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Native title and protected areas

Issues of cultural and environmental integrity

Paper delivered to the Future of Land Rights and Native Title Conference
Townsville, Qld - Thursday, 30^th August 2001

Law and public policy

The 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 estate. The vehicle for this is the Native Title and Protected Areas project.

The 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.

Since 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) of country.

The 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.

The original Mabo judgement gave credence to this when it stated:

The 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.

The 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 (9A) "Exclusion of national parks etc" that:

Native 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.

The 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 24LA (1) (a) of the Native Title Act a 'low impact future act' is:

As 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:

There 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 of content.

The 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 no effect.

This 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 interests.

An 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.

The 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.

The 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.

It 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.

The 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.

The 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 issues.

The 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".

The 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.

Policy 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.

This 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.

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Indigenous rights and environment protection

The 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.

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, more particularly, of its failure.

One major problem of the recognition of native title in the latter half of the 20^th century and into the 21^st 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 (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.

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 highly relevant.

This 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.

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 title of indigenous communities 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.

However, 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.

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Environment and protected areas

There 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 owner connections.

But 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.

As 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 measures.

At 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.

The 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:

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

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

• The design and scale of the protected area system is presently insufficient to ensure the long term continuity of ecological processes

As 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 management methods.

Much 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.

Examples of this movement include:

• Development of indigenous rights and environment protection policies and protocols,

• Setting new constitutional objectives recognising the rights and interests conferred by native title,

• Becoming 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

• Engagement in land justice and reconciliation movements (such as Land Justice Alliance Queensland and Australians for Native Title and Reconciliation).

Some further points in the discussion are:

• That 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,

• That 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,

• That, 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,

• That, because there are now new problems and new challenges, protected area management will likely include both Aboriginal traditional management and contemporary management methods,

• That 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).

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Towards overcoming cultural disparities

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’ 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 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.

Recognising 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].

Chris 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 there".

It 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".

The 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.

The 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.

A 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".

As 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.

Ó Anthony Esposito

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