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Schedule
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| Home | About | Background | Issues | Policy | re:<Policy><policy working papers> |
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Native title and indigenous rights Protected Areas, the Protection of Bio-Diversity and Natural & Cultural Values Management interests and issues in Protected Areas, relating to common law Native Title rights Framework for Resolution of rights and management issues Building Cooperative Management – legislative, institutional and community
1. Native title and indigenous rights 1.1. Native title applies The Queensland Conservation Council (the "council") accepts that Native Title and other significant indigenous connections continue in Protected Areas. Indigenous traditional owners in the State of Queensland will seek the enjoyment of the rights that flow from their Native Title and their status as first peoples and will seek to protect those rights from extinguishment or impairment. The council considers that there is an onus on the State of Queensland to enable the expression of these rights with respect to Protected Areas while ensuring the permanent protection of the Protected Area's natural condition and cultural resources and values. 1.2. Recognition and implementation The council acknowledges with regard to Native Title and Protected Areas: 1.2.1 Valuable property and use rights That the Native Title rights and interests of indigenous traditional owners of land and sea are valuable property and use rights. 1.2.2 Co-exist with protected areas That these rights and interests may coexist with areas dedicated, or to be dedicated, by the State for the protection of natural and cultural values and the conservation of biodiversity, and for the public’s experience of natural and cultural heritage. 1.2.3 Enjoyment of rights That rightful indigenous communities are entitled to express and enjoy their Native Title rights with respect to Protected Areas without undue interference. Accordingly, when the council seeks to have lands or waters dedicated or managed under a Protected Area status they shall make significant effort towards consultation and dialogue with traditional owners and their representatives and move towards a model that builds long term relationships for mutual benefit. They shall seek to work in consultation with indigenous traditional owners in regards to identification, protection and management of the conservation values of lands and waters. 1.3. Principle of non-extinguishment The council does not support and will not be allied to extinguishment or impairment of native title as a means of achieving the objectives of nature conservation and biodiversity protection or meeting the interests of the wider community with respect to their experience and enjoyment of a Protected Area. The Council shall seek to develop agreements with indigenous traditional owners and Native Title representative bodies in regards to the identification, protection and management of the conservation values of traditional lands and waters, and species of fauna and flora, within the boundaries or proposed boundaries of Protected Areas. 1.4. Agreements & opposition The council will seek agreement with traditional owners on the conservation values of traditional lands and waters and recognises protocols with regard to 'speaking for country'. Where agreement cannot be reached between the council and indigenous traditional owners regarding the identification, protection and management of existing or proposed Protected Areas, the council may advocate against developments, proposals and unsustainable practices on traditional owners’ lands that it considers damaging to the areas natural and cultural values. Such advocacy shall only take place after all avenues to develop agreement are exhausted, including a negotiated dispute resolution process for when the parties disagree. 1.5. Reservation and qualification of democratic rights If disagreement persists, the council reserves its democratic right to lobby against developments, proposals and unsustainable practices on indigenous lands that it considers to be deleterious or inimical to protection and preservation of the areas natural and cultural values. The council respects the indigenous view that 'no one has the right to speak on behalf of another's land'. While it would be a fundamental break of protocol and respect to do so, the council draws a distinction between speaking on behalf of traditional owner's land and speaking about deleterious or destructive activities occurring on traditional owner's land. 2. Protected Areas, the Protection of Bio-Diversity and Natural & Cultural Values 2.1. Natural and cultural values intertwined High conservation value areas embody both natural and indigenous cultural values. The Aboriginal customs of the traditional owners created an integrated system of large bounded areas of high natural values with integrated and enduring cultural values. The intertwining of natural and indigenous cultural values over tens of thousands of years has substantially shaped the Australian environment, of which the Council seeks protection. Indigenous traditional owners therefore have a unique role to play in the management of the natural values of an area and should have full authority regarding indigenous cultural management responsibilities. 2.2. Environmental protection strategies The council seeks to develop environmental protection strategies based on cross-cultural information and the mutual support of indigenous traditional and contemporary scientific knowledge to address problems associated with:
