Ross, Steven; Ward, Neil --- "Mapping Indigenous peoples' contemporary relationships to country" [2009] ALRCRefJl 12; (2009) 93 Australian Law Reform Commission Reform Journal 37

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Mapping Indigenous peoples’ contemporary relationships to country: The way forward for native title & natural resources management.

By Steven Ross* and Neil Ward**

Under the umbrella of a 2006 memorandum of understanding, the Murray Lower Darling Rivers Indigenous Nations (MLDRIN) and the Murray–Darling Basin Commission (MDBC) are working together to improve Indigenous peoples’ involvement in the management of the Murray–Darling Basin’s natural resources.

Throughout Australia there is still general scepticism about the cultural validity of Indigenous people’s relationship with their traditional country. However, mainstream Australian society recognises and acknowledges to some extent the cultural base and customary economy of Indigenous people in remote (northern) Australia. Indigenous people’s relationship with the land is not so well recognised in settled (southern) Australia— including the Murray–Darling Basin—where the impacts of colonisation have been more pronounced and enduring.

In south-eastern Australia, the pattern of European encroachment and development has resulted in much of the best land being taken, granted or sold by the colonising governments to non-Indigenous Australians. One of the outcomes of this situation is that the possibility of Indigenous communities gaining land through native title claims or having a meaningful role in the management of their traditional lands has been greatly reduced.

In the Yorta Yorta case, Justice Howard Olney, of the Federal Court, dismissed the native title claim, concluding that:

‘The evidence does not support a finding that the descendants of the original inhabitants of the claimed land have occupied the land in the relevant sense since 1788 nor that they have continued to observe and acknowledge, throughout that period, the traditional laws and customs in relation to land of their forbears. The facts in this case lead inevitably to the conclusion that before the end of the 19th century the ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs. The tide of history has indeed washed away any real acknowledgement of their traditional laws and any real observance of their traditional customs.’ 1

Many Indigenous people believe this finding was just an extension of the process of colonisation. To them, the case demonstrated that the oral evidence of elders was devalued in the current legal system. Fundamentally, in the struggle for recognition and land rights, many Indigenous people now feel that they are facing a mainstream Australian society that has been rewarded by colonisation, does not wish to move from the status quo and is not willing to give space to Indigenous people.

The spatial context

The Murray–Darling Basin, the catchment of the Murray and Darling Rivers, covers an area of 1,061,469 square kilometres (14% of the country’s total area) and is the agricultural food bowl of Australia. From an Indigenous perspective, the Basin is home to about 40 Indigenous nations and is situated in the heart of the settled region of the country. Based on 2006 census data, the Murray–Darling Basin has a population of just over two million people, of which approximately 70,000 are Indigenous, representing 15% of the national Indigenous population. The 2005–06 Australian Bureau of Statistics Agricultural Census found that 84% of the land in the Murray–Darling Basin is owned by businesses engaged in agriculture. Furthermore, it is estimated that Indigenous people have ownership or rights (known as the Indigenous estate) to less than 0.2% of the area of the Murray–Darling Basin. This figure compares poorly with the figure of about 20% held through Indigenous communal rights and interests by Indigenous Australians across Australia’s total land mass. Although much of this land is remote and commercially marginal by mainstream market criteria, it nevertheless has high conservation and cultural value.

Water management

The history of European settlement of the Murray–Darling Basin and the emphasis on water use for increasingly intensive agricultural production has resulted in the over-allocation of water. As a result, the river system has become very seriously degraded. Consequently, the ability of Indigenous people to enjoy and exercise their strong relationship with land and water has been severely compromised.

One of the consequences of the current circumstance is that for Indigenous people, the Murray–Darling Basin is now a place where virtually all the water is allocated for consumptive purposes (eg, water extracted for irrigation of crops, drinking water for farm animals and domestic use for people living along the River Murray and in adjacent towns and cities) and the land is owned or controlled by others.

The MDBC has been working with its partner governments to acquire water through improving the efficiency of the water distribution network and irrigation practices, as well as by purchasing water entitlements on the open market. The water acquired through savings and purchases is then used to create ‘environmental flows’ aimed at helping restore the environmental health of key flood-dependent ecosystems.

In focusing on the creation of environmental flows to benefit the health of the river system, governments have in recent years understood the requirement to take into account the needs of a multitude of resource users. Considerable effort has been directed towards involving the Basin’s communities in the decision-making process, with particular emphasis on the Indigenous communities. MLDRIN believes that one of the major impediments to Indigenous involvement in the Murray–Darling Basin is the false notion in the minds of some natural resource managers and policy makers— reflecting the broader Australian society’s view—that the Indigenous population in settled Australia has lost its connection with the land; justifying the ‘tides of time’ view put by Justice Olney.

