Prime Minister Whitlam met with President Suharto in Jakarta in September 1974, and officials of both governments met in November to ‘discuss the specific concerns of the two Governments about the activities of Indonesian fishermen in Australian waters’ (DFAT 1988: 1). The outcome was the signing, on 7 November 1974, of a ‘Memorandum of Understanding between the Government of Australia and the Government of the Republic of Indonesia Regarding the Operations of Indonesian Traditional Fishermen in Areas of the Australian Exclusive Fishing Zone and Continental Shelf’ (see Appendix B). This MOU, which came into force on 28 February 1975, remains the foundation of current fisheries policy in the declared zone off the northwest coast of Australia. It declared that ‘Indonesian traditional fishermen’ would be allowed to collect and fish certain species within a 12 nm radius of Ashmore Reef, Cartier Island, Scott Reef, Seringapatam Reef and Browse Island (see Map 5-1). ^[9]

Map 5-1: Location of permitted areas of access for Indonesian fishermen in the Australian Fishing Zone under the 1974 Memorandum of Understanding.

Traditional fishermen were defined in the MOU as ‘fishermen who have traditionally taken fish and sedentary organisms in Australian waters by methods which have been the tradition over decades of time’ (author’s emphasis). Under the agreement, fishing was to be confined to offshore reefs and islands. Fishermen would be allowed to take shelter in anchorages at specified islands and reefs, but all landings would be prohibited with the exception of East Islet and Middle Islet at Ashmore Reef, where fishermen would be permitted to land for the purpose of collecting fresh water. The taking of sea turtles was forbidden. Sedentary species that were protected under the Continental Shelf Act 1968, such as trochus, trepang, abalone, green snail, sponges and all molluscs, could be taken only within 12 nm of the specified islands and reefs, and not from any other part of the continental shelf.

In February 1975 the Commonwealth Fisheries Act 1952 was amended to make foreign fishing within the 12 nm fishing zone an offence regardless of the purpose. However, the legislation allowed that, ‘as a gesture of friendship … Australia would refrain from enforcing its fishery laws against Indonesian fishermen who complied with the limitations set out in the 1974 Memorandum of Understanding’ (DFAT 1988: 2). Those who did not comply could be brought before the Australian courts and charged under the new amendments to Sections 13AA and 13AB concerning foreign fishing. ^[10]

With legislative powers now in place to deal with Indonesian fishermen operating outside the allowed areas, the Australian Government mounted a massive air and sea surveillance campaign officially named ‘Operation Trochus’. It was undertaken in two consecutive years as Trochus 75 and Trochus 76. From March 1975, the RAN conducted almost continuous sea patrols of the region, and there were fortnightly surveillance flights by RAAF aircraft as well (DFAT 1988: 12). These operations formed the ‘enforcement and education arm’ of the MOU (Campbell and Wilson 1993: 65). Operation Trochus officially ceased in June 1976, partly because some of the surveillance aircraft were destroyed by a fire at their base in Nowra (in New South Wales), and partly because the Darwin-based naval patrol boats were diverted to deal with the arrival of Vietnamese refugees after the fall of Saigon. However, because of ongoing infringements by Indonesian vessels collecting trochus within 12 nm of the Australian mainland, regular air and sea patrols continued after that date (Campbell and Wilson 1993: 68).

Indonesian fishermen found operating along the Kimberley coast were informed of the provisions of the MOU and were forced into the permitted areas to the north (Campbell and Wilson 1993: 65). Navy patrols encountering Indonesian perahu handed out leaflets and employed Indonesian interpreters to assist with the dissemination of information about the MOU. Indonesian officials, particularly the Governor of the Province of East Nusa Tenggara and the officers of the Provincial Fisheries Department (Dinas Perikanan), were also involved in this exercise. A sign was constructed on West Island, part of Ashmore Reef, with a map and text in Bahasa Indonesia outlining the MOU regulations (DFAT 1988: 2). ^[11]

Once the Fisheries Act had been amended, an inter-departmental committee planned to authorise the apprehension of some perahu to run a test case in the Australian courts. It was hoped that ‘the courts would order forfeiture of vessels owned by Indonesians offending against our Fisheries Laws’ (Campbell and Wilson 1993: 67). On 13 March 1975 three perahu were detained near Troughton Island about 16 km north of Cape Bougainville and inside the 12 nm limit. While under tow to Wyndham one perahu sank and so the skipper did not face charges (The Kalgoorlie Miner, 17 and 20 March 1975).

