and policy | Rights
and environment | Environmental protection
Overcoming cultural diparities
title and protected areas
of cultural and environmental integrity
delivered to the Future of Land Rights and Native Title Conference
Townsville, Qld - Thursday, 30th August 2001
and public policy
effect of native title and indigenous rights and interests in protected
areas is one that raises significant tenure and management considerations.
This is for both existing and future protected areas. Non-government
environment organisations in Queensland, a political driving force
in the creation and management of protected areas, have been playing
a pro-active role in defining the full scope of these issues associated
with native title and discussing new models for a protected area
The vehicle for this is the Native Title and Protected Areas project.
project sets up a new dynamic within ENGOs, one that takes indigenous
rights and environment protection issues outside of a previously
contested field and starts a process of cooperative policy development
and alliance building with native title interests.
mid-1999 the Queensland Government has been conducting a review
of legislation and policy relating to indigenous title to and management
of National Parks and Protected Areas. In recent times it has released
a draft plan for National Parks with the somewhat unfortunate title
of "Master Plan for Queensland's Parks System". Both the review
and the plan encapsulate the political dynamics at the heart of
establishing a correct understanding of native title and its rolling
effect on issues to do with the appropriation (and use or protection)
Queensland Government's position at the outset of the review was
that Native Title "may well be found to exist" in areas declared
as National Parks but that this would have no impact on valid dedications
of National Parks made before 23 December 1996. It is generally
accepted at law that the underlying native title in national parks
will not invalidate the dedication of those areas. It is also generally
accepted that the common and statute law affirms native title in
protected areas as given, not withstanding some acts of past extinguishment
in specific instances.
original Mabo judgement gave credence to this when it stated:
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).
Wik decision supported the principle of coexistent rights on pastoral
leases (with native title rights ceding to Government conferred
entitlements and interests in cases of conflict). The principle
would appear to apply to the continuing concurrent enjoyment of
native title in existing protected areas.
full bench of the Federal Court, ruling in the Ben Ward (Miriuwung
and Gajerrong) appeal case, and despite overturning other aspects
of the original ruling, left intact the recognition of native title
in protected areas. Further, the Commonwealth Native Title Act 1993,
as amended, states in section 23A
"Exclusion of national parks etc" that:
"An act is not a previous exclusive possession act if the grant
or vesting concerned involves the establishment of an area, such
as a national, State or Territory park, for the purpose of preserving
the natural environment of the area".
title in National Parks is speculative only to the extent to which
those so called 'valid acts' of dedication may limit or set aside
native title rights where the concurrent enjoyment of native title
is inconsistent with some or other aspect of the management of existing
protected areas. Even then, with the High Court upholding Native
Title Act Section 211's native title hunting and gathering rights,
aspects of protected area management will require a more conciliatory
and cooperation-based outcome, rather then a unilateral exercise
of 'sovereign' power by the State.
prospect of country, in which indigenous communities have some remaining
form of title, being incorporated into new National Parks or other
protected areas was considered likely by the Government, it's belief
being that this would not diminish the continued interest of indigenous
communities in that land. This view has been posited on the legal
premise that the dedication of National Parks and other protected
areas is a "low impact future act". That is, as in section
(a) of the Native Title Act a 'low impact future act' is:
act that takes place before, and does not continue after, an approved
determination of native title is made in relation to the land
or waters, if the determination is that native title exists".
a future act, under 24LA (4) "the non-extinguishment principle applies
to the act". The non-extinguishment principle is defined in section
238. That is:
title not extinguished - 238 (2) If the act affects any native
title in relation to the land or waters concerned, the native
title is nevertheless not extinguished, either wholly or partly.
are de facto forms of 'extinguishment' in subsequent sub-sections.
Under 238 (3) and 238 (4) if the act is wholly or partly inconsistent
with the continued existence, enjoyment or exercise of the native
title rights and interests, the native title continues to exist
in its entirety but the rights and interests have no effect in relation
to the act. Combined with a diminished right to negotiate, these
provisions have the potential effect of rendering native title empty
public policy argument appears thus: the dedication of a new protected
area is a low impact future act that does not therefore extinguish
native title. If a native title claim is confirmed, then the protected
area will continue over the native title lands. To the extent to
which the purpose of the protected area is partly inconsistent with
the continued existence, enjoyment or exercise of the native title
rights and interests, the native title rights and interests have
is an argument that meets with much legal and moral challenge from
indigenous native title bodies. It is difficult to see how a national
park, for example, would either "not diminish the continued interest
of indigenous communities in that land" or not require a revocation
of the dedication upon determination of native title. A national
park, for instance, is set up nominally in perpetuity, disqualifying
it as a 'future act'. That is, an act that "does not continue after
an approved determination of native title". It is also set up for
nature conservation purposes as defined under the Nature Conservation
Act which, especially in its present form, can effect the continued
existence, enjoyment or exercise of the native title rights and
alternative argument is this: that the dedication of new protected
areas must be by negotiation with native title-holders and come
after, not before, the resolution of tenure issues. Moves to establish
parks over land subject to claim are threatened with legal injunction.
