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| A starting point for change | A new way or de facto extinuishment | Negotiating or litigating |

A starting point for change

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 - the review. In recent days it has released a draft Master Plan for Queensland's Parks System - the plan. Both 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 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 view when it stated:

"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)."

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 native title claim, 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:

"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."

The issue of native title in National Parks remains speculative only to the extent to which those '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 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.

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A new way or de facto extinguishment

The prospect of country, in which indigenous communities have some 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 appears to rest 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:

"An 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".

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: Native 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.

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 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.

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Negotiating or litigating

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. For example, in the plan it is stated that:

"The Government recognises that Native Title interests may exist over many of QueenslandÕs parks. The exact extent of this and the legal implications will become clearer in the next few years".

Conversely, it states that:

"Native Title and significant indigenous rights and interests continue to exist over many protected areas".

The plan is talking 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, and 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. There is a cabinet sub-committee to consider how the Government will proceed on this. 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 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. 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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