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Collings, Neva --- "Caring for Country: A Guide to Environmental Law for Aboriginal Communities" [2008] IndigLawB 1; (2008) 7(2) Indigenous Law Bulletin 2

Caring for Country: A Guide to Environmental Law for Aboriginal Communities

by Neva Collings

In November 2006, the New South Wales Environmental Defender’s Office (‘NSW EDO’) commenced a Caring for Country project. The project received 12 months' seed funding from the NSW Law and Justice Foundation’s Community Legal Centres Cooperative Law Access Program to improve the delivery of environmental law services to Aboriginal people in NSW.

The Australian Network of Environmental Defender’s Offices (‘ANEDO’) is made up of community legal centres operating in all states and territories, independent of government and specialising in environmental law. The NSW EDO has offices in Sydney and Lismore.

The NSW EDO has a commitment to environmental justice – an understanding that environmental problems do not affect all people equally, and that social justice requires specific programs to address environmental inequality. The NSW EDO is also committed to reconciliation and justice for Aboriginal people in NSW, and is seeking to put this commitment into practice with the Caring for Country project.

The NSW EDO’s work in this area is also driven by the fact that Aboriginal people are, collectively, the second largest landholder in NSW, behind only the Crown. Much of this land has high environmental value and great cultural significance. Through the production of a guide, we hope to help Aboriginal communities continue to care for their country, and to find opportunities for economic development that are consistent with protecting environmental and cultural values.

Possessing considerable expertise in Aboriginal cultural heritage, the NSW EDO has fought to protect Aboriginal cultural heritage in the courts. In 2006 we successfully represented traditional owners in East Ballina in challenging a consent to destroy Aboriginal cultural heritage issued by the Director-General of the NSW Department of Environment and Conservation.[1] Furthermore, we have been providing free legal advice for many years to Aboriginal people via our environmental law advice line.[2]

During the first 12 months of the Caring for Country project, the NSW EDO employed a part-time Aboriginal Liaison Officer to focus on producing Caring for Country: A Guide to Environmental Law for Aboriginal Communities (‘the Caring for Country Guide’).[3] The purpose of the Caring for Country Guide is to assist Aboriginal people in understanding their legal rights and obligations under environmental and natural resource management law. This is the first time that such a publication has been produced in NSW. The NSW EDO has also established an Aboriginal Advisory Committee and the success of the project would not have been possible without the assistance of its members.

Caring for Country: A Guide to Environmental Law for Aboriginal Communities was launched at NSW Parliament House on 13 November 2007. After Alan Madden of the Gadigal clan kindly welcomed attendees to country, Jason Field of the NSW Aboriginal Land Council and Geoff Mulherin, Director of the NSW Law and Justice Foundation, spoke about the importance of the Caring for Country project and the Caring for Country Guide.

The Caring for Country Guide is written in plain legal language and utilises case studies and a question and answer format to convey information. Our aim has been to ensure that it is user friendly while maintaining legal accuracy and effectiveness. It is divided into four sections:

Part A recognises that although Aboriginal people may not be in a legal position to secure legal title to their traditional lands, they may still secure access to land and waters to continue their traditions. In particular, access is needed for fishing, hunting, gathering foods and materials, camping, gathering firewood, visiting places with cultural significance, caring for country, caring for burial and other sites, teaching young people, and addressing social problems.

The NSW Aboriginal Land Rights Act 1983 contains provisions at sections 47 and 48 that may be utilised to enforce access to lands for which Aboriginal people do not have title. Part A also provides an overview of access to waters in NSW.

Part B is an overview of laws and regulations that relate to development approvals and decision-making; recognising that Aboriginal people may choose to develop their own lands, but are also impacted upon by development for which laws and regulations concerning public participation and environmental impact assessment are important.

Part C details federal, State, and local mechanisms for protecting and destroying Aboriginal cultural heritage, with recent case summaries including Plath v O’Neill [2007] NSWLEC 553[4] and Garrett v Williams [2007] NSWLEC 56.[5]

Part D is an overview of environmental laws and regulations in NSW concerning land management, pollution, bushfire mitigation, illegal dumping, water pollution and environmental conservation options such as voluntary conservation covenants, Indigenous protected areas and bio-banking.

In addition to the production of the Caring for Country Guide, the NSW EDO is also running workshops for Aboriginal communities across NSW as part of the Caring for Country project. The first two workshops were in Coffs Harbour and Narooma in November 2007. Further workshops will be held in Dubbo and Walgett in February 2008, followed by Deniliquin and Wagga Wagga in March.

Neva Collings is the Aboriginal Liaison Officer on the Caring for Country project.

Copies of the Caring for Country Guide are available from the NSW Environmental Defender’s Office website at <> .

If you would like a copy of the Caring for Country Guide sent to you or you would like to register for one of the workshops, please call 02 9262 6989.

[1] Anderson & Anor v The Director-General of the Department of Environment and Conservation & Ors [2006] NSWLEC 12.

[2] The Environmental Law Advice Line operates from Tuesday-Thursday between 2.30pm and 5.30pm in Sydney and from Monday-Friday 9.00am-5.00pm in Lismore. To contact the Sydney Office, call 02 9262 6989 or freecall 1800 626 239. To contact the Lismore Office, call 1300 369 791.

[3] The front cover of Caring for Country: A Guide to Environmental Law for Aboriginal Communities was donated by Alison Buchanan, an Aboriginal artist from the Nambucca Valley in NSW.

[4] This case concerned a prosecution of landowners in the Clarence Valley for knowingly damaging a midden on their land without permission. The landowners were fined and ordered to pay Court costs.

[5] This case involved the prosecution of a director of a mining company for knowingly damaging Aboriginal artifacts and an Aboriginal place – the Pinnacles. The Director was fined and ordered to participate in a restorative justice conference with members of the affected Aboriginal community.

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