Aboriginal Law Bulletin
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by Robert Blowes
When Europeans came to Sydney Cove on the day known in Europe as 26 January 1788, very few of the Aborigines living at the time saw them or knew they regarded Australia as 'no man's land'. It is unlikely that those Aborigines appreciated that from that day their lands were to be recognised as belonging to the new arrivals and governed by their law which somehow came with them.
To this day, the general law of property in Australia rests on the demonstrably false premise that Australia was uninhabited, or at least vacant of any property rights at the time of white settlement[1]. Whilst that premise is presently under challenge in the High Court[2] it is still a foundation of the law of Australia.
Against that background it is ironic that those who oppose Aboriginal ownership of national parks in the NT would argue that national parks should belong to all Australians. It illustrates our lack of gracious and generous spirit as a community, that we so begrudgingly concede any priority to Aboriginal interests in remaining public lands.
As if the irony derived from our legal history was insufficient, the irony is compounded when Aboriginal and European track records of caring for the environment are compared. The European tendency is to view land as a material object which may be bought and sold, exploited and expended. Aboriginal reality sees life, spirit and sustenance embedded in a landscape which can no more be bought or sold than one's mother and which must be cared for as a friend and provider. Two hundred years of European occupation has seen more extensive alteration and destruction of the landscape and natural heritage than has 40,000 years of Aboriginal occupation.
In the debate over the return of Uluru (Ayers Rock - Mt Olga) and Nitmulik (Katherine Gorge) National Parks it was argued that ownership and control should remain with the government as the elected representative of all Australians. The implicit assumption here is that an elected body dominated by persons of European and capitalist traditions (or a statutory body of persons nominated by them) would be more capable of preserving the intrinsic value of the country and its attendant cultural features than if Aborigines had any real and significant input.
The hypocrisy in the arguments against Aboriginal ownership and control of national parks is compounded by the fact that a substantial component of the value of the parks is their Aboriginal cultural heritage value which is exploited in the promotion of the parks for the economic benefits of tourism.
To seek to profit from the culture of Aborigines whilst ignoring their existence is to continue the cultural ascendancy implicit in the spirit of terra nullius.
The development of Aboriginal involvement in national parks in the NT has its origins in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act).
The Land Rights Act provides for the recognition of Aboriginal traditional rights to certain land in the form of a grant of statutory freehold title. The Act required that certain lands held by the Crown for the use and benefit of Aborigines (including most Aboriginal reserves) be granted. These lands are described in Schedule 1 of the Act.
In addition, a land claim process is provided which is no more than an opportunity for Aboriginal persons to establish, to the satisfaction of an Aboriginal Land Commissioner, that they constitute a local descent group which has traditional spiritual affiliations to sites on the land, that they have primary spiritual responsibility for those sites and land, and that their traditional attachment to the land remains strong. If successful, the claimants are then at the mercy of the Commonwealth Minister for Aboriginal Affairs who must balance the advantages of a grant of the land against any detriment that may be caused to any other person or group.
A third means by which Aborigines have acquired lands under the Land Rights Act is by amendment by Parliament of Schedule I to include a description of the land. This has occurred in relation to a portion of Kakadu National Park and Uluru.
National park land was not included in Schedule 1 when the Land Rights Act was first enacted. The path to the present Aboriginal involvement in each of the parks under discussion includes the lodgement of a land claim under the Land Rights Act.
The present arrangements for Gurig (Cobourg Peninsula) National Park were negotiated with the NT Government in compromise of a land claim application which was never heard.
Part of Kakadu Stage I was granted after amendment to the Land Rights Act to include its description in Schedule 1 after the successful hearing of a land claim application by the Ranger Uranium Environment Inquiry. Parts of Kakadu Stage II were granted after a successful land claim application. Kakadu Stage III is not Aboriginal land but may become so if the land claim in relation to it is successful.
Management arrangements for Nitmulik (Katherine Gorge) National Park were negotiated with the NT Government from a position of considerable strength gathered from the land claim process and helped by the Government's fear of losing its role in the Park's management to the Commonwealth's National Parks and Wildlife Service.
The land claim to Uluru (Ayers Rock - Mt Olga) National Park was unsuccessful because the land was set aside for public purpose under a Commonwealth Act. The merits of the substantial traditional claim to the area eventually met with sympathy from the Commonwealth and the land was granted as a result of its inclusion in Schedule 1.
The land claim process under the Land Rights Act has given Aborigines bargaining power to reach more or less satisfactory arrangements under which their traditional interests in land have been recognised by a grant of title. This has enabled them to benefit from the land and influence land-management decisions.
Gurig is not Aboriginal land granted under the Commonwealth Land Rights Act. Under the compromise reached, title was granted by the NT. The Cobourg Peninsula Land and Sanctuary Act 1988 (NT) provides for the title and grant of land and establishes the title-holding body, the Cobourg Peninsula Sanctuary Land Trust. The grant is one in perpetuity and is of all the estate and interest held by the Crown (excluding roads), subject to reservation by the Crown of all mineral rights.