The other two skippers were charged under Section 13AA of the Fisheries Act which states that:

Under this section of the Act, a captain can be charged even if the fish on board the vessel were caught outside the AFZ and the vessel is in transit through the AFZ or forced into the zone by adverse weather (Campbell and Wilson 1993: 66). In this case the captains claimed that ‘they had been travelling for more than a month in their tiny boats and had not intended to enter Australian waters but had been blown off course by westerly winds’ (The Kalgoorlie Miner, 20 March 1975). The captains were found guilty but Magistrate Ian Martin refused to order any punishment as he considered they had no option to argue their defence under the law. In his words:

In a statement written in March 1976, contained in an Australian Fishing Zone file held at the WA Fisheries Department, the failure of the cases is explained as follows:

Officials from the WA Fisheries Department thought that the perahu were from Roti and were targeting trochus shell (Campbell and Wilson 1993: 174), but the magistrate observed that they had shark fin on board, and The Kalgoorlie Miner (17 and 20 March 1975) reported that they were from Kaledupa Island in the Tukang Besi Islands. Campbell and Wilson (1993: 68) agreed that these were ‘traditional shark fishermen’ from the Tukang Besi Islands. My own inquiries indicate that they were Bajo boats from Mantigola village on Kaledupa Island, and would have sailed to Pepela on their way to Ashmore Reef. Whether they were trochus or shark boats is debatable, and the fishermen may have been targeting both species. They certainly appear to be the first Bajo boats whose crews were brought before the Australian courts.

With the release of the two perahu, WA fisheries officers began to implement a policy of ‘local justice’ (Campbell and Wilson 1993: 68). Under the WA Fisheries Act they could legally board perahu operating outside the permitted areas — particularly those operating along the Kimberley coast and collecting trochus in the King Sound region — and confiscate fishing gear and catch. In some cases, gear and catch were thrown overboard. Crews were left with supplies, given warnings, and told to return to the permitted areas to the north. This program was cost effective and relatively successful, with the loss of equipment and catch providing sufficient punishment for the fishermen. But one of the outcomes of increased contact between Australian officials and diverse groups of Indonesian fishermen was a more ‘realistic assessment’ of the fishermen’s commercial motives, and this in turn was used to legitimate the policy of ‘local justice’ (ibid.: 70–1).

Nevertheless, in 1980 it was decided — on recommendations by fisheries and navy officers — that stronger policy and tougher penalties should be introduced to combat repeated illegal fishing activity along the northwest coast, and so the ‘local justice’ approach ceased. The first of the new measures was taken in July 1980 when two perahu were apprehended. The Sama Biasa was detained off Gregory Island and the Jangan Tanya Lagi was apprehended off Bedford Island in the Bucaneer Archipelago near King Sound. The crews had been collecting trochus shell and had attempted to hide from authorities in the mangroves along the Kimberley coast. The captains were charged and found guilty under Section 29A(2)(b) of the WA Fisheries Act. The boats and all equipment were forfeited and the captains and 31 crew members repatriated to Indonesia. ^[13] Both boats were owned by Pepelans and the crew had planned to sell their catch to a trader. The loss of the perahu and equipment, and the economic hardships suffered by the crew and their families, had ‘an immediate and lasting effect’ on the fishing patterns of the Pepela fleet that was now forced to concentrate its fishing effort in the areas set out in the MOU (Campbell and Wilson 1993: 72–3). It was to be another eight years before perahu from Pepela were again apprehended and confiscated.

In November 1979, along with many other countries, Australia unilaterally extended the limits of the AFZ from 12 nm to 200 nm from the coastline, and Indonesia followed suit in March 1980 by proclaiming an Exclusive Economic Zone with the same limits. ^[14] To deal with overlapping jurisdictions in the Timor Sea, the two governments signed a ‘Memorandum of Understanding on a Provisional Fisheries Surveillance and Enforcement Arrangement’ on 29 October 1981, which came into effect on 1 February 1982. Under this arrangement, each country would refrain from surveillance and enforcement action against fishing boats licensed by the other state beyond a Provisional Fisheries Surveillance and Enforcement Line. It was also agreed that the arrangement would have no effect on the position of Indonesian traditional fishermen operating in accordance with the 1974 MOU. The provisional line would apply only to pelagic fisheries and jurisdiction over sedentary species in the region would be based primarily on the seabed boundary lines previously agreed in 1971 and 1972 (DFAT 1988: 20–25). The Australian Fisheries Service (AFS) would be responsible for enforcing the arrangement in the AFZ. ^[15]

The areas now placed off limits to Indonesian fishermen included Bajo shark fishing grounds that stretched along the Sahul Shelf in a line north of Broome across to the Arafura Sea. Moreover, the new arrangements meant that they could no longer legally fish while in transit between areas permitted under the 1974 MOU (Campbell 1991: 116). But their fishing activities continued despite regular surveillance patrols, and perahu were routinely boarded in both the permitted areas and in other parts of the AFZ. ^[16] In practice, Australian authorities tolerated Indonesian shark fishing activities within the areas newly added to the AFZ throughout the 1980s, and the confiscation of boats apprehended for illegal activities did not begin until 1990.

