Indigenous fishermen in the Torres Strait believe laws meant to discriminate positively in their favour are having the opposite effect and have taken legal action against the federal government.
With the Torres Strait's rock-lobster season starting this month, Melbourne-based lawyers representing the traditional owner-fishers have advised them that restrictions on how they structure and run their businesses may contravene the Racial Discrimination Act.
The fishery is run by the Protected Zone Joint Authority, which is overseen by federal agency the Australian Fisheries Management Authority (AFMA).
At the heart of the dispute is AFMAs requirement that the Torres Straits traditional-owner rock-lobster licence holders can only employ Indigenous crews from the Torres Strait region to work on their boats.
This has allowed non-Indigenous commercial rock-lobster fishers, who regularly employ labour from outside the Torres Strait region to crew their much larger boats using multiple tenders, to take a greater proportion of the tightly regulated catch.
AFMAs rules also require a licence for an Indigenous fisher to be held in the name of an individual, whereas licences available to non-Indigenous fishers can be held in the name of a company or partnership if the licensee wishes. Indigenous fishers often pay more tax as a consequence.
The shared Torres Straits rock-lobster fishery operates under one of the worlds most complicated series of laws, involving the Australian, Papua New Guinean and Queensland governments.
Patrick Mills, the president of the association representing Indigenous commercial fishers in the Torres Strait, said members had not been able to operate larger boats with multiple tenders as they had been unable to hire enough Indigenous crew to do so.
He said approaches to AFMA made by the association and Indigenous fishers over the years to lift the ban had fallen on deaf ears.
“We thought they were here to regulate us. But they are here discriminating against us,” Mr Mills said.
Tensions between traditional owner-fishers in the Torres Strait and AFMA have been rising in the past year after the regulator extended its ban on the use of hookah breathing equipment, which maximises the catch an operator can take. AFMA also closed the rock-lobster season two months early.
These actions were deemed necessary by AFMA in order to prevent the total allowable catch from being exceeded before the end of the 2018 season.
Although only about 12 non-Indigenous (TVH) licences were active in the 2018 season, compared with about 300 Indigenous licences, the non-Indigenous sector took significantly more than half of the total allowable catch for the 2018 season.
The claim of racial discrimination is one of the issues raised by a recent Federal Court action taken by Torres Strait Indigenous prescribed body corporate, Malu Lama, which is seeking a judicial review of a decision to impose a management plan on the fishery.
Under the proposed plan, beginning this month, quotas of the total allowable catch between commercial non-Indigenous and Indigenous participants will be allocated for the first time.
Chairman of Malu Lama and rock-lobster fisherman, Maluwap Nona, said the Torres Strait traditional owner-fishers believed they were getting a raw deal.
“We feel like we are treated as 22 per cent Australians for all the conditions attached to our licences. But our non-Indigenous counterparts are treated like full Australian citizens because of their conditions,” Mr Nona said.
In a letter sent last week to Assistant Agriculture Minister Richard Colbeck and AFMA, Malu Lamars solicitor Shayne Daley referred to traditional-owner licence holders' inability for several years to secure enough Indigenous crew.
This had left several boats underused or lying idle, Mr Daley wrote.
“We consider the differing licence conditions … breach the Commonwealth Racial Discrimination Act, Mr Daley wrote. “Fully crewed, these boats would, in total, be able to catch something in the order of a further 50 or more tonnes of lobster each season.”
Mr Daley emphasised the necessity for traditional licence holders to be able to increase the size and scale of their operations by being able to use non-Indigenous crew.
AFMA has been resisting calls to drop the requirement that traditional licence holders employ only Indigenous labour because it believes that to do so would reduce employment opportunities for traditional inhabitants.
The Australian Government Solicitor, which has been representing AFMA, responded to Mr Daleys letter by stating: “If this requirement were not imposed, Indigenous Australians in that region are likely to have fewer employment opportunities in the TRL Fishery and therefore would be deprived of the ability to learn the skills and earn the income that would assist the achievement of traditional owners aspiration to attain 100 per cent ownership of the licences in the TRL Fishery.”
AFMA would consult with traditional owners about their concerns, the Australian Government Solicitor wrote. It would also consider applications for exemptions to the Indigenous-only crew requirement for traditional owners.
Last week, the Federal Court ordered the parties into mediation and Senator Colbeck is expected to visit the Torres Strait on Tuesday.
Richard Baker is one of Australia's most experienced and decorated investigative journalists, with 12 years in The Age newspaper's investigative unit. He has many times been the recipient of Australia's major journalism awards, including multiple Walkleys, the Melbourne Press Club's gold quill and more than a dozen other quills, a Kennedy award and the George Munster prize for independent journalism. Together with colleague Nick McKenzie, Richard has broken major international and national corruption scandals. He also writes regularly on politics, business, crime, sports affairs, defence and intelligence and social affairs. In 2016, he created and co-hosted the awarding winning six part podcast series, Phoebe's Fall.