Since the 1970s, the predominant avenue followed by governments to involve Indigenous people in natural resource management and decision-making in the Basin has been through the protection of cultural sites, such as shell middens, burial grounds and stone quarries. There is no doubt that for Indigenous people, caring for archaeological sites is an important part of looking after their traditional lands and maintaining their identities, while also providing reference points for the larger picture of their long-term and ancient relationship with the land. However, management of ancient sites alone does not readily translate to the cultural, social and economic aspirations of Indigenous people in the 21st century— particularly when the resources are not available to achieve the level of protection aspired to by Indigenous communities and inferred by the legislation.

Modern land management requires reversing degradation and accepting the concept of ‘peopled landscapes’ as a fundamental and essential part of a healthy and sustainable environment. Therefore, the knowledge, values and perspectives of local Indigenous people are now seen by progressive natural resource managers as vital to achieving a more comprehensive and holistic approach to land management, and are integral to improving the health of the land—in large measure because approaches based on western science alone have so clearly failed.

However, to erase this incorrect and—in MLDRIN’s opinion—‘convenient’ perception of a disconnected Indigenous population in settled Australia, natural resource managers need to consider more innovative and appropriate ways to involve Indigenous people in the management of land and water.

The Living Murray Indigenous Partnerships Project

MLDRIN and the MDBC have accepted this challenge and have worked together over a number of years on evolving the MDBC’s approach to Indigenous engagement. Together, these two organisations have developed and endorsed an approach that respects Indigenous people’s traditional relationship with their land, but in a contemporary and realistic context. This approach is based on the Living Murray Indigenous Partnerships Project, which has taken a principle-based approach aimed at achieving consistent and grounded involvement of Indigenous people in the Living Murray’s decision-making and planning processes, focusing on their social, spiritual, cultural, environmental and economic interests. A key dimension of the project, in its conceptual phase, was to undertake some form of cultural mapping.

Cultural mapping is a very broad term for spatially representing Indigenous geo-spatial ‘subjectivities’ and is implemented using a wide range of approaches with various applications and interpretations. In Australia, it has usually referred to the mapping of archaeological sites. In the pursuit to resolve the obvious gaps in understanding and to better explain Indigenous people’s contemporary connection to land, the Indigenous Partnerships Project’s investigations led to a different version of cultural mapping, employing Canada’s ‘use and occupancy’ mapping methodology.

Use and occupancy mapping

Use and occupancy mapping is a type of survey that utilises a rigorous, well-considered, social-science methodology that has been widely implemented in Canada. It is an environmentally and politically defensible technique that will help Indigenous people document the many ways in which they currently use the land—technical legal constraints aside. MLDRIN anticipates that there is a huge potential for use and occupancy mapping to assist Indigenous leaders in articulating how they would like to see land and water managed to meet their future social, environmental, spiritual and economic aspirations.

One of the fundamental problems with the current manner in which Indigenous people are included in management decision making is that, in order to qualify under the terms determined by native title or land management bureaucracies, often unrealistic claims need to be made about their connections to the land. It is as if they have to be living ‘pre-colonially’ and must therefore understate their contemporary connections to their land and water. This is not surprising given that native title law in Australia requires claimants to demonstrate that they acknowledge and observe traditional law and custom ‘substantially uninterrupted since sovereignty’, and that only the laws and customs that existed prior to British sovereignty are appropriately ‘traditional’ for native title purposes. Therefore, an approach based on use and occupancy mapping, which identifies and validates Indigenous people’s contemporary relationships with the land, should go a considerable distance towards ameliorating this predicament by reducing the need to justify a relationship with the land based on pre-colonial status.

MLDRIN and the MDBC hope that use and occupancy mapping will shift the perceptions of non-Indigenous people away from viewing Indigenous people as pre-colonial, and towards an appreciation and understanding of their current and vital relationship to country—and, consequently, assist in defining their rightful role in natural resource management leadership.

Mapping the Murray–Darling Basin

The introduction of use and occupancy mapping to Australia is being undertaken in a carefully considered and planned manner reflecting The Living Murray’s Indigenous Partnerships Project’s engagement principles, such as utilising informed consent, building capacity to engage, and ensuring a respectful, inclusive approach.