Management of lands and waters for nature conservation purposes
should otherwise proceed through a series of indigenous land use
agreements, using existing or new provisions of the Nature Conservation
Act, and resulting in a protected area model which incorporates
a range of rights and interests on a case-by-case basis. National
Parks, rather than being nominally in perpetuity, may then be established
through renewable 'leases' on fair terms.
Cape York Peninsula Land Use Strategy and Barron Gorge National
Park native title claim were sited by the Government, at the outset
of the review, as examples of issues requiring resolution within
a consistent policy framework. A number of national parks claimed
under the Aboriginal Land Act 1991, also require resolution. Other
areas of relevance are the SEQ Forest Reserves under the Queensland
Forest Agreement, USL (Unallocated State Land) previously considered
for National Park on North Stradbroke Island and, more recently,
proposals to bring parts of the Wet Tropics World Heritage Area
into the National Park system.
review has talked about resolving these matters in terms of joint
management. There are a number of semantic arguments covering terms
such as 'joint management', 'cooperative management', 'co-management'
and 'partnerships' but these should not be allowed to distract from
the central issues.
remains that the current Nature Conservation Act 1992 and the Aboriginal
Land Act 1991 do not formally recognise native title and are seen
to be deficient in a number of significant ways. The State Government
review is based on recognition of the need for appropriate mechanisms
by which indigenous communities can contribute to the management
of areas as National Parks or other protected areas. Legislative
amendments are to be considered once policy objectives are established.
general approach of a State wide consistent policy framework in
which a complex set of indigenous rights and environment protection
variables can be worked out through negotiation is inherently positive
and an important initiative. It is an approach that has not been
attempted elsewhere in Australia. However, at present, a clear and
coherent whole-of-government position or direction is not evident.
only current Government public reference on native title and protected
areas is the Draft Master Plan for Queensland's Parks System, a
Cabinet approved document. The plan displays an inconsistency that
seems to be the hallmark of approaches to resolving native title
plan talks on the one hand in terms of interests that may exist
and on the other hand of rights that continue to exist. The plan
proposes action "to inform the wider community of Native Title rights
and the need for partnerships and agreements with indigenous peoples
relating to Parks system management". But it diminishes the priority
of resolution by suggesting that the "significant change in park
management" associated with recognition of native title will take
place "in the next two decades" and by defining it merely as the
"increasing role of Indigenous peoples [in the] management of parks".
original Government TOR (terms of reference) for the review did
not address indigenous rights to land flowing from native title,
or environment protection issues, outside of a narrow conception
of joint management. To deal comprehensively with the full scope
of issues that such a complex policy area requires, both the Queensland
Environment Groups' Native Title and Protected Areas project and
the QIWG (Queensland Indigenous Working Group) submissions have
gone outside those TOR.
development has not been and is unlikely to proceed adequately while
the Government's approach to matters of tenure is hesitant. Two
competing views of the legal import of native title appear at the
heart of the matter. It would help matters considerably if the Government
stated a position with respect to tenure resolution. It would then
be clear whether its stated policy to 'negotiate, not litigate'
and of 'building reconciliation' can be achieved or whether the
establishment of legal principles to underwrite an amended legislative
framework requires further development through the courts.
is not an abstract consideration. Three-quarters of the existing
protected area system in Queensland is presently under claim. The
Government, party to native title consent determinations, will feel
the increasing pressure of the Federal Court to adopt a policy or
be forced to defend the existing (pre-native title) arrangements
in a litigious setting. For many claims, the approach to national
parks and other protected areas, whether existing or proposed, could
be a threshold issue. Progress on new protected areas may stall,
or be unduly prolonged, while these matters remain indeterminate.
