Aboriginal Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Aboriginal Law Bulletin |
|
by Barbara Miller
On 22 May 1992, the Queensland Government assented to the Nature Conservation Bill 1992, although only certain provisions of it have been proclaimed. In similar fashion to the legislative process involved in the enactment of the Aboriginal Land Act 1991 (Qld), the lead up to this Act involved virtually no consultation or negotiation with the Aboriginal communities which it intimately affects.
Indeed, it is unfortunate that the Government did not see fit to consult with its statutory body set up to give advice on Aboriginal affairs - the Aboriginal Coordinating Council (ACC) - whilst it had detailed discussions with a wide range of industry and peak conservation groups. A complaint has been made to the Human Rights and Equal Opportunity Commission about this by the Tharpuntoo Legal Service. It is time that the Government negotiate a protocol with Aboriginal people for future consultations with them on the environment.
Probably the biggest concern of the ACC is that the Government appears to not fully recognise the role of Aboriginal people in conservation management and their ability to care for the environment when not constrained by settler law. Denied is the fact that existing biological diversity is the result of Aboriginal management practices such as hunting strategies and taboos; traditional tenure systems limiting access; use of fire for renewal purposes; and sacred sites and ceremonies which gave protection over important areas.
While governments and Aboriginal groups will perceive certain issues in terms of human rights and land rights issues, it will be easier for governments to come to grips with the need for Aboriginal involvement in protected areas if they realise that such involvement will greatly enhance the conservation of these areas. The information, beliefs and practices of Aboriginal people are an important part of 'natural' environments.
The ACC appreciates efforts by the Government to embrace a more holistic approach to the protection of wildlife and habitats going beyond the methodology of putting fences around National Parks. The ACC also appreciates the value of integrating legislation dealing with fauna, flora and National Parks into one Act. However, the ACC has a number of concerns with the new legislation regarding the following
Transferable land is the term given in the Aboriginal Land Act[1] to the present deeds of grant in trust (DOGIT) land, Aboriginal reserves, and Aurukun and Mornington Island leasehold land. This land can be transferred as inalienable freehold title by the Minister for Family Services and Aboriginal and Islander Affairs to Aboriginal grantees or trustees. The land may then be subject to claim on traditional or historical bases and may be parcelled out to a number of clan groups.
There are provisions in the Nature Conservation Act 1992 (Qld) ('the Act') to compulsorily declare a Nature Refuge over any part of transferable or transferred land. Such a declaration would not affect the tenure of the land but would place restrictions on its usage. This compulsory declaration could theoretically take place on any private landowner's property in Qld should the conservation value of the land be high enough. After such a long struggle for Aboriginal land rights, such a declaration would be reacted to very strongly by Aboriginal groups who would see it as restricting their rights to self-determination on their land. The ACC believes that the ability to declare Nature Refuges compulsorily over transferable land should be removed so that Nature Refuges on such land can only be declared by agreement with the landowners.
Under the Act, a list of rare and threatened wildlife has been established and wildlife has to be on this list before a Nature Refuge is declared. It is still possible for Aboriginal people to hunt and fish rare and threatened wildlife but only within a negotiated conservation plan. A Nature Refuge would only be declared if negotiations on this conservation plan broke down. However, the possibility of such a compulsory declaration is a matter of grave concern.
The ACC realises that the Government plans to encourage the conservation of nature by the education and co-operation of the community, particularly landholders, and is hoping that Nature Refuges can be declared co-operatively with both black and white landholders. This, however, is asking a lot of the black community who have seen their land base stolen from them and the boundaries of reserves to which they were relegated eroded over the years. Despite this, Aboriginal people have a genuine concern for the conservation of wildlife and habitats and believe they can be trusted to continue managing the environment with sound ecological practices. Conservation plans which restrict traditional hunting, gathering, and fishing of Aboriginal people, should be negotiated with the relevant Aboriginal group whether a National Park (Aboriginal land) (see below under (3)) is involved or not.
