Beacroft, Laura --- "Conservation: Accommodating Aboriginal Interests or the New Competitor?" [1987] AboriginalLawB 21; (1987) 1(26) Aboriginal Law Bulletin 3

• Conservation: Accommodating Aboriginal Interests Or The New Competitor?

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Conservation: Accommodating Aboriginal Interests or the New Competitor?

by Laura Beacroft

It is commonly assumed that the goals of environmentalists and Aboriginal people are compatible. A growing appreciation amongst whites, of Aboriginal responsibilities to protect their land, and recent alliances in disputes over wilderness protection be it Australia or overseas, have encouraged this view. But how well founded is it?

The Uluru and Kakadu National Parks illustrate that mutual accommodation of interests can proceed beyond the ideological, and offer some very concrete benefits to both parties.

However such relative success stories are still the exception. There needs to be a better grasp of the problems Involved in meshing such culturally divergent interests, if the situation is to improve. Understanding the differences needs attention on both sides. But the onus is on environmentalists to move beyond their focus on Aboriginals as 'natural conservers' and to promote conservation strategies that recognise the survival issues involved in the indigenous peoples' struggle for self-determination.

Of course environmentalism represents a kaleidoscope of views. For more reformist environmental organisations the plight of the poor, and indigenous people, has already emerged as a concern, as environmental degradation has come to be linked with the contradictions of the capitalist structure.[1] And there is potential for such reformism to influence the development and use of such important environmental protection treaties as the World Heritage Treaty.

To date that treaty, in the Australian context. has proved protective of Aboriginal interests. The majority in the Dams Case accepted that a sacred site of special significance to Tasmanian Aboriginals could also be of universal value. But it is yet to be seen if this new order for heritage protection will complement Aboriginal self-determination on all issues, especially as Aboriginal people come to seek more economic independence.

There is no reason for complacency about the threat some environmentalists' values pose for Aboriginal peoples' priorities, and survival. Historically indigenous people have not fared well in the face of National Park fervour. The early, and still influential Yellowstone model for a National Park precludes settlements, and promotes public ownership, government control and public access.[2] This 'museum' approach to conservation derives from many Western attitudes, but is today most forcefully justified as ensuring equal access to healthy ecosystems, fast becoming a limited resource.[3] But in so rigidly promoting the principle of equality, this model has denied indigenous peoples' aspirations - by its incompatibility with Aboriginal owned and controlled National Parks, and more insidiously by legitimizing coercive relocation of traditional inhabitants in Yellowstone Park, and more recently in Costa Rica. Venezuela, Nepal and India.[4]

In Australia none of the land rights legislation reports, by Woodward (NT). Keane (NSW) and Seaman (WA) thought Aboriginal rights and conservation were incompatible. Indeed Woodward and Seaman recommended that Aboriginal people be entitled in principle to claim National Parks. The Keane Committee, although silent on title, was concerned that Aboriginal people have significant control in parkland otherwise claimable. That committee envisaged large, jointly managed parks in the Western lands district. Despite this consensus Aboriginal parks are still exceptional, all existing in the NT because this legislation alone allows National Parks to be claimed. The 'museum' approach to National Parks reigns supreme in the States of Australia.

In the State of NSW the present tabor Government has projected a high profile for conservation and National Park establishment, reflected in the 100 percent increase for the total area of parks during the last ten years. The former Premier, Mr Neville Wran, considered the Parks program one of his Government's finest achievements. But not one NSW National Park has entrenched Aboriginal management or control (except in a few reserves). Most Aboriginal input is directed to sacred site recordings. restoration, or management, which is under the care of the 'cultural resources' section of the NSW National Parks and Wildlife service. Traditionally 'cultural resources' has only had a recent influence in the Department and is politically small in influence, though this is changing due to the hard work of those involved in the section.

A lot of attention has quite properly been focused lately on the WA government's refusal to recognise land rights to traditional owners of the Bungles-Bungles National Park. Yet the legal situation in eastern states, with regard to claiming National Parks, is not much better. In NSW for example, areas of environmental significance such as National Parks, nature reserves. wildlife refuges and forests, cannot be claimed (s36(1)(a)). Furthermore Section 36(1)(c), which says that to be claimable land must not be needed for an 'essential public purpose', has in practice proved a major hurdle to Aboriginal people claiming any other land that is environmentally significant. The most that NSW Aboriginal people have gained is part ownership, with joint management arrangements, over very small coastal reserves. such as Orient Point and Goanna Headland, and those only after long battles.

It is no accident that the land claims provision in the NT Act has allowed the most thorough and public investigation of conservationists' opposition to Aboriginal claims. Unlike NSW the NT allows environmentally significant lands such as National Parks (provided they are unalienated) to be claimed. Various provisions then allow the land Commissioner to consider environmental issues. Section 50(3)(c) directs the Commissioner's attention to 'detriment'. In the Borroloola claim Toohey J explained that this involved looking at the 'practicality' of an alternative project for the land. for example a conservation measure. Section 50(3)(b) overlaps with (c) and allows consideration of the 'effects of a claim on the existing or proposed patterns of land use'. Toohey J said this provision requires a 'broader, long-term view not related to particular individuals or organisations'.

From my research the land Commissioner's review of conservation concerns has not led to his refusing to recommend a single land grant on its merits.[5] This does not mean all traditional owners are 'natural conservers'. Whether Aboriginal people should be allowed to claim parks is not, as Toohey J said in the Warlpiri and Kargangurra-Kuritji land claim, a simple quesion of whether they are 'natural conservers'. The issue is whether cooperation in land use practices by both Aboriginals and, in that case, the NT Conservation Commission (who was seeking title to the Tanami Bird Sanctuary in order to protect and conserve it) would more likely occur in the context of unconditional Aboriginal title. He thought it would in the case of Tanami. Toohey J's decision reflects an awareness of the need to ensure Aboriginal people have bargaining power when negotiating with environmentalists.

