting the sustainability of the resource.

The draft regulation aims to provide certainty and clarity around management and sharing of the fisheries resources by all stakeholders.

The commencement of the regulation will be supported by a community education and awareness program to assist with voluntary compliance, noting this regulation aims to support Aboriginal cultural fishing across NSW.

In relation to Aboriginal people undertaking fishing for cultural purposes, Fisheries Compliance takes additional steps when undertaking compliance activity to ensure that Fisheries Officers’ engagement with Aboriginal people is appropriate and culturally sensitive.

Fisheries Officers undertake compliance activity pursuant to detailed work instructions which include recognition of the importance of fishing for Aboriginal people and existing arrangements available to support this as well as consideration of native title rights and interests.

Fisheries Officers will take a careful and considered approach to regulating provisions under the final regulation, via the assessment of three pathways relevant to Aboriginal people fishing practices in NSW.  The Fisheries Officers must establish whether:

• The person is fishing in accordance with their native title rights and interests, or

• The person is fishing in accordance with the Aboriginal Fishing Regulation (once commenced) or has a permit/order under the Fisheries Management Act and/or marine park or aquatic reserve permit under the Marine Estate Management Act and is fishing in accordance with that permit/order and its conditions, or

• The person is registered under an approved Aboriginal Cultural Fishing Local Management Plan and is fishing in accordance with the plan and associated section 37 Ministerial order.

Further detail on this approach is outlined in the Discussion Paper which can be accessed via www.dpi.nsw.gov.au/fishing/aboriginal-fishing/proposed-aboriginal-fishing-regulation

No. Where an Aboriginal Cultural Fishing Local Management Plan (and supporting section 37 Ministerial order) is in place, the limits and/or allowances in these will continue to apply to the people recognised in the relevant orders or permits.

In other words, if you are registered under a current Local Management Plan you can continue to fish under those limits and use fishing methods allowed for under the plan and supporting order.

Fishing and caring for Country has always been fundamental to life, cultural traditions and upholding cultural responsibilities for Aboriginal people for thousands of years, and plays a pivotal role in the social cohesion, kinship connection and communal life of Aboriginal communities, while also providing a sustainable and nutritious food source, especially for the elderly and family members with disabilities.

The draft regulation provides an opportunity to define separate daily take and possession limits that recognise the spiritual, social and customary significance of fisheries resources to Aboriginal people and to protect and promote the continuation of cultural traditions and practices, including for education, ceremonial and traditional purposes.

Having a specific regulation that sets out take and possession limits for Aboriginal cultural fishing, will provide clarity and certainty for Aboriginal people and the broader NSW community.

The limits in the draft regulation will also provide a baseline to inform future research and monitoring of Aboriginal cultural fishing trends, enabling knowledge and insights into Aboriginal cultural fishing to continue to grow.

The limits as set out in the draft regulation cannot be combined with the recreational fishing limits.

If fishing activity is related to an Aboriginal person fishing for cultural purposes, then the take and possession limits in the draft regulation apply.

If the fishing activity by an Aboriginal person is not being undertaken for cultural purposes, then the recreational limits apply as set out in the Fisheries Management (General) Regulation 2019.

A special provision to recognise and permit the cultural practice of shucking and consuming abalone, lobster and turban shells close to shore is consistent with the current Aboriginal Cultural Fishing Interim Access arrangement, which has been in place since 2010.

This allows Aboriginal people to continue to consume these species in situ, a cultural practice that has occurred over many thousands of years, as evidenced by shell middens along the NSW coast.

Yes. Aboriginal cultural fishing is a non-commercial fishing activity and can occur in recreational fishing havens.

If there is a need to consider Aboriginal cultural fishing activities that involve extension to fishing methods permitted in an RFH, it is done on a case-by-case basis and authorised using permits or orders under the Fisheries Management Act 1994.

Existing legislative provisions continue to apply including marine park and aquatic reserve management rules and zoning arrangements. If the management rules allow for fishing, then the Aboriginal cultural fishing take and possession limits proposed in the draft regulation apply.

Consent may be granted under the Marine Estate Management Act 2014 and supporting regulations in the form of a permit for cultural use in marine parks or aquatic reserves beyond what the limits provide, including in areas where management rules restrict fishing activities.

If a person is found to be not compliant with the regulation and not in accordance with any other permitted arrangement, then appropriate compliance action may be taken.

This consultation is focused on daily take and possession limits to meet cultural needs. Views on cultural fishing methods and practices will be sought during consultation.

