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| Aboriginal interests | Protected areas | Tenure & management | ILUAs | Joint management | Legislation |

Provisional position

Native title rights and aboriginal land interests

| Recognition |

| Proposed position |

| Comments / issues |

Recognition

The High Court decision on 3 June 1992 in Mabo effectively overturned the concept of terra nullius (the legal fiction that the land belonged to no one) and held that the common law of Australia recognise a form of native title to land. In doing so, the High Court recognised that indigenous people, who had their own customs and rights in relation to the land, had occupied Australia prior to and subsequent to the assertion of sovereignty by the British crown.

Despite the impact of colonisation and the continuing pattern of settlement of Australia on Aboriginal societies, these native title rights and interests survive in law to the present day. Native title rights are upheld where Aboriginal and Torres Strait Islander people maintain a connection to their traditional lands, and where the land and people have not been dealt with in a way that has extinguished native title.

The High Court's decision in Wik fixed the principle that native title rights and interests coexist with non-exclusive interests in land. Other decisions have helped to establish the extent of native title rights over the seas.

It is clear that native title rights can survive the dedication of Protected Areas, such as National Parks.

Native title is an acknowledgment that Aboriginal and Torres Strait Islander people have the right:

• to possess, occupy, use and enjoy their land

• to make decisions about the use and enjoyment of their land

• to have access to their land and control the access of others

• to control, use and enjoy the resources of their land

• to trade in the resources of their land

• to maintain and protect places of importance under traditional law, and

• to maintain, protect and prevent the misuse of cultural knowledge

Aboriginal and Torres Strait Islander people in the State of Queensland have native title rights that they wish to give expression to and to protect from inadvertent or intentional extinguishment or impairment.

Where these native title rights and interests in land coincide with a Protected Area it will result in negotiation with the State land management authority over the exercise of the native title right:

• to live on and travel over land

• to hunt and fish

• to take items such as timber, stone, resins and shells for traditional purposes

• to conduct ceremonies

• to prevent unauthorised entry or use of resources by others

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Proposed position

That Queensland non-government environment groups:

• Acknowledge the native title rights and interests of indigenous traditional owners of land and sea

• Acknowledge that these rights and interests may coexist with areas set up by the State for the protection of nature and the conservation of biodiversity

• Acknowledge that rightful indigenous communities will seek to express and enjoy their native title rights with respect to Protected Areas

• Will not be party to the extinguishment of native title rights

• Will not seek to lessen native title rights, except with the voluntary consent of the rightful indigenous community and where it is a matter critical to the objective of nature conservation and biodiversity protection

• Will seek to work cooperatively with rightful indigenous communities and Aboriginal and Torres Strait Islander representative bodies in regards to identification, protection and management of the conservation values of traditional lands and waters within Protected Areas

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Comment / issues

This is a statement of principle based upon the legal reality of native title and its application by environment groups with an interest in the creation and maintenance of Protected Areas. It is about correct conduct by public interest groups, such as ENGOs, when dealing with the rights and title of a group of people.

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Protected Areas and the Conservation of Biological Diversity

| Recognition |

| Proposed position |

| Comments / issues |

Recognition

The Australian environment is a largely ‘managed landscape’ resulting from many thousands of years of land management practiced by Aboriginal and Torres Strait Islanders, intertwining natural and indigenous cultural values. Our developing scientific knowledge of the continent indicates that many existing or future Protected Areas may not be ecologically stable and capable of sustaining biological diversity in the long term:

• because of the cessation of or restrictions on active management by indigenous traditional owners

• because of the radical modification of the Australian landscape through colonisation, and

• because the design and scale of the protected area system has been insufficient to ensure the continuity of ecological processes

As a result of the impacts of change on the environment and 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 can include both Aboriginal traditional management and contemporary management methods.

It is recognised that many past and existing tenure arrangements for Protected Areas have limited the capacity of indigenous people to continue to 'care for country' according to their customs and law and to be involved in the management of Protected Areas by land management agencies. Indigenous people have expressed the view that Protected Areas have in the past been one amongst many factors in their dispossession of land.

It is also recognised that environment non-government organisations (ENGOs) have a genuine public and community interest in protecting the environmental values of areas, with few gains in the protected area estate having occurred without the positive efforts of groups comprising the environment movement.

