Aboriginal Law Bulletin
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by Jenny Savigny, Peter Thompson and Daniel Bourke
In July 1987 the National Parks and Wildlife Service (NPWS) prepared its first Plan of Management which ostensibly embraced the interests of a Local Aboriginal Land Council (LALC).
In July 1989, the Minister for the Environment adopted the Mootwingee National Park, Mootwingee Historic Site and Coturaundee Nature Reserve Plan of Management (here after referred to as the Mootwingee Plan). Amendments to the National Parks and Wildlife Act 1974 allowed him to make just one plan to cover the 3 areas. This article examines the Mootwingee Plan in the context of Aboriginal people's struggle for land rights.
In September 1983, around 200 Aboriginal people blockaded Mootwingee National Park, located approximately 130 kilometres north east of Broken Hill. They were angered by the lack of respect shown to their heritage - old red mountains hiding rocks worn smooth by the grinding of grasses, walls bearing the ochred stories of little hands, emus, kangaroos, and boulders pitted with egg-like hollows. Tourists arriving at the park, interested in snapping up what the then new legislation described as Aboriginal "relics" (s.5(1) NSW National Parks and Wildlife Act, 1974)) were met instead by living testimony to the Aboriginal people's continuing relationship with the land. They were told they could not walk everywhere and snap up everything: "their" National Park was another nation's land, culture, life, mother.
Since its reservation under the National Parks and Wildlife Act, 1967, Mootwingee Historic Site, which is within the National Park, had been marked on the itineraries of thousands of tourists. This invasion rode roughshod over the sensitivities of the local Aboriginal people. Their sacred sites were trampled, stolen, vandalized, and their existence was denied by the literature of the National Parks and Wildlife Service which implied that Aborigines were a people of the past.
The 1983 blockade put the invaders on notice. Aboriginal people demanded respect for their land, and respect for their people - they wanted ownership and control. Pamphlets published by the Western Regional Aboriginal Land Council at the time of the blockade clearly stated the problem:
When people walk into areas where law about the place says they should not be, then they break the law and desecrate the place. If the law is continually broken there is no respect for the law or the place. There is no respect for the people to whom the law is important.
The blockade demanded that ownership and control of the sacred sites be returned to the LALC. It was proposed to the National Parks and Wildlife Service that the area be owned and managed by the LALC Kakadu-style. However, this was not a legal possibility under the NSW Land Rights Act, 1983, which had commenced four months previously. National Park land was not included in the Act's definition of "claimable Crown land" (s.36(1)). Neither did the legislation grant Aboriginal people ownership or control over their sacred sites. In fact, the new Act offered little to the LALC. All the sacred sites of Mootwingee remained under the control of the National Parks and Wildlife Service. The only crack in the wall was s.39, whereby the Minister may recommend to the government that land be compulsorily acquired or resumed in order to satisfy the objectives of the Act. However, neither the Labor nor Liberal governments have shown any interest in this section. William Bates of the then NSW Interim Land Council, described the shortcomings of the legislation in the context of the 1983 Mootwingee struggle:
The government took this land from us, and they are now saying that they are giving us land rights. If this is true, then why have we not been given ownership of our sacred sites?
In the meantime, the National Parks and Wildlife Service prepared and released the draft Mootwingee Plan in July 1987. The Mootwingee Plan was prepared under Part V of the National Parks and Wildlife Act 1974, by the Director of the National Parks and Wildlife Service. The Plan is intended to regulate land-use within the specified area. Unlike Local Environmental Plans, which regulate land-use under the Environmental Planning & Assessment Act 1979, Management Plans are written in a vague, non-legal style making it difficult to enforce their provisions. The Mootwingee Plan does not display any intention to regulate land-use in favour of Aborigines. It is a truly pluralistic document whose design reflects some bureaucratic fantasy about keeping everyone happy. 'Aborigines' line up with 'wildlife', 'recreation', and 'scientific' and 'educational enquiry', as one of the many values National Parks are meant to cater for in satisfaction of different social interests.
Such an approach is fundamentally unsatisfactory. Aboriginal interests within the National Park must be recognized as special interests, and occupy a position of priority. The 'specialness' of Aboriginal interest in land has been recognized by the white legal system for over a decade, and it is disappointing to see the slide back to assimilation.
