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Policy
paper
# 4
May 2000
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| Home | About | Background | Issues | Policy | re:<Policy><policy working papers> |
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| Native title | Protected areas | Tenure | Management interests | Framework | Co-management |
Protecting natural and indigenous cultural heritage
ENGO policy reference document - a working paper for discussion and negotiation purposes The draft document below constitutes a position arrived at through detailed discussion with and surveying of all participating ENGOs. It represents, as a minimum, the majority-supported position of the ENGOs and in many aspects represents a consensus of those groups. It should not be taken as representing the final position of the State’s ENGOs or the policy of any particular participant group in their individual capacity. It remains a draft document, as the formal level processes necessary to adopt a policy are being conducted in the current phase of the Project. It is also understood that further iterations are required to refine the document. These will be based on continuing discussions for resolution of differences and outstanding issues between ENGOs and between ENGOs and indigenous interests.
Draft ‘native title and protected areas’ policy
1. Native title and indigenous rights | Native title unextinguished | | Recognition and implementation | | Principle of non-extinguishment |
1.1. Native title unextinguished Indigenous people in the State of Queensland have native title rights they wish to give expression to and to protect from extinguishment or arbitrary impairment. As native 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)", then native title applies in Protected Areas. There is an onus upon the State to enable to the fullest expression of indigenous traditional owners’ rights, rather than to restrict or prohibit them, in the context of protected area dedication and management. 1.2. Recognition and implementation All environment groups should acknowledge three things 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 environment groups seek to have lands or waters dedicated or managed under a protected area status they should make prior acknowledgment of the native title rights and traditional land relationships of Aboriginal and Torres Strait Islander people. They should then seek to work in consultation with indigenous traditional owners in regards to identification, protection and management of the conservation values of traditional lands and waters. 1.3. Principle of non-extinguishment Extinguishment or arbitrary impairment should not be seen as a means to achieve the objective of nature conservation and biodiversity protection. Environment groups should in no way be party to calls for, or acts of, extinguishment or arbitrary impairment of native title rights. Environment groups should, instead, 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, waters and species of fauna and flora within Protected Areas. It may not always be possible to reach agreement between environment groups and indigenous traditional owners regarding the identification, protection and management of the natural and cultural heritage values of traditional lands and waters, and fauna and flora, within existing or proposed Protected Areas. Where agreement cannot be reached between environment groups and indigenous traditional owners, environment groups reserve the right to lobby against developments, proposals and unsustainable practices on indigenous traditional owners’ lands which they consider to be deleterious or inimical to protection and preservation of the areas natural and cultural values.
2. Protected Areas, the Protection of Bio-Diversity and Natural & Cultural Values | Natural and cultural values intertwined | | Biodiversity protection and CAR | | Protected area size exceeding CAR | | Ecosystems and traditional management applications |
2.1. Natural and cultural values intertwined The Australian environment has for millennia inextricably bound natural and indigenous cultural values. High conservation value areas embody both natural and indigenous cultural values. Indigenous traditional owners therefore have a 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. Biodiversity protection and CAR With respect to biological diversity, the protected area estate should be comprehensive, adequate and representative (CAR). The protected area estate in Queensland is presently insufficient to the task of ecological protection. While maintaining a commitment to sustain and improve existing Protected Areas, ENGOs should 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 cores, on- and off- reserve restoration, and complementary off-reserve management. The system should include ‘core’ Protected Areas, buffers, and corridors. 2.3. Protected area size exceeding CAR The protected area estate should serve the function of providing nature-based recreation and tourism, and environmental education. To ensure nature conservation objectives are met while still providing for nature-based recreation and tourism, and environmental education, the size of the protected area estate should exceed that required to meet biodiversity targets for achieving a CAR reserve system and that required to meet indigenous traditional owners rights and interests. It is clear that native title continues over land that is set aside for the protection of biodiversity and natural and cultural values. The maintenance and extension of the protected area estate should not involve the extinguishment or arbitrary impairment of native title rights. Instead, it should involve the development of partnership agreements between traditional owners and the State, under supporting legislation and management plans, for the protection of the area’s natural and cultural values. With respect to the protected area estate, legislation, management plans and partnership agreements between indigenous traditional owners and State authorities should, in order of priority:
2.6. 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 therefore need to be carried out for protection of biodiversity. The knowledge within indigenous culture of appropriate fire use and other techniques should be applied to 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. Partnerships should be developed as needed between indigenous traditional owners, State environment management agencies and, where appropriate, ENGOs, for the management of Protected Areas.
