There are a number of reasons why Australian policy is not effective in deterring illegal activity. A key feature of Australian policy has been the definition of ‘traditional’ fishing encapsulated in the 1974 Memorandum of Understanding (MOU) that regulates access for Indonesian fishermen in the AFZ. This concept of the ‘traditional’ reflects a simplistic but popular evolutionist view that emphasises the static, timeless, and non-commercial aspects of culture and ignores any process of cultural change and adaptation. While contemporary anthropological and legal opinions in Australia depict tradition and culture as dynamic in the face of changing circumstances, government policy towards Indonesian fishermen and indigenous Australians still tends to oppose the ‘traditional’ to the ‘commercial’. This adherence to a notion of the ‘traditional’ as something culturally inert is at odds with the understanding and behaviour of Bajo fishermen, and regulation of access to the MOU area by reference to ‘traditional’ technology has resulted in all sorts of misunderstandings and inconsistencies.
In practice the Bajo have lost their ‘traditional’ access rights to areas of the AFZ where they previously fished, while the Australian definition of ‘traditional’ fishing provides the Australian Government with a justification for continuing the policy of apprehension, confiscation and forfeiture of perahu. Moreover, it appears that such views have contributed to a lack of will on the part of the Australian Government to consider alternative approaches to managing a traditional Indonesian fishery in the AFZ. The extent to which the MOU has been effective in providing recognition of fishing rights and curbing illegal fishing activity is debatable. Under the terms of the MOU, no specific rights exist for groups who operated in the region prior to Australian maritime expansion. Bajo fishermen are denied normal cultural dynamism in pursuit of their livelihood. There are double standards being applied here: Australians can change, but Bajo cannot — Bajo must operate ‘traditionally’.
Over-exploitation of marine resources has occurred within the MOU box area because there are no restrictions on access to it, so it is now regarded as a poor shark fishing ground. Fishermen therefore fish illegally in order to access more abundant shark populations to secure reasonable profits. The basic nature of Bajo navigational methods also means that it is often difficult for the fishermen to determine the location of marine boundaries. Educational campaigns and the policy of deterrence have been largely ineffective. Large numbers of fishing boats continue to be apprehended for illegal incursions in the AFZ. The burning of boats that provide a livelihood for some of the poorest people in eastern Indonesia while Australia continues to fund aid projects to alleviate poverty in the region represents a seriously inconsistent and counterproductive foreign policy.
A range of complex and competing political, territorial, commercial, environmental and legal factors continue to influence government inaction on the complex problem of illegal fishing in the AFZ. A more inclusive, culturally informed approach should now be taken to devise new agreements for specific groups with a historic interest in the area prior to Australian maritime expansion. The challenge for Australian and Indonesian policy makers is to find a flexible arrangement that incorporates the cultural dynamics of a traditional Indonesian fishery while at the same time maintaining the legal, territorial, commercial and environmental principles and objectives of the nation state.
The Eurocentric worldview has been criticised for the ‘distorted way that it constructs and presents alien societies’ (Carrier 1992a: 195). Debate on this subject was stimulated by anthropological reflections on the ‘colonial encounter’ (Asad 1973), and then by Said’s (1979) study of ‘Orientalism’, which focused on the way that Oriental or Asian societies have been portrayed in essentialist terms as static and simple, isolated from Western influence (Carrier 1992b: 3). Fabian (1983: 31) calls this the ‘denial of coevalness’ which positions the ‘Other’ in another time, or out of time, from the West — a process that developed out of nineteenth century evolutionary schemes which placed all societies in a developmental sequence of progress, ‘a temporal slope … a stream of Time — some upstream and some downstream’ (ibid.: 16). This discourse holds that societies passed through stages of development from the ‘savage’ to the ‘civilised’. Terms used in ‘temporal distancing’ (ibid.: 71), like ‘primitive’ or ‘traditional’, came to refer to less technologically developed societies that were untouched, static survivals of the past. From these discourses arose a tendency to discuss ‘Other’ societies in terms of dichotomies such as progress versus stagnation, development versus underdevelopment, and modernity versus tradition (ibid.: 144). These dichotomies obstructed the realisation that ‘Other’ societies also have histories (Wolf 1982) and exist in the same time and space as ourselves.
