The 1974 MOU recognises some form of traditional fishing rights and attempts to regulate access for traditional Indonesian fishermen in an area now under Australian control. However, in the words of Fox (1998: 114), ‘numerous problems have arisen as a result of this seemingly well-intended endeavour’ and led to a succession of ‘unintended consequences’.
The MOU does not specifically identify who is allowed access into the MOU area. Rather, access is open to any Indonesian ‘traditional’ fishermen as long as they comply with the regulations which narrowly define ‘traditional’ methods and vessels. Access is not determined by historically recognised use rights for specific groups who operated in the region prior to Australian maritime expansion; any group of fishermen using a sail-powered boat is allowed to fish in the region. By failing to identify the specific groups who historically accessed the AFZ, the effectiveness and original intention of the MOU has been undermined and its outcomes severely attenuated.
The original purpose of excluding the use of motorised vessels and methods in the face of increasing motorisation in the small-scale perahu sector in Indonesia was to limit the number of boats entering the area. This policy was designed to control the level of resource exploitation and therefore function as a form of resource management. The idea was that if the technology was unsophisticated or ‘primitive’ it could offer some protection for marine resources. But this technological freeze has failed to achieve the desired outcome. By not restricting the numbers of vessels or the amount of product taken, it opened the area up to an unlimited number of fishermen in sail-powered vessels, of which there is no shortage in eastern Indonesia, and this has resulted in over-exploitation of resources in the MOU box area, particularly sedentary species on reefs and inshore waters.
By not permitting the use of motorised vessels in times of bad weather, the Government has also been accused of enforcing a policy that subjects the fishermen to unnecessary risks (Campbell and Wilson 1993; Fox 1998: 121). Over the last decade, a number of sailing boats and their crews have been lost during cyclones in the MOU area. For example, in April 1994, four Pepela-owned boats and their mostly Bajo crews drowned during a cyclone in the Timor Sea. On the other hand, in periods of little or no wind, or strong currents, when it is impossible to make any headway in a sail-powered vessel, strong currents can easily drag a sail-powered vessel beyond the permitted areas.
Legal fishing in the MOU box area can also be seen as a gateway to illegal fishing (Fox 1998). The 1989 amendments that created this area did not incorporate the most productive Bajo shark fishing grounds. Apart from a few areas around reefs and islands and along the edges of the MOU box, it is a relatively poor shark fishing ground (Wallner and McLoughlin 1995a: 34). No motorised Type 3 perahu have been apprehended for illegal shark fishing activity in this area. Butonese and Bajo fishermen from across eastern Indonesia who use motorised boats to target shark prefer to concentrate their activities in the more productive waters to the north and east of the MOU box (ibid.). Bajo fishermen often seek access to these waters by passing through the MOU box, but in doing so they run the risk of apprehension. Fishermen are forced to fish illegally outside the MOU box area in an attempt to secure adequate returns. Illegal fishing and boat apprehensions thus occur in direct response to the ineffectiveness of the MOU itself.
Naturally, the borders of the MOU box area cannot be marked or signposted. They only exist as lines on maps, unconnected to any geographical features. Bajo navigation is based on reference to familiar landmarks and sea features. Their sailing and fishing activities have, until recently, never been confined to areas bounded by lines on maps. Even for the most experienced navigators, it is difficult to determine exactly where the boundaries of the MOU box are. The MOU restricts access to fishermen using ‘traditional methods’ but expects the accuracy of modern navigation. Accurate determination of latitude and longitude requires the use of marine charts and sophisticated navigational equipment such as a Global Positioning System. Prior to the early 1990s, fishermen found within an unspecified reasonable distance of the permitted areas were generally warned but not apprehended. The tougher approach adopted by AFMA in recent years has seen Bajo and other fishermen apprehended as little as 5–8 nm outside the MOU box. Fishermen who are denied the use of motors and sophisticated equipment under the MOU are treated in the same fashion as an industrial foreign fishing vessel worth millions of dollars caught illegally fishing in the AFZ.
Neither the 1974 MOU nor the Plan of Management for Ashmore Reef National Nature Reserve (ANPWS 1989) makes any mention of this reef’s cultural heritage value. At least eight Indonesian graves have been identified on West Island and others on East and Middle islets (ANPWS n.d.), and fishermen are officially prohibited from landing on the islands to visit these sites. [5] However, formal requests by fishermen are made to the caretaker to obtain permission to visit and maintain the graves, perform ceremonies and present offerings, and the caretaker often accompanies the fishermen on these visits (personal communication, Paul Clark, 1999).
