Cultural fishing advocates say Fisheries NSW has added an extra step to its process in charging those found with more catch than allowable bag limits, and now asks offenders about the circumstances under which they were fishing.

Those who can prove they were fishing according to traditional Aboriginal law and custom have so far not been prosecuted in the courts.

The move came after the Department of Justice began liaising with Fisheries last year, as a result of concerns raised by Tomakin resident Danny Chapman, who is a member of the Aboriginal Fishing Advisory Council, and Sydney solicitor Kathryn Ridge, to then NSW Attorney General Brad Hazzard. 

Their representations to Mr Hazzard followed a landmark court case in which Fisheries withdrew charges against Indigenous fishers Wayne Carberry, of Mogo, and Kieron Stewart, of Bodalla, in Batemans Bay court last year.

Mr Carberry and Mr Stewart were two of five men found in possession of 50 abalone in 2013 and, while their catch was consistent with a generally accepted cultural limit of 10 abalone per Indigenous person, each was charged with taking and possessing more than the allowable limit of two.

Mr Stewart and Mr Carberry fought the charges, engaging Ms Ridge and her partner, barrister Tony McAvoy, who defended the case on the basis it was part of the men’s native title rights to fish.

On the first day of the defence’s case, the prosecution withdrew all charges.

Mr Chapman said the case was a catalyst for change.

“There have been no traditional owners prosecuted down here, despite people being pulled up – it’s excellent,” he said. 

“Normally, when (Fisheries) pick you up, they’d issue you with a notice, then mail you a court attendance notice.

“Now, they’ve put a step in between, where they write a letter and ask you under what circumstances you were fishing.”

Ms Ridge said that following the case, she and Mr Chapman liaised with Mr Hazzard.

“Brad Hazzard asked his department to liaise with Fisheries over the correct way to treat people fishing in accordance with law and custom,” she said.

“That interdepartmental communication resulted in more consistent application of native title considerations, prior to laying charges and in the discretion as to whether or not they would maintain charges already laid.

“In those initial cases, where people (were) getting charged, they were getting a letter asking them (if) they were fishing in accordance with law and custom and that had never happened before the (Carberry and Stewart) case.”

Ms Ridge said those who did the wrong thing and attempted to take advantage of the process would, and should, be dealt with subject to the full force of the law.

A Department of Primary Industries spokeswoman said the changes were introduced to allow officers to carry out their work and recognise some individuals might be able to fish under native title.

“Fisheries officers understand there is potential for fishing activity within the parameters of the Native Title Act 1993 and look to establish whether there is native title connection to that activity, prior to deciding whether any action is required,” she said.

“There have not been matters that have progressed to court within this time period.

“There are matters that are being looked into to establish all the facts.

“All future court action is dependent on the outcome of inquiries.”

Narooma cultural fishing advocate Wally Stewart said that while there had been no further prosecutions, cultural fishers were still having their catches seized.