Much early anthropological writing about so-called ‘traditional’, ‘native’ or ‘indigenous’ societies focused on ‘traditionalism’ (Fabian 1983; Marcus and Fischer 1986; Carrier 1992b; Miller 1994: 59; Merlan 1998: 3). This ‘traditionalism’ is the process of ‘the reproduction of idealized representations of native societies as they allegedly are, in the terms of how they supposedly were’ (Merlan 1998: 231). These ‘traditionalist’ accounts of indigenous peoples ‘support a vision of the world in which at least some portions of it, some peoples of it, remain customary, unchanged, and therefore different from ‘us’, inherent and unreflective in their relation to their “culture’” (ibid.: 4).
Anthropology has since ‘involved itself in a thorough-going critique and rejection of static models of culture’ (Scott 1993: 322). Studies concerning ‘the invention of culture’ (Wagner 1975), the ‘invention of tradition’ (Hobsbawm and Ranger 1983), or the ‘reinvention of traditional culture’ (Keesing and Tonkinson 1982) point to processes whereby people actively formulate and codify their traditions. Anthropologists now generally agree that ‘there is no traditional baseline of unchanging homeostasis’ from which to measure tradition, ‘nor is there any one-sided change caused by colonialism and modernisation’, but ‘in encounters with colonial and other “modern” powers, so called traditional systems tend to generate creative responses to the challenges from afar’ (Hviding 1996: 29). Or as Marcus and Fischer would have it:
Most local cultures worldwide are products of a history of appropriation, resistances, and accommodations. The [present] task … is … to revise ethnographic description away from [a] self-contained, homogenous, and largely ahistorical framing of the cultural unit toward a view of cultural situations as always in flux, in a perpetual historically sensitive state of resistance and accommodation to broader processes of influence that are as much inside as outside the local context (Marcus and Fischer 1986: 78).
In an overview of developments in the ‘invention of tradition’ literature since 1982, specifically in regard to Oceania, Tonkinson (1993: 598) explored aspects of tradition ‘that continue to offer useful avenues for further research … in light of what we know about it as a complex and ramifying domain of meaning, discourse and action’. He concluded that ‘tradition is most effectively conceptualised as a resource employed (or not employed) strategically by certain (but not all) of a community’s members’ (ibid.: 599). This approach is particularly useful in places like Australia and North America, where the nation state demands that indigenous minorities ‘present their claims to rights and resources largely in terms of “traditional” validatory criteria, such as kin group affiliation, land tenure principles, religion and language’ (ibid.: 603).
Following the 1992 Australian High Court decision known as the Mabo decision, the Commonwealth Government passed the Native Title Act 1993. Despite the fundamental changes thus made to the recognition of native title, claimants are required to demonstrate their possession of ‘traditional law and custom’, so the concept of traditionalism is still embedded in Australian law. In a subsequent paper dealing with native title controversies, Tonkinson made the following observation:
Adopting a perspective on tradition that conceptualises it as a resource, strategically deployed by groups of people in the defence or furtherance of their interests, raises larger political issues, particularly in societies like Australia where indigenous cultures coexist with a dominant nation state. For example, it poses a considerable challenge to law-makers: how to frame and implement heritage and similar legislation so as to take account of the dynamism inherent in indigenous constructions of tradition and the variety of pressures that influence the nature and trajectory of these constructions. The difficulty here is the tension that exists between the need to ensure some degree of flexibility — to allow for the dynamism inherent in these constructions of tradition — and legal requirements for sufficient boundedness or closure to allow legislators to formulate widely applicable criteria for assessing ‘significance’ (Tonkinson 1997: 12).
He then went on to describe the way in which emergent traditions were labelled as ‘suspect’ and ‘inauthentic’, and to note that they are especially vulnerable to attack when they ‘threaten in any significant way the interests of governments or the private sector, and potentially large financial returns are seen as endangered by successful invocation of Aboriginal heritage legislation (ibid.: 18). In Australia, there remains a ‘lack of public awareness’ of the dynamism inherent in Aboriginal culture and a failure to recognise that ‘the inevitable transformations through time are due partly to powerful external forces’ (ibid.: 19). This is also a problem that needs to be addressed in the way that Australian laws and policies have dealt with Indonesian fishermen.