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Proposed position

That Queensland non-government environment groups:

 

• Acknowledge that the Australian environment inextricably binds natural and indigenous cultural values

• Acknowledge that areas established to protect environmental values embody both natural and indigenous cultural values

• Acknowledge that rightful indigenous communities will seek to maintain, protect and prevent the misuse of their land, places of importance, and resources within and outside of Protected Areas

• Acknowledge that rightful indigenous communities may wish to exercise native title rights within Protected Areas

• Acknowledge that the protected area system has been insufficient to the task of ecological protection

• Will maintain a commitment to sustain existing Protected Areas, to increase the size and effectiveness of the Protected Area system and to mitigate against the factors threatening biological diversity

• Will not accept extinguishment of native title rights as a consequence of the development of the Protected Area system

• Will seek the establishment of joint management arrangements between rightful indigenous communities and land management authorities with the aim of protecting natural and cultural values to the greatest possible extent in accordance with management principles stated in the Nature Conservation Act 1992

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Comment / issues

This section is a synopsis of issues relating to the development of environmental science and to international and national level policies and commitments on biodiversity protection and indigenous rights. It is a recognition that the scenic and aesthetic values of Protected Areas and National Parks are alone inadequate to dealing with nature conservation issues and that natural areas in Australia cannot be viewed as a land without people and culture; that is, terra nullius.

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Tenure and management of national parks and other protected areas

| Recognition |

| Proposed position |

| Comments / issues |

Recognition

The tenure of existing National Parks and other Protected Areas controlled by the State is subject to review by the Queensland Government as a result of judicial decisions and legislation arising from the recognition of native title. Native title and the State’s interest in Protected Area management can coexist in Protected Areas (other than conservation areas under some form of exclusive tenure). The State’s interest in these Protected Areas necessitates joint management arrangements between indigenous traditional owners and the State, with the nature of the joint management regime to be negotiated.

The establishment of new Protected Areas will be subject to the requirements of legislation covering "future acts" and will require a workable regime for dealing with future acts including the right to negotiate.

Management arrangements will depend upon what is negotiated between native titleholders or their representatives and the State Government. Definitions of joint management will need to be provided for in legislation and other binding instruments giving effect to both native title rights and nature conservation. Application of native title tenure rights and joint management arrangements through the Aboriginal Land Act and the Nature Conservation Act or through Indigenous Land Use Agreements, or any new legislation, will need to be consistent. It will also need to be in line with the full recognition of native title rights and the correct means by which surrender of those rights may take place. Both the negotiation and management processes should provide effective means for dispute resolution.

The intersection of native title rights and Protected Areas will result in legislative and policy changes in relation to indigenous tenure and management in those areas. It is acknowledged that the State and traditional owners both have a stake in the future management of those lands.

In addition, the interests of the community in environment protection and biodiversity conservation, and in management arrangements to apply to Protected Areas, cannot be left solely to Government to represent. Community interest environment groups should be recognised stakeholders in the negotiation of management arrangements.

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Proposed position

That Queensland non-government environment groups:

• Acknowledge that the tenure and management of Protected Areas is subject to review as a result of the application of native title laws

• Acknowledge that native title and the State’s interest in Protected Area management can coexist in Protected Areas, including National Parks

• Acknowledge that the State and indigenous traditional owners both have an interest in management of Protected Areas

• Acknowledge that joint tenure and management issues require appropriate definition and legislative backing and enforcement

• Will expect ENGO representatives to be given stakeholder status, or third party rights, in negotiations over joint management arrangements

• Will negotiate in good faith, seek a cooperative outcome and submit to agreed dispute resolution provisions where differences cannot be resolved

• Will openly and honestly advocate for the protection of nature

• Will advocate changes to legislation that give preference to negotiation and accommodation of native title over resort to litigation or extinguishment

• Will oppose arbitrary extinguishment by government of native title rights or any inequitable treatment of native title holders

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Comment / issues

This is one of the more challenging aspects of the native title / Protected Areas discussion due to both the legal and policy complexity and the change of perception required regarding the nature of Protected Areas, especially National Parks. It recognises the fact that ENGOs have a stakeholder, or third party, interest, that rightful indigenous communities justly enjoyed a set of rights , and the Government has a legal and compulsive power.

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Indigenous Land Use Agreements

| Recognition |

| Proposed position |

| Comments / issues |

Recognition

The complex, slow and adversarial legislative and bureaucratic process devised to respond to native title claims, and the lack of certainty and cooperation presupposed by this determination process, have important impacts for traditional owners, land and resource protection or use, and on the performance of land and resource managers.