3. Tenure of Protected Areas | Native title and a prori interest | | Core funding | | Incorporation of irghts and interests in management plans | | Statutory guaranteed payments to traditional owners |
The native title rights of indigenous traditional owners, and the State’s interest in the dedication and management of lands and waters for the protection of biodiversity and natural and cultural values, coexist in Protected Areas. Indigenous traditional owners and the State both, therefore, have definable interests in the use and management of Protected Areas. There are several classes of interest that must be accommodated within Protected Areas. These are:
To ensure that there is little or no conflict or competition between these rights and interests a system of protected area management must be developed which balances and apportions in an appropriate way, such as indigenous cultural zones within Protected Areas, the respective rights and interests. Independent arbitration should be established under appropriate legislation to ensure fair and equitable resolution of disputes. 3.3. Native title an a priori interest Given that native title is a ‘class of interests’ not previously taken into account with the dedication and management of Protected Areas, special attention must now be paid to its inclusion when declaring, and developing plans for, Protected Areas. No new Protected Area or Protected Area Management Plan should therefore proceed without involvement of the indigenous traditional owners. New Protected Areas or Protected Area Management Plans must address and incorporate native title rights. 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 will provide core funding for Protected Areas. This should be sufficient to ensure adequate management and will provide for interpretation, research, inventory, monitoring and adaptive management to maintain and, where necessary, restore values and integrity. 3.5. Incorporation of rights and interests in management plans Management plans and arrangements for Protected Areas must incorporate and balance protection of ecological and biodiversity values; protection of the cultural, social, economic and legal rights and interests of indigenous traditional owners; and protection of the interests of the wider community with respect to their experience of the park. 3.6. Statutory guaranteed payments to traditional owners Indigenous traditional owners are entitled to receive a statutory guaranteed payment for the loss of full use and enjoyment of traditional lands and waters under a Protected Area status. They also have the right to negotiate over and share in economic benefits, however derived, from the use of their traditional lands and waters as Protected Areas. Payments to indigenous traditional owners should be from State budget appropriations from general revenue and returns from economic activity. Payments to indigenous traditional owners should not be derived from fees levied upon members of the public for access to a Protected Area. There should be no compulsory leasing back of native title land under protected area status. Where leasing back occurs it should be on the basis of fair and equitable negotiation between the indigenous traditional owners and the State and should involve recompense appropriate to the degree of alienation of the land or waters for protected area status.
4. Management Interests and Issues in Protected Areas, Relating to Native Title Rights | Customary and contemporary management | | Negotiated agreements and management plans | | ENGO participation in planning | | Boards or governing authority | | Ecologically sustainable management a constraint | | Use of non-traditional implements | | Rare and threatened species | | Low impact accommodation and alternatives | | Restricted access and control | | Traditional and customary trade | | Commercial enterprise permits | | Non-commercial infrastructure - 'gateway' communites | | Intellectual property rights and royalties |
RE: 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. 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. Negotiation should be fair and equitable and result in clear authorities and management plans consistent with the principles of the governing Protected Area legislation. All rights, responsibilities and operations should be clearly stated in the management plans and publicly available for scrutiny and comment. All planning and decision-making power should be conferred upon the management body authorised by the Minister, who retains ultimate control of such matters. A breach of agreement by either party should result in independent arbitration. 4.3. ENGO participation in planning Management plans should apply in all Protected Areas and meet as far as possible, and consistent with the 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 those holding to the primacy of ecological integrity and nature conservation in negotiations, eg ENGOs. 4.4. Boards or governing authority A role for indigenous traditional owners in the implementation of management plans for Protected Areas is required. In recognition of their traditional rights, this should be either through a guaranteed indigenous traditional owner majority on a board of management, or, in the absence of a board, management by an indigenous organisation. Alternatively, under agreement with the indigenous traditional owners, implementation of management plans could be carried out solely by the State’s management agency. RE: 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 Traditional owners should be able to exercise their rights to hunt, gather and use resources in Protected Areas in accordance with traditional practices and subject only to any restrictions applying to species which are threatened or endangered and accordance with ecologically sustainable management practices 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 use of firearms is permissible so long as it is only used for hunting in accordance with traditional purposes and traditional take, or for feral animal eradication, and that its use is subject to public safety provisions and the Weapons Act. Use of weapons should be defined in a management plan. 4.7. Rare and threatened species Special measures should be instigated for the protection of rare and threatened species. Many endangered species are important to the cultural lifestyle of, and as a food source for, indigenous traditional owners. Given that threatening processes are not generally related to traditional practices, then indigenous traditional owners should have a major involvement in the development and implementation of protection and recovery programs. Consideration should also be given to compensation for loss or impairment of the right to hunt in accordance with a tradition. RE: THE RIGHT to live on and travel over the land