Indonesian fishermen have played no role in shaping the MOU itself. The agreement makes some attempt at recognising their rights but they have not been invited or allowed to participate in its formulation or implementation. They are not alone, for the interests of maritime peoples are often ‘ignored, dismissed or marginalised’ (Schug 1996: 210) in the formulation of international maritime boundaries and agreements designed to protect their livelihood. The case of the indigenous people of the Torres Strait is one example: the boundaries between Papua New Guinea and Australia established under the Torres Strait Treaty were developed ‘without sufficient consultation with the people who would be affected most directly by the political division’, and this has ‘created an unstable situation which threatens to undermine intention the Treaty’s efforts to provide for the protection of the Strait’s marine environment’ (ibid.: 222). In the case of the MOU, dialogue may be effective at a government-to-government level but other stakeholders, such as Indonesian fishermen, are unable to participate.
Included in the minutes of the meeting between Australian and Indonesian government officials in April 1989 is a provision which states that:
Indonesian and Australian officials agreed to make arrangements for cooperation in developing alternative income projects in Eastern Indonesia for traditional fishermen traditionally engaged in fishing under the MOU. The Indonesian side indicated they might include mariculture and nucleus fishing enterprise scheme (Perikanan Inti Rakyat or P.I.R.). Both sides mutually decided to discuss the possibility of channelling Australian aid funds to such projects with appropriate authorities in their respective countries.
The ‘nucleus fishing enterprise scheme’ is a transmigration program in the fisheries sector which is used to shift the rural and/or fishing population from densely populated areas to those islands where population density is low. No Australian aid was subsequently directed to the Bajo fishermen who operate in the AFZ, and it was not until the late 1990s that any official Australian delegations visited the villages of Mola, Mantigola or Pepela. The idea of direct engagement with fishermen and an understanding of the issues from their point of view appeared to be completely alien to the Australian authorities.
The educational and information tours undertaken by Australian officials to eastern Indonesia in 1995 were in response to high levels of incursion into the AFZ in 1994. During the visits, maps were distributed in an effort to explain the complex maritime jurisdictions existing between Australia and Indonesia in the Timor and Arafura seas and the MOU area. These were accompanied by two handouts in Indonesian entitled Pesan Permerintah Australia untuk Nelayan (‘Message for Fishermen from the Australian Government’) and Pesan Pemerintah Australia untuk Pemilik Perahu/Kapal dan Otorita Pelabuhan (‘Message for Perahu/Boat Owners and Harbour Authorities from the Australian Government’).[6] The Australian authorities seem to think that their maps are readily understood by Indonesian fishermen and that they can help them to determine where they can and cannot fish. Fishermen with maps certainly have no excuse if found outside of the permitted areas. However, some Bajo captains, especially those who were illiterate, found the maps highly confusing and difficult, if not impossible, to comprehend.
During the course of their awareness-raising tours, officials from the Australian Agency for International Development (AusAID) did explore the opportunities for delivery of aid to poor isolated fishing communities. As a result AusAID has implemented some small projects, but these have not been directed to fishermen whose activities are covered by the MOU, but to people from Sinjai in South Sulawesi who were apprehended in large numbers in 1994–95 following a wave of illegal trepang fishing activity in the northern part of the AFZ. Some support from the Direct Assistance Program of the Australian Ambassador to Indonesia was given to other fishing communities, including Pepela, but the outcome was somewhat ironic. In one instance the money was used to purchase a perahu lambo on the understanding that the proceeds from fishing would be distributed among the community, but the perahu (the Bintang Pagi) was subsequently apprehended, confiscated and destroyed in Darwin.
There is a serious inconsistency here. Australia has a policy commitment to deliver aid to eastern Indonesian fishermen operating under the terms of the MOU, yet retains a policy of confiscating and destroying the sources of livelihood of these very same people. In February 1995, an ABC journalist interviewed a representative from the Australian Embassy in Jakarta and a senior officer from the WA Fisheries Department who had just returned from the first educational tour of eastern Indonesia. The embassy representative explained that the Australian Government was exploring opportunities for the delivery of aid for ‘isolated poor fishing communities in eastern Indonesia … who need, for their livelihood, to gain income to support their families and are ready and willing … to often engage in some risky fishing activities south of the border’ (ABC Radio National 1995: 2). In the same interview, the fisheries officer discussed the effectiveness of the deterrence policy:
From our experience … we’ve found the only real deterrent is to continue prosecuting them and to take their boats off them and just fly them home.… I think this is the only real way we can deter them is to continually confiscate and burn their boats, so they lose all their boats and all their fishing equipment, and fly them home back to Indonesia. And just continually do that (ibid.: 5).
As Fox (1998: 131) noted, it is an ‘outright contradiction’ for the Australian Government to fund aid projects to alleviate poverty in eastern Indonesia while burning vessels belonging to some of the poorest inhabitants of the region.
