Some suggestions have already been made about how a licensing system could operate and what benefits it would deliver to Indonesia and Australia once groups with a historical interest in the AFZ have been identified (Reid 1992; Campbell and Wilson 1993; Wallner and McLoughlin 1995a; Fox 1998). ^[8] An arrangement of this kind could be operated through the harbour master in Pepela who currently keeps records of arrivals and departures and issues sailing clearances. In one version of the system, the harbour master would be responsible for issuing seasonal non-transferable licences to perahu captains in line with conditions set down by the Australian Government. Decisions about who obtained the licences would be made by local community members and carefully monitored. The Australian authorities would be informed at the beginning of each season of the details of all licensed perahu. Any violations would result in the suspension of the licence for three years.

The licensing of boats to fish for shark only inside the existing MOU box area (Fox 1998) would not actually deter illegal fishing outside the box since there are not sufficient stocks available in the box area. Bajo fishermen are prepared to pay relatively large amounts of money for licences as long as they are assured of access to fishing grounds that have reasonable fish stocks. Many fishermen would then have no further incentive to engage in illegal fishing activities and this in turn would save Australia millions of dollars in apprehension and prosecution costs. Fishermen with specific access rights

Through direct engagement with fishermen in the implementation of new policies and procedures, there could also be education in the appropriate forms of resource management and conservation (ibid.: 195).

New policy approaches have not been tried because there is a lack of political will on the part of the Australian and Indonesian governments to instigate or support research on the groups that would qualify for specific user rights. Only when this information is known can consideration be given to developing appropriate conditions under which a traditional fishery could operate in the AFZ. ^[9] The Bajo are one group of Indonesian fishermen who historically fished in the AFZ prior to Australian maritime expansion and have continued to do so. However, we need to know much more. A detailed analysis of the other groups operating in the MOU still needs to be undertaken. Groups of fishermen from the villages of Pepela and Oelaba, as well as the Madurese, can also claim to have legitimate rights of access to Australian waters.

There is also lingering uncertainty over seabed and water column boundaries between Indonesia, Australia and Timor Leste. In 1973, a bilateral agreement between Australia and Indonesia established seabed boundaries extending from the Papua New Guinea border in the east to waters between Ashmore Reef and Roti Island in the west, but left a gap in the boundary south of the then Portuguese colony of East Timor which became known as the Timor Gap (Kaye 1995: 45). The western extension of the seabed boundary between the two countries from a point north of Ashmore Reef was also undecided. Once the two countries had extended their exclusive economic zones, the Timor Gap Treaty established a Zone of Cooperation between Australia and Indonesia that provided for the sharing of oil revenues under the seabed south of East Timor (ibid.: 53). This was re-negotiated in 2002 as the Timor Sea Treaty between the Government of Australia and the newly independent state of Timor Leste during a period when that state was both politically and economically fragile, so it remains a bone of contention in the area. Map 8-1 shows the current maritime boundaries between the three countries, with the letter ‘A’ designating the Joint Petroleum Development Area defined by the Timor Sea Treaty between Australia and Timor Leste.

The maritime boundaries between Australia and Indonesia should have been further clarified by the Australia–Indonesia Maritime Delimitation Treaty signed in 1997 (DFAT 1997), but a number of problems arose in the process of ratification, and these became the subject of an inquiry by the Commonwealth Joint Standing Committee on Treaties. Under the provisions of this treaty, Ashmore Reef would generate a 24 nm exclusive economic zone in place of the 12 nm zone recognised in the 1974 MOU, and this would place an additional restriction on the rights of Indonesian fishermen as well as raising more enforcement problems. The committee therefore recommended that

Political developments in East Timor since 1999 have entailed a further reassessment of the 1997 treaty which could still have significant implications for Bajo fishing activity in the Timor Sea.

