An Aboriginal man from the New South Wales south coast has been ordered not to fish, dive or possess abalone for the next two years after being found guilty of fisheries offences.
Walbunja man Keith Nye was sentenced to a 26-month intensive corrective order in Liverpool Local Court on Thursday for two offences of trafficking indictable quantities of abalone.
He was also ordered to pay $4,500 in fines and perform 200 hours of community service, and his vehicle will be seized.
Mr Nye, 65, was arrested in Sydney in January 2017 with 439 abalone in his car. Another 128 were seized elsewhere.
The Fisheries Management Act 1994 defines an indictable quantity of abalone as 50.
In sentencing, Magistrate Adbul Karim acknowledged Mr Nye "had and continues to have a strong cultural connection to fishing for abalone" but noted his conduct was a "substantial breach" of the Act.
Mr Nye was arrested after surveillance by Fisheries officers found he had sold abalone to a restaurant in Sydney on January 20, 2017.
Another 128 abalone were seized from the restaurant's freezer.
Mr Nye does not hold a commercial fishing licence and has been convicted previously for abalone possession.
Outside court, he said the sentencing ends a five-year court battle.
"I have been found guilty of practising my culture, something I have done my whole life … but thank God the judge, I believe, took our culture on board and recognised who we are – it could have been much worse," he said.
The offences carry a maximum of 10 years imprisonment.
Mr Nye said he has a right to cultural fishing, particularly for abalone, something he said he's done since childhood.
"The government expects me to walk away from that," he said.
"Culturally, it's a food source. Our elders love eating them but the rules and regulations upon us do not allow us to feed our elder people.
"How can one black man with a snorkel, pair of glasses and a pair of flippers rape the ocean."
Cultural fishing is recognised under the Act but doesn't consider it a defence.
NSW Aboriginal Land Council Chair Danny Chapman said he was concerned about the court's inability to find native title rights to fish and to survive.
"Our cultural rights have been taken away from us by government action over the years and all we have left is our fishing rights – and we will not take a backwards step on our fishing rights," he said.
"We have to practise it, we have to teach it and we have to hand it on."
A spokesperson for NSW Department of Primary Industries said it "recognises and encourages cultural fishing through increased take and possession limits."
It said it "supports the rights of Aboriginal cultural fishers and is actively working to support Aboriginal cultural fishing within a sustainable natural resource management framework".
Last month, a district court judge dismissed an appeal by Walbunja man John Carriage to overturn his conviction on fishing-related offences.
Mr Carriage was convicted in October last year on six fishing offences after he was found in possession of abalone at South Durras on the NSW south coast in December 2017.
He was given a 12-month intensive correction order and ordered not to dive for or possess abalone for two years.
He appealed against the decision, which he said prevented him from practising cultural fishing.
The matter was heard in the Parramatta District Court on June 1, where Judge Mark Buscombe dismissed the appeal.
Lawyers for NSW Fisheries asked Judge Buscombe to award them $25,000 in legal costs against Mr Carriage.
Mr Carriage's lawyer, John Waters, described the request as a "heavy-handed" approach, and said his client was not in a position to pay.
He said there was an element of Fisheries "hounding" his client and described the cost as "a serious amount for any person facing this court, but all the more so for this defendant."
Judge Buscombe told the court Fisheries' decision to ask for Mr Carriage to pay costs "troubled" him.
"This man is a descendant of people who have fished in these water for a millennia. As an ordinary Australian I find it repugnant, quite frankly," he said.
Dozens of Aboriginal people were charged last year, according to the NSW Bureau of Crime Statistics.
Mr Nye said the fight wasn't over.
"We're already lobbying … It's a good feeling to walk out but really is justice there yet? I don't think it is. We're not going away."
