up the challenge | Competing
arguments | A reformed regime
into the future for indigenous-environment alliances in Queensland
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.
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
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 emergence of native title
rights in protected areas challenges the ingrained habits of thought
and understanding within the environment protection agenda of years
up the challenge
In Queensland, the
environmental non-government organisations, historically a political
driving force in the creation and management of protected areas,
have taken up the challenge and are playing a proactive role in
defining the full scope of issues associated with native title and
debating 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
arena and starts a process of cooperative policy development and
alliance building between environmental and native title groups.
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 starting point is the focus on previously
dedicated and 'validated' protected areas, most obviously National
The general legal view
is that native title is not extinguished and that legislation for
protected areas only regulates the exercise of native title rights.
This will consequently require a more conciliatory and cooperation-based
outcome, rather then a unilateral exercise of 'sovereign' power
by the State. This is the 'historical compromise' of native title
that is at the basis of what is now often called 'joint management'.
But when so called
'unallocated state land' (USL) is proposed for new National Parks
or other protected areas, a whole new set of dynamics gets created.
The issues of continuing dispossession and cultural impact are brought
to the forefront.
Among some parts of
Government, the view is that declaring new protected areas, such
as on USL, will not diminish the continued interest of indigenous
communities in that land. This view appears to rest on the premise
that 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".
But this is an argument
that meets with legal and moral challenges from land councils and
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 repeal
of the declaration of the area upon the 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 can effect the continued existence,
enjoyment or exercise of the native title rights and interests.
The 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 dedicate new 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, with consent, be established
through renewable 'leases' on fair terms. This would be one protected
area model under a broad approach to consolidating and building
an Indigenous Conservation Estate.
ENGOs cannot remain
indifferent to this argument. It is now unavoidable that each group
must determine for itself and in conjunction with its associates
in the environment movement, where they stand on this issue. In
Queensland the groups are moving to consensus and appear intent
on pursuing a cooperative and conciliatory approach to resolving
native title and protected area issues.
After years of litigation,
recrimination and political division the chance now exists to move
forward by the development of indigenous land use agreements. ‘Caring
for country’ is a theme that can promote the rights and interests
of traditional owners and encourage a working relationship with
environment groups. It helps us to move away from the cultural assumption
that any country not protected is therefore ‘unprotected’ and subject
to resource and economic exploitation regardless of the long term
But alliances between
indigenous people and environmentalists alone will not deliver indigenous
rights in protected areas or desirable environmental outcomes. A
significantly reformed regime is required. This needs to be one
built on equitable legislation, fair negotiation between the State
and indigenous traditional owners and their representatives, stakeholder
involvement for public interest conservation groups and others.
It will need to have increased resources to develop agreements and
undertake appropriate forms of management. The Queensland Government
must act decisively and deliver a much-improved system.
However, in Queensland
the current Nature Conservation Act 1992 and the Aboriginal Land
Act 1991 do not formally recognise native title and are deficient
on this front. The generally agreed approach is to develop a State
wide consistent policy framework in which a complex set of indigenous
rights and environment protection variables can be worked out through
negotiation. This is inherently positive and an important initiative.
It is an approach that has not been attempted elsewhere in Australia.
At present, though, a clear and coherent whole-of-government position
or direction is not evident.
At the core of this
problem remains the issue of tenure and behind it the question of
the correct status of the State and traditional owners in negotiations.
The Government remains equivocal on the tenure issue. It is still
unclear whether their stated policy of negotiation and building
reconciliation can be achieved. It remains possible that the establishment
of legal principles to underwrite an amended legislative framework
for protected areas will be further developed through the courts.
Three-quarters of the
existing protected areas in Queensland are presently under claim.
The Government, as party to native title consent determinations,
will feel the increasing pressure of the Federal Court to adopt
a policy or be asked 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
undetermined. Continued vacillation by the Queensland Government
will only erode the goodwill and alliances that are currently in
support of negotiated agreements.
A challenging and significant
task is still ahead if this process of review is to lead to reform
of the cultural, legislative and operational arrangements for protected
areas. It will be helped or hindered by the conduct of the various
groups and interests. Ongoing research, development and dialogue
on ‘first principles’, planning and the development of agreements,
and capacity building for indigenous traditional owners, State agencies
and ENGOs are all needed to give positive and mutual effect to indigenous
rights and environment protection agendas.
In the interests of
caring for country, it's time to take this step into the future
of protected areas.