Aboriginal Law Bulletin
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by Johanna Sutherland
Various developments at local, state, federal and international levels suggest that indigenous maritime culture and customary river, coastal and inshore fishing rights and practices are set to become major legal and political issues in Australia in the 1990's. The National Fishing Industry Council may become as vocal on marine resource issues in the next decade as was the Australian Mining Industry Council in the last. This may be especially so following the recognition of usufructry rights and native title in Mabo[1] which may apply to sea areas and if Aboriginal requests for sea closures adjacent to Aboriginal lands increase, if compensation for dispossession and more competitive commercial fishing rights and royalties are sought, and if governments perceive concessions to be desirable under sustainable development or social justice strategies.
This article will examine selected Queensland Aboriginal legislation primarily and the extent to which it has failed to recognise customary marine tenure and fishing rights. Torres Strait legislation will not be examined. It will be argued that there is a clear trend toward recognition of Aboriginal maritime culture but not yet tenure. Community level river, coastal and marine resource management, and co-management, is increasingly encouraged by most tiers of government.
Customary marine tenure ('CMT') is an issue which is capturing the imagination of marine managers but may test the memories of traditional Aboriginal custodians and the reconstructive abilities of anthropologists to the limit. Apart from possible common law recognition - following the Offshore Constitutional Settlement - and under s.51(x) of the Federal Constitution, state and territory governments will probably bear primary responsibility for legislating to recognise and protect CMT, and inshore indigenous fishing rights to three nautical miles. Beyond that, federal and state governments have assumed joint responsibility for fisheries. In Queensland however, the presence of the Great Barrier Reef and the Torres Strait has resulted in additional Federal Government involvement in maritime administration.[2]
Even though coastal and sea rights outside Trust Areas have been sought by the Queensland Aboriginal communities for years as well as during consultations on the Aboriginal Land Act 1991 (Qld)[3], under that Act they cannot claim customary marine estates unless they fall within the definition of 'tidal land', the requisite traditional, historic or economic association is established, and the Governor in Council declares, by order in council, that the tidal land should be so claimable: s.2.15(1). Tidal land is "land that is ordinarily covered and uncovered by the flow and ebb of the tide at spring tides": s.1.03. Sea waters and non-tidal seabed cannot be claimed: s.2.19.
Spring tides are the largest tides of the monthly cycle but the land areas covered and uncovered by spring tide swells are still fairly narrow strips of sand, mangroves and swamp, far narrower than traditional maritime estates mapped by anthropologists, ethnographers and cultural ecologists. Dr Dermot Smyth, for eg., has concluded in his excellent recent study of Aboriginal maritime culture in the far northern section of the Great Barrier Reef Marine Park, that:
"any particular stretch of. coastline and its adjacent sea, reefs, islands, bays and associated resources are under the ownership and stewardship of a particular and identifiable descent group. That group will have primary rights of access to those places and resources, and primary responsibility for their management."[4]
Smyth has concluded that the seaward boundaries of clan estates may be variable, but can extend as far as the outer Barrier Reef.[5] But as elsewhere in Australia, CMT is generally not yet recognised in legislation.[6]
Common law recognition of CMT is highly likely following the Mabo decision however. Mabo's case has established 6:1 that the common law recognises a form of native title which is a burden on the Crown's radical title to and power over land. Native title can be extinguished however, making Crown title absolute. There is nothing in the judgment which would seem to preclude the application of native title principles to the seabed. More complex questions may arise in relation to title to coastal waters and resources although usufructuary hunting and fishing rights would seem to be readily recognisable.
Customary rights over the seas, seabed and reefs of Murray Island in the Torres Strait were claimed, but Mr Justice Moynihan, in December 1990, made a finding of fact that although there used to be a system for providing access to the produce of reef flat areas within identifiable estate areas, it was no longer in use. He declined to find that the plaintiffs had any rights which they were claiming to the reefs and reef flats.[7] Thus it was not addressed specifically in the final judgment, except by Brennan J who suggested that under international law the Commonwealth Government would have primary sovereignty over the territorial sea, seabed, airspace, continental shelf and incline - a sovereignty which is unchallengeable in municipal courts. This reasoning however would not preclude the recognition of native title or usufructuary rights over those areas.