Before 1978 the laws of the Northern Territory applied to Ashmore Reef and the Cartier Islands. The Ashmore and Cartier Island Acceptance Amendment Act 1978 was passed shortly before the Northern Territory was granted self-government, and had the effect of making the islands a separate commonwealth territory under the control of the Minister for Arts, Sport, the Environment, Tourism and Territories. This was justified by the significance of the islands for Australian maritime jurisdiction (Burmester 1985) and the presence of major hydrocarbon resources in the area (Bergin 1989: 13).

In August 1983 the Ashmore Reef National Nature Reserve was declared under the Commonwealth’s National Parks and Wildlife Conservation Act 1975 to be managed by the Australian National Parks and Wildlife Service (ANPWS). This action was justified by reports that wildlife populations had been severely depleted by Indonesian fishermen acting in contravention of the 1974 MOU (ANPWS 1989: 13). Their activities were also thought to contravene Australia’s international obligations under bilateral agreements with Japan and China on the protection of migratory sea birds ^[17] and as a signatory to the Convention on International Trade in Endangered Species.

The nature reserve covers an area of 583 km², encompassing the reef itself and surrounding waters to the 50 m bathometric (see Map 5-2). The reserve is recognised to have high nature conservation significance because of its rich and diverse marine life and a high degree of endemism due to its isolation. It is an important breeding ground for seabirds, a staging point for migratory bird populations, and a breeding and feeding habitat for endangered marine turtles (ANPWS 1989: 3).

Map 5-2: Ashmore Reef National Nature Reserve.

With the declaration of the reserve, an increase in random air surveillance was instituted as part of the Civil Coastal Surveillance Program (‘Coastwatch’) operated by the Australian Customs Service, and regular patrols and inspections were undertaken by ANPWS and fisheries officers on navy ships or chartered boats. ^[18] In the ANPWS Annual Reports for the years 1983/84 and 1984/85 concerns were expressed about offences including damage to vegetation, unauthorised landings, the taking of seabirds and eggs, and the capture and killing of turtles (ANPWS 1985a, 1985b). ^[19]

In August 1985 a review of surveillance and law enforcement procedures at Ashmore Reef was undertaken, and the Minister for Territories announced that a significant budget increase would be granted to establish a seasonal surveillance program. In the 1985 pilot program, caretakers were based in a camp on West Island during the latter part of the fishing season with a remit to monitor Indonesian activity, warn fishermen of their responsibilities under the MOU, and prevent infringement of landing rights and the destruction of protected wildlife. For the 1986 fishing season, a chartered vessel was stationed at Ashmore Reef as a base camp for caretaking operations (ANPWS 1986: 23), while ANPWS wardens continued to operate with the assistance of RAN patrol boats, supported by additional aerial surveillance by Coastwatch, RAAF and RAN aircraft. It was at this time that comprehensive quantitative information on Indonesian voyaging and fishing activity around Ashmore Reef and other parts of the AFZ began to be collected.

In 1985/86, 85 violations of the 1974 MOU were reported and wardens searched 63 Indonesian vessels in order to ascertain the level of harvesting of marine products in the reserve. From estimated catches of trochus shell, reef fish, shark, trepang and clam meat, it was reported that although the ‘crews rely on the reserve for subsistence (apart from water and rice)’ the increase in the harvest of trepang recorded during the year ‘may be in response to the re-opening of the markets in China rather than subsistence demand in Indonesia’ (ANPWS 1986: 23–4). This statement is misleading because it implies that there was a local ‘subsistence’ demand for trepang, but is correct in assuming that the international market is driven by the demand for trepang in China. The statement illustrates the confused use of the term ‘subsistence’ and the lack of familiarity with the ‘chain of custody’ for certain marine products in Indonesia.

The ANPWS Annual Report for 1986/87 again reported on violations of the MOU by Indonesian fishermen and expressed concerns over the impact on bird populations. It was also stated, based on information from various patrols and surveillance of the reserve carried out that year, that the size and number of marine sedentary species was declining and that Indonesians were attempting to use ‘hookah’ gear (underwater breathing apparatus) to dive in the deeper waters of the reserve. The Northern Territory Museum was then commissioned to investigate the impact of Indonesian fishing activities on the reserve in order to provide the scientific evidence needed to justify a revision of the MOU (ANPWS 1987: 18).