The Mootwingee Plan can (to the extent that it does encompass Aboriginal interests) only be of value if it can be enforced. Since the Akuna Bay Case (Attorney-General, ex rel Dorman v Director of NPWS unrep. Sup Ct 19 May 1978, no 2258/77, 530 ACLD 1978) the enforceability of Plans of Management has been in doubt. However there have been a number of amendments to the legislation since this case. In 1987 s. 176A was added to the National Parks and Wildlife Act 1974 allowing any person to bring proceedings in the Land and Environment Court to restrain a breach of the Act. This provision could be of great value to anyone seeking to enforce the provisions of a Management Plan.
A plaintiff could bring an action against any individuals directly in breach of the Act. 5.81(4) prohibits any 'operations' not undertaken in accordance with the Plan of Management. This would allow the court to restrain unauthorized developments, but it may not stop someone from merely entering a site without permission, because such an action would not constitute an 'operation'.
Alternatively, s.176A could be used to hold the director accountable for failing to implement the plan. 5.81(1) obliges the Director to carry out a Plan of Management, it therefore appears that failure to do so would be in breach of the Act. However most Plans of Management are written in vague, ambiguous terms, with no definite time limits on when obligations should be fulfilled. This makes it difficult to prove that the Director has failed to give effect to a plan.
The Mootwingee Plan states as one of its policies that "sites of significance to the Aboriginal community will only be accessible by permission of the Mutawintji L.C, and the NPWS". What legal redress is available to the LALC, if the Director grants access to a site without its permission? The Director has failed to observe one of the provisions of the Plan. If this amounts to a breach of s.81(1), then the LALC could take action under s.176A to restrain further access without its permission.
The Plan states that "selected sites will be accessible by self-guided tours". It is not made clear who will select which sites are to have such unrestrained access. Does the LALC have any say or does it lose its authority once it has agreed to allow the public onto a site?
The Plan also lays down a positive duty to protect "Aboriginal sites". Sites which are particularly vulnerable will be accessible by guided tours or special permit only. Once again, it is not clear who determines which sites are susceptible to damage and whether the LALC has an active role to play with the NPWS in deciding what level of access a particular site can cope with. Other provisions will be difficult to enforce because of the non-legal style in which they are written and the vagueness of the obligation created. Ones mind boggles thinking of how policies like "continuous liaison will be maintained with the Mootwingee LALC and the Western Regional Aboriginal Land Council regarding the management of Aboriginal sites" can be interpreted in court. Liaison is the stuff of public relations. It is not to be mistaken for control.
Another fundamental weakness of Plans of Management is the Minister's unfettered power under s.75(7)(b) to cancel a Plan and substitute a new one. Aboriginal interests are particularly vulnerable to such flicks of the pen.
Whilst the Mootwingee Plan, for all its weaknesses, represents a long overdue softening of the attitude of the National Parks and Wildlife Service to Aboriginal people; it falls well short of meeting the LALC's demand in 1983, which was repeated in 1987, for some form of control over their own heritage. When the Minister for the Environment, Tim Moore, visited the Park to launch the Mootwingee Plan in July 1989, his speech repeatedly referred to managing the Park in consultation with Aboriginal traditional owners. This was pleasing for the few LALC members present, however two aspects of the Minister's visit were very disturbing to LALC members. Firstly, the visit focused on the Historic Site, which has been closed since the 1983 blockade, to stop abuse of very significant sacred sites by visitors and managers. The Broken Hill tourist industry and City Council have run a long and bitter campaign to have the historic site re-opened. The Ministers visit seems to have given them some comfort, signalling that the historic site would now be open because all problems were supposedly solved by the wonderful Plan of Management.
Secondly, NPWS senior staff at Broken Hill arranged to guide the Minister and other visitors around the Aboriginal sites without involving any of the several very capable Aboriginal people who could have been approached to act as guides. LALC members present were caught off-guard by this and forced to do what they could to escape from a back seat role, very humiliating in their own country!
The 1989 spring school holidays saw an 'invasion' of guided visitors to the Historic site, with daily guided tours having up to 70 people per guide, a clearly unmanageable situation considering the fragile rock surfaces, plants and sacred nature of the place. NPWS was not ready for this 'invasion', and is now undertaking a hasty and badly planned works program to upgrade walking tracks and interpretation displays. District staff are ignoring the advice of NPWS cultural staff specialists. The Historic site remaining open has become an end in itself.