The idea that Indonesians were engaged in subsistence fishing influenced the 1968 decision to permit ‘traditional’ Indonesian fishing to continue within the 12 nm territorial sea adjacent to Ashmore Reef, Cartier Island, Seringapatam Reef, Scott Reef, Browse Island, and Adele Island, provided their operations ‘were confined to a subsistence level’ (DFAT 1988: 1). The 1974 Memorandum of Understanding made no direct reference to the mode of production; ‘Indonesian traditional fishermen’ were instead defined as ‘fishermen who have traditionally taken fish and sedentary organisms in Australian waters by methods which have been the tradition over decades of time’ (see Appendix B).
Under the 1989 amendments to the MOU, further qualifications were introduced when access to Australian waters was 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’ (see Appendix C). Since ‘decades’ had to refer to a minimum period of two decades, [1] ‘traditional vessels’ were defined as perahu without motors. The direct reference to Indonesian fishermen with a history of activity in the AFZ was dropped, is indirectly present in the inference that ‘traditional fishermen’ have been fishing ‘over decades’. Implicit in the MOU is the notion of traditional societies operating in a static and unchanging fashion over a long period of time. Traditional rights of access are thus determined by continuing use of ‘traditional’ — that is, unchanging — technology.
The notion of the ‘traditional’ in the 1974 MOU reflects the essential elements of a popular and prevailing view of indigenous tradition, common both in Australia and elsewhere, as ancient and unchanging (Handler and Linnekin 1984; Merlan 1991; Hovelsrud-Broda 1997; Ewins 1998; Ritchie 1999). An everyday definition of tradition used in relation to the Pacific is ‘those beliefs and practices that have been handed down from generation to generation’ (Ewins 1998: 3). This view assumes that ‘an unchanging core of ideas and customs is always handed down from the past’ (Handler and Linnekin 1984: 273) — in the case of the MOU ‘over decades of time’. The prevailing view of ‘traditionalism’ (Merlan 1998) is that changes in tradition, such as the adoption of new technologies as a result of adaptation to changing circumstances, are considered to be ‘inauthentic’ and therefore not ‘traditional’. Since ‘modern’ often means ‘commercial’, ‘traditional’ is equated with ‘subsistence’, and this ‘underpins the belief that “traditional” is, and should continue to be associated with primitive technology’ (Campbell and Wilson 1993: 75–6).
While such notions and dichotomies are now rejected in social theory, they still inform the Australian Government’s understanding of Indonesian fishing activity in the AFZ. Australia’s version of the Orientalist discourse is based on a fictionalised cultural inertia ascribed to Indonesian fishermen. The irony is that Australia makes allowance for its own cultural dynamism by expanding its territorial waters, appropriating Indonesian fishing grounds, and continually upgrading and modernising its maritime technology to patrol these waters. Indonesian fishermen, on the other hand, are forced to use simple fishing gear and unmotorised vessels in order to remain traditional, primitive, stagnant, underdeveloped and technologically unsophisticated. And the Bajo suffer a double jeopardy, because they are also subject to pressure from Indonesian authorities who have ‘traditionally’ viewed minority cultural groups in much the same light.
The regulations in the 1974 MOU effectively lock Indonesians and their material culture of fishing into a time-bound past. They are forced to operate outside of their own time (Fabian 1983: 2), in a state of ‘reified timelessness’ (Carrier 1992b: 11), resulting in a technological freeze (Campbell and Wilson 1993: 185). The modernisation of Bajo fishing vessels means that Australian authorities consider they are no longer operating ‘traditionally’, but are commercial operators whose activities fall outside the regulations of the MOU. The following court case illustrates the shifting status of Indonesian fishermen caught in this traditional/commercial dichotomy.
