Wayne Carberry at Barlings Beach.

Wayne Carberry at Barlings Beach. Photo: Rohan Thomson

Andrew Nye reaches into the inky green waters of Coila Lake on the NSW South Coast, yanks on the float bobbing in front of him and pulls up the large, thrashing blackfish ensnared in the net below. "That ought to give 'em something to bloody complain about," he says, pointing a leathery finger at the modern houses perched behind the beach a few hundred metres away.

"Rapists of the ocean is what they've called us," he says, tossing the squirming fish into the ice box at the far end of the boat. "Every time the people in those houses see an Aboriginal bloke go near the water, the first thing they do is get on the phone to Fisheries."

Today's catch is not the bream he'd been hoping for, and he's already had to untangle one cranky stingray from a mass of seaweed and lines – a tricky and potentially dangerous job. Normally he'd prefer to be pulling the nets in from one of a handful of South Coast beaches, rather than off a boat. But that technique has become harder without the help of his son, Craig, who was fined $11,500 and placed on a five-year good behaviour bond after the NSW state government charged him for fishing without a commercial licence.

John Brierley and Andrew Nye pulling in a catch at Coila Lake on the NSW South Coast.

John Brierley and Andrew Nye pulling in a catch at Coila Lake on the NSW South Coast. Photo: Rohan Thomson

"Craig had been standing up on the point, spotting fish just like my grandfather used to do," recalls Andrew Nye. "He'd tell us when he could see fish coming round so we could net them and bring them into the beach.

"Next thing we know Fisheries are telling us he's assisting us without a fishing licence, and telling us to come in for an interview. I was crying and stressed, really worried about the thought they might send my son to prison, just for practising his culture.

"Fishing has always been part of our life, for five, six generations. We can trace fishing in our family back to 1847 at that spot [Barlings Beach] and Aboriginals have been fishing here for 40,000 years. It's the oldest culture in the world and now we're not allowed to practise it. It's not right."

A blackfish.

A blackfish. Photo: Rohan Thomson

All along the NSW coast, tensions are rising between Aboriginal fishermen and Fisheries officers from the NSW Department of Primary Industries. Meetings have been held with Aboriginal communities to try to agree on a system that would allow authorities to control the total number of fish and crustaceans taken out of the sea, while still allowing traditional owners to practise their culture and feed their communities.

The fundamental sticking point in NSW is bag limits: the Department of Primary Industries wants them strictly applied; Indigenous fishermen do not. The impasse in NSW has held up the introduction to the Fisheries Management Act of section 21AA – passed by the NSW parliament in late 2009 but yet to proceed to law – to enshrine cultural fishing rights forever. Victoria has introduced and enacted similar laws under the Traditional Owner Settlement Act without the difficulties currently stalling the changes in NSW, as have other states and territories.

Danny Chapman is a member of the Aboriginal Fishing Advisory Council, which advises the NSW minister for primary industries on Indigenous issues. The council's argument, he says, is that a native title right to fish, even commercially, shouldn't be regulated, and that the changes to the Act should commence without bag limits. In answer to the department's concern about protecting the resource, Chapman says cultural fishermen for centuries have managed stocks by taking what was plentiful and leaving species that were hard to find, rather than limiting their catch to specific sizes or amounts.

A fresh catch.

A fresh catch. Photo: Rohan Thomson

BUT AS INSPECTORS CRACK DOWN on illegal catches, Aboriginal fishermen – unhappy with daily limits that include up to 10 abalone and 40 flathead, bream and a handful of other species – are facing fines and prosecution.

NTSCORP, a body publicly funded to defend native title rights in NSW and the ACT, is aware of more than 250 prosecutions of Aboriginal people under the NSW Fisheries Management Act since 2009, when the changes to protect their fishing rights were flagged. Natalie Rotumah, chief executive of NTSCORP, says the fines are "very heavy handed" when the fishermen are "doing something they're entitled to be doing, and getting done for taking a few more than what's in accordance with the white man's rules".

"They end up with fines they can't pay, so they cut it out doing jail time – it's ridiculous," she says.

Andrew Nye says he and other fishermen have also lost access to between 85 and 90 per cent of beaches they previously fished since the establishment in 2006 of the 85,000-hectare Batemans Marine Park, and the NSW National Parks and Wildlife Service has also closed a number of roads to beaches.

"They sit up in the bush with binoculars, watching everything we do," says Nye's friend John Brierley, a fellow Indigenous fisherman who has a commercial licence and sells much of his catch through his Moruya takeaway shop. "They confiscate our nets, threaten us [with fines]. What we're trying to do at the moment is get them to fine us so that we can fight them, if that's what it's going to take. Fisheries are trying to avoid that because they know if they end up in court they'll lose."