The Act allows Aborigines or Tones Strait Islanders to take, use, or keep, protected wildlife, under Aboriginal tradition or Island custom unless a conservation plan prohibits the use of protected wildlife or a protected area. However, this will only work if Aboriginal people are involved in designing conservation plans. The maximum penalty of 3000 penalty units and/or two years imprisonment seems too high. It appears that the Act will extend hunting rights all over Qld as long as wildlife is not threatened and private landholders give permission.
In a review of the Community Services (Aborigines) Act 1984 (Qld) and other local government legislation, the Legislation Review Committee (see AboriginalLB 55/8) proposed that the terms 'traditional' and 'traditional means be "expanded to include the purpose and underlying method of taking wildlife, not the technology used. For example, the use of outboard motors and firearms should not be prohibited. The notion of subsistence should be expanded to include the use of products for ceremony, exchange and satisfying obligations to kin and family, not just the taking of wildlife for food."[2] The ACC supports this proposal. In addition, some mechanism needs to exist to override unreasonable refusal of permission by landholders to Aborigines who want to hunt, gather or fish on their land and recognition needs to be given to the role of Aboriginal rangers in land management.
The ACC also supports the recommendations of the Legislation Review Committee's Final Report in November:
"That the traditional hunting, fishing and gathering rights of Aboriginal people and Torres Strait Islanders be recognised as important factors in the maintenance of our cultures and in our economic self-reliance and development. It is therefore recommended that legislation arising from this Review should guarantee these rights. That the proposed Nature Conservation legislation also recognise these rights and ensure that:
(a) The meaning given to the term "traditional" and the notion of subsistence as proposed by the Australian Law Reform Commission be adopted;
(b) That traditional rights be extended to all Aboriginal and Torres Strait Islander people in Queensland including those who are not resident on Aboriginal and Torres Strait Islander land, provided that where private land is involved, the consent of the private land owner must be obtained but that a mechanism must exist to override unreasonable or unfair refusal of permission;
(c) Legislation and regulations which restrict or regulate traditional hunting, gathering and fishing rights, be examined to ensure that there is not an unreasonable restriction upon the exercise of such traditional rights;
(d) The positions of Aboriginal and Torres Strait Islander Rangers (authorised officers) are recognised;
(e) The Minister for Environment and Heritage may appoint Aboriginal and Tones Strait Islander Rangers as nature conservation officers;
(f) The Queensland National Parks and Wildlife Service provide the requisite training to enable Aboriginal and Tones Strait Islander Rangers to be appointed as nature conservation officers. (TAFE, Cairns has already developed Aboriginal and Torres Strait Islander ranger training programs which may be adapted to suit.)
That the legislation give a specific power of arrest to authorised officers but that such power be restricted to those authorised officers who have satisfactorily completed a recognised course of training and whose Aboriginal or Torres Strait Islander community Government has legislated specific by-laws authorising the use of such powers."[3]
Australia is leading the world in the recognition of indigenous rights of ownership and management of National Parks in a colonised country. But Qld lags far behind the Northern Territory's 'Uluru model' which has the following features:
It has the disadvantages that traditional owners do not have the option of degazetting or closing the National Park, have limited control of tourist numbers and reduced options for economic development. However, it does provide them with ownership of the park; control of cultural sites; subsistence resources and park management; finances for land management and community infrastructure ;and income from tourism.[4]
The scheme established under the Nature Conservation Act and the Aboriginal Land Act fall far short of the Uluru model because:
Because of this, the Qld Government will find it harder to convince Aboriginal groups of their good faith and harder to secure their co-operation.
Furthermore, it appears that the Government does not intend to declare many National Parks claimable, which will mean that the Government is denying itself access to Aboriginal assistance with interpretive information, ecological research and knowledge of land management. In fact, the lVth IUCN World Congress in Venezuela in February this year came out with the following recommendation, 6(c):
"IUCN, Governments and park managers should incorporate customary and indigenous tenure and resource use and control systems as a means of enhancing bio-diversity conservation."[5]
It is important that no new National Parks in Qld be declared until Aboriginal ownership issues are resolved. Aboriginal ownership should not be conditional on lease-back to National Park for any areas that have not yet been declared National Park.