To do otherwise, and neglect the realities of Aboriginal powerlessness, would be to compound white injustices to Aboriginal people by expecting them to bow to the wider communities' responsibilities. As it is, in the NT they shall probably bear a disproportionate share of these responsibilities.

The land rights legislation in the NT. unlike in NSW, has allowed Aboriginal people to question the sense and legitimacy of limiting land rights by conservation priorities. Nonetheless the onus in Australia is still very much on Aboriginal people to show that they can come within Western conservation strategies, strategies that are often very rigidly conceived. The Waitangi Tribunal in New Zealand has reversed this onus, and allowed articulation of the Maori demand that 'their particular view of environmental management should be adopted as a matter of national policy.[6] In the process it has provided insights into the shortcomings of Western environment management practices.

The Waitangi Tribunal, created in 1975. holds inquisitional hearings on disputes involving rights under the Treaty of Waitangi.[7] It then makes recommendations to the national government, which to date has selectively acted on the Tribunal's advice. Land and sea management disputes often arise because Article II of the Treaty of Waitangi guarantees to Maori people full, exclusive and undisturbed possession o their lands and its resources. In the Manukau dispute, over a harbour plan for sea disposal of wastes, it emerged that the distinctiveness of the Maori view of environment management is the higher priority they give to conservation of renewable resources, especially clean water. An appreciation of this difference was said by New Zealand's Environment Commission in that claim, to emphasise the need for both attitudinal and administrative reform.[8]

The Waitangi Tribunal has provided ample evidence for the Commission's view. Disputes throw up the deficiencies in legislative and administrative processes, leading to 'bad and uncoordinated planning'. In the Waitara reef dispute, for instance, the Tribunal, to its surprise, provided a unique opportunity for the various parties to meet and review regional development.[9] By thus highlighting the absence of regional policy on waste disposal, the Tribunal effectively queried whether the disputed planning proposal was the 'best practicable' solution. Its recommendation for alternative disposal, until further studies had been completed, was acted on by the government.

Other sources of short-sightedness in environmental planning have been isolated by the Tribunal. For instance, the environmental shortcomings of relying exclusively on water disposal of waste.[10] Not only would land disposal techniques prove more accommodating of traditional Maori concerns about water use, but in practice would lessen the already considerable stress on water systems. For cultural and practical reasons the Tribunal has thus questioned the decisions of environmental planning agencies that rest content with the 'best practicable' solution. On this topic the Tribunal finds considerable overlap with overseas studies of air pollution laws which conclude that the 'best practicable means' rarely maintains the status quo, let alone prevents pollution. That approach suggests giving more emphasis to improving technology,[11] as the Tribunal has attempted to do.

These lessons to be learnt from indigenous peoples' views on environment management are relatively uninvestigated in Australia. Various methods of fire control, traditionally employed by Aboriginal people, have begun to be used to protect ecosystems, especially in Kakadu. But generally the growing public interest in conservation, and environment-sensitive land management, has not led to exchange of skills. The dominant environmentalism, reflected in NSW land rights legislation, allows little recognition of Aboriginal people's cultural and social attitudes to the environment.

The trend is for decision-making about the environment to spiral inwards. until only a few have any say. NSW has witnessed this with many projects. the harbour tunnel being the latest. But this must be resisted for many reasons - environmental, political and cultural. Now that the ILO and the UN are currently reassessing policies that affect indigenous peoples, environmentalists need to look at the implications of conservation and other environment protection strategies to ensure proper regard is paid to Aboriginal culture.

The Waitangi Tribunal has well demonstrated that mutual accommodation of conservation and indigenous rights can occur, provided there is flexibility in strategies.

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[1] See Environmental Quality and Social justice In Urban America. l. N. Smith (ed.) The Conservation Foundation, Wash. 1974. Also Susan Varga 'Conservation the Public Interest and Aboriginal Land Rights'. 1985 Unpublished paper.

[2] Stan Stevens Inhabited National Paths East Kimberley Working Paper No. 10.

[3] John U. Bayly 'Conservation through Native Claims'. 1985 Unpublished paper.

[4] Stevens op. cit, pp. 7. 10.

[5] Disputes that escalated in the NT, for instance over Devils Marbles Conservation Reserve and Katherine Gorge Conservation Reserve, are those removed from the Land Commissioner's jurisdiction by NT government's actions.

[6] p. 235 E.T.J. Durie 'The Waitangi Tribunal' NZ Law journal July 1986.

[7] The New Zealand Supreme Court has denied legal recognition of the Treaty of Waitangi since 1877. A succession of Maori Land Acts has provided some recognition of Maori Treaty Rights. Also, there are Statutory provisions in planning and resource management Legislation. that offer some protection for Maori interests in land and its resources. The Treaty of Waitangi Act 1975. for the first time, gave Maori people and individuals a forum hearing their claims under the Treaty. The Waitangi Tribunal hears complaints from Maori people, 'prejudicially affected' by government policies, legislation or practices which are inconsistent with the principles of the Treaty. See Shonagh Kenderdine: 'Statuary Separateness; Maori Issues in the Planning process and the Social responsibility of Industry.' NZ Law Journal August 1985 p. 249.

[8] Finding of the Waitangi Tribunal on the Manukau Claim, 1985. (WAi 8) p. 116.

[9] Finding of the Waitangi Tribunal on the Manukau Claim, 1983. (WAi 8) P. 47.

[10] p. 66 ibid.

[11] .M Baker 'Environmental Quality Control'. Environmental Planning Law Journal. Vol. 1 No. 3 1984.