As a result of the impacts on the environment, and of the present state of the environment, Protected Areas are required that give priority to preservation of biodiversity. Because there are now new problems and new challenges, protected area management should include both Aboriginal traditional management and contemporary management methods. 2.3. The Protected Area estate The Protected Area estate should be comprehensive in its scope, adequate to deal with the present and future demands of ecological sustainability and should contain representative areas from all ecosystems. The Protected Area estate in Queensland is presently insufficient to the overall task of ecological and biodiversity protection. While maintaining a commitment to sustain and improve existing Protected Areas such as National Parks, the council shall seek to increase the size and effectiveness of the Protected Area estate and to mitigate the factors threatening biological diversity. This should be done through a protected area system of dedicated and secure core areas, on- and off- reserve restoration, and complementary off-reserve management and protection. The system should include ‘core’ high conservation value Protected Areas, (commensurate with IUCN categories 1 and 2), buffers zones, and connecting corridors. IUCN category 6 (Managed Resource reserve) should not be regarded as part of the Protected Area estate. 2.4. Accommodating recreation, tourism and education Along with protection of ecological and cultural values, the Protected Area estate should serve the function of providing nature-based recreation and tourism, and environmental and cultural education. Neither nature conservation objectives nor Native Title rights should be compromised to achieve this. To meet this requirement and provide for nature-based recreation and tourism, and environmental education, the Protected Area estate should exceed the size required for biodiversity protection and the expression of indigenous rights. It is clear that Native Title and other indigenous connections continue over land that is set aside for the protection of biodiversity and natural and cultural values. As the maintenance and extension of the Protected Area estate should not involve the extinguishment or arbitrary impairment of Native Title rights, the development of case-specific partnership agreements between traditional owners and the State should be developed under supporting legislation and management plans. Protected Area legislation, management plans and partnership agreements between indigenous traditional owners and State authorities should, in order of priority:
2.7. Preservation of the natural condition The principle relating to the preservation of the natural condition applies only to areas of high conservation value, such as national parks. Some areas that become Protected Areas may require restoration before the natural condition can be preserved. The Protected Area estate should be designed and managed to maintain or restore the natural heritage of biological diversity, natural features and wilderness. Biological diversity should be conserved at all levels from genes to landscapes, maintaining the natural patterns of distribution, association and abundance and the capacity for ongoing evolution. Protection and conservation in a Protected Area should encompass
Aboriginal modifications of the landscape within Aboriginal temporal and spatial scales and, consistent with the above, are considered part of the natural condition. 2.8. Ecosystems and traditional management applications Much of Australia’s ecology has evolved to be dependent on fire and other practices of indigenous people. Traditional forms of management may therefore need to be carried out for protection of biodiversity. The council respects indigenous knowledge and the benefits of applying this knowledge as part of Protected Areas management. The knowledge within indigenous culture of appropriate fire use and other techniques should be included in the management and restoration of Protected Areas, as appropriate. The use of fire and other traditional management applications should take into account the modifications to ecosystems as a result of colonisation and that management adapted to present realities is still in formative stages of understanding impacts and needs. 3.1. Rights and interests The Native Title rights of indigenous traditional owners, and the State’s powers in the dedication and management of lands and waters for the protection of biodiversity and natural and cultural values are coexistent in Protected Areas. Indigenous traditional owners and the State both, therefore, have definable interests in the use and management of Protected Areas. 3.2. Classes of interests and zones There are several classes of rights and interests that fall within Protected Areas. These are:
Subject to the cardinal principles, a system of Protected Area management should be negotiated and developed. The system should balance and zone for the respective rights and interests. 'Balance' does not infer a choice between areas providing protection of biodiversity and areas that do not protect biodiversity. Nor is it to be inferred that all 'interests' must be accommodated. Conservation responsibilities exist over the whole Protected Area. 3.3. Native title and other pre-existing rights and interests Native Title is a ‘class of rights and interests’ not previously taken into account with the dedication and management of Protected Areas. Given this, special attention must now be paid to its inclusion when declaring, and developing plans for, Protected Areas. New Protected Areas or Protected Area Management Plans should proceed with the consent and in accordance with the rights and responsibilities of the indigenous traditional owners. The council considers that new Protected Areas or Protected Area Management Plans must address and incorporate Native Title and other rights and interests. The approach taken to native title rights should also be reflected in the approach to other significant indigenous interests in an area where they continue to exist and previous tenure history has resulted in extinguishment. In taking these rights and interests into account, the council seeks a pro-active approach from all parties, so as not to unduly slow or prevent acquisitions and dedications for nature conservation purposes. 3.4. Core funding In recognition of the irreplaceable benefits provided by Protected Areas, and irrespective of the structure of management agreed between indigenous traditional owners and the State, the Government should provide core funding for Protected Areas. This should be sufficient to ensure the highest level of management and will provide for -