Under the Aboriginal Land Act, Aboriginal groups can claim existing National Parks in whole or part on a traditional or historical basis if the Government has gazetted them as claimable. The Qld Government has recently decided the following National Parks are claimable - Archer River Bend near Aurukun, Rokeby Croll, Cape Melville, Alice Mitchell near Kowanyama, the Simpson Desert, Jardine , Cedar Bay, Flinders Island, Lakefield, Iron Range, Forbes Island and Cliff Island.
No grant of National Park land will be made to Aborigines unless the grantees have already agreed to lease the land back in perpetuity. Aborigines were not successful in requesting 99 year lease backs. A management plan must be implemented by the Board of Management as a condition of the lease when land is granted and leased back as National Park. Grantees may seek resources from the Department of Family Services and Aboriginal and Islander Affairs (DFS & AIA) to obtain independent technical advice for negotiations. A working group will be formed of the Department of Environment and Heritage, DFS & AIA, the successful claimant and a conservation representative to oversee the development of a management plan.
Some conservationist groups, (e.g., the Wildlife Preservation Society) lobbied for two types of tenure regarding National Parks, because they thought that if legislation was made broad enough in its management principles to deal with Aboriginal National Parks which allow traditional Aboriginal usage, then the cardinal principle - i.e, permanent preservation in their natural state - of ordinary National Parks would be threatened and incompatible development might creep in. They were successful in their campaign and the Nature Conservation Act recognises National Park (Aboriginal land) and National Park (Torres Strait Islander land) as distinct from National Park and National Park (Scientific) so that each category now has its own management principles. National Parks (Aboriginal land) will be able to be managed in a way that is consistent with the Aboriginal tradition of the area.
It will also be possible for Aboriginal land owners to come to an agreement to lease all or part of their land for the purpose of a National Park (Aboriginal land) or for Aboriginal lease-holders to sublease all or part of their lease for the purpose of a National Park (Aboriginal land) but Aboriginal owners or lease-holders cannot be forced to do this. The Minister must prepare a conservation plan for the land. Because of concerns for Aboriginal control and land rights it is not likely that the above arrangements would be entered into and it is not likely that much of Qld will be National Park (Aboriginal land). Only 3.84m hectares - 2.2% of the State - is National Park.
There is insufficient detail within the Nature Conservation Act as to how Management Plans in National Parks will be drawn up and how Boards of Management will operate.
Although separate legislation - the Wet Tropics World Heritage Protection and Management Bill 1992 - is being drafted, the Nature Conservation Act is the Act that declares World Heritage Management Areas. The way the Act presently stands, it is possible to extend the management of the World Heritage area where the management requirements of World Heritage listing require greater control over adjacent landholders. Although the Federal Government earlier said World Heritage listing would not extend its tentacles, we may have an octopus on our hands. The intent of the Act is to come to agreement with private landholders about the management of areas near World Heritage listing and enter into conservation agreements with them.
Landholders and interested groups may put in submissions which will be considered before the Minister draws up a conservation plan. However, if agreements can not be reached, the Governor-in-Council can, on the Minister's recommendation, compulsorily declare a Nature Refuge to protect rare or threatened wildlife or if the area contains resources that are of pre-eminent nature conservation value. It could then become part of World Heritage management areas.
This is not a change in tenure but a restriction on the owner's management and use of the land for which he or she would be compensated. Landholders who enter into voluntary agreements to restrict their usage because of high conservation value of their land may also be compensated. A conservation agreement that is registered on a title to land is binding on the successors in title to the landholder who entered into the agreement and persons who have an interest in the land. Not all agreements will be registered however.
