A starting point for change | A
new way or de facto extinuishment | Negotiating
or litigating |
starting point for change
mid-1999 the Queensland Government has been conducting a review
of legislation and policy relating to indigenous title to and management
of National Parks and Protected Areas - the review. In recent days
it has released a draft Master Plan for Queensland's Parks System
- the plan. Both encapsulate the political dynamics at the heart
of establishing a correct understanding of native title and its
rolling effect on issues to do with the appropriation (and use or
protection) of country.
Queensland Government's position at the outset of the review was
that Native Title "may well be found to exist" in areas declared
as National Parks but that this would have no impact on valid dedications
of National Parks made before 23 December 1996. It is generally
accepted that the underlying native title in national parks will
not invalidate the dedication of those areas. It is also generally
accepted that the common and statute law affirms native title in
protected areas as given, not withstanding some acts of past extinguishment
in specific instances.The original Mabo judgement gave credence
to this view when it stated:
title continues where the waste [sic] lands 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)."
The Wik decision supported the principle of coexistent rights on
pastoral leases (with native title rights ceding to Government conferred
entitlements and interests in cases of conflict). The principle
would appear to apply to the continuing concurrent enjoyment of
native title in existing protected areas. The full bench of the
Federal Court, ruling in the Ben Ward (Miriuwung and Gajerrong)
appeal case, and despite overturning other aspects of the original
native title claim, left intact the recognition of native title
in protected areas.
the Commonwealth Native Title Act 1993, as amended, states in section
23A (9A)"Exclusion of national parks etc" that:
act is not a previous exclusive possession act if the grant or
vesting concerned involves the establishment of an area, such
as a national, State or Territory park, for the purpose of preserving
the natural environment of the area."
issue of native title in National Parks remains speculative only
to the extent to which those 'valid acts' of dedication may limit
or set aside native title rights where the concurrent enjoyment
of native title is inconsistent with some or other aspect of the
management of existing protected areas. Even then, with the High
Court upholding Native Title Act Section 211 native title hunting
and gathering rights, aspects of protected area management will
require a more conciliatory and cooperation-based outcome, rather
then a unilateral exercise of 'sovereign' power by the State.
new way or de facto extinguishment
prospect of country, in which indigenous communities have some form
of title, being incorporated into new National Parks or other protected
areas was considered likely by the Government, it's belief being
that this would not diminish the continued interest of indigenous
communities in that land.
view appears to rest on the legal premise that the dedication of
National Parks and other protected areas is a "low impact future
act". That is, as in section 24LA (1) (a) of the Native Title Act
a 'low impact future act' is:
act that takes place before, and does not continue after, an approved
determination of native title is made in relation to the land
or waters, if the determination is that native title exists".
a future act, under 24LA (4) "the non-extinguishment principle applies
to the act". The non-extinguishment principle is defined in section
238. That is: Native title not extinguished - 238 (2) If the act
affects any native title in relation to the land or waters concerned,
the native title is nevertheless not extinguished, either wholly
are de facto forms of 'extinguishment' in subsequent sub-sections.
Under 238 (3) and 238 (4) if the act is wholly or partly inconsistent
with the continued existence, enjoyment or exercise of the native
title rights and interests, the native title continues to exist
in its entirety but the rights and interests have no effect in relation
to the act. Combined with a diminished right to negotiate, these
provisions have the potential effect of rendering native title empty
argument appears thus: the dedication of a new protected area is
a low impact future act that does not therefore extinguish native
title. If a native title claim is confirmed, then the protected
area will continue over the native title lands. To the extent to
which the purpose of the protected area is partly inconsistent with
the continued existence, enjoyment or exercise of the native title
rights and interests, the native title rights and interests have
is an argument that meets with much legal and moral challenge from
indigenous native title bodies. It is difficult to see how a national
park, for example, would either "not diminish the continued interest
of indigenous communities in that land" or not require a revocation
of the dedication upon determination of native title.
national park, for instance, is set up nominally in perpetuity,
disqualifying it as a 'future act'. That is, an act that "does not
continue after an approved determination of native title". It is
also set up for nature conservation purposes as defined under the
Nature Conservation Act which, especially in its present form, can
effect the continued existence, enjoyment or exercise of the native
title rights and interests.
alternative argument is this: that the dedication of new protected
areas must be by negotiation with native title-holders and come
after, not before, the resolution of tenure issues. Moves to establish
parks over land subject to claim are threatened with legal injunction.
