Biodiversity publications archive

Country in flames

Proceedings of the 1994 symposium on biodiversity and fire in North Australia - Biodiversity series, Paper no. 3
Deborah Bird Rose (editor)
Biodiversity Unit
Department of the Environment, Sport and Territories and the North Australia Research Unit, The Australian National University, 1995

Fire management in the Northern Territory post-Mabo: The legal basis for Aboriginal burning

Camilla Hughes
Faculty of Law, Northern Territory University 1

The Bushfires Act 1980 (NT)

Outside urban areas in the Northern Territory fire management comes under the Bushfires Act.2 This paper considers the application of the Bushfires Act to various land tenures, namely:

for the purpose of ascertaining the law that governs Aboriginal burning.

The Bushfires Act would appear on its face to be a complete statement of the law, but in relation to Aboriginal burning the picture is more complex. In the legal landscape of the Northern Territory we have Aboriginal law about burning, then Northern Territory law (the Bushfires Act) and also in the picture is Commonwealth law such as the Native Title Act, and finally the common law (or judge-made law). Specifically, the Mabo decision is important here.

We need to consider the impact of the Bushfires Act on Aboriginal burning. Does the Act ban Aboriginal burning? The answer is no, and in fact the Act says absolutely nothing about Aboriginal burning. The Bushfires Act does not ban Aboriginal burning but it does impact on Aboriginal burning.

Under the legislative regime of the Bushfires Act, Northern Territory landowners are able to burn their land except (i) on fire ban days, (ii) in fire protection zones and (iii) in fire danger areas. Landowners also have a responsibility to take reasonable steps to prevent a fire spreading to neighbouring land.3 Therefore not all burning by Aboriginal landowners would be prohibited under the Bushfires Act, however, the Act would impact on burning practices in at least two major ways. Firstly, Aboriginal landowners whose land fell within the relatively extensive fire protection zones would require a permit for almost all burning. Secondly, permits would be required for some Aboriginal burning, and other types of burning would be prohibited outright during fire danger periods, which may continue for 5-7 months.

The declaration of fire danger periods is probably the most significant impact of the Bushfires Act as it means that for large parts of the year Aboriginal landowners would need to get a permit every time they wish to burn. This is quite a significant impact particularly for people living on outstations and away from towns.

Two types of land tenure are particularly important for analysis: Aboriginal owned land and pastoral land we're not just talking about small pieces of the Territory, we are talking about some 87% of the Territory. So the legal situation on those two land tenures is important.

Does the Bushfires Act apply to land owned pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)?

Briefly, what the Land Rights Act says is that Northern Territory law can apply, with an important caveat, to Aboriginal land as long as it is not inconsistent with other parts of the Land Rights Act. The Land Rights Act 'does not affect the application to Aboriginal land of a law of the Northern Territory to the extent that law is capable of operating concurrently (with the Land Rights Act)' (s 74).4

Many provisions of the Bushfires Act will no doubt apply across the Territory, however, it is not clear that the Bushfires Act and Land Rights Act can operate concurrently in all respects on Aboriginal land. Rights to use Aboriginal land in accordance with tradition are preserved by s 71(1) of the Land Rights Act.5 Aboriginal land use in the form of burning practices therefore has protection under Commonwealth legislation if they (the burning practices) are in accordance with tradition.

There is legal space, in other words, for Aboriginal burning. Northern Territory law (the Bushfires Act) can only operate to the extent that it does not impinge on Aboriginal law about burning. So Aboriginal law has quite significant legal protection under the Land Rights Act, and Aboriginal land is clearly a very large proportion of the Territory (about 36% at this time).

Does the Bushfires Act apply to native title land?

An initial point to make is that, in one sense, what happens on Land Rights land is more important in the Northern Territory than the law relating to native title land. The Mabo decision and Native Title Act have not had the same impact in the Northern Territory that they have had elsewhere in Australia simply because most of the land that could otherwise be claimed under the Native Title Act is already owned by Aboriginal people. Furthermore, the Native Title Act says that pastoral land can't be claimed.6 We are unlikely to see enormous native title claims, except over areas that are already Aboriginal land.

