Aboriginal Law Bulletin
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by Zada Lipman and Karen Don
While Aboriginal people have always viewed the land as a landscape embedding life, spirit and sustenance and thus as a landscape to cherish and protect, it is only recently that governments have allowed them to play a part in the management and conservation of the land. With the introduction of the National Parks and Wildlife (Aboriginal Ownership) Amendment Bill 1992 (hereafter 'Bill'), the Aboriginal people of NSW hoped that not only would ownership of the parks finally vest in them, but that they would have the power to control land use and management in keeping with their traditional beliefs and aspirations.
This article will examine the Bill in order to determine whether any legally recognised title is conferred on the Aboriginal people and whether the system contemplated is compatible with real and effective joint management.
The World Conservation Union1 and Brundtland Report2 highlighted the need for sustainable development. 'Sustainable development' is defined in the Brundtland Report as development "that meets the needs of the present without compromising the ability of future generations to meet their own needs".3 The Report points out the necessity for developed countries to assist less developed peoples to achieve sustainability. Although these developments put sustainability firmly on government agendas, concern for the natural environment is not new. In Australia, as in several other countries, national parks have played a key role in protecting natural landscapes and ecosystems for over a century. This has often resulted in conflicts with the traditional inhabitants of these areas. However, it is only in recent times that the 'social and cultural dimensions' of ecological sustainability have been recognized.4 As more is learned about the role of indigenous landuse in "creating and maintaining landscapes and ecosystems, a reassessment of people as part of national parks has become a critical environmental question as well".5 There is growing acceptance in Australia that national parks are not areas of pristine wilderness but are "in fact cultural landscapes brought about by thousands of years of Aboriginal management"6
The emerging recognition of the cultural dimensions of ecological sustainability in Australia has manifested itself in a unique method of joint management that combines conservation interests with the concerns of the Aboriginal people. Under this system, the traditional Aboriginal owners are given title to the land encompassed in national parks on the proviso that the land is then leased back to the National Parks and Wildlife Service for use as a national park. The park is then jointly managed by conservationists and the traditional owners. In this way, the knowledge of indigenous cultures can be utilised "to the benefit of all humanity".7 The disadvantage of this arrangement is that Aborigines are coerced into a lease agreement and subsequent management schemes. For this reason, some critics see joint management as “establishing new relations of domination rather than self management.”8
The recognition of Aboriginal title by the full Court of the High Court in Mabo v State of Queensland9 could have significant implications for joint-management arrangements. In that case, six members of the High Court recognized the common law title of the Meriam people to the Murray Islands in the Torres Strait, where they had since time immemorial inhabited and exclusively possessed the lands. In the light of the Mabo decision, there may be analogous cases where Aboriginal title to Reserves and National Parks has not been extinguished. A question arises as to whether the proposed legislation may limit or extinguish such Aboriginal title that may exist and further whether or not that title is protected by the Racial Discrimination Act 1975 (Cth) and if so, to what extent.
Joint management and lease-back arrangements have been operating in the Northern Territory since 1978 when legal ownership of Kakadu was granted to the Aboriginal people. Joint management now also operates at Uluru, Gurig and Nitmiluk National Parks. It is also being considered in Western Australia, South Australia, Queensland and NSW.
In NSW, Aboriginal ownership of national parks was not a legal possibility under the Aboriginal Land Rights Act 1983 (NSW), for national park land was not included in the definition of 'claimable Crown land'. The best that Aboriginal groups could hope for was the development of a 'sympathetic' management plan for their local park by the National Parks and Wildlife Service. In these plans, such as the one for Mootwingee, 'Aborigines' merely lined up with 'wildlife', 'recreation', 'scientific' and 'educational enquiry' as one of the many values for which national parks were meant to cater.10
The idea of joint management is a feature of the National Parks and Wildlife (Aboriginal Ownership) Amendment Bill 1992. The Bill provides for certain lands, dedicated or reserved under the National Parks and Wildlife Act 1974, to be transferred to the relevant local Aboriginal Land Council. These areas are then leased back to the Government and re-dedicated as a park or reserve. The 1992 Bill was the final product in a series of Bills which were first introduced into the Legislative Assembly in May 1991. The Bill I was submitted to a Legislation Committee, the Report of which was tabled in Parliament on 25 November, 1992. The Committee recommended that the legislation proceed, but proposed a number of further amendments.