Indigenous Land Use Agreements (ILUAs) as provided for under the amended Commonwealth Native Title legislation are recognised as a flexible, voluntary and case-specific means to bring clarity and certainty to tenure and management arrangements and to avoid costly, time-consuming, and potentially divisive, litigation. They are a means to comprehensively settle land claims and provide for community development and environmental and resource management.

• ILUAs have the benefit of covering, among other things:

• Doing anything that affects native title

• The surrender of native title

• Compensation for past, intermediate or future acts

• The relationship between native title and non-native title rights and interests and how they are to be exercised

• Doing anything that could not be done under the amended Act, and

• Giving native title parties different procedural rights to those that they are entitled under the amended Act

The ability to make both process and area agreements make them a powerful tool for developing ongoing working relationships and for developing planning schemes that are regional or catchment-based and more effective from the point of view of land management and environment protection. To ensure environment protection, ENGOs should be recognised as legitimate advocates and stakeholders in ILUAs by indigenous people, Government and other stakeholders.

Such agreements can remove the impediments for traditional owners, land holders and other stakeholders under conditions of coexistent title rights. They can also enable communities to go beyond mere legal and procedural issues to genuine cooperation in planning and development.

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Proposed position

That Queensland non-government environment groups:

• Acknowledge that the adversarial process for settling native title land and resource claims has a range of detrimental impacts.

• Acknowledge that ILUAs can be a flexible, voluntary and case-specific means to bring clarity and certainty to tenure and management arrangements across a range of rights and interests

• Acknowledge that a representative reserve and off-reserve system to conserve biological diversity will extend across the boundaries of Aboriginal and other tenures

• Will support the principle and use of Indigenous Land Use Agreements where indigenous people agree to this as a means to settle their native title rights and land claims. Where appropriate, relevant ENGOs will participate in such negotiated Agreements.

• Will not participate in ILUAs where any parties are acting under duress or with intent to defeat native title rights.

• Will support ILUAs as a demonstration of commitment to cooperative arrangements for conservation management that recognise traditional land tenure and land management regimes

• Will approach native title representative bodies with the aim of informing of our opinions and agendas and developing appropriate cooperative relations

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Comment / issues

This section is about making a policy commitment to working beyond a bottom line of legal rights towards a broader concern for environment protection in a community development context. It is a recognition that native title rights are here to stay and that as a society we should "negotiate, not litigate" where possible. It also recognises that for cooperation to be effective it must be voluntary. ILUAs should not be used to chisel away either native title rights or biodiversity protection.

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Caring for Country: joint management of protected areas

| Recognition |

| Proposed position |

| Comments / issues |

Recognition

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

These objectives, while closely related, also contain potential conflicts of interest.

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 programs and other management issues may be in competition or conflict with Aboriginal aspirations for particular Protected Areas from time to time.

Protected Area arrangements should respect the interests of rightful 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.

To settle these matters there should be an appropriate balance between the power of a Minister to make decisions with respect to the management of Protected Areas, and the power of management boards or agencies to make decisions within guidelines set down in legislation and lease and management documents. There should be dispute resolution mechanisms available.

Joint management arrangements for Protected Areas are facilitated by:

• The resolution of tenure issues for Aboriginal and Torres Strait Islander peoples’ on the basis of land claim regions, rather than focusing only on Protected Areas

• The building of partnerships between Aboriginal and Torres Strait Islander peoples and the State’s conservation agencies, and

• The negotiation of agreements to recognise the broader needs of Aboriginal and Torres Strait Islander peoples whose traditional land lies within Protected Area

In addition, working together and framing a range of agreements between ENGOs and Aboriginal Representative Bodies are useful preconditions in resolving management issues and increase the prospect of mutual support.

Joint management arrangements should cover, primarily through Protected Area Management Plans, principles and case-by-case management issues including but not limited to:

• Hunting, gathering and resource use by ‘traditional owners’ in Protected Areas

• Indigenous living areas inside Protected Areas

• Indigenous control of cultural heritage places and sacred sites

• Restriction of access to parts of Protected Areas for Indigenous cultural reasons

• Undertaking ceremonial and cultural practices in Protected Areas

• Vehicular access into parks for traditional purposes

• The means used in traditional take; eg use of firearms

• Management arrangements applying over the variety of Protected Areas and their relationship to the aspirations of indigenous traditional owner groups

• The raising and application of rents, revenues and fees, State budget appropriations for Protected Area management, and economic consideration for native title holders