Continued vacillation by the Queensland Government will only erode
the limited good will and tenuous alliances that exist in support
of this matter.
rights and environment protection
recognition of ‘native title’ in the High Court’s Mabo decision,
while not complete, 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.
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
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.
matters involve consideration of the ‘justice’ by which the Crown
acquired sovereignty in Australia and the manner in which governmental
power was exercised or, more particularly, of its failure.
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
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.
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.
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.
was the ‘model’ of parks as ‘sanctuaries’ for wildlife free from
human intervention (with the exception 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.
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’
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 highly relevant.
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’ can be countered by the simple reality –
we are not social injustice organisations.
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.
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:
protect the ecological and biodiversity values of the area
protect the cultural, social, economic and legal rights and interests
of Aboriginal people associated with the area
protect the interests of the wider community with respect to their
enjoyment of the area
Area arrangements should respect the title of indigenous communities
while meeting, to the greatest extent possible, the three core objectives
of joint management.
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.
community interests with respect to visitor access and activities,
public 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.
and protected areas
is a strong correlation between the dispossession of indigenous
traditional owners and environmental destruction. This is apparent
when maps of land claimable under native title and 'wilderness'
inventory maps are overlayed. Where extinguishment of native title
is complete so is the loss of nearly all 'wilderness quality' or
'values'. Where there are still large areas of wilderness, so are
there often unbroken, though not undamaged, indigenous traditional
only in recent times has this evident connection begun to have influence
and shape the approaches of State land and resource managers. Cross-cultural
knowledge and understanding are redefining concepts of protecting
natural heritage and of biodiversity conservation. Environment groups
now face certain challenges to a number of long held views. At the
centre of this will be the stance that each group takes on the fundamental
issues arising from native title in protected areas - the various
areas 'set aside' for the protection of natural and cultural values.
mentioned, the effect of native title and other indigenous rights
and interests in protected areas, including national parks, is one
that raises significant tenure and management considerations for
both existing and future protected areas. Importantly, it focuses
on the cultural activities and assumptions behind the creation of
protected areas and the dissociated approach to the environment
manifest in State development ideology. An approach that, on the
one hand, uses public revenues to facilitate resource extraction
at an unsustainable rate, while on the other, enables a democratic
shaping of policy which has led to a raft of environment protection
the basis of this approach to land and resource management is a
confused land ethic. The assumption is that any country not in protected
areas is therefore unprotected and subject to increasing resource
extraction, land clearing and radical modifications through agriculture,
pastoralism, industrialisation and urbanisation.
Australian environment is a largely ‘managed landscape’ resulting
from many thousands of years of land management practiced by Aboriginal
and Torres Strait Islanders. It intertwines, it doesn't separate,
natural and indigenous cultural values. Expanding knowledge of the
continent indicates that many existing or future protected areas
may not be ecologically stable and capable of sustaining biological
diversity for a number of reasons. These are:
cessation of or restrictions on active management by indigenous
radical modification of the Australian landscape through colonisation,
design and scale of the protected area system is presently insufficient
to ensure the long term continuity of ecological processes
a result of the impacts of change on the environment, and of the
present state of the environment, ‘protected areas’ are required
that give priority to preservation of biodiversity. And because
there are now new problems and new challenges, protected area management
should include both Aboriginal traditional management and contemporary
of the legislative and policy framework and programs operating at
a State level in this area derive from a regime developed prior
to the full effect of the High Court decisions in the Mabo and Wik
cases. As a result of these cases, and others, such as Ben Ward
in the Federal Court, the nature of the ENGO debate has changed.
Substantial progress has been made by a broad range of ENGOs in
recognising native title rights and working to upgrade their approach
and policies on protected areas.
of this movement include:
of indigenous rights and environment protection policies and
new constitutional objectives recognising the rights and interests
conferred by native title,
signatories to a number of indigenous rights and environment
protection instruments (eg, the Cape York Peninsula Land Use
Heads of Agreement and the Malimup Communique), and
in land justice and reconciliation movements (such as Land Justice
Alliance Queensland and Australians for Native Title and Reconciliation).
further points in the discussion are:
ENGOs have a genuine public and community interest in protected
areas; few gains in protected areas having occurred without
the efforts of groups comprising the environment movement,
native title is a right and a fact, requiring either voluntary
negotiation and the cooperation of indigenous people in the
public management of protected areas, or litigation,
as a result of the impacts of change on the environment, ‘protected
areas’ are required that put preservation of biodiversity as
a first order concern,
because there are now new problems and new challenges, protected
area management will likely include both Aboriginal traditional
management and contemporary management methods,
restrictive land use tenure for protected areas has limited the
capacity of indigenous people to continue to 'care for country',
to carry on practices that are essential to the maintenance of
culture and identity. (National Park tenure has in fact been used
politically to further dispossession, such as in the case of John
Koowarta on Cape York Peninsula).