Aboriginal Cultural Fishing Local Management Plans provide an alternative approach to reflect place-based cultural fishing arrangements, including defining local limits, fishing methods and cultural events. For more information on existing plans in place in the Tweed and Hastings areas see https://www.dpi.nsw.gov.au/fishing/aboriginal-fishing/aboriginal-cultural-fishing-local-management-plan

Section 37 and marine protected area permits can be sought to support Aboriginal cultural fishing activities and events beyond what the limits prescribe and for the use of methods that are not included in the draft regulation.

No. Aboriginal cultural fishing is defined (for the purposes of the Fisheries Management Act 1994) as fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational, ceremonial or other traditional purposes, and which do not have a commercial purpose.

Aboriginal cultural fishing under the FM Act does not include the sale, exchange or barter of fish and invertebrates. These elements of fishing are managed under the NSW commercial fisheries management framework.

No. The limits as set out in the draft regulation cannot be combined with the recreational fishing limits.

If fishing activity is related to an Aboriginal person fishing for cultural purposes, then the take and possession limits in the draft regulation apply.

If the fishing activity by an Aboriginal person is not being undertaken for cultural purposes, then the recreational limits apply as set out in the Fisheries Management (General) Regulation 2019.

Section 37 permits or Ministerial orders under the Fisheries Management Act 1994 or marine protected area permits under the Marine Estate Management Act 2014 can enable access to fisheries resources for Aboriginal cultural fishing purposes beyond what the limits prescribe or for the use of cultural fishing methods.

Aboriginal Cultural Fishing Local Management Plans (LMPs) can also provide for Aboriginal people or communities to develop and implement a management framework for their local place-based Aboriginal cultural fishing arrangements, with support provided by DPIRD Fisheries. LMPs can reflect locally negotiated daily take and possession limits and fishing methods and are given legal effect by Ministerial order under section 37 of the Fisheries Management Act 1994.

In 2009, the Fisheries Management Amendment Act 2009 (Amendment Act) passed the NSW Parliament. The Amendment Act included a number of amendments to the Fisheries Management Act 1994 (FM Act). These amendments commenced on 1 April 2010, except for section 21AA titled ‘Special provision for Aboriginal cultural fishing’ which has not yet commenced.

Section 21AA provides that an Aboriginal person is authorised to take or possess fish despite section 17 or section 18 of the FM Act (which specify offences for taking and possessing more than the maximum quantity of fish), if fish are taken or possessed for the purpose of Aboriginal cultural fishing.

This special provision for Aboriginal cultural fishing is subject to any regulations made under section 21AA. The regulations may prescribe the manner of taking fish by Aboriginal persons for the purpose of cultural fishing and specify restrictions on the quantity of fish of a specified species or class. Such regulations cannot be made unless the Aboriginal Fishing Advisory Council (AFAC) has been consulted on the proposed regulations.

At the time the Amendment Act was introduced in 2009, the then NSW Government’s intention was to commence section 21AA with an accompanying regulation to set appropriate fishing limits for Aboriginal people fishing for cultural purposes as part of the broader natural resource management approach for fisheries in NSW and to be consistent with the primary object of the FM Act to “conserve, develop and share the fishery resources of the State for the benefit of present and future generations".

Section 21AA has not commenced due to lack of consensus between government and Aboriginal peak bodies regarding the limits to be placed on Aboriginal people practising fishing for cultural purposes.

On 7 November 2022, a NSW Parliamentary Committee completed its inquiry into the commencement of the Fisheries Management Amendment Act 2009 (the Inquiry). The Committee received 49 stakeholder submissions and heard from a number of witnesses ranging from individuals, Aboriginal Land Councils, Aboriginal fishing groups, recreational fishing groups, universities, and the NSW Government.

The Committee’s view was that section 21AA should be commenced with a supporting regulation, to ensure fishery stocks are managed appropriately and sustainably into the future. The Committee made the following recommendation regarding an Aboriginal cultural fishing regulation:

Recommendation 4 - That the NSW Government commence Schedule 1 of the Fisheries Management Amendment Act 2009 by 30 June 2023 and take immediate steps to develop a supporting regulation in consultation with Aboriginal communities and peak bodies, and other stakeholders.

The NSW Government is committed to implementing the recommendations of the Inquiry.

The NSW Government’s position on section 21AA of the Fisheries Management Amendment Act 2009 has always been that it would not commence without asupporting regulation setting out take and possession limits in order to sustainably manage the fisheries resource.