The ACC believes that Aboriginal owners should be trusted to manage their lands in the best interests of the environment instead of having a Nature Refuge and then a World Heritage management area declared over their land. Moreover, there is not adequate representation of Aboriginal people at a high level in the Wet Tropics Management Agency and sufficient attention paid to Aboriginal ownership, control and protection of cultural heritage. Aborigines should be well represented at all management levels of the Wet Tropics Management Agency committees and staff. There should be recognition of Aboriginal ownership and control of cultural heritage, both sites and objects, within World Heritage management areas. Any extension of Wet Tropics World Heritage listing by Nature Refuges or otherwise should be by negotiation and co-operation, not compulsory declaration.
Before the recent elections however, Premier Wayne Goss went to Innisfail and angry farmers demonstrated against the Wet Tropics World Heritage Protection and Management Bill's ability to extend world heritage management areas outside its boundaries on public or private land. Faced with opposition from the Department of Resource Industries and the Department of Primary Industries about encroachment by the Department of Environment and Heritage on their territory, the Government announced a backdown. However, extension of World Heritage managed areas can still be achieved through the Nature Conservation Act. It is believed that the Government intends to slightly amend the Nature Conservation Act to bring it into line with this backdown. However, the possibility to declare Nature Refuges next to World Heritage Management Areas will still be there and although Nature Refuges are managed by landowners not the agency, it may have a similar effect in the end.
The Act defines 'cultural resources as:
"Cultural resources of a protected area means places or objects that have anthropological, archaeological, historical, scientific, spiritual or sociological significance or value, including such significance or value under Aboriginal tradition or Island custom."
Section 56 of the Act says that cultural resources are the property of the State in National Parks (Scientific), National Parks, Conservation Parks or Resources Reserves. However, cultural resources all over Qld should be the property of the relevant Aboriginal group no matter what the land tenure. Usage of sites and objects should be the decision of such Aboriginal groups, not the Crown. Nor should ownership vest in the Crown. The taking of wildlife - mammals, birds, reptiles, amphibians - is subject to a conservation plan but there is no suggestion that the relevant Aboriginal group will be involved in negotiations on a conservation management plan.
The Act is silent on ownership and control of cultural and natural resources on the few National Parks (Aboriginal land) and National Parks (Torres Strait Islander land) that are likely to be gazetted and successfully claimed under the relevant Land Act. The Act only states that Aborigines and Tones Strait Islanders will be able to take or use these resources in accordance with a management plan.
With this Act, the Government is extending conservation everywhere in Qld despite the land tenure. Is it too much to ask that Aboriginal and Tones Strait Islander people have ownership and control of their cultural heritage everywhere in Qld despite the land tenure, particularly when it has such important spiritual significance?
The Nature Conservation Act went before Parliament before the Mabo judgment was handed down and it now needs to be amended to take that decision into account. For example, it is possible under the Act to declare certain Vacant Crown Lands protected areas so that they would not be likely then to be gazetted as claimable by Aboriginal groups under the Aboriginal Land Act. The ACC was asking the Government to wait until claims were heard in the Land Tribunal before declaring any Vacant Crown Land protected. If these areas are of high conservation value, negotiations between governments and Aboriginal groups re conservation arrangement could then be entered into.
However, after Mabo, the term Vacant Crown Land is a misnomer. Native title under common law still persists except where it has been extinguished by freeholding or leaseholding land. So Aboriginal groups no longer need to go to the Land Tribunal to establish their title to Vacant Crown Land unless they want statutory title as well. Legal opinion seems to agree that statutory title under the Aboriginal Land Act will not extinguish native title.
Secondly, there need to be preambles in legislation like the Nature Conservation Act that recognize prior Aboriginal ownership. Also, definitions of ‘landholder’ or 'Aboriginal land' need to be amended to take into account continuing native title not just statutory title.
Thirdly, Aboriginal people may be able to establish native title over all National Parks (whether the government gazettes them as claimable or not). Being in occupation of the land and being able to establish traditional ties to the land are two bases of native title. Aboriginal people need to make decisions as to whether they want to seek statutory title as well.