On 18 May 1997, a Mola Bajo captain, Si Nasir, and four crew of the Karya Abadi were apprehended for illegally fishing outside the MOU box area, exactly 10.7 nm south of the southern MOU boundary, south of Browse Island, and taken to Broome. The crew and captain were charged under Section 100 of the Commonwealth Fisheries Management Act 1991 with using a foreign fishing vessel in the AFZ without a licence. The captain was also charged under Section 101 with being in charge of a foreign fishing vessel equipped for fishing. The captain and the crew pleaded not guilty to the charges. Although legal aid was not provided, a lawyer from Perth decided to defend the fishermen on a pro bono basis. The crew were held at Willie Creek until their case was finally heard five months later in the Broome Court of Petty Sessions on 16 and 17 October.
The case received an unprecedented level of print and television media coverage before and during the trial because the defence lawyer presented a Mabo-style sea claim and asserted that the fishermen had a native title right to fish in areas of the AFZ outside the MOU box area. If the defendants were all traditional fishermen exercising traditional fishing rights recognised under Australian law, then Sections 100 and 101 of the Fisheries Management Act 1991 would not apply to them (Vincent 1997).
Legal precedents set in previous cases in Australia had outlined the evidence required to prove native title rights for land or sea, and these formed the basis of the defence case. The first traditional fishing rights case in Australia was heard in the New South Wales Supreme Court in March 1993. [2] It dealt with a man called Mason who was arrested for having more than the allowed limit of abalone in his possession. Mason’s defence was that he was ‘exercising his native title right to fish and therefore outside the scope of the fisheries regulations’ (Peterson and Rigsby 1998: 11). The court ‘recognised the existence of a traditional right to fish but questioned whether the defendant was actually practising that right at the time of his arrest’, so Mason lost his case (Cane 1998: 66).
Justice Kirby’s judgement on appeal found that the right to fish based upon traditional laws and customs is a recognisable form of native title under common law. Justice Kirby also set out the type of evidence required to establish a successful common law claim for native title. The criteria adopted by Nasir’s defence to demonstrate the validity of the Bajo claim were informed by this judgement. These were that: (1) the traditional laws and customs covering the right to fish were observed by the communities from which the defendants originated immediately before Australia exercised its sovereignty over the waters in question; (2) the defendants were indigenous people and descendants (‘or within the permitted group’) of the relevant communities; (3) they had continued, uninterrupted, to observe the relevant traditional laws and customs; and (4) their activities in fishing for shark fin were an exercise of those traditional laws and customs. [3]
In submissions to the magistrate the defence highlighted two contentious questions about the definition of ‘traditional’ activities. The first was whether fishing for shark fin for sale or barter could be regarded as a traditional practice and the second was whether the use of longline gear could be regarded as a traditional fishing method. Not only did the defence argue that sale of shark fin is in keeping with the traditional practices of the Bajo; it was also argued that there is in law no requirement for customary practices to be immutable or fixed in time. The second argument was based on judgements by Justice Brennan in the Mabo case and by Justice Kirby in the Mason case.
The magistrate handed down his decision on 11 November 1997. He ruled that the Fisheries Management Act 1991 was plainly intended to extinguish foreign traditional fishing rights in Australian waters. Since the MOU set aside areas within the AFZ where traditional fishermen could operate, he said that this indicated a legislative intention to abrogate any such rights that may have existed in other parts of the AFZ (Roberts 1997: 15). He also found that the defendants could establish points (1) and (2) in their main argument, but could not establish points (3) and (4), and could not therefore be properly regarded as ‘traditionally fishing’ (ibid.: 19). One of his reasons was that evidence presented by a Western Australian fisheries officer showed that longlines cannot be considered as a traditional fishing method because of their recent adoption and size.
Previously shark boats used only handlines and the fishermen kept all of the shark. Now they only keep the fins or a small proportion of the body.… Further, the price of shark fin has increased dramatically whereby Indonesian fishermen may receive up to $80A per kilo for No 1 grade product.… Even allowing for cultural dynamics, the recent development of relatively sophisticated longlining appears to be as a direct result of the high price paid to Indonesian fishermen for shark fin and the desire to maximise profits. In my view this method of fishing cannot be said to be a traditional fishing practise [sic] — even making allowances for changing fishing equipment technology (ibid.: 21).
The magistrate also noted that the Torres Strait Fisheries Act 1984 ‘excludes traditional fishing from the definition of commercial fishing’, but no such exclusion is made in the Fisheries Management Act 1991, so he concluded that the defendants were engaged in commercial fishing (ibid.: 6).