There appears to be a perception by the Australian government that the education, enforcement and prosecution approach is a workable solution to illegal fishing activity. The approach may work for certain groups operating in the AFZ at certain times, but it has been ineffective against other groups by virtue of the ongoing access afforded under the MOU. As one commentator observes:

One possible explanation is the belief generated in Australian government circles that the Government of Indonesia is responsible for the activities of its many small-scale fishermen and has the capacity to control the thousands of boats used by villagers (Fox 1998: 134–5; see also JSCFDAT 1993: 129; JSCT 1997: 36). There is also a belief that the situation could be remedied by regulating the activities of those entrepreneurs in Indonesia who control the trade in marine products and the middlemen who are thought to control the activities of the fishermen (Fox 1998: 134).

The antiquated definition of ‘tradition’ also enters into the equation. According to Fox:

Another commentator has suggested that the Australian Government’s refusal to change its understanding of tradition

This logic provides the necessary justification to continue the policy of apprehensions, potentially cancel the MOU with Indonesia, and close access to the AFZ for Indonesian traditional fishermen.

There is also an antiquated but powerful form of conservation thinking that has informed Australian policies; one that considers indigenous peoples as ‘enemies’ and ‘threats’ to natural resources, rather than as the key to their sustainability (Stevens 1997: 4). The exclusionary management regime of the Ashmore Reef National Nature Reserve exemplified this kind of consciousness.

Australia does in fact have some legal obligation to recognise prior activity in the AFZ by people from Indonesia. Under Article 62(2) of UNCLOS III, the nationals of foreign states are technically entitled to the surplus of the total allowable catch in an Exclusive Economic Zone. In allocating this surplus to foreigners, a coastal state is required by Article 62(3) to take account of several factors, including the significance of the living resources of the area to its own economy and the need to minimise economic dislocation in states whose nationals have habitually (that is, traditionally) fished in the zone. However, Article 77(2) says that foreign states and their citizens do not have any direct legal rights to the resources on the continental shelf, which relieves Australia of any obligation to grant Indonesian fishermen access to sedentary species around offshore reefs and islands in the MOU area. Furthermore, UNCLOS III does not specifically protect the rights and interests of indigenous peoples, and the way forward for Australia and Indonesia will depend less on their legal obligations under this convention than on bilateral relations and commitments between the two countries (Campbell and Wilson 1993: 194; Tsamenyi 1995: 10).

Australia has other international obligations with regard to indigenous peoples’ rights of access to resources. Multilateral environmental and human rights treaties, to which Australia is a signatory, have recognised that indigenous people retain traditional ecological knowledge and methods of natural and cultural resource management which can contribute to sustainable development.^[10] International human rights standards require that governments recognise indigenous people’s rights to ‘customary use of resources, even in protected areas, rights to participate in decision-making and be included in management regimes which recognise customary resource use, and rights to benefit equitably in the returns generated by resource use’ (Sutherland 1996: 5).

The MOU needs to be renegotiated on the basis of contemporary circumstances and fishery management principles and practices, not those of the early 1970s. Future strategies need to excise outdated assumptions and be brought into line with national and international standards. Contemporary approaches to fisheries management are now moving away from biological management, scientific modelling and centralised government responses. They are moving towards partnerships between people, administrative decentralisation, and co-management between government and local communities. It is now clear that fisheries management will not succeed without the involvement of the fishermen themselves (Pomeroy 1994: 2; White et al. 1994; Hviding and Baines 1996: 80; Mace 1997: 2). More specifically, fishermen must have a recognised ‘stake’ in resource management in the form of rights if they are also to have incentives for resource protection (Bailey and Zerner 1992: 11; White et al. 1994: 14).

Fisheries management also needs to take into account the social, cultural, and economic dimensions of resource use and exploitation (White et al. 1994: 9). These issues were reiterated in a number of presentations at the Second World Fisheries Congress held in Brisbane in 1997 (Hancock et al. 1997). Guidelines developed by the UN Food and Agriculture Organisation on precautionary approaches to fisheries management also emphasise the necessity for cooperation between stakeholders in the development of management plans (Mace 1997: 13). One of the guiding principles of AFMA’s management philosophy is to ensure active participation of user groups in the ‘development and implementation of fisheries management measures’ (McColl and Stevens 1997). It is now an appropriate time for the Australian Government to apply its stated philosophy to Indonesian fishing activity in the AFZ.