IN what could be described as a landmark case for the region, NSW Police on Friday withdrew illegal abalone fishing charges against two Eurobodalla men after hearing compelling evidence about cultural fishing.
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Wayne Carberry and Kieron Stewart were two of five men who caught the attention of police and Department of Primary Industries (DPI) Fisheries officers in Dalmeny on May 2 last year.
The men were in possession of 50 abalone, which was consistent with a generally accepted state government policy that states the allowable limit for Aboriginal people is 10 per person.
However, each man was charged with both taking and possessing more than the allowable limit of two.
Defence barrister Tony McAvoy said one member of the group failed to appear in court and was convicted in his absence, while two others had the charges withdrawn against them last year.
Mr Stewart and Mr Carberry fought the charges, engaging solicitors who defended the case on the basis it was part of the men’s Native Title right to take 10 abalone each.
The prosecution’s case was heard on January 29 and 30, while the defence’s case was set down for hearing on Thursday and Friday last week.
Mr McAvoy, speaking to the Bay Post/Moruya Examiner after court on Friday, said the court heard evidence from Sydney anthropologist Dr Natalie Kwok about the presence of Aboriginal people on the South Coast.
Mr McAvoy said Walbunga elder Marie Stewart also gave evidence of Aboriginal occupation and fishing practices from her childhood to the present day.
“As a result of the evidence produced on the first day of the defence case, the prosecution advised the court (on Friday) morning they wished to withdraw all charges against both men,” Mr McAvoy said.
“It’s a landmark case of the Walbunga people because it is the first time Fisheries, DPI, have been asked to consider in a court the continued existence of traditional law and custom regarding the right to fish and in particular to take abalone, or muttonfish, as the Walbunga refer to them.”
Defence solicitor Kathryn Ridge said it was the second time in NSW that charges had been withdrawn by DPI, following a similar case at Wreck Bay.
She said in both cases the charges were withdrawn after a hearing but before being determined.
“If (the defendants) had gone through and won the case, there would be a precedent which they couldn’t ignore,” Ms Ridge said.
“This withdrawal will allow them to commence further action.
“We say that’s not particularly fair. They can’t keep commencing criminal proceedings against Aboriginal people for exercising their traditional law and custom.
“They’re going through all the expense and stress of court proceedings only to have the proceedings pulled at the last minute.”
Having the charges dismissed was not the outcome Mr Carberry fought for.
“I believe that they should have fought it as law, and fought it to the every end like we were prepared to do,” he said.
“We wanted it to be recognised that for our people it is our cultural right and that the harassment from police and Fisheries, it shouldn’t be going on the way it is.
“They’re not being culturally sensitive to what we have to practice and what we’ve practised for a long time.
“It’s in our blood to do this.”
DPI was unable to answer why the charges were withdrawn, instead referring the Bay Post/Moruya Examiner to ask NSW Police.
Far South Coast Local Area Command crime manager, Detective Inspector Kevin McNeil, could not comment specifically on the case, but did say local police were working hard with local communities to address the issue.
“The NSW Police Far South Coast Local Area Command is very aware of complaints made by the Aboriginal community in regards to legislation involving cultural fishing,” he said.
“That is why we have worked, and are working with those communities within the command and the Department of Primary Industries.”