3.5. Incorporation of rights and interests in cooperative management plans Cooperative management plans and arrangements for Protected Areas should, in keeping with the cardinal principles, incorporate
3.6. State guaranteed payments to traditional owners Indigenous traditional owners have the right to negotiate over and share in economic benefits from the use of their traditional lands and waters as Protected Areas. Payments to indigenous traditional owners should be from State budget appropriations of general revenue and returns from economic and commercial activity associated with the use of a Protected Area. The State should give a statutory guarantee of payment to traditional owners. This should encompass a return, as appropriate, for the Protected Area tenure and its use and 'just terms' compensation - whether financial or as other benefits - where loss of use and enjoyment of traditional lands and waters creates or has created an additional burden on traditional owners. 3.7. No compulsory lease-back Consistent with principles flowing from the recognition of Native Title, the 'compulsory lease back' provisions under the Aboriginal Land Act should be repealed. Where leasing back of Protected Areas on Aboriginal land occurs it should be on the basis of fair and equitable negotiation between the indigenous traditional owners and the State. It should involve recompense appropriate to the degree of alienation of the land or waters from the exercise of native title rights and interests. 4. Management interests and issues in Protected Areas, relating to common law Native Title rights The right of indigenous traditional owners to make decisions about the use and enjoyment of their land 4.1. Customary and contemporary management There are important linkages between ecological values and indigenous cultural values. Environmental protection may require application of customary management processes in combination with contemporary management processes. The Government should support the application and transmission of indigenous traditional knowledge and provide opportunity for indigenous traditional owners to acquire or further develop their contemporary management skills, resources and knowledge. Support should include funding. 4.2. Negotiated agreements and management plans All management of Protected Areas should take place under agreements reached between indigenous traditional owners and the State, within the framework set by Protected Area legislation, in particular the Nature Conservation Act. The council considers that legislation should be amended to update it with respect to Native Title. Negotiation should be fair and equitable and result in clear authorities and management plans consistent with the principles of the legislation. All rights and responsibilities and operations should be clearly stated in the management plans and be publicly available for scrutiny and comment. Implementation should be delegated to the relevant cooperative-management agency. A breach of agreement by either party should result in independent, culturally sensitive, arbitration. 4.3. ENGO participation in planning Management plans should apply in all Protected Areas and meet, consistent with the conservation purpose for which the area has been declared, the aspirations of indigenous traditional owner groups. In the development of management plans, the Government should provide stakeholder involvement for the council and its member groups to ensure representation on matters pertaining to ecological integrity and nature conservation. 4.4. Governing authority Authority for the management of protected areas must be clearly delineated and organised according to the tenure of the Protected Area and the correct relationship between the State and traditional owners. The council favours a negotiated approach in which resolution of native title issues and the management agreement and plans for a Protected Area occur simultaneously. There should be a negotiation process agreed to by both the State and traditional owners that takes place within a set time period. Both parties must have State guaranteed resources to carry out the negotiations and must negotiate in good faith. The management agreement should be cooperatively implemented by an authorised agency within the Queensland Parks and Wildlife Service on behalf of the State and by Traditional Owners' through an authorised indigenous land and resource management agency. There should be a coordinating committee comprising State and traditional owner representatives. The right to hunt, gather and use resources, including the right to take items (such as timber, stone, resins and shells) for traditional purposes 4.5. Ecologically sustainable management a constraint Consistent with their Native Title, traditional owners have the right to hunt, gather and use resources in accordance with traditional practices. In Protected Areas these practices should be in accordance with ecologically and culturally sustainable management and subject to restrictions that may apply to species that are threatened or endangered. There should be strong measures taken in this area, including from traditional owners. Exploitation of resources for the manufacture of 'traditional artefacts' to satisfy the demands of tourist and other commercial markets should be prohibited in Protected Areas. 4.6. Use of non-traditional implements The law does not provide that the means used in traditional take must be traditional hunting implements eg spear. The council considers the use of firearms permissible so long as they are only used for hunting in accordance with traditional purposes and traditional take, or for feral animal eradication, and that the use is subject to public safety provisions and the Weapons Act. Use of weapons should be defined in a management plan. The most important assessment criteria should be hunting impacts on biodiversity and the Protected Area's particular function in the preservation of rare and threatened wildlife. 