However, the 1993 decision of the Federal Court Pareroultja v Tickner7 established that native title has not been extinguished on land granted under the Land Rights Act.8 Accordingly, Aboriginal owned land granted under the Land Rights Act may also be claimed as native title land. By provision of the Native Title Act Aboriginal owned pastoral leases may also be claimed.9 Owners of land that has been granted under the Land Rights Act and is native title land will retain their rights under the Land Rights Act10 including the right to continue traditional land use practices such as burning. Their position as native title holders, and the position of native title holders generally, is now considered.

The Mabo11 decision's contribution is to say that traditional law about land use is part of native title. In other words, the content of native title is determined according to the laws and customs of the title-holders:

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidence of native title must be ascertained as a matter of fact by reference to those laws and customs.12

For native title holders, land use practices such as burning the land in accordance with traditional law and custom are an integral part of their title and have the protection of law.13

The question of how general environmental legislation is to apply to native title land is a difficult one, and the impact of the Native Title Act 1993 (Cth) ('the Native Title Act') adds another layer of complexity. In the case of Aboriginal burning and the Bushfires Act, the difficult question of the extent to which burning by native title holders must be exercised subject to the Bushfires Act is to some extent bypassed by s 211 of the Native Title Act.

Section 211 of the Native Title Act provides that native title holders may carry out activities including hunting, gathering and cultural or spiritual activities14 without a licence or permit, where others may carry out the activity only if they have been granted the requisite licence or permit.15 The section would protect Aboriginal burning regimes on native title land to the extent that (a) burning the land is a component of hunting, gathering, cultural or spiritual activities, and (b) burning is prohibited under the Bushfires Act except under licence/permit.

In relation to (a) it appears that most Aboriginal burning would come under one or other category. In relation to (b), permits to burn land may be granted under the Bushfires Act. For example, lighting fires in a fire protection zone is authorised in accordance with a permit,16 and some uses of fire are authorised in a fire danger area in accordance with a permit.17 The effect therefore of s 211 of the Native Title Act is that native title holders do not require the usual permits under the Bushfires Act to undertake burning. In situations that fall outside s 211 the law is more difficult to interpret. Section 8 of the Native Title Act is the key to establishing how native title interacts with State/Territory legislation such as the Bushfires Act:

This Act is not intended to affect the operation of any law of a State or a Territory that is capable of operating concurrently with this Act.

The section is similar to s 74 of the Land Rights Act, and similarly to the Land Rights Act there is a legal space created here for the operation of Aboriginal law about burning. Laws such as environmental laws will operate on native title land only if they are capable of operating concurrently with native title rights and interests.

In other words, the Bushfires Act will apply generally to burning by native title holders, but only insofar as it can operate concurrently with, or in other words is consistent with, the continuing exercise of native title rights such as the right to burn in accordance with traditional law and custom.

Application of the Bushfires Act to Aboriginal burning on pastoral land

Pastoral leases in the Northern Territory are held subject to 'a reservation in favour of the Aboriginal inhabitants of the Territory',18 permitting Aborigines,19 inter alia:

Subject to any other law in force in the Territory

  1. to take or kill for food or for ceremonial purposes animals ferae naturae (wild animals); and
  2. to take for food or for ceremonial purposes vegetable matter growing naturally, on the leased land.20

Burning the land is arguably permitted under the reservation as a method that may be employed by Aboriginal people to hunt. For example, land may

be burned to expose animal tracks and burrows,21 to hunt tortoise,22 to hunt large macropods with a 'fire drive',23 to bring on growth of young grass shoots to attract macropods to a particular area,24 to maim or stun smaller animals25 or flush out small animals.26 There is also evidence to suggest that particular burning regimes were employed by Aborigines to encourage or preserve particular plant communities. For example forest margins may be fire managed to protect yams that grow there27 or in the desert spinifex might be burnt to encourage edible ngaru (Solanum eremophilum).28 There is evidence that northern cypress pine (Callitris intratropica) which has various Aboriginal uses29 goes into decline without maintenance of Aboriginal burning regimes.30 There is a good argument that particular burning practices are part of the process of utilising plant materials for food or ceremony, and are therefore permitted under the reservation.

