Introduction

Australia’s seas and coastal waters have sustained Indigenous peoples for thousands of years. Fishing has never been just a source of food — it is central to culture, ceremony, and community identity. Over recent decades, Australian courts and governments have increasingly recognised these traditional rights, including their modern commercial applications. Yet for many Indigenous communities, accessing commercial fisheries remains a steep climb filled with legal, financial, and regulatory hurdles.

This article outlines:

• What Indigenous fishing rights are under Australian law
• The main stumbling blocks to exercising those rights commercially
• How to navigate the legal and regulatory challenges
• The risks to communities and industry if issues are ignored
• A practical way forward for both Indigenous and non-Indigenous stakeholders

What are Indigenous Commercial Fishing Rights?

Indigenous fishing rights in Australia flow from a combination of native title law, case law, and statutory recognition.

Key foundations:

• Mabo v Queensland (No 2) (1992): The High Court recognised native title, laying the foundation for all land and sea rights claims.
• Yanner v Eaton (1999): Confirmed that native title includes traditional hunting and fishing, even where state laws imposed licensing.
• Blue Mud Bay Case (2008): Extended Indigenous rights to intertidal zones, requiring permits for others to fish in tidal waters over Aboriginal land.
• Akiba v Commonwealth (2013): The High Court recognised that native title rights extend to commercial fishing, not just subsistence use. This was a turning point, confirming that Indigenous communities can fish to support livelihoods and business, not only cultural needs.

In practical terms, Indigenous communities may hold:

• Rights to fish in traditional waters for food, culture, and ceremony.
• Rights to commercialise those activities where recognised under native title.
• Increasingly, opportunities through government policies, Indigenous fishing permits, and co-management models with state or federal agencies.

Stumbling Blocks to Exercising Rights Commercially

While the recognition of Indigenous commercial fishing rights is significant, communities often face real-world barriers to using them effectively.

1.Licensing and Quotas

• Commercial fisheries in Australia are tightly regulated through licence systems and quotas.
• Many valuable fisheries (like Western Rock Lobster) are fully allocated, making it impossible for Indigenous operators to simply “enter the market” without expensive licences.
• Quota leasing or purchase is often priced beyond the reach of Indigenous communities.

2. Regulatory Complexity

• Each state and territory has different laws regulating fishing rights, transferability, and compliance.
• Navigating overlapping state, federal, and native title systems creates uncertainty.

3. Financial Barriers

• Buying into established fisheries requires significant capital.
• Even where rights exist, Indigenous corporations may lack access to finance to set up viable commercial operations.

4. Disputes Over Scope

• Some governments argue that Indigenous rights should remain limited to subsistence use.
• Commercial recognition (as in Akiba) is still resisted in practice in some jurisdictions.

5. Compliance Risks

• Where Indigenous groups enter commercial markets, they must meet the same regulatory and reporting standards as other operators.
• Failure to comply can risk losing entitlements or facing penalties, creating tension between traditional practices and modern compliance frameworks.

6. Community Tensions

• Not all Indigenous people agree on how rights should be used.
• Some want rights reserved for cultural food access, while others see economic development opportunities.

How to Navigate the Blocks

For Indigenous communities and their advisors, there are practical steps that can help turn recognised rights into sustainable opportunities.

• Formalise Rights through Agreements
  • Native title determinations should be followed up with practical agreements with governments and regulators.
  • Memoranda of Understanding (MOUs) and Indigenous Land Use Agreements (ILUAs) can clarify access, quota allocations, and co-management.
• Explore Licensing and Quota Options
  • Negotiate with governments for set-aside Indigenous quotas in key fisheries (e.g., crayfish, prawns).
  • Enter sharefishing or leasing arrangements to reduce upfront costs while building operational experience.
• Strengthen Governance
  • Establish strong Indigenous corporations with clear governance structures.
  • Ensure accountability and transparent benefit-sharing to prevent internal disputes.
• Secure Funding and Partnerships
  • Engage with federal and state grant programs for Indigenous business development.
  • Partner with established fishing companies to share infrastructure, skills, and market access.
• Develop Compliance Capability
  • Train Indigenous fishers in compliance reporting, sustainability standards, and quota management.
  • Build systems that blend cultural practices with modern accountability requirements.
• Engage with Community First
  • Ensure any commercial venture has broad community support.
  • Consult on balancing traditional food needs with commercial ambitions.

Risks if the Issues Are Not Addressed

Ignoring the practical implementation of Indigenous fishing rights carries risks for both Indigenous communities and the wider industry.

• Legal Challenges
  • Governments and operators could face increasing litigation if Indigenous rights are sidelined in licensing decisions.
  • Courts are likely to continue expanding recognition, meaning delays only heighten future disruption.
• Loss of Cultural Connection
  • Communities already report being “priced out” of accessing traditional seafood like crayfish for household use.
  • Failure to provide meaningful access undermines reconciliation efforts.
• Market Inequity
  • Without Indigenous quotas or entry pathways, commercial fisheries risk being seen as exclusionary and unfair.
  • This damages the social licence of the industry.
• Regulatory Uncertainty
  • If governments do not integrate Indigenous rights into fisheries frameworks, uncertainty grows for all operators.
  • Commercial fishers face unpredictable changes if Indigenous rights are enforced through litigation rather than planned policy.

The Way Forward

There are realistic, constructive solutions that can help align Indigenous rights, commercial fisheries, and industry sustainability.

1.Set Aside Indigenous Quotas

• Governments should allocate small but meaningful quotas in high-value fisheries to Indigenous communities.
• This could be structured as a fixed percentage of Total Allowable Commercial Catch (TACC).

2. Expand Co-Management Models

• Build on successful examples where Indigenous rangers and communities co-manage marine resources.
• Shared decision-making builds trust and reduces conflict.

3. Support Entry Pathways

• Provide grants and concessional finance for Indigenous corporations to buy quota or licences.
• Encourage joint ventures with established operators to transfer skills and market knowledge.

4. Integrate Rights into Licensing Systems

• Ensure state and federal regulators proactively account for Indigenous rights when allocating licences or adjusting quotas.
• Reduce the need for costly litigation by embedding rights in policy.

5. Protect Cultural Food Access

• Create specific provisions allowing Indigenous people to access key species for household and cultural purposes, separate from commercial markets.
• Ensure this access is affordable and practical.

6. Develop Tailored Compliance Support

• Provide training and culturally appropriate resources to help Indigenous communities meet modern compliance requirements.
• Avoid punitive enforcement that undermines trust.

Conclusion

Indigenous fishing rights in Australia are well recognised in law, but their commercial application remains inconsistent and fraught with barriers. The High Court has made it clear that these rights extend beyond subsistence — they include the ability to build businesses, generate income, and participate in Australia’s seafood economy.

For that vision to become reality, governments, industry, and Indigenous communities must work together to remove practical obstacles. With the right quotas, partnerships, governance, and compliance support, Indigenous commercial fishing can deliver cultural, economic, and environmental benefits for generations to come.

The way forward is one of collaboration, respect, and planning — ensuring that traditional rights are not just recognised in courtrooms, but realised on the water.