Editors --- "Hopevale Heads of Agreement - Digest" [1996] AUIndigLawRpr 57; (1996) 1(3) Australian Indigenous Law Reporter 446

Cape York Peninsula Heads of Agreement

The Cape York Peninsula Heads of Agreement was signed by the Aboriginal and Torres Strait Islander Commission Peninsula Regional Council ('ATSIC'), the Cape York Land Council ('CYLC'), the Cattlemen's Union of Australia ('CU'), the Australian Conservation Foundation ('ACF') and The Wilderness Society ('TWS') on February 5, 1996. The agreement represents a significant development in regional land usage and it provides a model for regional reconciliation in other areas of Australia.

The agreement is significant in that it represents the combined efforts of conservationists, pastoralists and Aboriginal people in the establishment of an agreement which embodies the broad interests of all three parties. The agreement expresses a commitment by all parties to the development of 'a management regime for ecologically, economically, socially and culturally sustainable land use on the Cape York Peninsula' (cl 5).

Under Heads of Agreement the Aboriginal people gain a tangible working agreement for the resolution of native title issues by negotiation rather than litigation, while cattlemen gain security in relation to native title. Conservation groups, who have maintained a strong presence throughout negotiations also gain by a commitment to World Heritage values throughout the Cape York Peninsula and by greater funding for the management of the acquired land.

The genesis of the agreement dates back to August 1994 when the Peninsula Branch of the Cattlemen's Union decided, in light of the Wik People's case, 'That wherever possible, pastoral leaseholders and Aboriginal people with traditional interests [should] resolve issues and conflict through direct negotiations held in good faith.'

The parties commit themselves to approach the State and Federal Governments to secure their support for the Heads of Agreement. Further, agreements will be pursued with mining, tourism and other industry groups with interests in Cape York Peninsula. The CU, CYLC and ATSIC will invite their constituents to become individual parties to an agreement which could secure recognition under the Native Title Act 1993 (Cth).

Therefore the Heads of Agreement represents the first step in the potential development of a regional agreement. At present, the Native Title Act offers limited support for such agreements. The Federal Government and other stakeholders are currently examining proposals to enhance statutory support for such agreements, particularly where they were made prior to a court determination that native title exists in a particular area.

To date, the Queensland Government has refused to ratify the agreement, despite the Federal Government's endorsement of the agreement.

1. The CU, ACF and TWS acknowledge and affirm that the Aboriginal people, represented by the CYLC, and the Peninsula Regional Council of ATSIC, are the original inhabitants of Cape York Peninsula who are entitled by their traditional law to their traditional customs and culture including access to areas of traditional significance.

2. The Aboriginal people of Cape York Peninsula, the ACF and TWS acknowledge and affirm that pastoralists of Cape York (including non CU members) are significant landholders who have existing legal rights and concerns related to their industry and lifestyle.

3. The parties acknowledge that there exist on Cape York Peninsula areas of significant conservation and heritage value encompassing environmental, historical and cultural features, the protection of which is the responsibility of State and Federal Governments in conjunction with the parties.

4. The parties maintain their respective positions on the East Coast Wilderness Zone but shall encourage negotiations between pastoralists in the Zone and the State Government on its creation. If the negotiations prove unsuccessful, the parties undertake to meet again to discuss the matter.

5. All parties are committed to work together to develop a management regime for ecologically, economically, socially and culturally sustainable land use on Cape York Peninsula, and to develop harmonious relationships amongst all interests in the area,

6. Subject to cl 5, all parties are committed to the development of a sustainable cattle industry on Cape York Peninsula.

7. The parties are committed to jointly approach [sic] the State Government to secure upgraded lease tenure for pastoral properties and restructure lease boundaries under the existing provisions of the Queensland Land Act. As a necessary prerequisite for this process, a property management plan shall be developed for each property consistent with cl 5, in consultation with existing landholders. The parties agree to encourage leaseholders to make necessary applications to the State Government for these purposes.

8. The CU and CYLC agree to make joint approaches to secure investment for development of the cattle industry through the Indigenous Land Corporation, the Rural Adjustment Scheme, and other sources.

9. The Aboriginal people agree to exercise any native title rights in a way that will not interfere with the rights of pastoralists.

10. Pastoralists agree to continuing rights of access for traditional owners to pastoral properties for traditional purposes. These rights are:

ò right to hunt, fish and camp;

ò access to sites of significance;

ò access for ceremonies under traditional law;

ò protection and conservation of cultural heritage.

11. These rights shall be attached to the lease title and shall be consistent with a detailed code of conduct to be developed between pastoralists and traditional owners. The code of conduct shall ensure leaseholders are protected from public liability claims arising from the exercise of access rights.

12. The code of conduct for access shall be a minimum to apply to the region, but there shall also be provision for additional features to be negotiated between traditional owners and individual landholders.

13. The parties agree that areas of high conservation and cultural value shall be identified by a regional assessment process according to objective national and international criteria. There shall be an independent review acceptable to all parties in the case of dispute as to whether the values are consistent with the criteria. Where such areas are identified, the landholder shall enter into appropriate agreements to protect the area under State or Commonwealth provisions which may include World Heritage listing. As part of such agreements, funds shall be provided for management of the area, monitoring of agreements and equitable economic and social adjustment.

14. There shall be no compulsory acquisition of private leasehold or freehold land without prior negotiation with the landowner, and unless all reasonable avenues of negotiation including the agreements detailed in cl 13, are exhausted.

15. The purchase of land for the protection and management of cultural and environmental values shall only take place as land becomes available commercially.

16. The parties support the establishment of a fund for the purpose of purchasing land with identified high environmental and cultural values by the Commonwealth Government. The fund also shall contain funds for effective management of land purchased by the fund.

17. Land purchased through the fund shall be assessed for World Heritage values.

18. The management regime to apply to land purchased through the fund shall be negotiated between the Commonwealth and State governments and traditional owners and shall be based on culturally and ecologically sustainable use of the land's resources to achieve Aboriginal economic viability. Negotiations will involve relevant community organisations and traditional owners on a sub-regional basis, and particularly in the following sub-regions:

i. Kowanyama vii. Lockhart River

ii. Pormpuraaw. viii. Coen

iii. Aurukun ix. Laura

iv. Napranum x. Cooktown

v. Old Mapoon xi. Hope Vale

vi. Northern Peninsula xii. Wujal Wujal

19. The nomination for World Heritage listing of any land on Cape York Peninsula shall proceed only where there is a management arrangement which is negotiated with all landholders who may be affected directly by such listing.

20. The parties shall approach the Commonwealth and the State to become parties to this agreement process.

21. The parties are committed to pursuing agreements with the mining and tourism industries and with other industries with interests in Cape York Peninsula.