So the proposition is a straightforward one: that burning is simply a methodology used in hunting and gathering, and therefore is permitted under the reservation. That is a significant conclusion to draw, meaning that Aboriginal people are also able to burn on pastoral land.

There is a further difficult question of whether if Aboriginal people can burn on pastoral land, can they only do so pursuant to the Bushfires Act. If that were so, Aboriginal people could in most cases still use fire on pastoral land for the purposes of hunting or collecting plants, but the restrictions of the Bushfires Act already discussed would apply.

The Criminal Code 1993 (NT) provides that a person is not guilty of an offence if the act constituting the offence was authorised.31 Therefore an Aboriginal person burning pastoral land in apparent contravention of the Bushfires Act may have a defence that the act was authorised by the reservation in the Pastoral Land Act.32 A circular argument arises because the reservation only applies subject to any other law of the Territory. An Aboriginal defendant would appear to be disentitled from utilising the authorisation defence. However in a 1982 case before the Supreme Court of the Northern Territory, Forster CJ found in favour of an Aboriginal appellant who was caught in a very similar circle. In that case an Arrernte man successfully appealed against a conviction under the Firearms Act 1979 (NT) ('the Firearms Act') incurred while shooting kangaroos for food on pastoral land. At that time the reservation in favour of Aboriginal people on pastoral land was contained in a substantially similar provision under the Crown Lands Act. The Firearms Act itself contained an authorisation provision. In order to resolve the conflict between the two sections, Forster CJ examined the legislative history of both. The relevant provision of the Firearms Act had come into operation after the relevant provision of the Crown Lands Act and his Honour held that:

(The relevant provision) of the Firearms Act was passed against the background of permission of the appellant and people like him to take wild animals on their own country and must be read subject to that permission.33

Forster CJ traces the legislative reservation on pastoral land in favour of Aboriginal people back to the Crown Lands Ordinance 1927 (NT),34 and the current wording has been essentially the same since 1978.35 The Bushfires Act was passed in 1980. It would therefore appear that the same reasoning would be applicable, that the Bushfires Act was passed against the background of the reservation in favour of Aboriginal people and must be read subject to that reservation. However, the argument is clouded by the fact that in 1992 the Crown Lands Act was re-enacted as the Pastoral Lands Act, so the Bushfires Act was technically passed earlier in time to the Pastoral Lands Act.

In the end result it is somewhat unclear whether burning on pastoral land in contravention of the Bushfires Act would be authorised by the reservation under the Pastoral Land Act. There is a further argument, which turns on whether the Aboriginal right to hunt and gather on pastoral land is a native title right.

Although native title is generally extinguished on pastoral land by the Native Title Act (see footnote 6), any reservation for the benefit of Aboriginal people is preserved from extinguishment.36 Accordingly the right to hunt and gather on pastoral land may be able to be successfully claimed as a native title right. The question then becomes, if the right to hunt and gather is converted from a statutory to a native title right, is the right still to be exercised subject to Northern Territory law such as the Bushfires Act? As discussed above in relation to native title land, it is probable that Aboriginal people do not require the usual permits under the Bushfires Act in order to undertake burning in the exercise of their native title rights. But even assuming that burning must be carried out within the confines of the Bushfires Act, the substantial point is that on most pastoral land and for most of the year, Aboriginal people may burn land when hunting and as part of the process of utilising plant materials.

Conclusions

Consideration of the interaction of Commonwealth law, Territory law and the common law in relation to Aboriginal burning practices on various land tenures in the Northern Territory shows that those practices are given considerable legal protection. Although the Bushfires Act applies across the Territory, space within the European-origin legal system has been created for traditional law and custom relating to burning on Aboriginal land under the Land Rights Act, and the result will be the same on native title land. On pastoral land, whether or not the reservation protecting continued Aboriginal hunting and gathering is characterised as a statutory or native title right, burning would appear to be sanctioned as a method of hunting
and gathering.

