Future of NSW Indigenous fishing prosecutions under pressure after abalone case collapses

A major court case targeting Indigenous cultural fishers on the NSW South Coast has collapsed, prompting renewed calls for the state government to stop prosecuting native title holders for cultural fishing activities.

The prosecution involved seven men, including six native title claimants, who faced allegations of illegally trafficking thousands of blacklip abalone after a six-month surveillance operation by NSW Fisheries and NSW Police. The matter was described as one of the biggest cases against Indigenous cultural fishers in decades, carrying penalties that could have included lengthy prison terms.

But the charges were withdrawn partway through the hearing in Nowra Local Court in January, after subpoenaed material revealed the case had serious evidence disclosure problems. Court documents show prosecutors continued with the case for an extended period despite knowing about a fundamental issue that undermined the proceedings.

NSW Police has since been ordered to pay nearly $1.9 million in defence legal costs, raising questions about why the prosecution proceeded and what safeguards exist to prevent similar cases from running for years before collapsing.

At the heart of the dispute is the ongoing tension between state fisheries regulations and native title rights. Under NSW fisheries rules, Aboriginal people are allowed to take up to 10 abalone a day for cultural purposes. However, native title advocates argue that limit does not reflect the nature of native title rights, which are based on traditional law and custom rather than recreational fishing settings.

Legal experts and community leaders say the uncertainty leaves traditional owners in a precarious position – expected to continue cultural practices while facing the risk of prosecution, legal costs and the stress that comes with long-running court action.

Advocates have also pointed to a history of prosecutions that do not proceed to verdict. One South Coast representative said many cases over the years have been withdrawn close to (or after) the start of court proceedings, yet the prosecutions still have real impacts on individuals, families and community confidence.

“At the end of the day, we are no further ahead… We still carry the scars from yesterday and we will carry them for the rest of our lives.” – Keith Nye

The latest collapse has intensified pressure on the NSW Government to clarify how it will approach cultural fishing compliance, particularly where native title is involved and whether it will formally end prosecutions that native title holders and their supporters say amount to harassment.

With cultural fishing central to community life and the passing on of knowledge between generations, local leaders warn that ongoing legal uncertainty risks deterring people from practising culture… and could have broader consequences for cultural continuity.