EXPLANATORY STATEMENT
Issued by the authority of the Torres Strait Protected Zone Joint Authority
Torres Strait Fisheries Act 1984
Torres Strait Fisheries Management Instrument No. 16
The Torres Strait Fisheries Management Instrument No. 16 (the Instrument) is a legislative instrument for the purposes of the Legislation Act 2003.
Subsection 16(1) of the Torres Strait Fisheries Act 1984 (the Act) provides for the Minister to regulate fishing through an instrument registered on the Federal Register of Legislative Instruments. Subsection 35(1) of the Act provides for the Protected Zone Joint Authority (PZJA) to exercise the powers of the Minister under Subsection 16(1) of the Act.
The fishery
The Torres Strait Dugong Fishery and Turtle Fishery are traditional subsistence fisheries only, commercial fishing is not permitted. Hunting for dugong and turtle is an important part of the traditional way of life and source of protein in the diet of traditional inhabitants of the Torres Strait. Whilst the importance of the hunting of this species is recognised, measures are still implemented to ensure the conservation of these species through management arrangements across both Australia and Papua New Guinea.
Dugong are hunted using a wap (traditional spear) thrown by hand from a dinghy. Turtles are hunted using a wap (traditional spear) thrown or caught by hand from a dinghy, and they are also caught on the beach while nesting in some areas of the Torres Strait. Turtle eggs are also harvested.
Strong partnerships have been established for research, management and sustainable take of dugongs and turtles between Torres Strait island communities, the Torres Strait Regional Authority, relevant registered native title prescribed bodies corporate, research providers and state and Commonwealth agencies. Research projects that are undertaken for dugong include aerial and migration surveys through satellite tracking, and for turtle are tagging (also during nesting activities), and foraging population, hatching success and migration (satellite tracking) surveys.
There are specific Torres Strait community developed objectives which are outlined in the community based management plans for both turtle and dugong. Each community management plan integrates a range of cultural hunting protocols and traditional knowledge with contemporary fisheries management arrangements appropriate to each community. These are administered by the individual prescribed native title bodies corporate at each community with technical assistance from the Land and Sea Management Unit of the Torres Strait Regional Authority.
The Instrument replaces the Torres Strait Fisheries Management Notice No. 65 and Torres Strait Fisheries Management Notice No. 66 (the previous Instruments) which sunset on 1 April 2017. The Instrument maintains the prohibitions of the previous Instrument.
Details of the Instrument
The Instrument includes all existing arrangements contained within the previous Instrument.
The Instrument prohibits the taking and carrying of dugong and turtle in the Torres Strait Dugong Fishery and Turtle Fishery. The Instrument provides exemption to the prohibition for those who are engaged in traditional fishing and using a boat less than six metres in length, other than in the area of the dugong sanctuary
Consultation
The relevant stakeholders for consultation in relation to the Instrument are Aboriginal and Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants. Turtle and dugong are listed species under the Environment Protection and Biodiversity Conservation Act 1999 and various State and Territory legislation. In accordance with section 211 of the Native Title Act 1993, turtle and dugong may only be legally hunted by Aboriginal and Torres Strait Islander people.
To inform the relevant stakeholders about the Instrument a Native title notification under section 24HA(7) of the Native Title Act 1993 was undertaken. The notification was provided in writing to the Cape York Land Council, including for the Kaurareg Native Title (Aboriginal) Corporation Registered Native Title Body Corporate (RNTBC); Carpentaria Land Council; Malu Lamar (Torres Strait Islander) Corporation RNTBC; and the Torres Strait Regional Authority Native Title Office. The notification included a copy of the Instrument and details of the prohibition of fishing and exemption to the prohibition for traditional fishing.
There was one respondent to the Native Title notification, the Torres Strait Regional Authority Native Title Office, on behalf of Malu Lamar (Torres Strait Islander) Corporation RNTBC and the Torres Strait Regional Sea Claim (Part A). The respondent expressed, on their behalf, objection to the Instrument on the basis that, among other things, the Instrument interferes with, and may well make it unsafe for, native title holders to continue to exercise their native title, community and social activities on their traditional land and waters, including the right to hunt, fish, collect traditional food and to generally access the area.
The Protected Zone Joint Authority (PZJA) considered this objection. However the PZJA decided that the Instrument is necessary to ensure there is sustainable use of turtle and dugong in the Torres Strait, particularly in a way that protects the traditional way of life and livelihood of traditional inhabitants and the protection of indigenous fauna. In making its decision, the PZJA also committed to a general review of the impact of Instruments on Native Title rights in the Torres Strait by April 2018.
Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The PZJA assesses under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 that this legislative Instrument is compatible with human rights. The PZJA’s Statement of Compatibility is attached.
Regulation Impact Statement
The Office of Best Practice Regulation (OPBR) advised that a Regulation Impact Statement was not required for the Instrument providing a letter from the agency head was provided certifying that the measures maintained from the sunsetting Instrument efficiently achieved their objectives (OBPR ID: 21506). The letter is available for viewing on the OBPR website.
Details of the Instrument are set out below:
Clause 1 Provides for the Instrument to be cited as the Torres Strait Fisheries Management Instrument No. 16.
Clause 2 Provides that the Instrument commences on the day after it is registered on the Federal Register of Legislative Instruments.
Clause 3 Provides that the Instrument is repealed on 31 December 2026 unless earlier revoked.
Clause 4 Provides for definitions of terms contained within the Instrument, and that a term used in the Instrument and in the Plan or Act has the same meaning in the Instrument as in the Plan or Act.
Clause 5 Provides that taking of dugong or turtle, or taking and carrying of dugong or turtle on a commercial fishing boat, or the take of dugong by any other method than a spear thrown by hand is prohibited.
Clause 6 Provides that those who are engaged in traditional fishing, other than in the area of the dugong sanctuary described in the Schedule, and using a boat less than six metres in length, are exempt from the prohibition contained in Clause 5.
Clause 7 Provides for the manner by which a boat may be measured.
Clause 8 Provides for the revocation of the previous Instruments Torres Strait Fisheries Management Notice No. 65 and Torres Strait Fisheries Management Notice No. 66, and any existing licence or treaty endorsement granted under the revoked Instruments shall continue to operate as if it referred to the prohibition in this Instrument.
Schedule Provides for establishing the area of the dugong sanctuary.