Since pastoral land and Aboriginal owned land together makes up approximately 87% of the Northern Territory,37 these conclusions are significant. Given the legal reality, it is anomalous that Aborigines have little involvement in fire management decision-making at regional or Territory levels. For example, there is no Aboriginal representation on the Bushfires Council.

Translating the law into fire management policy and practice would appear to necessitate an Aboriginal/government joint management approach,38 and a tripartite approach among Aboriginal people, pastoralists and government with respect to pastoral land. There are certainly challenges ahead in adopting a cross-cultural joint management approach to land management but the operation of joint management principles in the Northern Territory's Aboriginal owned national parks (eg Kakadu, Uluru/Kata Tjuta and Gurig National Parks) show that they are not insurmountable. In one sense this is not a legal problem but a land management problem. It is not going to be solved by battalions of lawyers or by litigation. It is not going to be solved even by new legislation. What needs to happen is at an administrative and policy level, for people on the ground to be talking to each other and working out approaches. Hopefully some understanding of the overwhelming fact that Aboriginal people have considerable legal standing may propel us into a situation where negotiation begins to happen.

Much may be gained from cross-cultural cooperative land management. For example there is the benefit of Aboriginal fire management expertise. The possibility of putting traditional knowledge back into practice should be seized when so little is known of Northern Australian landscapes, and the land management challenges are so enormous. Knowledge has certainly been lost in the process of population decimation and dislocation of Aboriginal people since colonisation. Of knowledge retained, little has been documented. The realisation that Aboriginal burning practices have legal sanction in many parts of the Territory should provide an impetus for cooperative studies to record those practices.39

Some Aboriginal burning practices will never be reinstated, being labour intensive and requiring mobile peoples.40 However in the Northern Territory, comparatively more Aboriginal people and Aboriginal knowledge have survived than in some other parts of Australia, and exciting possibilities for advances in land management exist combining traditional expertise plus western ecological knowledge and technology. As in the area of joint management of national parks, the Northern Territory has the potential to be an Australian and world leader in implementing joint indigenous/European land management structures.

Fire management is integral to Aboriginal conceptions of land management. Research seems increasingly to be discovering the benefits of Aboriginal burning practices, for example in habitat management for rare species.41 It seems an appropriate time for consideration of land management through cooperation rather than by conflict.

Footnotes:

1. The author would like to thank Dr David Bowman, Martin Flynn, Dr Lesley Head, Kerry Mulqueeny, Dr Deborah Bird Rose and Peter Whitehead for their comments on earlier drafts of this paper. This is a modified version of a more detailed and technical paper which will be published in Environment and Planning Law Journal, February 1995.

2. Fires in urban areas are controlled by fire services established under the Fire Service Act 1983 (NT).

3. Bushfires Act 1980 (NT) s 49.

4. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 74(1).

5. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 71(1).

6. Native title is extinguished on pastoral land pursuant to the Native Title Act 1993 (Cth) at least to the extent of preventing claims of title approximating freehold title. Insofar as the grant of a pastoral lease in the Northern Territory may be an act attributable to the Commonwealth, see the Native Title Act 1993 (Cth) s 15(1)(a), 229(3) and the definition of pastoral lease in s 248. Section 19 of the Native Title Act enables the Northern Territory government to 'validate' pastoral leases in the same way, see the Validation of Titles and Actions Act 1994 (NT) s 5.

7. Pareroultja v Tickner (1993) 117 ALJ 206, also known as the second Lake Amadeus case.

8. Ibid, at 214 per Lockhart J. Special leave to appeal this matter to the High Court was refused on 13 April 1994.

9. Native Title Act 1993 (Cth) s 47.

10. Native Title Act 1993 (Cth) s 210 provides that the rights or interests of a person under the Land Rights Act are unaffected by the Native Title Act.