While commendable at first glance, the 1992 Bill contains many anomalies and shortcomings and has been termed11 a paternalistic Claytons acknowledgement of Aboriginal interests in parks".12 Although described by the Government as pursuing "a path of reconciliation"13, Aboriginal groups clearly do not see it as such, but rather as a token effort comprising too much Ministerial power.14 To illustrate these criticisms, some of the key provisions of the Bill will be examined, in particular: the process for listing lands, the lack of a legally recognised right of ownership, and certain harsh lease conditions.
The Bill does not confer any general entitlement to land. Only those sites listed in Schedule 4 as lands of special cultural significance to Aboriginal persons come into consideration. Land is of 'cultural significance' if it is "significant in terms of the traditions, observances, customs, beliefs or history of Aboriginal persons': s7lC(1). Only a few sites have been listed - Mungo National Park, Mootwingee Historic Site and National Park, Coturaundee Nature Reserve, Mount Grenfell Historic Site and Mount Yarrowyck Nature Reserve. The decision as to whether a park constitutes a site of special cultural significance is totally at the discretion of Parliament, and land can only be included in Schedule 4 by an Act of Parliament. Aboriginal groups play no part in the decision-making process. This procedure is far more restrictive than that provided for in the Federal National Parks and Wildlife Conservation Act 1975. Under this legislation any land owned or held under lease by the Commonwealth may be transferred or surrendered (s7(l)) and consultation with Aboriginal groups is an integral part of the decision-making process.
The procedure for vesting title in Aboriginal Land Councils is also entirely discretionary. Rather than 'empowering' Aboriginal groups as the Minister claims, the Bill places all the decision-making power in the hands of the NSW Parliament. Once the obstacle of having lands listed has been overcome, the Minister has a discretion as to whether to negotiate with Aboriginal Land Councils: s71D. Even if negotiations do take place, the agreement must be sanctioned by Parliament and can be disallowed by either House: s7lG(l). Once Parliament has disallowed the proposal, no further action can be taken. Parliament is also not required to give reasons for its decision.
The Legislation Committee has recommended that s23 of the Aboriginal Land Rights Act 1983 (NSW) be amended to provide for the NSW Aboriginal Land Council to make recommendations to the Minister as to lands which should be included in Schedule 4. This will be an improvement on the present position but still leaves many of the issues unaddressed.
Other than a nominal paper title, the Bill grants no recognised rights of ownership. The term 'ownership' is not used in the Bill. Lands are said to 'vest' in the Land Council. The extent of the estate being transferred - an estate of freehold in possession is undefined and is "at best ambiguous".15 It is a new term for which there is no common law precedent. The word 'freehold' does not clarify the type of estate that is being conferred and generally serves only to distinguish free tenure from leasehold interests.16 The term 'in possession' confuses the matter even further, since it suggests that only a temporary interest is being conferred. However, an estate can generally not be both 'freehold', (of uncertain duration) and'possessory' (determinable on a certain date) at the same time17 Thus the words 'in possession' are probably intended to show that the estate is qualified by the possessory claim of another, ie. to reflect the compelled lease-back arrangements.
It is unfortunate that Parliament has not spelled out clearly the type of estate which is being contemplated. However, no matter what interest Parliament intends to convey, the extensive mandatory lease provisions deny all basic rights normally associated with ownership.
The NSW arrangements can be contrasted with Kakadu National Park where the Aboriginal Land Trust have been given a perpetual freehold - an estate in fee simple. An estate in fee simple is the largest estate which can be conferred and is generally equated with full ownership.
An important recommendation of the Legislation Committee is that the term 'freehold in possession' in the NSW Bill be replaced with an estate in 'fee simple'. This will be in keeping with Aboriginal aspirations and avoid any problems which could otherwise arise.