Late in 1989 LALC members were called to Mutawintji by NPWS to 'consult' about these works. When they arrived, much had already been done and Aboriginal people were being asked to 'rubber stamp' the location and construction method of walking tracks, and the design and content of a major display to interpret the Park and Aboriginal culture for visitors. Any concern or opposition expressed was dismissed by NPWS District staff as impractical or liable to cause delays which would lead to funds being withdrawn. NPWS has taken advantage of a period when the LALC is lacking in resources and vitality to vigilantly advocate the interests of traditional owners. Under the banner of "opening Mootwingee" (at all costs?) NPWS is making the same mistakes as before 1983. They are ignoring the special interests of Aboriginal people and making hasty decisions which lead to bad management and inevitable conflict. Serious concerns include the degradation of the aesthetic setting of the main engraving site, the lack of a yearly quota and poor monitoring of the impact of visitors, and a 'white' interpretation of Aboriginal culture.
It is notable that all this is happening during a period of turmoil within NPWS, with the apparent ascendancy of the 'management' mentality over 'conservation' thinking within NPWS.
Mutawintji LALC has always stated that employment of Aboriginal people as specialist staff to guide visitors to Mutawintji is an essential part of park management. It is now almost seven years since the blockade, and NPWS appears to favour 'privatising' this role, hoping that Broken Hill tour operators will employ Aboriginal guides, despite past differences and the 'white boss' syndrome.
The greatest shortcoming of the plan is the lack of a formal arrangement for Aboriginal control. 'Goodwill' is proving to be insufficient. All power and resources are held by NPWS, with Aboriginal traditional owners relying on the variable energy and vigilance of their unresourced organisations to 'keep NPWS on it's toes'.
Just how low the level of 'goodwill' from NPWS has sunk since the plan was prepared in 1985-87 is clear from the handling of the visit of Bill Hayden, Australian Governor-General, in November 1989. None of the several Aboriginal staff members in the NPWS district were invited to guide the distinguished visitor around Mutawintji. One staff member, a traditional owner who was keen to act as guide for the day, was given menial duties in Broken Hill while white staff took the Governor-General to his grandmother's country!
Clearly there is only one way out of this mess. The Kakadu/Uluru model, or what is being explored in other parts of northern and central Australia for National Parks, must be adopted in NSW and other areas. National Park land is still outside the boundaries of the NSW Land Rights Act, 1983. However, support for Uluru style National Parks in NSW - whereby the ownership of National Parks is granted to the relevant LALC and leased back to the Crown, guaranteeing Aboriginal involvement in the management of the park - has gained support, notably from the Australian Conservation Foundation, the Wilderness Society, and the Nature Conservation Council of NSW. In December 1987 the Labor Government was seriously considering amendments to the NSW Land Rights Act, 1983, to allow for "Ulurus" in NSW. Mutawintji LALC wrote to Premier Barry Unsworth at this time to negotiate for formal ownership and joint management with NPWS. However, a change of government has meant little enthusiasm for the Act itself, let alone any amendments.
Aboriginal people must have title to the land and have a fairly large majority on a board of management which really controls the park and is not just 'consulted'. The LALC must be given resources to allow it to organise significant independent input.
Only with such control and resources can Aboriginal people develop a balance between their own feelings for the sacred nature of Mutawintji, and the public's desire to visit. To carry out the view of a senior traditional owner that, "Mutawintji should be left alone, just like it always was" (said when looking with disapproval at new walking tracks in December 1989), will require very sensitive management. The plan has clearly failed to ensure sensitive management, or to control the managers. The danger is that bad management will destroy the beauty and sanctity of the place. We will all lose a great deal, but as Mutawintji LALC stated in its 1985 contribution for the Plan of Management study: "Mutawintji is survival to Aboriginal people. It is much less important to white people."
Both Kakadu and Uluru National Parks have demonstrated the compatibility of land rights and conservation. There is tremendous potential for realizing such compatibility throughout Australia and we must all actively and publicly support the adoption of such models in NSW and elsewhere.
Mutawintji would be a great place to start.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1990/3.html