# 3

November 1999


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| The legal nexus | Joint management | Equity and the 'sanctuary' model |


Indigenous peoples’ rights and environmental protection

IT SEEMS TO HAVE BEEN forgotten in the contemporary debate about indigenous rights in this country that "native title" is a concept that predates the establishment of the first British Colony on Australian soil. At the time that the British crown asserted ‘radical title’ to the lands of the continent of Australia, there was already recognition and practices in common law as to what constituted ‘possession’ and in international law with respect to the annexation of ‘native’ territories by colonial powers.

The recognition of ‘native title’ in the High Court’s Mabo decision is a culmination of a long sustained effort by Indigenous Australians to have their proprietary and customary rights recognised as such by the Crown. It overturned the concept of ‘terra nullius’, the legal justification for the appropriation and disposal or control of the lands of Aboriginal and Torres Strait Islanders by Colonial, and subsequently State and Commonwealth, Governments. This is a system of land administration that has continued more or less to the present.

What the High Court didn’t address was ‘the status of sovereignty’ and the ‘Crown’s fiduciary duty’. Two matters critical to unravelling the content at the heart of the ‘reconciliation’ agenda. The first matter, the status of sovereignty, is about the ability to divide and share powers, and therefore considerations of Aboriginal autonomy and self-determination.

The second matter, the Crown’s fiduciary duty, is about the obligations of the various governments under the Crown to protect and deal fairly with the rights and interests of Aboriginal and Torres Strait Islander peoples. In law (but not in actuality because indigenous people didn’t acquire legal citizenship until 1967) these are people who should have, upon the assertion of sovereignty, become ‘subjects’ of the Crown and had proper protection for their property and rights.

Both matters involve consideration of the ‘justice’ by which the Crown acquired sovereignty in Australia and the manner in which governmental power was exercised or of its failure.

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The legal nexus

Oone major problem of the recognition of native title in the latter half of the 20th century and into the 21st is that extinguishment and dispossession have occurred progressively over the whole historical period of Australian land ‘settlement’, for the most part without proper and ‘just terms’ compensation. This remains a dividing line on which Australian society stands. The potential for conflict in dealing with these issues should therefore be apparent.

The legal nexus between native title and the dedication of lands and waters by the State for the protection of natural and cultural values is a staging post for this historical conundrum. There are two reasons for this. One is that recognition of native title itself doesn’t resolve all matters to do with the indigenous rights agenda or redress past dispossession. And two, there is a public interest, and in fact, an international agenda, in the protection of natural and cultural values that overlays but doesn’t automatically square with indigenous rights and interests in the land, either broadly or specific to the judicial and legislative backing for native title.

This makes dealing with native title in protected areas complex for non-government environment groups. It also requires a great deal of circumspection by these groups. The pitfalls are many.

When the issue of indigenous rights in protected areas was last visited in Queensland, with the creation of the Aboriginal Land Act and the Nature Conservation Act, serious divisions opened up in the environment movement. There was a contest on two fronts.

One was the ‘model’ of parks as ‘sanctuaries’ for wildlife free from human intervention (except that of Governmental managers and park visitors) as against protected areas with the primary purpose of biodiversity protection that intertwined indigenous natural and cultural values. Cultural values were to be embodied in the exercise of indigenous rights.

The second was whether non-government environment groups, as community organisations advocating environment protection but spanning a spectrum of political views, should concern themselves with ‘social justice’ issues.

The recognition of native title has had an enormous impact on this past debate. The sanctuary model does not withstand the reality of Aboriginal tenure and use rights, although its primary functions of providing ecological refuge and protecting natural and cultural heritage values, while subject to reform in particulars, remain invaluable.

The issue of social justice has in part been put to rest by the High Court determinations. The issue is now one of legal compliance. At the same time the spurious assertion that ‘we are not social justice organisations’ is countered by the simple reality – we are not social injustice organisations.

Non-government environment groups have the moral and political obligation to act within the requirements of a fair, democratic and just society. They must allow for the proper articulation and expression of differing views without undermining the principles of such a society.

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Joint managament

The immediate scope of native title in protected areas appears to open up places such as national parks to Aboriginal control and management. A series of inter-related indigenous rights and biodiversity conservation issues are then brought into focus. In addition, the State’s ‘interest’ in protected areas incorporates a number of factors and contests, some of which may imply regulation of indigenous rights.

The general approach to this interface of indigenous rights and environment protection is to develop ‘joint management’. Joint management arrangements for Protected Areas are essentially about trying:

TO protect the ecological and biodiversity values of the area

TO protect the cultural, social, economic and legal rights and interests of Aboriginal people associated with the area

TO protect the interests of the wider community with respect to their enjoyment of the area

Protected Area arrangements should respect the rights and interests of indigenous communities, and of the wider community of which they are a part, while meeting, to the greatest extent possible, the three core objectives of joint management.

It is increasingly recognised that there are important linkages between ecological values and indigenous cultural values. The application of customary management processes may be important in maintaining long established ecological relationships.

At the same time, community interests with respect to visitor access and activities, research and monitoring programs, endangered species protection programs and other management issues, unless structured to facilitate coexistence or negotiated outcomes, may be in competition or conflict with Aboriginal aspirations for particular Protected Areas from time to time.

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Equity and the 'sancturary' model

By design, nature conservation regulation by the State need not present any serious conflict with native title rights. In looking, for example, at the protection of threatened and endangered wildlife, the line between regulation and prohibition may not be difficult to discern. The logical approach is case by case. There are no grounds for blanket prohibitions on the taking of wildlife by indigenous people and such an approach, as demonstrated by the Yanner case, would be destined to fail.

There is an issue of equity here and an example of where the ‘sanctuary' model inadvertently works against the interests of indigenous people. As it stands, by creating ‘refuges’ for endangered wildlife that may limit or restrict traditional hunting and gathering rights (particularly where there is no form of compensation) the burden of protection falls unfairly on Aboriginal traditional owners. The reason is twofold.

In the first instance, the National Strategy for the Conservation of Australian Species and Communities Threatened with Extinction states that " hunting has not been a major cause of extinctions on the Australian mainland". So traditional owners are being expected to suffer a loss of rights to remedy a situation not of their making.

Second, the ‘threatening processes’ leading to the endangerment of species remain largely outside the scope of protected areas or legislative control (the recent failure of freehold land clearing legislation demonstrates this). The implication is that many Australians believe that private economic and property interests reflecting the cultural heritage of the European settlers are of a higher order than environmental protection for the common good of this and future generations of indigenous and non-indigenous Australians.

Ó Anthony Esposito

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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