The research consultancy report includes an analysis of perahu visits for the years 1986, 1987 and 1988, the results of interviews with crew of 13 perahu, and population data on the main marine species exploited by Indonesians based on fieldwork undertaken at Ashmore Reef in April and September 1987. The consultants considered two options for management of the marine environment: (1) a complete ban on all fishing activities; and (2) permission for a managed traditional fishery to continue (Russell and Vail 1988: 139–43). Their argument in favour of the second option was that Ashmore Reef had long been a traditional fishing ground for Indonesian fishermen, especially those from the villages of Oelaba and Pepela on Roti. ^[20] They said that a total ban on fishing would not only be difficult and expensive to enforce, but would also create economic hardships for the fishermen and their families. They suggested a set of management practices which would allow a traditional fishery to continue and recommended the conduct of further research.

In 1989, the ANPWS prepared its own Plan of Management for the nature reserve which came into force in December 1990 and had effect for 10 years. ^[21] Despite the recommendations of the consultants, the plan made no mention of allowing a traditional Indonesian fishery to operate.

In order to manage and protect the natural values of the reserve, contractors were to be stationed on a vessel moored at Ashmore Reef between March and December each year, and one crew member was to be appointed as a warden under the National Parks and Wildlife Conservation Act 1975 to enforce the legislation within the reserve and inform fishermen of the regulations. ^[22]

The concerns outlined in the previous section led the Australian Government to submit a draft revision of the MOU to the Indonesian Government in August 1986 (ANPWS 1987: 18). The Indonesian Government rejected this draft in November 1987, stating its preference for more effective implementation of the existing MOU. The Indonesian Government was officially notified in February 1988 of the Australian Government’s further intentions in the form of a ‘Third Person Advisory Note’ that outlined the developments since 1974 which made new arrangements necessary (DFAT 1988: 54–65). This included observations about the destruction of local flora and fauna by Indonesian fishermen and their use of ‘non-traditional’ methods of fishing.

The Indonesian Government was also informed that, as of 1 March 1988, the 1974 MOU would be enforced by Australian authorities in accordance with Australian laws, including laws related to conservation, customs and quarantine. For the Australian Government, traditional fishing did not include fishing from motorised vessels or the use of motorised fishing gear. Only fishermen in paddle-powered or wind-powered boats using lines or nets would be permitted in the MOU areas. Landing rights were withdrawn from East and Middle Islets because the wells had either dried up or were contaminated. Fishermen could only land on West Island for the purpose of obtaining water, and would be allowed safe anchorage in the channel leading to it (see Map 5-3). Fishing activity would continue to be limited to a radius of 12 nm around specified islands except at Ashmore Reef, where fishing would not be permitted inside the reserve. Any person convicted under the Fisheries Act 1952 for taking fish or sedentary organisms outside the permitted areas could face a maximum fine of A$ 5000 or forfeiture of boat, equipment and contents. Giant clams and turtles protected under the Convention on International Trade in Endangered Species could no longer be taken even in the permitted areas (DFAT 1988: 54–65).

Map 5-3: Areas of prohibited access at Ashmore Reef National Nature Reserve.

During the period from 27 June to 1 July 1988, the Australian Ambassador to Indonesia visited Sulawesi and East Nusa Tenggara to inform Indonesian officials and fishermen of the new interpretation of the MOU and the ban on all fishing at Ashmore Reef (Campbell and Wilson 1993: 133). In April 1989, officials from Indonesia and Australia met in Jakarta to discuss the activities of Indonesian fishermen and review the operation of the MOU. They also discussed the activities of Indonesian fishing vessels operating in other areas of the AFZ, including ‘non-traditional’ vessels operating along the northwest coast and in the Arafura Sea. Following these discussions, both sides agreed to the requirements previously outlined by Australia in the Third Party Advisory Note of 1988, but allowed that ‘traditional’ Indonesian fishermen would be able to conduct fishing activities in a wider ‘MOU box’ within the AFZ (see Appendix C). Under a set of ‘Practical Guidelines for Implementing the 1974 MOU’, access to the expanded MOU area would continue to be limited to ‘Indonesian traditional fishermen using traditional methods and traditional vessels consistent with the tradition over decades of time, which does not include fishing methods or vessels utilising motors or engines’ (author’s emphasis).