I have reservations in accepting the proposition that a defence based upon a traditional fishing right extends to fishing for commercial purposes … the formal written contract entered into by Nasir with the money lender, the sale and/or exchange of shark fin for goods or money and the use of the longline demonstrate that his venture was of a commercial rather than traditional nature (ibid.: 21–2).
The magistrate convicted the fishermen on all charges and placed them on good behaviour bonds of A$ 3000 for five years. He ordered forfeiture of the fishing gear but not the vessel. His reasons for this decision were that six months in detention awaiting the trial and judgement amounted to fair punishment for the crew, and that the vessel was only 10.7 nm outside the MOU box. However, he added that by using what he called ‘imprecise’ and ‘primitive’ navigational equipment (compass and depth lead line), the captain was reckless to be fishing so close to the MOU box boundary. A few days later, the vessel was stocked with food and towed for three days to the outer edge of the AFZ from where the captain and crew returned to Indonesia.
The Broome decision is strangely contradictory. Fishermen using longline gear operating inside the MOU box area are not apprehended for being non-traditional and therefore engaged in illegal activity. The Karya Abadi had been boarded by a senior WA fisheries officer inside the MOU box area northeast of Ashmore Reef ten days before its apprehension. According to the evidence presented in court, the officer stated that he informed the captain where he could and could not fish and also inspected his fishing gear. In doing so, he acknowledged that the men were ‘traditional fishermen’ since they were carrying out ‘traditional fishing’ within the terms of the MOU regulations. No Indonesian perahu has ever been apprehended and convicted for charges of being ‘non-traditional’ in the MOU box. However, if the same vessel is found operating outside the MOU box area using the same longline gear, the activities of the crew become ‘non-traditional’, ‘commercial’ and ‘illegal’.
There is now widespread academic awareness of the paradoxical fluidity of tradition (Ewins 1998: 12). Culture is shaped by changes in social, economic and historical circumstances although ‘it has taken some time for anthropology to come to terms with a humanity that is equal, that is universally dynamic and changing, possibly in different ways within different cultural projects, but which could not simply be sundered into the progressive and the traditional’ (Miller 1994: 59). Legal precedents in Australia, in some instances informed by contemporary anthropological opinion, have come some way towards acknowledging cultural dynamism, and rejecting a definition of ‘traditional’ activities based on technology, but this is in stark contrast to the approach written into the 1974 MOU and its amendments.
In 1986, the Australian Law Reform Commission rejected such a definition of ‘traditional’ Aboriginal hunting and fishing activity:
In determining whether an activity is ‘traditional’ attention should focus on the purpose of the activity rather than the method (LRC 1986: 181).
The Commission also acknowledged the changing nature of Aboriginal traditions:
Aboriginals have had to adapt to change and outside influence … [and] in many cases hunting and fishing practices have incorporated new materials. Nylon fishing nets may have replaced those made of bush fibre … guns may very often have replaced spears, aluminium dinghies are used instead of dugouts (ibid.: 121).
The Commission’s findings related to Aboriginal subsistence activities, broadly including ‘consumption within local family or clan groups … even though elements of barter or exchange may be present’ (ibid.: 181). They do not directly apply to Indonesian fishermen since the latter are not fishing for subsistence and are not Australian citizens. However, as Campbell and Wilson (1993: 78–9) have previously argued, a definition of ‘traditional’ activity based on the purpose rather than the method has already been applied to foreign fishermen in the Torres Strait Treaty 1978 between Australia and Papua New Guinea.
According to Article 10(3), the principal aim of this treaty is ‘to acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement’. In Article 1(l), the treaty defines traditional fishing as ‘the taking, by traditional inhabitants for their own or their dependants’ consumption, or for use in the course of other traditional activities, of the living resources of the sea, seabed, estuaries and coastal tidal areas, including dugong and turtle’. In Article 1(k), it defines ‘traditional activities’ as:
Activities performed by the traditional inhabitants in accordance with local tradition, and includes, when so performed —
(i) activities on land, including gardening, collection of food and hunting;
(ii) activities on water, including traditional fishing;
(iii) religious and secular ceremonies or gatherings for social purposes, for example, marriage celebrations and settlements of disputes; and
(iv) barter and market trade.