The Cobourg Peninsula Land and Sanctuary Act also provides for the establishment of the national park in perpetuity. There is no lease of the land back to the government as with other parks under discussion. The Act provides for the payment by the Territory of an indexed annual fee (the first was $20 000 in 1981).
Day to day control and management of the park is in the hands of the NT Conservation Commission, but major management decisions lie with the Cobourg Peninsula Sanctuary Board, half of whom are traditional Aboriginal owners nominated by the Northern Land Council. The Chairman and Deputy Chairman are elected from among the traditional-owner members of the Board and the Chairman has a deadlock-breaking casting vote.
A Plan of Management must be tabled in the Legislative Assembly which may disallow it by passing a resolution within 14 days of tabling. Any dispute between the Board and the Legislative Assembly arising from a disallowance is determined ultimately upon recommendations from the Chief Justice of the Supreme Court of the NT.
'Aboriginal Land' within Kakadu National Park is perpetual freehold granted under the Land Rights Act to various Aboriginal Land Trusts.
The grants are subject to the statutory condition that an agreement be entered into for the grant of the land to the Director of National Parks and Wildlife for the purposes of the National Parks and Wildlife Conservation Act 1975 (Cth).
The terms of the lease are negotiable between the Northern Land Council representing the Land Trust and traditional Aboriginal owners, and the Director. The original leases for parts of Stage 1 of the park were entered into in 1978. These leases have recently been renegotiated to update them with changes in the National Parks and Wildlife Conservation Act 1975 and to take advantage of developments at Uluru. The lease of Aboriginal land in Kakadu Stage II, from the Jabiluka Aboriginal Land Trust, signed 27 March 1991 is in corresponding terms.
The leases are for 99 years from the grant of the first leases in 1978. In 1991 total rental payments to Aborigines for Aboriginal land in Kakadu was $175 701. This payment is indexed annually and reviewed every 5 years. Aborigines also receive 25% of park revenue.
Clause 12 of the leases is worthy of special mention. It provides that the enactment of an Act or regulations by the Commonwealth which is inconsistent with the lease and which is "substantially detrimental to the interest of the Lessor or Relevant Aboriginals as regards the administration, management or control of the Park", shall be deemed a breach of a fundamental term of the lease for which the lease may be terminated.
Subclauses 12(3) and 12(4) require the parties to make various attempts to renegotiate a new lease but those attempts do not lead to arbitration of a new lease if they fail.
The strength of cl.12 is not only that it provides protection against a future hostile government but that the ultimate power it entrenches stands behind the Aboriginal owners and provides a basis for assertiveness on their part in the ongoing relationships with other interests represented in the joint management arrangements.
Under the leases the traditional rights of Aborigines to use the Park for hunting, food gathering and ceremonial purposes are protected and, subject to the Plan of Management, Aborigines may reside in the Park. The leases require the Director to take steps to promote and protect the interests of the Aboriginal owners of the Park. In addition the Director covenants in cl.9:
(m) to take all practicable steps to promote Aboriginal administration management and control of the park;
(n) subject to the Plan of Management, to engage as many Relevant Aboriginals as is practicable to provide services in and in relation to the Park;
(o) to utilise the traditional skills of Aboriginal individuals and groups in the management of the Park;
(p) subject to the Plan of Management, to encourage Aboriginal business and commercial initiatives and enterprises within the Park.
The leases also provide for negotiations to occur more than five years before expiry of the leases for their renewal or extension, for research and exchange of information between the Director and Aborigines, for Aboriginal employment and training, for the maintenance of adequate staff levels in the park, and for the processing of requests by Aborigines to restrict access to park areas for the purposes of Aboriginal use.
The National Parks and Wildlife Conservation Act 1975 provides that day to day care and management of the Park is by the Australian National Parks and Wildlife Service but plans of management and major management issues are made by a board on which Aborigines have a majority vote. The Board operates even in relation to those parts of the park that are not yet or never will be Aboriginal land.
The substantial part of 'Aboriginal Land' in this park was granted under the Land Rights Act and leased back by the Jawoyn Aboriginal Land Trust to the Conservation Commission (NT).
The lease is similar to the Kakadu leases and contains provisions protecting the interest of Aborigines and provisions corresponding to sub-clauses 9(m)-(p) of the Kakadu leases.
The Park is established by the Nitmulik (Katherine Gorge) National Park Act 1989 (NT). The lease which is included in Schedule 1 of the Nitmulik (Katherine Gorge) National Park Act, is for 99 years. The annual rental is $100 000 subject to review every 3 years. Any new rent arrived at by the review process must at least be equivalent tot he previous rent adjusted by consumer price index increases. Aborigines are also entitled to receive 50% of park revenue.
As with Kakadu, the lease contains a provision which deems that an amendment of the Act may constitute a breach of the lease which may give rise to the right to termination.