The extent and complex nature of CMT and its decline in the Eastern Islands of Torres Strait has also recently been explored in a major study of traditional fishing in the Torres Strait which found that it was not an aid in contemporary fisheries management.[8]
Non-proprietary usufructuary rights were also recognised in Mabo - by Brennan J, Mason CJ and McHugh J, and by Gaudron and Deane JJ - as consistent with the Crown's radical title. Brennan J (Mason CJ and McHugh J agreeing) approved various Canadian, United States and New Zealand cases which found that native title could not be extinguished except by dear and plain intention and he held that to regulate the enjoyment of a right does not extinguish it. Cited in support of these propositions were landmark fishing rights cases such as Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] NZLR 680; Reg v Sparrow (1990) 1 SCR 1075. The extinguishment authorities will now have to be examined closely to determine whether the express exclusion of areas from claim under land rights legislation extinguishes native title.
Co-management is a concept already well-tested in terrestrial National Parks. It involves indigenous owners or users and government agencies in co-management arrangements over national resources. Qld seems to be leading other states, with the creation of a small Aboriginal management area at Mission Bay within Cairns Marine Park, dose to Yarrabah, an agreement possible in part because commercial fishing is excluded in the Bay.
Department of Environment and Heritage officers have suggested that before other Aboriginal Management Areas can be declared there will need to be agreement between the Departments of Environment and Heritage, Primary Industries, and Family Services and Aboriginal and Islander Affairs.
The Great Barrier Reef Marine Protection Authority ('GBRMPA') has recently released a draft Strategic Plan for public comment which suggests that the interests of Aboriginal and Islander peoples should be publicly recognised in the management of the GBRMPA; that co-operative management arrangements between Aboriginal and Islander people and stakeholder agencies should be developed; and that projects related to the social, cultural and economic interests of Aboriginal and Islander people should be included in research and monitoring programs.[9] Further, the Qld Government is bound by ALP policy to amend the Marine Parks Act 1982 (Qld) to bring it closer into line with the Great Barrier Reef Marine Park Act 1975 (Cth). Aboriginal and Islander people are currently involved in consultation for GBRMPA management and zoning plans, and for the creation of state marine parks, and for both the GBRMP and state marine parks there are various non-statutory consultative committees and liaison strategies, although some find these inadequate.
Co-management for marine parks may also be possible under provisions of the Nature Conservation Act 1992 (Qld), allowing the appointment of trustees, advisory committees and community participation in relation to park administration. Community ranger programs are in place for state marine parks and community councils can also appoint 'authorised officers' to protect the natural and cultural resources of DOGIT areas (which will be transferred under the Aboriginal Land Act).[10] The GBRMP Act also now allows the appointment of Aboriginal and Islander inspectors.[11]
Beyond co-management, some communities are actively developing their own resource management strategies, and this is likely to increase given the possible emergence of a system of Aboriginal community councils in Qld.[12] The vesting of lands in Aboriginal owners in coastal areas and National Parks will also increase demands for indigenous marine co-management.
The Qld Government is currently drafting its proposed coastal management legislation, having considered public submissions to its Green Paper on Coastal Management. It is understood however that Aboriginal and Islander issues are not addressed specifically in the legislation although it will be overlaid by other state and federal legislation.
Elsewhere there is the possibility of co-management of a marine park on the Buccaneer Archipelago in WA and on the Coburg Peninsula in the NT.[13]
The most difficult issue raised by indigenous fishing is the hunting and fishing of protected species (eg., dugong and turtle) which are highly culturally significant but in need of sustainable management to ensure their survival. The Fisheries Act 1976 (Qld) currently prohibits the taking of fish or marine products in closed waters or closed seasons, and prohibits the taking of protected species, but inhabitants of Trust Areas (formerly Reserves) and Aboriginal lands are exempt under this and other Acts which have complementary provisions exempting Aboriginals and Islanders engaged in traditional fishing if they live on Trust areas or other Aboriginal land.[14]
The new Nature Conservation Act 1992 (Qld) allows for the taking and use of wildlife for traditional purposes, even in National Parks, but only in compliance with conservation plans for areas and wildlife: ss.85,102. Part 7 of the Act provides that departments may issue permits for taking wildlife and the International Union for the Conservation of Nature categories for protected species will be applied. Once the Act is proclaimed in whole, any 'protected wildlife' under the Act will be removed from the definition of 'fish' for the purposes of the Fisheries Act and the Fisheries Industry Organisation and Marketing Act 1982 (Qld).