4.8. Low impact accommodation and alternatives Permanent accommodation and substantial structures that damage the high conservation values of Protected Areas are inconsistent with the status of a protected area. However, it is appropriate for indigenous traditional owners to apply an objective of IUCN Protected Area Category I b. That is ‘’to enable indigenous human communities living at low density and in balance with the available resources to maintain their lifestyle’’. Any such accommodation and access should be low impact and sited to minimise environmental disturbance. Alternative means of addressing accommodation needs of indigenous traditional owners, that enable them to fulfil their native title rights, should be considered in any compensation, payment and in-kind arrangements with the State. Protected areas status requires that mechanised access on existing tracks should only be allowed for essential management practices and where indigenous management arrangements apply. Vehicle use should only occur in relation to indigenous cultural practices that are consistent with the protection of natural and cultural values and should not adversely affect the ecological integrity of the protected area. RE: 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, defined in the management plan for a particular area. RE: 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 or custom and is compatible with the purposes for which the area is protected should be a recognised feature of the cultural lifestyle of indigenous traditional owners. The native title right to ‘trade’ should not be confused with the development of commercial operations in relation to Protected Areas, which should only occur under permit. 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, as managers with the State in Protected Areas, may determine through management plans what activities are permitted and by whom. 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. RE: 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 indigenous people’s intellectual property in Protected Areas. The right of indigenous people to withhold information that for cultural reasons should not be disclosed should be respected.
5. Framework for resolution of rights and management issues | Establsihed indigenous interests | | Management agreements || Indigenous protected areas | | Management plans |
Native title rights in Protected Areas necessitate some form of cooperative framework. A focus on the development of cooperative, or ‘joint’, 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 (ILUAs) 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 three ways in which indigenous people can form an interest in a protected area: 5.2.1 Native title determination By determined native title 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. 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. 5.4. Indigenous protected areas Where such an agreement is executed, an area shall become an ‘indigenous protected area’ subject to these management principles; that is:
A management plan should be developed in accordance with the appropriate legislation (the Nature Conservation Act, subject to amendment), management principles, and the management agreement. The management plan requires, as presently, the approval of the Governor in Council. ENGO representatives should be given third party rights in negotiations over amendments to the Nature Conservation Act, the development of templates for management agreements, and the preparation of management plans. ENGOs 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 | Budgets and management resources || Affirmative action employment | | ENGO & indigenous groups cooperation |
Upholding native title rights and protecting areas of natural and cultural conservation value both require strong legislative and administrative support. Legislation should be amended to 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. It should also establish the highest principles for the protection of biodiversity and the conservation of natural and cultural values. The building of partnerships between indigenous traditional owners and the State Government’s conservation and management agencies should be facilitated. There should be a newly designated agency or authority to implement the new provisions of the legislation, with respect to native title and indigenous protected areas, in cooperation with the QPWS and indigenous management bodies. 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 joint management arrangements. 6.4. Affirmative action employment The Government should have an affirmative action program in regard to training and employment of indigenous administrators and rangers to build up the contemporary skills, resources and knowledge of indigenous traditional owners and to facilitate a transfer of indigenous traditional knowledge, as appropriate. Any such measures must be culturally specific and appropriate so as not to compromise either indigenous traditional or state administrative authorities. Government should facilitate indigenous land claims in a broader scope than just Protected Areas. ILUAs 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. ENGO & indigenous groups cooperation ENGOs should commit to developing understanding and the framing of a range of agreements with indigenous traditional owners, as appropriate. ENGOs should commit to discussing and settling within ENGOs and between ENGOs and indigenous representative bodies, negotiable matters, principles and issues of Protected Area management. ENGOs should approach native title representative bodies with the aim of informing of our opinions and agendas and developing cooperative working relationships.
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