The steps towards introducing use and occupancy mapping have included: developing local expertise (which included a delegation of five Indigenous people meeting with First Nation people in Canada to learn about their use and occupancy mapping); pre-testing the methodology with a small number of traditional owners from two locations along the Murray (the Barmah–Millewa Forests in part of Yorta Yorta country and in Ngarrindjeri country covering the Murray Mouth, Coorong and Lower Lakes); undertaking a pilot mapping project with the Yorta Yorta people; and developing a specific training approach to be implemented in early 2009. The pilot was particularly important because it enabled Indigenous people in Australia to create their own use and occupancy maps, gaining the benefits of participating in the mapping methodology and creating tangible evidence of their relationship with their country.

From a resource manager’s perspective, it is relatively easy to see the potential of use and occupancy mapping as a natural resource management communication tool. Through this mapping, an Indigenous community’s contemporary relationship with their country can be illustrated. For example, activities like fishing, kangaroo hunting, turtle egg collecting, gathering of weaving plants, camping, and use of spiritual and burial sites can all be shown spatially in a way that can be used in discussing how management could bring about changes on the ground, as envisioned by Indigenous people.

A legal view

The process of introducing use and occupancy mapping has not been without hurdles. One Indigenous nation expressed strong concerns that the new suite of information derived from use and occupancy mapping might prove to be deleterious to a native title claim. This position was respected and it was recognised that different legal contexts applied in Canada and Australia, and so use and occupancy mapping may have differing consequences in the two countries.

Legal opinions were sought from experienced and highly regarded native title lawyers in Australia. The consensus of the legal opinions was that use and occupancy mapping could find wide application in a legal context, ranging from laws with an Indigenous focus, to laws that offer special consideration for Indigenous people, to much broader use in natural resource laws. For example, use and occupancy mapping may help Indigenous people to prepare native title claims, prepare connection reports for native title mediations and identify places and objects of significance for heritage protection purposes.

Use and occupancy mapping also could be used to demonstrate the content of Indigenous custom in cases in which laws permit Indigenous people to carry out an otherwise prohibited activity due to their customs. Such an example would be flora and fauna conservation laws that allow Indigenous people to keep or use plants and animals that would otherwise be protected, where this activity is in accordance with Indigenous tradition or custom.

Furthermore, use and occupancy mapping could provide a standard starting point for legislation that mandates consultation with Indigenous people, and could support Indigenous people’s assertion of the rights of minorities under human rights legislation by giving contemporary content to Indigenous customs. Interestingly, with respect to both environmental and natural resource decision-making law and human rights law, the point was made that use and occupancy mapping could be an important tool for cross-cultural communications by helping to provide substance to such currently nebulous concepts as ‘cultural values’, ‘cultural resources’ and ‘social considerations’. These matters are often required to be protected or considered in catchment and coastal planning laws, including various water allocation regulations.

With respect to native title, the legal view was that although there potentially could be risks under some circumstances, if use and occupancy mapping were built into the collection of Indigenous nations’ evidence and the building of their legal case from the outset, then the potential benefits would far outweigh the risks.

In conclusion, the introduction of use and occupancy mapping has required vision and strong leadership from MLDRIN, the Yorta Yorta Nation and the MDBC Living Murray Committee and Executive. Together, it now seems likely that this collaborative effort can contribute to the adoption of a different perspective and a new paradigm of Indigenous involvement in natural resource management—one based on respect for Indigenous people’s contemporary relationship with their country.

* Steven Ross is a Wamba Wamba man from Deniliquin in southern NSW. He also has cultural and familial connections to the Mutti Mutti and Wiradjuri Nations. Since 2003, Steven has been the Coordinator of the Murray Lower Darling Rivers Indigenous Nations. In September 2007, he was selected to undertake the Al Gore Climate Change Leadership Training (with Al Gore). He is regularly invited to address national and international meetings on the impacts of climate change on Indigenous nations, and also has been responsible for developing alliances with traditional owners and international partners.

** Neil Ward is the Living Murray Indigenous Partnerships Project Senior Manager with the Murray–Darling Basin Commission. Neil has more than 20 years’ experience working in Australian land management agencies. With the realisation many years ago that meaningful Indigenous involvement was integral to good land management, he has been working since 1990 to increase the level of Indigenous engagement and empowerment in natural resource management. A major focus of his current role with the Murray–Darling Basin Commission is to introduce—in partnership with the Murray Lower Darling Rivers Indigenous Nations—use and occupancy mapping as a tool to assist Indigenous people to articulate their contemporary relationship with the land.

Endnotes

1 As quoted on appeal in the High Court judgment of Gleeson CJ, Gummow and Hayne JJ, in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 (12 December 2002), [107].