overcoming cultural disparities
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
is an issue of equity here and an example of where the ‘sanctuary
model’ 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
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
in Queensland demonstrates this). The implication being many Australians
believe that the 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 or of the possessory title and rights and interests
of traditional owners.
and understanding indigenous laws and customs is a key task for
environmentalists. Gummow, in his judgement in the Yanner case makes
this task clear. He said: "Native title is not treated by the
common law as a unitary concept. The heterogeneous laws and customs
of Australia’s indigenous peoples, the Aboriginals and Torres Strait
Islanders, provide its content. It is the relationship between a
community of indigenous people and the land, defined by reference
to that community’s traditional laws and customs, which is the bridgehead
to the common law. As a corollary, native title does not exhibit
the uniformity of rights and interests of an estate in land at common
law and ‘ingrained habits of thought and understanding’ must
be adjusted to reflect the diverse rights and interests which arise
under the rubric of ‘native title’". [Emphasis added].
Roberts, in a 1998 paper on Aboriginal Burning, Coexistence and
Regional Agreements, given on behalf of Balkanu Cape York Development
Corporation, said "native title rights vary from place to place.
This is because different Aboriginal peoples belong to different
places and express culture and rights in different ways. Native
title rights are what particular groups say they are, according
to their tradition. Commonly quoted Aboriginal aspirations include
access to country for obligatory traditional purposes like visiting
sites, hunting, fishing or just being on their places by camping
is also important for environmentalists to recognise as the National
Strategy for the Conservation of Australian Species and Communities
Threatened with Extinction does, that "hunting has not been
a major cause of extinctions on the Australian mainland". It
goes further. The Strategy recognises the critical role of indigenous
people in species protection. It says that "Aboriginal traditional
knowledge is sometimes the main source of information about the
biology of endangered and vulnerable species and Aborigines are
often the only people living in the same areas as endangered species.
They are therefore on the spot for practical management and most
State [and] Territory conservation agencies have working relationships
with Aboriginal people on wildlife management".
Strategy highlights aboriginal burning as a critical feature of
management. "The life cycles of most Australian plants and
animals are well adapted to survive fire and other natural disturbances",
it says. "However, in many parts of Australia there have been
major changes in these regimes since European settlement. For example,
fire regimes resulting from Aboriginal land management practices
and those followed by Europeans may be quite different. It is these
changed fire regimes (fire frequency, intensity, season, pattern,
size) that have threatened species. Suitable fire regimes will vary
with the species or habitat under consideration. The management
of some endangered species, for example the ground parrot, involves
appropriately frequent fires. On the other hand, rainforest species
are usually fire sensitive and generally need protection from fire".
Of course, the Strategy recognises that land clearing and radical
modifications to country through agriculture, pastoralism, industrialisation
and urbanisation are the major contributing factors to loss of biodiversity.
other point acknowledged by the Strategy is that "national
parks and other conservation reserves, which in all cover about
5% of Australia, cannot alone ensure the survival of species and
ecological communities. It is crucial that lands outside the reserve
network be managed in ways that allow native species, including
endangered and vulnerable species, to flourish over as much as possible
of the range they inhabited before European settlement". Under
present tenure arrangements "13% of Australia is under Aboriginal
ownership including areas important to endangered and vulnerable
species particularly ground-dwelling mammals", it says.
cooperative and mutual approach to nature conservation and species
protection appears to be the way forward. By acknowledging common
law native title rights, the issue becomes one of why, how and by
whom regulation is to be effected. It places the onus on the State
to provide for the fullest expression possible, rather than to restrict
or prohibit, traditional owner hunting, gathering or fishing rights
in the context of land allocation and environmental management.
It makes the State’s role in regulating the use or conservation
of wildlife, as the High Court Justices noted, no more than a "sort
of guardianship for social purposes".
native title rights become progressively embedded in the environmental
and land management regimes of protected areas a range of cooperative
management arrangements will ensue. At this stage of the debate
on native title and protected areas, an effort from indigenous traditional
owners and environmentalists and the State 'protected areas' agencies
is required to come to grips with changes this is likely to produce.