The jurisdiction of the new Act will also extend to the natural and cultural resources of declared 'protected areas', to the exclusion of the Fisheries Act. The Community Services (Aborigines) Act (Qld) 1984, the Community Services (Torres Strait) Act (Qld) 1984 and the Local Government (Aboriginal Lands) Act 1978 (Qld) are also amended to provide that traditional taking of indigenous animals and plants prescribed under the Nature Conservation Act are undertaken in accordance with that latter Act.
Traditional fishing is freely allowed in the GBRMP in unrestricted zones and with a 'permit under Regulation 13AC where fishing is otherwise restricted. Traditional fishing is defined as fishing, otherwise than for the purposes of sale or trade, in an area by a traditional inhabitant or group of traditional inhabitants. The current permit system, which is considered by some to be too restrictive and others too liberal, may be affected by the proposed Federal Endangered Species Act, although dugong do not appear to be currently listed as protected fauna for the purposes of that Act. Dugong are protected under fisheries legislation and international standards and conventions however. It is understood that GBRMPA is considering enlisting the support of traditional custodians of coastal estates to aid the enforcement of its permit system for dugong hunting.
As the Mabo case, although encouraging, has not finally resolved the question of CMT, it is just a matter of time before the courts are again asked to consider whether the common law recognises CMT and fishing, foraging and hunting practices; whether indigenous marine culture has to be protected from the effects of industrial or development activities; whether indigenous peoples have the right to participate in, or have priority over, commercial fishing activities; and whether compensation is payable for dispossession or cultural desecration.
Aboriginal involvement in the commercial fishing industry has been less than that of the Torres Strait Islanders to date. Commercial fishing permits have been allocated to, but not taken up by, some coastal Qld Aboriginal communities but, according to fisheries officers, some catch-sharing arrangements are in place.
Overseas precedents suggest that customary and commercial fishing rights can be asserted and secured, irrespective of the existence of a concluded treaty between indigenous peoples and governments, and irrespective of whether a licensing system has been established to regulate fishing, provided the regulation is not justifiably regulatory. In Canada, for example, customary hunting and fishing practices have been found to have survived colonisation and continue unless there is a clear statutory intent to extinguish them, the onus of proving which is on the Crown. Canadian developments have however been partially aided by the existence of Constitutional recognition of pre-existing indigenous rights. Agreements have also been entered into between indigenous peoples and the Canadian Government which provide, in part, that special consideration will be given to indigenous peoples' commercial fishing interests when allocating commercial fishing licences in adjacent zones and that legal rights are based on traditional and current use.[15] In the United States also, under various treaties, indigenous peoples have secured significant marine rights. These include the prevention of harm to the conservation of fish, rights to take up to 50% of annual harvestable catches (subject to state conservation laws) and the cessation of threatening development activities.[16] Similar prioritisation has been sought in the Torres Strait.
The Qld Government has deferred further development of new legislation to protect Aboriginal and Islander heritage places - intended to complement the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) - until after the next election. Apparently Government discomfort with the reception given its land rights legislation caused the Premier's Department to request the suspension of policy development. The Nature Conservation Act includes various provisions which vest Aboriginal and Islander cultural and natural resources in National Parks in the State, a situation likely to anger some Aboriginal commentators.[17]
Some federal legislation does apply to maritime culture however. Under the GBRMPA Act Aboriginal cultural heritage is taken into account in the preparation of zoning plans. Under the Australian Heritage Commission Act 1975 (Cth) the Australian 'national estate' extends to the territorial sea and the continental shelf of Australia: s.4. The Aboriginal and Torres Strait Islander Heritage Protection Act also enables protective declarations to be issued over 'areas and objects in Australia and in Australian waters, being areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition': s.4. 'Australian waters' is defined to mean the territorial sea of Australia and any sea on the landward side of that territorial sea; the territorial sea of an external Territory and any sea on the landward side of that territorial sea; and the sea over the continental shelf of Australia: s.3. To a lesser extent, the World Heritage Properties Conservation Act 1983 (Cth) may apply for the protection of Aboriginal sites: ss.8, 11, 13(7) and 14(5), although the nomination documents for the world heritage listing of the GBRMP have generated Aboriginal criticism.
Federally, various portfolios are actively running programs concerning the management and protection of the marine environment, which squarely raise the issue of Aboriginal and Islander rights and practices.