• Composition of Management Boards, if established, including whether majority indigenous representation and voting thresholds

• Board of management - powers, responsibilities, day to day management

• Addressing native title rights as a precondition for gazettal of new Protected Areas

• Protection of rare and threatened species

• Use of fire

• The similarities and differences in the exercise of native title rights over terrestrial and marine Protected Areas

• Affirmative action policies in regard to training and employment of indigenous administrators and rangers

• Defining and practicing commercial use

• Lease-back arrangements

• Intellectual property

• Indemnity and responsibility of those participating in management

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Proposed position

That Queensland non-government environment groups:

• Acknowledge that native title rights in Protected Areas necessitate joint management arrangements

• Acknowledge that joint management arrangements must incorporate and balance protection of ecological and biodiversity values; protection of the cultural, social, economic and legal rights and interests of Aboriginal people; and protect the interests of the wider community with respect to their enjoyment of the park

• Acknowledge that there are important linkages between ecological values and indigenous cultural values and that environmental protection may require application of customary management processes

• Acknowledge that there may at times be conflict or competition between the various interests within Protected Areas and that there should be dispute resolution mechanisms available

• Advocate resolution of Aboriginal and Torres Strait Islander land claims in relation to indigenous people’s governance structures at regional, sub-regional and local, traditional owner group, levels, rather than focusing only on Protected Areas

• Advocate the building of partnerships between Aboriginal and Torres Strait Islander people and the State Government’s conservation and management agencies

• Advocate the negotiation of agreements to recognise the broader needs of Aboriginal people whose traditional land lies within Protected Areas

• Commit to developing understanding and the framing of a range of agreements between ENGOs and Aboriginal people, as appropriate

• Commit to discussing and settling within ENGOs and between ENGOs and Aboriginal representative bodies, as appropriate, negotiable matters, principles and issues of Protected Area management

• Will set forth in a schedule attached to this document matters, principles and issues of Protected Area management of concern or interest to ENGOs

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Comment / issues

This section is predicated on the conclusion that native title rights will compel the development of joint management arrangements and that ENGOs must meet the requirements of this. It works from the standpoint that there is not an inherent incompatibility between conservation and indigenous interests: that in fact there is a complementary relationship - covered in the term "caring for country".

It does however acknowledge that there will be occasions where interests compete or conflict, and resolution processes and clear authorities will be required. It does not acknowledge that there is any alternative to working through such an approach.

The matters and detail for the attached schedule are yet to be completed and will be developed in a further stage to this project.

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Legislation and administration

| Recognition |

| Proposed position |

| Comments / issues |

Recognition

Native title rights and their application to the dedication and management of Protected Areas will require a strong and appropriate legislative and administrative structure. Therefore it is important that Aboriginal and Torres Strait Islander people, in particular, and other interest groups and stakeholders have confidence in a public policy and the instruments designed to address these matters.

The present legislative, budgetary and management agency arrangements regarding native title and Protected Areas are insufficient to enable the full expression of those rights and the proper administration of a joint management structure. Management of Protected Areas on environmental grounds alone already suffers from inadequate resources.

Because of this, reform of the principal pieces of legislation governing Aboriginal land claims over Protected Areas and an increase in the amount and efficiency of management resources are required.

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Proposed position

That Queensland non-government environment groups:

• Acknowledge that upholding native title rights and protecting areas of conservation value both require strong legislative and administrative support

• State that the legislative, budgetary and management agency arrangements regarding native title and Protected Areas are insufficient

• Advocate reform of the principal pieces of legislation governing Aboriginal land claims over Protected Areas to deliver protection of ecological and biodiversity values; protection of the cultural, social, economic and legal rights and interests of Aboriginal people; and protection of the interests of the wider community with respect to their enjoyment of the Protected Area

• Request of the Queensland Government an increase in the amount and efficiency of management resources available for Protected Areas and joint management arrangements

• Commit to playing an active role in the development of public policy regarding native title and Protected Areas.

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Comment / issues

A detailed appraisal of legislative and administrative reform and budgetary implications will be developed in a further stage to this project.

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Adopted 6 August 1999 by -

Australian Conservation Foundation

Australian Marine Conservation Society

Australian Rainforest Conservation Society

Cairns and Far North Environment Centre

National Parks Association Queensland

North Queensland Conservation Council

Queensland Conservation Council

The Wilderness Society

Wildlife Preservation Society Queensland

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