An unusual feature of the Bill, is that it largely dictates the terms to be included in the lease: s71E. This procedure is inflexible and gives Aborigines very little bargaining power. This can be contrasted with the Commonwealth system where terms are not laid down by Parliament but negotiated between the Director of National Parks and Wildlife and the Land Councils.
Among the mandatory terms, are the provisions that lands cannot be sold, exchanged, disposed of or mortgaged. Even to the extent that land may be dealt with, the Aboriginal Land Council must first obtain the written consent of the Minister: s7lE(1)(q). Furthermore, if the Aboriginal Land Council in which the land is vested is dissolved, the land revests in the Crown: s7lW(l). These restrictions are inconsistent with an estate in fee simple and would seem to suggest that something less than ownership is being conferred.18
The Legislation Committee has left the situation unchanged, except to recommend that on dissolution of the Land Council, the land will be transferred to its successor. Pending that, title to the lands will vest in the traditional owners. The land will still remain National Park.
The lease can also not be forfeited, terminated or extinguished by the parties or a court, but only by an Act of Parliament: s7lU(4). This makes the position of the Aboriginal 'owners' even more tenuous. By way of contrast, the 1991 Kakadu lease agreement provides a legal basis for termination of the lease. Clause 12(1) of the Kakadu lease agreement deems any Act or regulation inconsistent with the lease or 'substantially detrimental to the interests' of the traditional owners 'as regards the administration, management or control of the park, to be a fundamental breach, giving the Aboriginal owners the right to terminate the lease and to reclaim full control of the land.
The Legislation Committee has recommended that the lease be capable of variation by agreement of the parties or by an Act of Parliament. Both parties are to review the conditions of the lease every five years and disputes can be submitted to arbitration. However, there is no indication that the lease will incorporate a provision for termination by the Aboriginal owners.
The NSW Bill provides that the lease must be for a term of 30 years: s71E(1)(b). Options to renew the lease for further terms of 30 years are mandatory and there can be no limitation on the number of options that may be exercised by the Minister: s71E(l)(c). However, the lease can be replaced by a new lease or varied by agreement of the parties or an Act of Parliament. ss7l E(l)(d), 71U(1).
These are terms of great importance yet the Aborigines are allowed no scope whatsoever for their negotiation.
A welcome recommendation by the Legislation Committee is to make the renewal of the lease subject to the consent of both parties. However, if the lease is not renewed, the land will remain as National Park.
Only a nominal rent of $1 a year is payable, and then only 'if demanded': s7lE(1)(f). The claim by the Minister that since the Bill is 'related to empowerment rather than revenue, the 'peppercorn' nature of the rental should remain19, is quite untenable in view of the restrictions placed on Aboriginal control. The exclusion of Aboriginal 'owners' from any economic benefits which result from use of the land seems particularly harsh and unnecessary. It has been rightly said that "the proposed legislation seeks to preclude not only Aboriginal control of their land, but also seeks by omission to deprive Aborigines from any economic benefit that stems from its use."20
The lease-back arrangements in the NT give far greater legal recognition to Aboriginal interests. Economic considerations play a large part in the agreement. The 1991 Kakadu Lease Agreement provides for a percentage of revenue plus an annual rent of $150 000.00 indexed from May 1988 to January 1991: cl.7(1)(a)(b). Clearly, the NSW Government should be heading towards the successful Kakadu model instead of away from it.
To their credit, the Legislation Committee has recommended that a realistic rental be paid to the Aboriginal Land Council. Criteria are to be laid down to guide the parties in arriving at the amount to be paid. In the absence of agreement, the rent is to be fixed by the Valuer-General. However, the Aboriginal owners will not have control over the rent since it is to be paid into the National Parks and Wildlife Fund for use by the Board of management in relation to the Park in question.
Hunting, fishing and gathering have important social, cultural and economic significance for Aboriginal people. A positive feature of the NSW Bill is that it makes provision for Aboriginal access for hunting and gathering, of traditional foods for domestic, ceremonial and religious purposes: s7lE(1)(1). However, even these rights are subject to the concurrence of the Management Board and Minister. The recommendation of the Legislation Committee is to omit the requirement of Ministerial approval.