4.7. Rare and threatened species Special measures should be instigated for the protection of rare and threatened species. Where a species is within the range of a Protected Area and particularly where it is important to the cultural lifestyle of, and as a food source for, indigenous traditional owners, then traditional owners should be involved in the development and implementation of protection and recovery programs. As recovery programs are likely to relate mainly to a species range outside Protected Areas, indigenous traditional knowledge, where applicable, should be used in such recovery programs. The right to live on and travel over the land 4.8. Low impact settlement and alternatives Permanent settlement and substantial accommodation structures are inconsistent with high conservation values and the status of Protected Areas. In recognition of rights, a Protected Area Category that ‘’enables indigenous human communities living at low density and in balance with the available resources to maintain their lifestyle’’ should form a new category of Protected Area tenure. Any such settlement and accommodation should be low impact and sited to minimise environmental disturbance. Alternatives outside of Protected Areas for addressing accommodation needs of indigenous traditional owners, that also enable them to exercise their Native Title rights, should be considered in any compensation, payment and in-kind arrangements with the State. Limited ranger accommodation may provide a qualification to this. 4.9. Mechanised access Wide spread vehicle use, roads and tracks are inconsistent with high conservation values and the status of Protected Areas. Protected areas status requires that mechanised access on roads and tracks should only be allowed for essential management practices and where indigenous management arrangements apply. Vehicle use may occur in relation to indigenous cultural practices that are consistent with the protection of natural and cultural values, but should not impact on the ecological integrity of the protected area. The council considers that vehicle routes in Protected Areas should only be available for primary access, maintenance or emergency services. Where traditional sites are beyond these routes, other methods of access should be considered. The right to conduct ceremonies and to prevent unauthorised entry or use of resources by others 4.10. Restricted access and control Indigenous control of cultural heritage places and sacred sites should be under the control and authority of indigenous traditional owners. Restriction of access to parts of Protected Areas for indigenous cultural reasons, and to enable the undertaking of ceremonial and cultural practices, will be a feature of protected area management. It should be, as far as practical and accepting of the right of indigenous people to withhold information for cultural reasons, defined in the management plan for a particular area. The right of indigenous traditional owners to trade in the resources of their land 4.11. Traditional and customary trade Native title rights do not confer a right to trade in resources within Protected Areas where this is not in accordance with an Aboriginal or Islander tradition or custom or where it is incompatible with the purposes for which the area is protected. ‘Trade’ that is in accordance with an Aboriginal or Islander tradition and is compatible with a place's Protected Area status should be a recognised feature of the cultural lifestyle of indigenous traditional owners. The Native Title right to ‘trade’ should not be confused, in relation to Protected Areas, with the development of commercial operations or evolving indigenous customs associated with modernisation. 4.12. Commercial enterprise permits Commercial enterprises operating inside Protected Areas under permit should be entirely consistent with the purposes for which the area is established and must be ecologically sustainable. Indigenous traditional owners and the State should determine through management plans and consistent with legislation what activities are permitted in a Protected Area. Permits to carry out a commercial activity should be made through a fair, equitable and transparent process defined under legislation. Traditional owners of the Protected Area should have first right of refusal on permits for commercial activities. 4.13. No commercial infrastructure in protected areas; ‘gateway’ communities No commercial infrastructure development should be permitted within the protected area estate. The Government should encourage and facilitate the development of ‘gateway communities’ at entrances to Protected Areas where private enterprise, including indigenous private enterprise, provides accommodation, transport, interpretation etc. State land leased for this purpose will be an option. Strategic acquisition of land outside Protected Areas, for example by cooperation with the Indigenous Land Corporation or through Aboriginal Land claims, could be considered as part of indigenous community development in relation to Protected Areas. The right to maintain, protect and prevent the misuse of cultural knowledge 4.14. Intellectual property rights and royalties The intellectual property rights of indigenous people should include royalties for the use of intellectual property in Protected Areas. The right of indigenous people to withhold information, that for cultural reasons should not be disclosed, should be respected. Legal reasons, such as pending native title claims, may also be a basis for withholding intellectual property. 5. Framework for resolution of rights and management issues 5.1. Cooperative management Native title rights in Protected Areas necessitate some form of cooperative framework. A focus on the development of cooperative management models, should include: 5.1.1 Legislative reform The review and reform of the legislative framework to make it consistent with current legal rights and responsibilities 5.1.2 Environmental and cultural management plans The development of area by area environmental and cultural management plans 5.1.3 Vesting of management authority The control and vesting of management in accordance with the rights and responsibilities of both indigenous traditional owners and the State 5.1.4 Indigenous Land Use Agreements The development of Indigenous Land Use Agreements under the Commonwealth Native Title Act that resolve a package of indigenous rights and other social and economic interests. 