Management of lands and waters for nature conservation purposes
should otherwise proceed through a series of indigenous land use
agreements, using existing or new provisions of the Nature Conservation
Act, and resulting in a protected area model which incorporates
a range of rights and interests on a case-by-case basis. National
Parks, rather than being nominally in perpetuity, may then be established
through renewable 'leases' on fair terms.
Cape York Peninsula Land Use Strategy and Barron Gorge National
Park native title claim were sited by the Government, at the outset
of the review, as examples of issues requiring resolution within
a consistent policy framework. A number of national parks claimed
under the Aboriginal Land Act 1991, also require resolution. Other
areas of relevance are the SEQ Forest Reserves under the Queensland
Forest Agreement, USL (Unallocated State Land) previously considered
for National Park on North Stradbroke Island and, more recently,
proposals to bring parts of the Wet Tropics World Heritage Area
into the National Park system.
review has talked about resolving these matters in terms of joint
management. There are a number of semantic arguments covering terms
such as 'joint management', 'cooperative management', 'co-management'
and 'partnerships' but these should not be allowed to distract from
the central issues. It remains that the current Nature Conservation
Act 1992 and the Aboriginal Land Act 1991 do not formally recognise
native title and are seen to be deficient in a number of significant
State Government review is based on recognition of the need for
appropriate mechanisms by which indigenous communities can contribute
to the management of areas as National Parks or other protected
areas. Legislative amendments are to be considered once policy objectives
are established. The general approach of a State wide consistent
policy framework in which a complex set of indigenous rights and
environment protection variables can be worked out through negotiation
is inherently positive and an important initiative. It is an approach
that has not been attempted elsewhere in Australia. However, at
present, a clear and coherent whole-of-government position or direction
is not evident.
only current Government public reference on native title and protected
areas is the Draft Master Plan for Queensland's Parks System, a
Cabinet approved document. The plan displays an inconsistency that
seems to be the hallmark of approaches to resolving native title
issues. For example, in the plan it is stated that:
Government recognises that Native Title interests may exist over
many of Queensland’s parks. The exact extent of this and the legal
implications will become clearer in the next few years".
it states that:
Title and significant indigenous rights and interests continue
to exist over many protected areas".
plan is talking on the one hand in terms of interests that may exist
and on the other hand of rights that continue to exist. The plan
proposes action "to inform the wider community of Native Title rights
and the need for partnerships and agreements with indigenous peoples
relating to Parks system management". But it diminishes the priority
of resolution by suggesting that the "significant change in park
management" associated with recognition of native title will take
place "in the next two decades" and by defining it merely as the
"increasing role of Indigenous peoples [in the] management of parks".
original Government TOR (terms of reference) for the review did
not address indigenous rights to land flowing from native title,
and environment protection issues, outside of a narrow conception
of joint management. To deal comprehensively with the full scope
of issues that such a complex policy area requires, both the Queensland
Environment Groups' Native Title and Protected Areas project and
the QIWG (Queensland Indigenous Working Group) submissions have
gone outside those TOR.
development has not been and is unlikely to proceed adequately while
the Government's approach to matters of tenure is hesitant. There
is a cabinet sub-committee to consider how the Government will proceed
on this. Two competing views of the legal import of native title
appear at the heart of the matter. It would help matters considerably
if the Government stated a position with respect to tenure resolution.
would then be clear whether its stated policy to 'negotiate, not
litigate' and of 'building reconciliation' can be achieved or whether
the establishment of legal principles to underwrite an amended legislative
framework requires further development through the courts. This
is not an abstract consideration. Three-quarters of the existing
protected area system is presently under claim. The Government,
party to native title consent determinations, will feel the increasing
pressure of the Federal Court to adopt a policy or be forced to
defend the existing (pre-native title) arrangements in a litigious
many claims, the approach to national parks and other protected
areas, whether existing or proposed, could be a threshold issue.
Progress on new protected areas may stall, or be unduly prolonged,
while these matters remain indeterminate. Vacillation by the Queensland
Government will only erode the limited good will and tenuous alliances
that exist in support of this matter.