FISHING RIGHTS OF INDIGENOUS PEOPLE

An Australian Case

In October 2001 the High Court of Australia, the highest court in this country, ruled on a claim by the Indigenous owners of an island in the north of Australia called Croker Island. The Indigenous owners claimed that their traditional fishing rights over the territorial sea and the seabed surrounding Croker Island were exclusive. In other words, they claim that no one else has the right to fish and gather in the claimed area. The territorial sea is the area of water 12 nautical miles out to sea, measured from the low water mark.

The High Court ruled that these rights were not exclusive. This was based on two reasons:

1. There was no evidence to prove such exclusivity. The Court seemed to place a lot of emphasis on the fact that even though permission was required for others to fish in these waters, such permission was quite freely given.

2. Under an old English common law principle, every member of the public has the right to fish and navigate in these waters. Also, under international law, ships have a right of innocent passage through these waters. These principles, according to the court, are inconsistent with traditional rights being exclusive and so, even if the latter were true, those rights cannot now be exclusive.

What is the relevance of this case to Rotuma?

I believe this decision is very relevant to Rotuma because:

1. The old English common law principle of public rights to fish in the territorial seas and the seabed and to navigate in these waters is part of our laws, too, because of the origins of our law being English law. Similarly, the international right of innocent passage also applies to Rotuma.

2. The principle of English common law overriding traditional law when the two laws are inconsistent also applies to Rotuma. Indeed the question of whether our traditional laws are recognised at all by the common law is debatable.

3. The facts in the Croker Island case are very similar to the Rotuman situation, in terms of permission being required to fish in a particular area.

4. It is highly likely that a court in Fiji would rule in the same way in a case involving a claim by Rotumans for exclusive fishing rights.

Why is this case important?

The ruling that indigenous fishing rights are not exclusive has a number of important consequences:

1. Traditional owners cannot stop others, indigenous and non-indigenous people, from fishing in the territorial seas and the seabed.

2. If governments decide to licence commercial fishing in these waters, the traditional owners are not entitled to compensation so long as the traditional owners are allowed to fish in their traditional ways.

3. This also means that traditional fishers cannot fish commercially unless licensed.

4. Unless the traditional owners are specifically allocated a quota of licences, they will have to compete with large commercial fishers. This could result in the indigenous owners being denied commercial fishing rights if they are unable to compete.

What can we do?

The solution is to legislate to give traditional owners the exclusive fishing rights which the common law, according to this Australian case, denies indigenous people. Secondly, licence commercial fishing with a quota of licences for indigenous fishers. I do not believe all licences should be granted to the indigenous owners because there must be competition and there must be monitoring to ensure that a monopoly situation does not arise. Thirdly, I believe management and control should be by the Rotumans, perhaps a Rotuma Fishing Authority, and not the central government.

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