In the application of this definition, except in relation to activities of a commercial nature, ‘traditional’ shall be interpreted liberally and in light of prevailing custom.
There is no reference to the methods of traditional fishing, only to the purpose, and there is a recognition that customs can change. This last point has been recognised more recently in the Australian High Court’s second Mabo decision, where Justice Brennan stated that the ‘laws and customs of any people will change’. [4] The Broome decision contradicted these important findings.
There is still contention in Australia about whether a traditional fishing activity or right can have a commercial purpose. The Torres Strait Treaty denies this possibility.
[A]fter a century of commercial fishing by the Strait’s indigenous inhabitants it was uncertain what fishing activities could be legitimately regarded as ‘traditional’. By adopting a narrow definition of traditional which excludes commercial activities, the Treaty failed to acknowledge the fluidity of tradition as well as the dynamic quality of economic decision making in the face of changing social conditions (Schug 1996: 219).
In Nasir’s case the magistrate relied on Section 3 of the Torres Strait Fisheries Act 1984, which defines ‘commercial fishing’ as ‘fishing for commercial purposes, but does not include traditional fishing’.
In Australian courts there have been no clear legal determinations on whether Aboriginal native title rights include commercial activities (Sutherland 1996: 28; Peterson and Rigsby 1998: 12). There are indications that the right to native title and traditional practice extends to commercial use (Kilduff and Lofgren 1996) but this has yet to be successfully tested. It would appear that in Australia official perceptions of Indonesian fishermen are consistent with representations of indigenous Australians. The ‘traditional’ is still largely represented as an inversion of the ‘commercial’. But for as long as Indonesian fishermen are known to have been fishing in the north Australian region, this has primarily been for commercial rather than subsistence purposes (Campbell and Wilson 1993). Drawing a distinction between traditional and commercial fishing activity is untenable in the case of the Bajo fishery.
There is, as the Broome case illustrates, a generally held belief on the part of the Australian authorities that fishermen have switched from ‘traditional’ to ‘commercial’ fishing because of increases in the price of shark fin in recent years and are now catching more sharks with the adoption of more ‘modern’ fishing gear (Wallner and McLoughlin 1995b: 120). Campbell and Wilson (1993: 75) provide an alternative account of this perception: ‘shark fishermen take shark fin “traditionally” provided the profit is small; once they begin to make significant commercial returns their activities cease to be traditional’. This understanding was reflected in the Broome case, and parallels the point made by Tonkinson (1997: 18) about Aboriginal traditions ceasing to be ‘traditional’ if they change in ways that threaten government or private sector interests. The Australian Government focuses on the high returns Indonesians are making on successful shark fishing trips and the perceived loss of Australian revenues as a result of this activity. As one Darwin magistrate stated in his decision to convict the Mola Bajo captain of the Bintang Nusantara for illegal fishing in the AFZ in March 1999: ‘Clearly fish in the AFZ is an asset which the court jealously guards, and an asset if not properly controlled will be plundered by a people with no legal right’.
This sort of thinking provides a justification for continuing the policy of apprehension and prosecution. The Australian authorities apprehend Bajo and other groups of fishermen operating in sail-powered boats outside the MOU box area using longline gear to fish for shark fin because they are seen to have betrayed their earlier authentic ‘traditional’ status and thus forfeited any ‘traditional’ rights they may have previously had.
[1] It is not clear whether the point of reference for this minimum period is 1974 or 1989.
[2] The case is documented as Mason v Tritton in 34 New South Wales Law Reports 572 (1994).
[3] The International Commission of Jurists, as well as various philanthropists, anthropologists, historians, and members of the Broome based Kimberley–Indonesia Friendship Society provided funding and evidence to support the defence case. Because of my research into the activities of the Mola Bajo in the AFZ, I was asked to submit a report on evidence in defence of Nasir and the crew addressing the four criteria outlined above. I also appeared as an expert witness during the trial.
[4] The quotation is from Mabo No 2 1992-175 Commonwealth Law Reports 1 at 61.