Apparently taking to heart Dr John Cordell's recommendations in his consultant's report, Managing Sea Country, the Ecologically Sustainable Development (ESD) Working Group's Final Report has recommended that governments:
The ESD Fisheries Report also recommended that the PM's initiative to establish a national representative system of marine protected areas needs to consider indigenous rights and homelands in its developmental phase.[19]
The Department of Prime Minister and Cabinet has established a number of Commonwealth and State working groups and sub-groups to consider ways to implement the ESD recommendations. A draft Fisheries Strategy is expected to be released for public comment in June for submission to heads of governments in November. The Resource Assessment Commission has also recently embarked on a Coastal Management Inquiry which will address Aboriginal and Islander issues. A separate inquiry under federal heritage legislation, as occurred with the Kakadu Conservation Zone inquiry, is not envisaged.
The Department of Arts, Sport, the Environment and Territories, with the Australian National Parks and Wildlife Service and GBRMPA has also embarked on 'Ocean Rescue 2000', a 10-year program to protect the marine environment. The program includes the development of: a national marine conservation strategy; a state of marine environment report; and a national system of marine protected areas. As part of that program, a pilot community consultation program with traditional owners about proposed conservation of traditional resources and a possible marine park for the Wessel Island, Arnhem Land[20] has been funded in the NT, but Aboriginal and Islander issues may arise in other aspects of the program.
International developments also suggest that indigenous marine practices will become increasingly investigated and politicised. In April this year the 6th Technical Sub Committee Meeting of the South Pacific Forum Fisheries Committee recommended that customary resource management, traditional knowledge concerning marine resources, CMT systems and relevant national and international law should be investigated, and policies developed.[21]
The UN Working Group on Indigenous Populations is hoping to issue its draft Declaration of Indigenous Rights for consideration by the Human Rights Committee and the UN General Assembly in 1993- the UN Year for the World's Indigenous People. The current draft has many preambular and operative paragraphs asserting cultural, economic and resource rights. In 1989 the International Labor Organisation adopted a new Convention Concerning Indigenous and Tribal Peoples in Independent Countries[22] which includes a number of provisions relevant to traditional activities and subsistence such as fishing, self-management and co-management.
The World Commission on Environment and Development in 1987 made various recommendations concerning the need to empower so-called 'vulnerable groups' of indigenous and tribal peoples.[23] The UN Conference on Environment and Development, (the UNCED 'Earth Summit') has been requested to take into account indigenous peoples' traditional knowledge and practices when developing instruments and agreements, and during preparatory work for UNCED, various key indigenous NGOs were granted UNCED accreditation.[24] The proposed Biodiversity Convention is likely to impact on indigenous hunting and fishing practices. Concurrently with UNCED, an international indigenous peoples' conference has been organised by the International Indigenous Commission. A key international NGO, the International Union for the Conservation of Nature, has also recently established a Working Group on Cultural Sustainability.
[1] Eddie Mabo and Ors v The State of Quensland, High Court -of Australia, 3 June 1992, F.C, 92/014.
[2] See Fisheries Administration Act 1991 (Cth), Fisheries Agreements (Payments) Act 1991 (Cth), Fisheries Legislation (Consequential Provisions) Act 1991 (Cth), Fisheries Act 1976 (Qld), Fishing Levy Act 1991 (Cth), Fisheries Ad 1952 (Cth), Torres Strait Fisheries Act 1984 (Cth), Torres Strait Fisheries Act 1984 (Qld), Fisheries Ad 1976 (Qld), Fishing Organisation and Marketing Act 1982 (Qld).
[3] See for example, Kowanyama Land and Natural Resource Management Office, Aboriginal Land And Natural Resource Management in North Queensland. A New Role for Management Agencies, Discussion Paper 90-94, October 1990; and Cape York Land Council, Open Letter to the Queensland Branch of Australian Labor Party, Labor Conference, 3 June 1991, p. 21; Resolution 17, Aborigines and Conservation Workshop, Working Together for Our Future, Yarrabah 5-7 November, 1991. See also: Australian Law Reform Commission Report No.31, The Recognition of Aboriginal Customary Laws, Vols.1 & 2, AGPS, Canberra, 1986, Ziegelbauer, W., Aboriginal Interest in the Great Barrier Reef, Report to GBRMPA Consultative Committee, 1991; Queensland Legislation Review Committee, Inquiry into the Legislation Relating to the Management of Aboriginal and Torres Strait Islander Communities in Quensland, Final Report, November 1991, p37.
