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| Native title | Protected areas | Tenure | Interests | Partnerships | Cooperative management |


Native title and other indigenous rights

This focus, on the legal context of indigenous rights and interests in land, is recognised as the main driver for change in protected area tenure and management. It is the principle reason for the Native Title and Protected Areas Project. Its scope is:

  • General, in relation to high court determinations, national and state legislation, and international obligations, and

  • Specific, in relation to native title (and other) indigenous rights in areas covered by the Nature Conservation Act and the Aboriginal Land Act

While there is enormous complexity and remains a degree of uncertainty surrounding native title and other indigenous rights issues at law, it is relatively clear that native title exists under National Parks and other protected areas. In the Mabo case the judges stated:

Native title continues where the waste lands [sic] of the Crown have not been … appropriated or used or where the appropriation and use is consistent with the continuing concurrent enjoyment of native title over the land (eg. land set aside as a national park).

In Queensland, successive Governments since Mabo have affirmed generally that native title continues in protected areas. Nationally, the Native Title Act (as amended) also supports this.

As a result of native title in protected areas, State legislation is subject to review and reform. This is primarily because the Nature Conservation Act and its relationship to the Aboriginal Land Act were developed prior to the High Court decisions including Mabo, Wik and Yanner and the Federal Court ruling in Miriuwung and Gajerrong (Ben Ward).

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Protected Areas - the Protection of Biological Diversity and Natural and Cultural Heritage

This focus on the environment protection agenda and the complex of issues in protection of biological diversity and natural and cultural values is central to ENGOs concerns. Its scope covers:

  • Environment groups’ perspective

  • Indigenous traditional owners’ perspective

  • Common ground

The environment protection agenda, of which the creation and management of protected areas is a key part, contains a number of objectives which at times appear wholly complimentary to indigenous rights and interests in land and at times not. Similarly the indigenous rights agenda in relation to the environmental protection objectives of ENGOs. The protection of biodiversity and natural values is less complicating than the issues of protecting cultural heritage values. The cross cultural differences can present obstacles to a mutual and cooperative approach. For example, the difference in traditional owners’ view of the correct social and political relationships governing use and access to their land and that of the public and various communities of interest operating through rules and arrangements governing management, access and enjoyment of protected areas. Finding common ground and cooperation at all levels of operation and interaction is essential to a short-term and agreeable resolution to a range of issues surrounding rights and interests in protected areas.

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Tenure of national parks and other protected areas

This focus on legal changes to the tenure arrangements for protected areas arising from the accommodation of native title in lands reserved and regulated for environment protection is critical to unravelling the issues at the centre of this current debate. Its scope covers:

  • The State’s role – ‘custodianship’ vis-à-vis ‘ownership’

  • The ‘new class of interests’ – native title and protected areas (eg national parks)

  • Recognition – conflict and litigation or cooperation and negotiation

  • Existing and new protected areas

Native title gives rise to a number of tenure issues within protected areas, the clarification of which will determine the basis on which negotiations between the State and indigenous traditional owners will proceed. There are both legal and political dimensions to this. They focus on the meaning of judgements in the High Court and in the Federal Court (some still subject to contention). One dimension is regarding the exercise of the State’s sovereign powers and whether sovereignty gives rise to full and beneficial ownership of all lands which as we understand it has been answered in the negative. The State is by-and-large a ‘custodian’. Another dimension is whether native title refers to inextricable proprietary, use and customary rights or whether it refers to ‘a bundle of rights’, free of proprietary interests. This is a question of the how to recognise native title and remains an area of some political disagreement between the State and sections of the wider community and indigenous traditional owners.

These matters will be clarified in one of two ways: conflict and litigation, or cooperation and negotiation. At a practical level for ENGOs, this matter is likely to, if it does not already, affect the proper development and implementation of the management regime for existing areas and for the creation on new protected areas. It would seem essential that ENGOs adopt a position on this and declare whether they wish to see these matters hindered by the litigious route or facilitated by negotiation. The catch is that if it is to be negotiation, the correct relationship between the parties, the State and Traditional Owners, must be established.

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Management Interests in Protected Areas

This focus on differentiating and incorporating rights and interests in the management of protected areas is essential to the practical development of what can be called ‘cooperative management’ of protected areas. Its scope covers:

  • Indigenous management issues

  • State management issues

  • ENGO management issues

There are a considerable number of management issues to address when trying to assess and incorporate the various rights and interests in the management of protected areas. It is easier if the first principles and the basis for negotiation are made clear and honoured. This requires unequivocal recognition of the rights of indigenous people, fair negotiation between the State and indigenous traditional owners and their representatives, and ‘stakeholder’ involvement for those advocating the importance of ecological integrity and nature conservation. Once this framework covering the primary interests in protected areas is settled it is simply a practical and cooperative task to sit down and design a way forward.

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Partnership Agreements for resolution of rights and management issues

This focus on the development of cooperative, or ‘joint’, management models is about how the State, in relation to traditional owners and environment and other community interests, puts in place cooperative management arrangement for protected areas. Its scope covers:

  • Legislative framework

  • Management plans

  • Control and vesting of management

  • Indigenous Land Use Agreements (ILUAs)

There are a number of elements in developing a cooperative framework and subsequent partnership agreements for the creation and management of protected areas. The principle one will be legislation and so the immediate task is to agree on the framework for legislation. This will make clear the key principles that will operate with respect to protected areas and establish how control and management will be vested. Agreements will then have to be developed and these will have several aspects. One will be the environmental and cultural management plan for each specific area. Another will be agreement between the State agency and the traditional owners as to how management will be carried out. And a further one could be the setting of protected area management plans in the context of ILUAs that resolve a package of indigenous rights and other social and economic interests.

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Building Cooperative Management – legislative, institutional and community

This focuses on the necessary reforms to the legislative and institutional arrangements for protected areas, and the development of understanding and capacity at a community level. It is a focus on the development of a comprehensive and supported regime for cooperative management of protected areas. Its scope covers:

  • Key principles of the Act and of cooperative management of protected areas

  • Indigenous traditional owners’ rights and responsibilities in management

  • QPWS – new ways of working?

  • National Parks master plan

  • Substantially improving resources for management

  • Community capacity: the role of ENGOs – interest groups or third party rights?

A challenging and significant task is ahead if this process of review is to lead to reform of the legislative and institutional arrangements for protected areas. This is a developmental agenda and it will be helped or hindered by the conduct of the various parties and interests. The dot points above suggest three things:

  • ongoing research, development and dialogue on 'first principles',

  • planning for and the development of agreements, and

  • capacity building for indigenous traditional owners, State agencies and ENGOs.

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Native title and protected areas project
E-mail: The project coordinator
Mail: QCC, PO Box 12046,
George Street Post Shop, Brisbane, 4003
Ph: 07 3221 0188 Fax: 07 3229 7992