Aboriginal people will not be permitted to live in the parks, but will be given the right of itinerant camping for cultural purposes 21 This can be contrasted with joint management arrangements in Kakadu and other parks in the NT where Aborigines are permitted to reside (subject to any Plan of Management).The Committee has noted these anomalies and has recommended that the bill be amended to authorise the management plan to provide for use of a park for community development purposes - which could include permanent buildings.
The Bill also requires that terms be inserted in the lease to provide for public access to the lands and for recognition of existing interests: s71E(1)(p) and (n).
Mandatory arbitration of disputes is a feature of the Bill. The arbitration panel is to consist of three arbitrators, one of whom is to be appointed by the Director of National Parks and Wildlife, one by the Board of Management for the lands and the third by agreement between the other two. If agreement cannot be reached, the third arbitrator is to be appointed by the Chief Judge of the Land and Environment Court: s71(2)(c).22 This system is certainly an advance on that contemplated in the 1991 Bill where disputes were to be referred to the Premier for settlement.23 However, bearing in mind that few significant areas are left open for negotiation, it is unlikely that arbitration will provide Aboriginal people with any additional power or control. A further criticism of the Bill is that it provides no guidance for arbitrators. The 1991 Kakadu Lease Agreement, on the other hand, requires arbitrators to take account of Aboriginal culture and aspirations when determining the question of any variation to the lease: cl.16(2)(c).
A Board of Management is to be constituted for each park, historic site and nature reserve established under the Bill: s71J. The Board will consist of at least 9, but no more than 13 members, of whom the majority are to be nominated by the Aboriginal lessors: s7lJ(2). The remainder of the members will be Ministerial appointees. At least two members will represent landholders in the vicinity of the parks, another will represent local conservation concerns and one member will be an officer of the National Parks and Wildlife Service: s71J(2) 24 The functions of the Board are set out in s7lK of the Bill. These include the preparation of plans of management; the care, control and management of the areas; and the supervision of financial matters. Much of the day-to-day power of the Aborigines will depend on the functions, powers and rights of this Management Board negotiated as part of the lease terms. However, it must be borne in mind that the final decision-making power still rests with the Government, since the Board of Management is subject to the control and direction of the Minister. s7lK(3).
It should be noted that although the Legislation Committee was not prepared to go so far as to remove the requirement of Ministerial supervision, it does suggest that Ministerial oversight be removed in certain areas. These relate to the contents of any recommendation or report by the Board or a decision of the Board that is not inconsistent with the legislation and the plan of management.
It will also be crucial for the NSW lease agreements to incorporate some commitment to Aboriginal traditions and training. For example, the strength of the Kakadu joint management model lies in its commitment to the maintenance of Aboriginal traditions, management and control. This is reinforced by extensive Aboriginal training programs and preferential employment of Aboriginal rangers: cL21. A similar recommendation has been adopted by the Legislation Committee. However, the absence of a power to terminate the lease will considerably weaken any commitments which the NSW leases may incorporate.
The NSW Bill is incompatible with true joint management. Only full title to the parks will ensure that the traditional owners are consulted and that their valuable knowledge and skills are used to further conservation goals. Aborigines rightly believe that they have a vital contribution to make to National Parks and that they should be given full ownership and control. Tony Tjamiwa of the Uluru Board of Management expresses this as follows:
“Aboriginal land that is just a national park is like a table with one leg ... It's not very stable ... It has to have the other legs there: the leg that Aboriginal Law and ownership provides; that Aboriginal involvement in running the park provides; that an Aboriginal majority on the board of management provides.”25
The concept of Aboriginal involvement in joint management programs in NSW has developed to a position where Aboriginals are 'allowed' to participate in the management of specified National Parks as long as the final say remains with the Government. The imposition of mandatory. lease terms and the denial of full ownership are calculated to ensure that the Government retains control.
The recommendations of the Legislation Committee are a considerable improvement on the present Bill. However, many matters, such as the extent of Government discretion in listing lands, the restrictions of alienation of lands, and a lack of power to terminate the lease, still need to be addressed.