[4] Smyth, Dr.D., Aboriginal Maritime Culture in the Far Northern Section of the Great Barrier Reef Marine Park Final Report, Great Barrier Reef Marine Park Authority, Townsville, January 1992, p.19.
[5] Ibid., pp.25-26, See also Cordell, J.C., Introduction: Sea Tenure' in Cordell, J.C., (ed), A Sea of Small Boats, Cultural Survival, Cambridge, Massachusetts, pp.1-32; Johannes, R.E., and MacFarlane, J.W, Traditional Fishing in the Torres Strait Islands, CSIRO Division of Fisheries, Hobart, 1991; Green, N, 'Aboriginal Affiliations with the Sea in Western Australia, in Gray, G, and Zann, L., (ids), Workshop on Traditional Knowledge of the Marine Environment in Northern Australia, Workshop Series No.8, Great Barrier Reef Marine Park Authority, 1988, pp.19-29.
[6] Cordell,.J.C., Managing Sea Country: Tenure and Sustainability of Aboriginal and Torres Strait Islander Marine Resources, Report on Indigenous Fishing, Ecologically Sustainable Development Fisheries Working Group, typescript copy.
[7] McIntyre, G., 'Mabo v Queensland and the Commonwealth', Aboriginal Law Bulletin, Vol.2, No 48, February, 1991, pp.10-11.
[8] Johannes, RE., and MacFarlane, J.W., op cit., pp.87-95.
[9] . Great Barrier Reef Marine Park Authority, A 25 Year Strategic Plan for the Great Barrier Reef World Heritage Area 1992 - 2017: Draft, May 199Z pp.18-19.
[10] Community Services (Aborigines) Amendment Act 1990 (QId). The Kowanyama Council may soon be able to employ a community fisheries ranger with jurisdiction over closed areas and closed seasons, and exercising powers under the Fisheries Act, with jurisdiction over non-Aboriginal persons.
[11] Briggs, D., and Zigterman, R., 'Aboriginal and Torres Strait Islanders' Involvement in Managing the Great Barrier Reef Marine Park and Queensland Marine Parks', in Birckhead, J., De Lacy, T., and Smith, L., Aboriginal Involvement in Parks and Protected Areas, Australian Institute of Aboriginal and Torres Strait Islander Studies Report Series, Aboriginal Studies Press, Canberra, 199Z pp.275-283.
[12] Legislation Review Committee, Final Report, Towards Self-Government, November.
[13] Smyth, Dr. D., op. cit., p.54.
[14] The Fishing Industry Organisation and Marketing Act 1982 (Qld). Local Government (Aboriginal Lands) Act 1978 (Qld), the Community Services (Aborigines) Act 1984 (Qld) and the Community Services (Torres Strair) Act 1984 (Qld).
[15] The Minister of Indian Affairs and Northern Development and the Tungavik Federation of Nunavut, Agreement-in-Principle between the Inuit of the Nunavut Settlement Area and Her Majesty in Right of Canada, 1990, pp.206, 209.
[16] Discussed in Boast, R.P., 'The Treaty of Waitangi: A Framework for Resource Management Law', University of Wellington Law Review, 1989, pp.17-25.
[17] Fourmile, H., 'Aboriginal Heritage and Self-Determination', Australian-Canadian Studies, Vol 7, Nos. 1&2, P.45.
[18] Ecologically Sustainable Development Working Group, Final Report, ALPS, Canberra, November, 1991, pp.152-4, xliii-xliv.
[19] Ibid., p.153.
[20] Commonwealth Government Information Sheet: Ocean Rescue 2000, 'State/Territory Projects 1991/2 - Funding for Marine Protected Areas', p.2.
[21] Record of Proceedings, Sixth Technical Subcommittee Meeting, 27-30 April 1992, Forum Fisheries Committee, Twenty Second Meeting, Alofi, Niue, p.7.
[22] I.L.O, Convention 169, adopted June 27, 28 I.L.M 1384 (1989).
[23] World Commission on Environment and Development, Common Future, Oxford University Press, 1987, pp.114-116.
[24] E/CN.4/Sub.2/AC.4/1991/2/Add.I, 4 July 1991.
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