Fourthly, Aboriginal people need to seek legal advice before making any management agreements over National Parks or Wet Tropics World Heritage listed areas because this would be likely to constitute a de facto consent to the management of their property - i.e., land - and could extinguish native title. It is possible to agree to surrender native title by agreeing to a management plan inconsistent with native title and tradition. If Aboriginal people object or simply do not participate then they would not be surrendering native title.
Under the Racial Discrimination Act 1975 (Cth), clause 10 (3), it is not possible to have management of Aboriginal land without the consent of Aboriginal people. Vacant Crown Land and National Parks are potentially Aboriginal land because of Mabo. Aborigines particularly concerned with this land and landowners at Yarrabah and Wujal Wujal have not consented to management by the Wet Tropics Agency so this could constitute racial discrimination. If it does, compensation would be payable.
It is valuable that a more holistic approach to nature conservation is being taken with the Nature Conservation Act, and that education and co-operative community involvement is intended. It is good that traditional hunting, gathering, and fishing rights have been extended outside DOGIT areas. However, this Act has the potential to lessen the power of Aboriginal landowners and lease-holders to manage their land by compulsorily declaring Nature Refuges, even over DOGIT areas, if
wildlife is considered endangered. Nature Refuges could be used as a method of increasing World Heritage Management Areas. The Act will also suffer from all the defects of the Aboriginal Land Act as it is designed to dovetail. with it. There is compulsory lease-back to National Parks in perpetuity instead of a 99 year lease; there is no guarantee that Aborigines will be a majority on Boards of Management; there is no review ability of lease-back conditions; and there is no mention of the use of Aboriginal rangers or authorised officers.
Some conservationists lobbied for Aboriginal National Parks to be a separate tenure from ordinary National Parks and they have been successful. Aboriginal hunting, gathering, and fishing rights have been extended - e.g., into Aboriginal National Parks - and conservation plans will be negotiated on a case by case basis between Aborigines, conservationists and government.
However, the bottom line is that cultural and natural resources are the property of the State, once more denying Aboriginal people their cultural heritage with the taking and use of such resources allowed only in accordance with a conservation plan.
The Act needs to be amended to take into account the Mabo decision, with a preamble recognizing prior Aboriginal ownership and with definitions of 'Aboriginal land' and 'landholders' that recognize possible continued native title over Vacant Crown Land, National Parks and other areas. Aboriginal people will need to be cautious about entering into any management agreements over National Parks or Vacant Crown Land that may surrender their native title. Also, Aboriginal people need to decide whether to take claims for National Parks and Vacant Crown Land to the Land Tribunal for recognition of statutory title when they may already have native title under common law. They could assert their native title and the Crown will have to prove they do not have title rather than Aboriginal groups having to prove to the Crown that they own the land as in the past.
[1] See Miller, B.J., "Clayton's Land Rights: The Queensland Aboriginal Land Act - An Aboriginal Coordinating Council Perspective", Aboriginal Law Bulletin, Vol.2, No.52, October 1991, pp.10-12.
[2] Legislation Review Committee, Inquiry into legislation relating to the management of Aboriginal and Torres Strait Islander Communities in Queensland, August 1990, "Towards Self-Government", (A Summary of the Discussion Paper),.p.11.
[3] Legislation Review Committee, Inquiry into legislation relating to fir management of Aboriginal and Torres Strait Islander Communities in Queensland, "Final Report", November 1991, p.37.
[4] For further discussion see Blowes R, "From Terra Nullius to Every Person's Land: Legal Bases for Aboriginal Involvement in National Parks-Precedents from the Northern Territory", Aboriginal Law Bulletin, Vol.2, No 52, October, 1991, pp.4-6.
[5] See Smyth, D., The Involvement of Indigenous People in Nature Conservation, A Report on the lVth IUCN World Congress on National Parks and Protected Areas, 1992.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1992/42.html