If Australia is to attain development that is sustainable, European Australians must recognise the enormous contribution which indigenous people can make to the management of ecosystems in national parks and reserves. Aboriginal people must be allowed to take their proper place within the national parks if we are to "avert a double tragedy of loss of unique ecosystems and unique cultures".26 Only true power-sharing will gain national parks which will be great natural and human heritages.
1. 'World Conservation Strategy", IUCN 1980.
2. The Report of the World Commission on Environment and Development, Our Cannum Future, Oxford University Press, 1987.
3. Op dt., p.8.
4. Craig, D., "Environmental Law and Aboriginal Rights: Legal Framework for Aboriginal Joint Management of Australian National Parks', in Birckhead, J., et al (eds), Aboriginal Involvement in Parks and Protected Areas, Aboriginal Studies Press, Canberra, 1992, p.13S.
5. Stevens, S., Inhabited National Parks: Indigenous Peoples in Protected Landscapes, East Kimberley Working Paper No 10, Centre for Resource and Environmental Studies, 1986, p.4.
6. Birckhead, J., and Smith, L, 'Introduction: Conservation and Country - A Reassessment', in Birckhead, J., et al (eds), op cit., p.4.
7. Craig, D., op cit., p.140
8. Moreton-Robinson, A., and Rundman, C.,'Land Rights in Kakadu: Self Management or Domination', Journal far Social Justice Studies, Volume3 (1990), p.75.
9. Mabo v State of Queensland [1992] HCA 23; 66 ALJR 408.
10. Savigny, J., et al, 'Land Rights, National Parks, and Plans of Management' Aboriginal Law Bulletin, Vol.2, No.42, February, 1990, p.7.
11. The 1992 Bill amended and consolidated the National Parks and Wildlife (Aboriginal Ownership) Amendment Bill 1991 (No.2) and the Aboriginal Land Rights (Aboriginal Ownership of Parks) Amendment Bill 1991 (No.2). The Legislation Committee principally examined the 19921301.
12. Blowes, R, 'From Terra Nullius To Every Person's Land- A Perspective From Legal History' in Birckhead, J., et al (eds), op cit, p.156.
13. Hansard, Legislative Assembly, Second Reading,
National Parks and Wildlife (Aboriginal Ownership) Amendment Bill, 25 February, 1992, p.82.
14. Spokesperson from the Aboriginal Liaison Unit of the National Parks and Wildlife Service who wished to remain anonymous. Also, Cindy Johnson, spokesperson for the Aboriginal Land Council of NSW.
15. Anton, D.K.,'Joint Management Dreaming Or, A Grant That is Nota Grant Lessons in Smoke and Mirror?, Submission from the Environmental Defender's Office, 1991, p.8.
16. Butt, P., Land Law, 2nd ed., Law Book Co., Sydney, 1988, p.70.
17. With the exception of fife estates.
18. An owner of an estate in fee simple has an absolute right of disposition in his/her lifetime. On intestacy the fee simple passes to the heirs of the deceased - Butt, P., op cit, p.90.
19 . Hansard, Legislative Assembly, Second Reading, National Parks and Wildlife (Aboriginal Ownership) Amendment Bill (No. 2),14 November, 1991, p.4646.
20. Anton, D.K., op cit, p.17
21. Hansard, Legislative Assembly, Second Reading,
National Parks and Wildlife (Aboriginal Ownership) Amendment 1411, 25 February, 1992, p.85.
22. The Committee has recommended that the Arbitration provisions form part of the Act rather than a condition of the lease and that they should not relate to matters where the Director of National Parks and Wildlife Service is subject to the direction of the Board of Management.
23. National Parks and Wildlife (Aboriginal Ownership)
Amendment Bill (No. 2) 1991: s7lP.
24. The Committee has recommended that the constitution of the Board of Management be altered so as to provide for a representative from a local shire council and to allow for only one representative of local land interests.
25. Tjunguringkula Waakaripai, "Joint Management of More National Park", in Birckhead, J., et al (eds), op at, p.9. The delivery was in Pitjantjatjara-J. Willis translated. 26. Stevens, S., op ct, p.30.
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