For over a decade, the policy of apprehension and confiscation of boats, catch and equipment as a form of deterrent to further illegal activity has been in place. Between 1988 and 1993, there was an overall decline in the number of boat apprehensions, which gave the impression that the policy of apprehension and confiscation was working. However, there was a dramatic increase over the course of the next four years, and this included an increase in the apprehension of Type 2 perahu using longline gear (see Figure 8-1). Of the total number of Indonesian boats apprehended between 1975 and 1997, approximately 22 per cent or 134 boats were Type 2 vessels.
Figure 8-1: Total number of boat apprehensions and total number of Type 2 boat apprehensions, 1975–97.
The educational and information campaigns of the 1990s seem to have introduced the AFZ to coastal peoples who may not have previously been aware of the existence of the MOU and the permitted areas. The campaigns themselves may therefore have contributed to larger numbers of boats from eastern Indonesia beginning to engage in illegal activity. If we look at the proportion of Bajo Type 2 perahu among the total number of Type 2 perahu apprehended in those years when there were any apprehensions of such vessels, we can see that the proportion declined in those years when the total number of apprehensions suddenly began to increase (Table 8-1). In 1996, when 49 Type 2 perahu were apprehended, only 18 of them were Bajo perahu.
The present enforcement and prosecution approach costs the Australian taxpayer millions of dollars each year. Expenses include the costs of towing the vessels to Darwin or Broome, carrying out immigration, quarantine and customs checks, maintaining crews and vessels until the completion of court hearings, repatriation of fishermen and destruction of forfeited boats. The costs incurred for each apprehension boat crew depend on the length of time the fishermen are detained, and this in turn depends on the prosecution process. [7] It is difficult to obtain official government figures on these expenses because there is a reluctance to place such information in the public domain and many different government departments and agencies are involved in the process.
Table 8-1: Total number of Type 2 apprehensions and Bajo Type 2 apprehensions, 1975–97.
|
Year |
Total Type 2 |
Bajo Type 2 |
|
1975 |
3 |
3 |
|
1980 |
2 |
0 |
|
1985 |
5 |
5 |
|
1988 |
3 |
0 |
|
1990 |
4 |
4 |
|
1991 |
5 |
5 |
|
1992 |
3 |
3 |
|
1993 |
9 |
0 |
|
1994 |
12 |
8 |
|
1995 |
8 |
1 |
|
1996 |
49 |
18 |
|
1997 |
31 |
15 |
|
Total |
134 |
62 |
Source: AFMA Apprehension lists, Northern Territory and Western Australia.
In its submission to the Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFDAT) in 1991, AFMA reported that the costs associated with the apprehension of Indonesian vessels in 1989–90 was A$ 750 499 (Fox 1998: 132). A senior AFMA official has stated that his organisation spent around A$ 3 500 000 on 124 foreign fishing apprehensions, of which 113 were Indonesian, in the financial year 1997/98. This amount included the salaries of 15–20 fisheries officers on AFZ patrolling duties and other fisheries support functions and the costs of caretaking and security operations while fishermen are in detention. In Darwin the contracting caretakers receive about A$ 1000 a day from AFMA for each vessel and crew in their care. This amount covers staff salaries and the cost of providing food, medical treatment, and transport for the fishermen who have been detained. Legal Aid lawyers say that the cost of legal representation for the fishermen is also around A$ 1000 a day. From Darwin, fishermen are normally repatriated to Kupang on a Merpati flight. A one-way ticket costs A$ 244–319 depending on the time of year. Repatriation from Broome is more expensive. For those few fishermen who are able to pay security bonds and return to Indonesia in their boats, the Australian authorities incur several thousand dollars in additional costs by towing the vessels to the international border.
The effectiveness of the policy of apprehension in deterring illegal activity was questioned by the JSCFDAT in 1993. The committee concluded that was a drop in the price of trochus shell, and not surveillance and enforcement, that had caused a decline in illegal trochus harvesting in the AFZ in the early 1990s. The committee also considered that similar enforcement and prosecution approaches were ‘unlikely to be effective’ against illegal shark fishing while the price of shark fin remained high (JSCFDAT 1993: 129).
[5] At least one of these graves is that of a Bajo man from Mola Selatan.
[6] The first maps produced in late 1994 were A4 black-and-white photocopies. These were replaced a few months later with larger A3 plastic colour-coded maps. A second edition was produced in August 1997 and reprinted in February 2000. The third edition was produced in December 2004 and is now available on the AFMA website in both English and Bahasa Indonesian (www.afma.gov.au/management/compliance/illegal/default.htm).
[7] The average stay for fishermen has been reported to be 27 days (Commonwealth Ombudsman 1998: 30), but some fishermen spend months awaiting court hearings.