The Nitmulik (Katherine Gorge) National Park Act 1989 establishes the Nitmulik (Katherine Gorge) National Park Board. A majority of the members are traditional owners appointed by the Jawoyn Association. Members of the Conservation Commission and an appointee of the Mayor of Katherine also sit on the Board. The chairman and deputy chairman are elected from among traditional-owner members.
The Board's functions include preparation of the Plan of Management and protecting various traditional rights of Aboriginal owners. The Conservation Commission administers the day to day management of the Park on behalf of and subject to the directions of the Board. Under the Act the Chief Minister has limited power to give the Board general directions.
As with Gurig, the Plans of Management must be tabled in the Legislative Assembly and may be disallowed by resolution passed within 14 days. Any dispute between the Board and the Legislative Assembly over the Plan of Management is resolved on the recommendations of either the Aboriginal Land Commissioner or a panel of 3 suitably qualified and impartial persons.
Uluru is "Aboriginal land" granted under the Land Rights Act and leased back in accordance with a requirement of the Act by the Uluru-Katatjuta Land Trust to the Director of the Australian National Parks and Wildlife Service.
The Uluru (Ayers Rock - Mt Olga) National Park Lease is similar to the Kakadu leases which benefited considerably from precedents set at Uluru. The lease is for 99 years at an annual rental of $75 000 plus 20% of receipts from entrance charges.
A provision which deems certain amendments of the Act to be a breach of the lease, trigger only an obligation to meet and discuss whether to vary the provisions of the lease, and failure to agree may bring into operation arbitration mechanisms in the Act. There is no provision permitting termination of the lease for such a breach.
The management arrangements are identical in form to those in Kakadu, both being prescribed by the National Parks and Wildlife Conservation Act 1975.
There is a glaring contrast between proposals contained in the arrangements made in the NT - reviewed in this paper - and the preliminary drafts of the New South Wales Aboriginal Land Rights (Aboriginal Ownership of Parks) Amendment Bill 1991 [First Print] and the National Parks and Wildlife (Aboriginal Ownership) Amendment Bill 1991.
Although it may not be possible or appropriate to directly import into the NSW context the processes and arrangements made for Aboriginal involvement in N.T national parks, the NSW proposals, if enacted in their present form, would represent a paternalistic 'Claytons' acknowledgment of Aboriginal interests in parks and reserves.
The scheme of the proposals is: for the recognition of certain lands held in parks and reserves as being of "special cultural significance to Aborigines"; for negotiations to vest those lands in an Aboriginal Land Council; for the lease of those lands to the Minister administering the National Parks and Wildlife Act 1974; for the leased land to be the subject of reservation or dedication under this Act; and for the Aboriginal Land Council to participate in management of the land.
The processes for getting lands included in the proposed Schedule 5 to the Act (ie., recognised as being of special cultural significance to Aborigines) are almost entirely discretionary and give Aborigines little bargaining power to gain such recognition.
Lease negotiations will be artificial and constrained. The proposed legislation dictates what must be, and what may not be, included in a lease. Leases will be for 99 years with successive renewal options for 99 years terminable only by an Act of Parliament. A nominal rental of $1 per annum is to be payable.
Any dispute between the Minister and the NSW Aboriginal Land Council about the terms of a proposed lease is to be submitted to the Premier for settlement. The Premier can direct the payment of costs or the expenses of holding an inquiry into the dispute.
Under the proposed arrangements, genuine Aboriginal involvement in management is unlikely. A lease must provide for an "advisory management committee" to be set up. Whilst a majority of members are to be nominees of the Aboriginal Land Council, (the lessor of the lands), there are no guarantees that any provisions giving such a committee any real influence can be negotiated.
The New South Wales proposals are an embarrassment to any person who hopes for justice for, and reconciliation with, Aborigines and could quite properly be regarded by Aborigines in NSW as an insult.
It is ironic that whilst the NT is so remote geographically from the site of original European occupation of Australia, and whilst its Aboriginal population has been proportionately less affected, the arrangements it has made with its Aboriginal residents for their participation in national parks shows a greater degree of recompense and reconciliation than does the NSW proposals. One might be forgiven for thinking that justice might demand recompense and reconciliation which is in some way proportional to the nature and extent of damage, dispossession and alienation, rather than the reverse.
This article was extracted from a paper presented at the Johnstone Centre Conference “Aboriginal Involvement in National Parks and Protected Areas” 22-24 July, 1991, Albury, New Suth Wales.
[1] Milirrpum v Nabalco Pty Ltd and the Commonwealth (1971)17 FLR 141
[2] Mabo and Another v The State of Queensland. The hearing of this matter concluded on 31 May 1991 and the High Court has reserved its decision. Implications for the continued existence and status of the term nullius doctrine in relation to land in respect of which traditional Aboriginal ownership has been recognised by a grant of title made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), is in issue in Northern Land Council v Commonwealth of Australia and Energy Resources of Australia Limited.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1991/48.html