Nye says many of the younger generation have become too scared to head into the ocean to catch fish, leaving them disconnected from their culture and with few other job prospects. They would like to be able to support themselves by selling their catch, but don't believe they should have to take out commercial licences to do so.

"The only way we're going to get anything is if we can prove that we belong here, and that we own this country and we own that resource," Nye says. "So a court case it's going to have to be. I truly feel if we take it all the way through to the High Court, we can win it and we can break them."

There have already been significant wins for cultural fishermen in other states. In 2009, Narrunga men Owen and Daniel Karpany were fined for taking 24 undersized greenlip abalone off South Australia's Yorke Peninsula. The South Australian Supreme Court initially found the men's native title rights had been extinguished by the introduction of the South Australian Fisheries Act in 1971. But in 2013 the High Court ruled that their native title rights had not been extinguished and the two men were entitled to their catch. But the South Australian precedent hasn't stopped NSW authorities from taking similar action against cultural fishermen on the South Coast.

According to a NSW Department of Primary Industries spokeswoman, 28 matters against Aboriginal fishermen were progressed through the courts in 2014-15, down from 84 in the 2009-10 financial year.

But confidential department figures obtained by Good Weekend show that since 2009-10, Fisheries has recorded 534 offences involving Aboriginal persons. Fines have been issued for offences ranging from possessing prohibited fishing gear to leaving hand lines unattended in inland waters.

ONE OF THE FEW FISHERMEN to score a blow against the regulations is Yuin man Wayne Carberry, who can trace family links in the NSW South Coast region back to the last queen of the Murramarang tribe. As he heads out towards the rock shelf at the southern end of Barlings Beach, Carberry pauses next to a small pile of broken shells. The southerly has come up and there's a fierce wind blasting sand and sea spray in our faces.

"We call this one mutton fish," he says, turning over a fragment of abalone shell. "This one's an urchin, and this one's an oyster," he continues, as he sifts through the contents of the midden. Suddenly, he scampers up a nearby ledge and spreads his arms wide, as if about to launch into the battering headwind.

"The eagle's always close when I'm down here, watching out for me," he yells from his rocky perch. As if on cue, a large sea eagle with its distinctive white body and black wings rounds the escarpment and pauses momentarily above his head. It was a calmer day than this in 2014 when Carberry headed out onto the rock shelf at Dalmeny to gather abalone. "I had come to hang out with my cousins and to take a feed home to my mum and aunties. Before we know it, we have police watching, then Fisheries turn up."

Carberry and fellow fisherman Kieran Stewart were charged with breaches of the Fisheries Management Act, but pleaded not guilty to taking 63 black lip abalone. Mounting a native title defence before the Batemans Bay local court, the pair and their lawyers argued the Fisheries Act did not extinguish their native title rights and interests, meaning they could take what they wanted according to custom. Before the case could be decided, the department dropped all charges against the two men. The department's spokeswoman declined to comment on the case.

"I'm angry they didn't see it through," says Carberry. "What about compensation for all the stress? I would rather have had a decision."

SYDNEY SOLICITOR KATHRYN RIDGE and barrister husband Tony McAvoy have helped represent the fishermen in their fight with the NSW government. Ridge says the insistence on regulating traditional fishing will be costly, damaging to local cultures and result in unnecessary convictions and imprisonment.

"It doesn't make a lot of sense to me that every report written on the so-called 'black market' documents how the bulk of the problem is underreporting of commercial catch, yet the bulk of the regulatory effort appears to be prosecuting Aboriginal people who make up less that 2 per cent of the population," Ridge says.

The NSW director of the Abalone Council of Australia, John Smythe, has been a commercial diver for 40 years, and has been closely involved in negotiating cultural fishing rights from the other side. He has sympathy for the Aboriginal fishermen's position but believes that giving them unrestricted harvesting could devastate abalone stocks along the coast. "If someone has 500 abalone in the boot of a car, how do you know it's going to be for their cultural food purposes and not sold on the black market?" he quite sensibly asks.

Back in the 1970s, NSW abalone were all but wiped out by unregulated fishing and disease, notes Smythe, and stocks have only recently recovered. "The number of abalone they are allowed to take for their cultural catch has increased from two to 10 daily, and they can apply for a permit to take more for special ceremonies. I think that's a sensible way forward," he says.

The department agrees, insisting that the existing arrangements contain enough flexibility to allow Aboriginal people to fulfil their cultural needs while maintaining viable commercial and recreational catches. The department's spokeswoman says the requirement to consult with all stakeholders, including other government departments and commercial operators, were among the reasons section 21AA had been continually held up.

But Wayne Carberry says he's not waiting for the government to decide what the rules should look like. "I'm going to continue to practise what I was taught as a kid. I'll dive in the marine parks, because that's my country. I'll be free to roam in my country, and no man on this earth will ever stop me from doing that."