PIAC’s Towards Truth project has released new research into laws and policies that have determined where and how Aboriginal people could hunt, fish and make a home, entitled ‘Living on Country’.
The research reveals how governments since 1788 have forced assimilation through housing policies and restricted Aboriginal cultural fishing, with devastating consequences.
The fight for traditional fishing rights
First Nations people have practiced sustainable fishing for tens of thousands of years, but research from Towards Truth demonstrates how these practices were almost immediately disrupted by colonial rules following invasion. In 1788, the first Governor of NSW, Arthur Phillip described how First Nations people found it ‘very difficult to support themselves,’ after colonisation began, and ordered naval officials to share a portion of any fishing catch with local Aboriginal people present.
Early legislation of the NSW colony, including the Fisheries Act 1881 and its update in 1902, contains some recognition of First Nations people’s connection to fishery resources:
‘The provisions of this section shall not apply to any Curator of a Museum or zoological collector holding a permit from the Commissioners… or to any aboriginal taking or being in possession of fish for his own consumption but in every such case of exemption the proof thereof shall be upon the defendant or person charged.’* – Fisheries Act 1881.
Pre-existing native title rights were affirmed in the historic Mabo case and 1993’s Native Title Act, which made clear that native title rights included cultural fishing practices. NSW fisheries laws do not legally interfere with pre-existing native title rights. Despite this, First Nations people continue to be prosecuted and locked up for exercising their lawful rights. Research by Janet Hunt and Kathryn Ridge details that between 1996 and 2021, two-thirds of people locked up for fishery offences were Aboriginal.
In 2009, the NSW Parliament passed amendments to the Fisheries Management Act, which included a new section 21AA, authorising Aboriginal people to take or possess fish for cultural fishing purposes. This section would provide a blanket exemption from prosecution for First Nations people practicing cultural fishing – but because of NSW Government inaction it has never become law, despite a Parliamentary Inquiry finding as recently as 2022 that the section ‘need[ed] to be commenced immediately’. As the ABC has reported, First Nations people have been left to shoulder the burden of proof to access exemptions under federal law.
‘NSW laws are encroaching on native title rights and the delay in commencing section 21AA is having real life impacts. First Nations people should not have to face the expensive prospect of going to court to have their rights respected’ Towards Truth Legal Research Officer, Sally Treveton, says.
Housing history
Towards Truth’s new research illustrates where NSW housing policy and legislation has hindered Aboriginal people from accessing safe and adequate housing.
Aboriginal people have been restricted from public housing, made to live in sub-standard and overcrowded housing, and forced to assimilate under the guise of ‘protection’. But later models of Aboriginal-managed community housing have produced better outcomes.
The early history of NSW housing law and policy is one of ‘containment’ and segregation at a time when ‘the dominant philosophy of European Australians… was that the Aboriginal people were a dying race’ according to the NSW Government’s 2009 submission ‘Securing the Truth’.
From the 1850s to the late 1960s, many First Nations people in NSW lived on reserves, lands set aside from towns and other settlements. From 1909, these reserves were owned and managed by the Aborigines Protection Board, which was focussed on assimilating and ‘civilising’ First Nations people. As its 1935 Annual report demonstrates, the Board saw housing as ‘an important aid to the policy of graduating the Aboriginal from his former primitive state to the standards of the white man.’
The Board acknowledged racial assimilation as one of its objectives, with a 1949 report to Parliament stating: ‘The Board has encouraged aborigines, particularly those of a lighter caste, to live independently of the Board’s control and become merged with the general community’.
Public housing was available in NSW from the 1940s but many Aboriginal people were prevented from accessing it. Aboriginal people were only considered if their applications were accompanied by a report from Aborigines Welfare Board. Applications were approved by a Tenancy Advisory Committee, which often proved a barrier to access for First Nations people:
‘Where it is felt that positive evidence exists that a family – irrespective of colour – will not prove suitable tenants (because of low living standards, unreformed criminal tendencies, acute incompatibility with other families, and so on) local Tenancy Committees may refuse admission to the eligibility lists’. – a 1960 letter from the Secretary of the Housing Commission (‘Securing the Truth’ submission, p 84).
Another policy shift emerged when Governments developed housing programs in the 1960s and 1970s specifically for Aboriginal people, looking to move them from reserves into towns and cities. A NSW Parliamentary Committee report describes how families were deliberately kept from one another in different areas of cities through a process known as ‘scatterisation’.
The potential harm of programs like this was eventually acknowledged in the NSW Government’s submission to the Bringing Them Home Report (PDF).
Where laws and policies have empowered First Nations solutions, there have been better results. From the 1970s, Aboriginal-dedicated housing owned or managed by the community emerged. The sector faced significant logistical and funding challenge until Aboriginal-governed regulatory body, the Aboriginal Housing Office, was established in the 1990s, helping to support self-determination in Aboriginal housing.
Analysis from 2016 notes that conventional housing providers largely do not cater for First Nations cultural needs, while organisations and providers managed by the community ‘informed by and adapted to align with Indigenous values and cultural norms and were generally more flexible and personal’.
‘There are encouraging signs that government and agencies recognise the need to fund and support Aboriginal Community Housing, but Aboriginal and Torres Strait Islander people still don’t have the same access to safe and secure housing as non-Aboriginal Australians. Aboriginal people are 16-times more likely to live in severely overcrowded homes, 10-times more likely to be experiencing homelessness, and half as likely to own their own homes,’ Anna Harding, Towards Truth Project Director says.
‘The truth uncovered by the Living on Country research is vital to ensure government learns from history, rather than repeating it, and takes action to close the gaps in opportunities and living standards.’
* We have accurately quoted source material in this article, even where the terminology is outdated and potentially offensive. While we do not endorse this terminology, we believe it is important to accurately reproduce these sources, as an element of our truth telling.