5.2. Established indigenous interests There are presently three ways in which indigenous people can form an interest in a protected area: 5.2.1 Native title determination By a determined Native Title claim 5.2.2 Significant cultural interest By a significant cultural interest (such as is currently established under the Aboriginal Land Act / Nature Conservation Act provisions) 5.2.3 Aboriginal land By it being Aboriginal land, voluntarily subject to conservation management The process for determining indigenous traditional owner involvement in Protected Areas should be the within the same framework for all three. 5.3. Management agreements Where an indigenous interest in a protected area is established, then a fair and equitable negotiation process between the Government and indigenous traditional owners for a management agreement should be commenced and, when agreed, executed by the Minister for the Environment and the indigenous parties. Such negotiations should be carried out in good faith and should be completed by the parties within a reasonable period of time. 5.4. Management plans A management plan should be developed in accordance with the appropriate legislation (the Nature Conservation Act, subject to amendment, or other legislation in force from time to time), nature conservation management principles, and the management agreement. The management plan requires, as presently, the approval of the Governor in Council. 5.5. Environment non-government organisations and standing The council and its member groups should be given standing in negotiations over amendments to the Nature Conservation Act, the development of templates for management agreements, and the preparation of management plans. Rights require acknowledgment of reciprocal responsibilities so - Environment non-government organisations should develop their skills and knowledge in relation to Native Title and Protected Areas, should negotiate in good faith, seek a cooperative outcome and submit to agreed dispute resolution provisions where differences cannot be resolved. 6. Building Cooperative Management – legislative, institutional and community 6.1. Legislative reform Upholding Native Title rights and protecting areas of natural and cultural conservation value both require strong legislative and administrative support. Legislation should establish the highest principles for the protection of biodiversity and the conservation of natural and cultural values. Legislation should also give effect to Native Title rights through negotiation and mutual accommodation, and to minimise the likelihood that indigenous traditional owners will be forced to litigate in pursuit of their legal entitlements. 6.2. Institutional capacity The building of partnerships between indigenous traditional owners and the State Government’s conservation and management agents should be actively facilitated. There should be a designated agency within the Queensland Parks and Wildlife Service with authority to implement the new provisions of the legislation on behalf of the State and to work together with traditional owners. To enable participation by traditional owners in developing and implementing management arrangements, the State should recognise and support the building and empowering of indigenous land and resource management agencies by Traditional Owners. 6.3. Budgets and management resources The budgetary and management agency arrangements regarding Protected Areas in general and in relation to Native Title rights and interests are insufficient. The Queensland Government should substantially increase the amount and improve the overall efficiency of management resources available for Protected Areas and for cooperative management arrangements. Efficiency improvements should be reflected in better on-the-ground management. 6.4. Affirmative action The Government should have an affirmative action program in regard to engagement of indigenous administrators and rangers. This should involve training to build up the contemporary skills, resources and knowledge of indigenous traditional owners and facilitation of the transfer of indigenous traditional knowledge into contemporary management practices, as appropriate. Any such measures must be culturally specific so as not to compromise either indigenous traditional or state administrative authorities. Indigenous administrators and rangers may be engaged through both the QPWS cooperative management agency and traditional owners' land and resource management agencies. 6.5. Land claims and Indigenous Land Use Agreeements The agenda encompassing indigenous rights and interests is broader than can be met simply through Native Title in Protected Areas. In the respect of both Protected Areas and indigenous peoples' rights and interests, Government should facilitate indigenous land claims and address its fiduciary responsibilities in a broader scope. Indigenous Land Use Agreements, and other agreements, should be developed in relation to indigenous people’s governance structures at regional, sub-regional and local, traditional owner groups levels and involve multi-party discussions and negotiations. 6.6. The council & indigenous groups cooperation The council recognises traditional owners as holders of Native Title. The council commits to developing understanding and framing a range of agreements with indigenous traditional owners on Protected Areas, as relevant. The council also commits to discussing and settling within environment non-government organisations and between environment non-government organisations and indigenous representative bodies, negotiable matters, principles and issues of Protected Area management. The council will approach Native Title Representative Bodies with the aim of informing of our opinions and agendas and developing cooperative working relationships.
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