11. Mabo v Queensland (No.2) (1992) 175 CLR 1.

12. Mabo v Queensland (No.2) (1992) 175 CLR 1 at 58 per Brennan J.

13. Ibid at 61 per Brennan J.

14. Native Title Act 1993 (Cth) s 211 (3).

15. Native Title Act 1993 (Cth) s 211.

16. Bushfires Act 1980 (NT) s 35 (a).

17. Bushfires Act 1980 (NT) s 39 (a). There is an additional requirement in s 39 (b) that at least 48 hours notice be given to neighbours.

18. Pastoral Land Act 1992 (NT) s 38 (1)(n).

19. The reservation, pursuant to the Pastoral Land Act 1992 (NT) s 38 (2) (a) (c), is in favour of those Aborigines who:

  1. ordinarily live on the pastoral lease;
  2. ordinarily live on a piece of land that has been excised from a pastoral lease since 1979; or
  3. are entitled to use or occupy the pastoral land according to Aboriginal tradition.

20. Pastoral Land Act 1992 (NT) s 38(2)(f).

21. Head LM, O'Neill AL, Marthick JK & Fullagar RLK, A comparison of Aboriginal and pastoral fires in the north-west Northern Territory, in Moffat I & Webb A (eds), Conservation and Development Issues in Northern Australia, North Australia Research Unit, Darwin, 1992, p 132, Rose DB, Dingo Makes Us Human: Life and Land in an Aboriginal Culture, Cambridge University Press, Melbourne, 1992, pp 100 101 & 106, and Gould R, Uses and effects of fire among the Western Desert Aborigines, Mankind 8, 1971, p19 for an account of mouse hunts in the desert.

22. Head et al, op cit, p 132.

23. Haynes C, The pattern and ecology of munwag: traditional Aboriginal fire regimes in north central Arnhemland, in MG Ridpath & LK Corbett (eds), Ecology of the Wet-Dry Tropics, Proceedings of the Ecological Society of Australia, Vol 13, Ecological Society of Australia, Canberra, 1985, p 210 and Gould, op cit p 19.

24. Haynes, op cit, p 210.

25. Haynes, op cit p 210.

26. Gould, op cit, p 19-20.

27. Haynes, op cit, p 68.

28. Gould, op cit, p 22.

29. See for example Brock J, Top End Native Plants: A Comprehensive Guide to the Trees and Shrubs of the Top End of the Northern Territory, John Brock, Darwin, 1988, p 108.

30. Bowman DMJS&Panton WJ, Decline of Callitris intratropica in the Northern Territory: implications for pre- and post-European colonisation fire regimes, Journal of Biogeography 20, 1993, p 379.

31. Criminal Code 1993 (NT) s 23.

32. Pursuant to the Criminal Code 1993 (NT) s 26(1) an act is authorised if it is done, inter alia, in the exercise of a right granted by law, in conformity with the law, or pursuant to a permission lawfully granted.

33. Campbell v Arnold [1982] 56 FLR 382 at 385.

34. Ibid, at 384 per Forster CJ.

35. Ordinance No. 107 of 1978 (NT), r 24(2) cited in Campbell v Arnold [1982] 56 FLR 382
at 385.

36. Native Title Act 1993 (Cth) s 16, Validation of Titles and Actions Act 1994 (NT) s 11.

37. Calculated from information tables provided on the map AUSLIG (Australian Surveying and Information Group), Australia: Land Tenure, Edition 1, 1993.

38. See discussion and recommendations by Head L, 'Aborigines and pastoralism in northwestern Australia: historical and contemporary perspectives on multiple use of the rangelands' forthcoming in Rangelands Journal and by Young E, Ross H, Johnson J and Kesteven S, Caring for Country: Aborigines and Land Management, Australian National Parks and Wildlife Service, Canberra, 1991, particularly pp 175-6.

39. Interestingly the anthropologist Gould made a call for ecological studies of the effects of Aboriginal burning as far back as 1971, in Gould, op cit, pp 22 23.

40. See discussion by Haynes, op cit, pp 69 70.

41. See for example Reid, J, Baker, L, Morton SR and Mutitjulu Community, Traditional knowledge + ecological survey = better land management, Search 23 (1992), p250.