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A step into the future for indigenous-environment alliances in Queensland

There is a strong correlation between the dispossession of indigenous traditional owners and environmental destruction. This is apparent when maps of land claimable under native title and 'wilderness' inventory maps are overlayed. Where extinguishment of native title is complete so is the loss of nearly all 'wilderness quality' or 'values'. Where there are still large areas of wilderness, so are there often unbroken, though not undamaged, indigenous traditional owner connections.

But only in recent times has this evident connection begun to have influence and shape the approaches of State land and resource managers. Cross-cultural knowledge and understanding are redefining concepts of protecting natural heritage and of biodiversity conservation. Environment groups now face certain challenges to a number of long held views. At the centre of this will be the stance that each group takes on the fundamental issues arising from native title in protected areas - the various areas 'set aside' for the protection of natural and cultural values.

The effect of native title and other indigenous rights and interests in protected areas, including national parks, is one that raises significant tenure and management considerations for both existing and future protected areas. Importantly, it focuses on the cultural activities and assumptions behind the creation of protected areas and the dissociated approach to the environment manifest in State development ideology. An approach that, on the one hand, uses public revenues to facilitate resource extraction at an unsustainable rate, while on the other, enables a democratic shaping of policy which has led to a raft of environment protection measures.

At the basis of this approach to land and resource management is a confused land ethic. The assumption is that any country not in protected areas is therefore unprotected and subject to increasing resource extraction, land clearing and radical modifications through agriculture, pastoralism, industrialisation and urbanisation. The emergence of native title rights in protected areas challenges the ingrained habits of thought and understanding within the environment protection agenda of years past.

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Taking up the challenge

In Queensland, the environmental non-government organisations, historically a political driving force in the creation and management of protected areas, have taken up the challenge and are playing a proactive role in defining the full scope of issues associated with native title and debating new models for a protected area estate.

The vehicle for this is the Native Title and Protected Areas project. The project sets up a new dynamic within ENGOs, one that takes indigenous rights and environment protection issues outside of a previously contested arena and starts a process of cooperative policy development and alliance building between environmental and native title groups.

Since 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 starting point is the focus on previously dedicated and 'validated' protected areas, most obviously National Parks.

The general legal view is that native title is not extinguished and that legislation for protected areas only regulates the exercise of native title rights. This will consequently require a more conciliatory and cooperation-based outcome, rather then a unilateral exercise of 'sovereign' power by the State. This is the 'historical compromise' of native title that is at the basis of what is now often called 'joint management'.

But when so called 'unallocated state land' (USL) is proposed for new National Parks or other protected areas, a whole new set of dynamics gets created. The issues of continuing dispossession and cultural impact are brought to the forefront.

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Competing arguments

Among some parts of Government, the view is that declaring new protected areas, such as on USL, will not diminish the continued interest of indigenous communities in that land. This view appears to rest on the premise that 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 no effect".

But this is an argument that meets with legal and moral challenges from land councils and 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 repeal of the declaration of the area upon the determination of native title. A 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 can effect the continued existence, enjoyment or exercise of the native title rights and interests.

The 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 dedicate new 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, with consent, be established through renewable 'leases' on fair terms. This would be one protected area model under a broad approach to consolidating and building an Indigenous Conservation Estate.

ENGOs cannot remain indifferent to this argument. It is now unavoidable that each group must determine for itself and in conjunction with its associates in the environment movement, where they stand on this issue. In Queensland the groups are moving to consensus and appear intent on pursuing a cooperative and conciliatory approach to resolving native title and protected area issues.

After years of litigation, recrimination and political division the chance now exists to move forward by the development of indigenous land use agreements. ‘Caring for country’ is a theme that can promote the rights and interests of traditional owners and encourage a working relationship with environment groups. It helps us to move away from the cultural assumption that any country not protected is therefore ‘unprotected’ and subject to resource and economic exploitation regardless of the long term environmental consequences.

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A reformed regime

But alliances between indigenous people and environmentalists alone will not deliver indigenous rights in protected areas or desirable environmental outcomes. A significantly reformed regime is required. This needs to be one built on equitable legislation, fair negotiation between the State and indigenous traditional owners and their representatives, stakeholder involvement for public interest conservation groups and others. It will need to have increased resources to develop agreements and undertake appropriate forms of management. The Queensland Government must act decisively and deliver a much-improved system.

However, in Queensland the current Nature Conservation Act 1992 and the Aboriginal Land Act 1991 do not formally recognise native title and are deficient on this front. The generally agreed approach is to develop a State wide consistent policy framework in which a complex set of indigenous rights and environment protection variables can be worked out through negotiation. This is inherently positive and an important initiative. It is an approach that has not been attempted elsewhere in Australia. At present, though, a clear and coherent whole-of-government position or direction is not evident.

At the core of this problem remains the issue of tenure and behind it the question of the correct status of the State and traditional owners in negotiations. The Government remains equivocal on the tenure issue. It is still unclear whether their stated policy of negotiation and building reconciliation can be achieved. It remains possible that the establishment of legal principles to underwrite an amended legislative framework for protected areas will be further developed through the courts.

Three-quarters of the existing protected areas in Queensland are presently under claim. The Government, as party to native title consent determinations, will feel the increasing pressure of the Federal Court to adopt a policy or be asked to defend the existing (pre-native title) arrangements in a litigious setting.

For 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 undetermined. Continued vacillation by the Queensland Government will only erode the goodwill and alliances that are currently in support of negotiated agreements.

A challenging and significant task is still ahead if this process of review is to lead to reform of the cultural, legislative and operational arrangements for protected areas. It will be helped or hindered by the conduct of the various groups and interests. Ongoing research, development and dialogue on ‘first principles’, planning and the development of agreements, and capacity building for indigenous traditional owners, State agencies and ENGOs are all needed to give positive and mutual effect to indigenous rights and environment protection agendas.

In the interests of caring for country, it's time to take this step into the future of protected areas.

Ó Anthony Esposito

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