On 7 November 2022, a NSW Parliamentary Committee completed its inquiry into the commencement of the Fisheries Management Amendment Act 2009, relevant to this issue (the Inquiry). The Committee received 49 stakeholder submissions and heard from a number of witnesses ranging from individuals, Aboriginal Land Councils, Aboriginal fishing groups, recreational fishing groups, universities, and the NSW Government.

The Committee’s view was that section 21AA should be commenced with a supporting regulation, to ensure fishery stocks are managed appropriately and sustainably into the future. The Committee made the following recommendation regarding an Aboriginal cultural fishing regulation:

Recommendation 4 - That the NSW Government commence Schedule 1 of the Fisheries Management Amendment Act 2009 by 30 June 2023 and take immediate steps to develop a supporting regulation in consultation with Aboriginal communities and peak bodies, and other stakeholders.

The NSW Government is committed to implementing the recommendations of the Inquiry.

The draft regulation will not change what native title holders can currently take.

Section 211 of the Native Title Act 1993 (Cth) provides native title holders with – in substance - an immunity from the limits in the draft regulation, where they are fishing in the exercise or enjoyment of their native title rights for the purpose of satisfying their personal, domestic or non-commercial communal needs.

The draft regulation does not authorise an Aboriginal person to do anything that is inconsistent with native title rights and interests under an approved determination of native title or with the terms of an indigenous land use agreement, within the meaning of the Native Title Act 1993 (Cth

The draft regulation is being developed with the intention of being applied to Aboriginal peoples fishing for cultural purposes in NSW.

‘Aboriginal cultural fishing’ and ‘Aboriginal person’ are defined, for the purposes of the FM Act as follows:

‘Aboriginal cultural fishing’ means fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational, ceremonial or other traditional purposes, and which do not have a commercial purpose.

Note Aboriginal cultural fishing under the FM Act does not include the sale, exchange or barter of fish and invertebrates. These elements of fishing are managed under the NSW commercial fisheries management framework.

An ‘Aboriginal person’ is defined for the purpose of the FM Act as someone who:

(a)  is a member of the Aboriginal race of Australia, and

(b)  identifies as an Aboriginal person, and

(c) is accepted by the Aboriginal community as an Aboriginal person.

The draft regulation does not permit the take of threatened species of fish or invertebrates within the meaning of Part 7A of the Fisheries Management Act 1994. The draft regulation does not permit the take of fish or invertebrates that are protected from recreational fishing under section 20A of the Fisheries Management Act 1994 and the Fisheries Management (General) Regulation 2019.

Information on listed threatened and protected species of fish can be found at https://www.dpi.nsw.gov.au/fishing/recreational/fishing-skills/responsible-fishing-guidelines/threatened-and-protected-species

There is a broad suite of existing arrangements currently in place to support fishing by Aboriginal people under the NSW fisheries management framework, they include:

• The statewide Aboriginal Cultural Fishing Interim Access Arrangement (ACFIAA), which allows for extended take and possession limits (such as Abalone which is provided for at five times the recreational limit (i.e. 10 per person per day)). These arrangements have been in place since 2010.

• Section 37 permits or Ministerial Orders issued under the Fisheries Management Act 1994 (FM Act) provide for cultural activities which are outside of what the rules prescribe, and beyond what the interim access arrangement provides for.

• Marine park or aquatic reserve permits under the Marine Estate Management Act 2014 can be issued for cultural use within a marine park and aquatic reserve.

• Aboriginal Cultural Fishing Local Management Plans (LMPs) and supporting section 37 Ministerial orders issued under the FM Act provide an opportunity for Aboriginal people or communities to develop and implement a management framework for their local place-based cultural fishing arrangements, with support provided by DPIRD Fisheries.

• The Aboriginal Fishing Trust Fund which provides grants and loans for the enhancement, maintenance and protection of Aboriginal fishing for cultural purposes as well as for Aboriginal people or communities to develop businesses associated with fisheries resources throughout NSW (such as commercial fishing, seafood processing, aquaculture or cultural tourism).

For more information visit Aboriginal fishing.

We will be hosting information sessions to further describe the draft regulation and supporting mechanisms for Aboriginal fishing along with facilitating discussion and feedback. An independent Aboriginal engagement and facilitation specialist has been contracted by DPIRD to support the discussion and feedback from these sessions.

If you wish to participate in an information session, please visit the DPIRD Fisheries website at www.dpi.nsw.gov.au/fishing/aboriginal-fishing/proposed-aboriginal-fishing-regulation