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Resource Assessment Commission, November 1993
ISBN 0 64429457
10.01 Aboriginal and Torres Strait Islander people were the earliest owners and managers of Australia's coastal zone. Today many indigenous communities maintain an active interest and involvement in coastal zone management; in some areas they retain ownership rights. In the previous chapter the Inquiry makes recommendations to achieve greater and more effective involvement of community and industry groups in coastal zone management. There and elsewhere in the report the Inquiry seeks to take into account the interests and special needs of indigenous communities to ensure that they share in this greater community involvement. This chapter provides a more detailed analysis of the interests of indigenous people and puts forward recommendations on matters not dealt with in other chapters.
10.02 Section 10.1 describes indigenous interests in the coastal zone in terms of both historical associations and contemporary economic and cultural uses of the zone's resources. Section 10.2 examines the extent of indigenous people's current involvement in coastal zone management. Issues arising from these interests and involvement in coastal zone management are discussed in Section 10.3. Conclusions are reached and recommendations made in Section 10.4.
10.03 During the Inquiry, issues relating to the High Court's recognition in 1992 of native title have been the subject of national debate. The implications of native title for coastal zone management are unclear. Certainty will emerge only with the passage of Commonwealth legislation, future determinations by the proposed native title tribunals, further court decisions, and direct negotiations between interested parties. The Inquiry has accordingly sought to take into account indigenous interests in coastal zone management regardless of what title indigenous people may have to coastal land, sea or resources.
10.04 Nevertheless, the Inquiry notes that native title may exist in regard to some areas-although rights to sea areas or resources may be limited to usufructuary rights rather than ownership-and that indigenous people are concerned to ensure that these rights are not unwittingly extinguished or impaired as a result of their own actions or actions by governments and government agencies. In view of these concerns, the Inquiry stresses that nothing in the proposed National Coastal Action Program should be taken to prejudice or diminish any native title rights to land, sea and resources as may exist.
10.05 Table 10.1 shows the distribution of Aboriginal and Torres Strait Islander people. Nearly one-half of the population lives in the coastal zone. There are approximately 100 coastal indigenous communities occupying land under some form of Aboriginal or Islander leasehold, freehold, reserve or native title. A further 200 or more outstations are associated with these communities and are occupied on a semipermanent basis. Indigenous people form the majority of the population in a number of coastal regions, including Torres Strait, Cape York Peninsula, Arnhem Land, Groote Eylandt, the Tiwi Islands, north-west Western Australia, and parts of southern Australia such as Cape Barren Island in Tasmania. Figure 10.1 shows the locations of coastal communities, towns and cities with populations of more than 50 Aboriginal and/or Islander people; such communities are found in every state.
Indigenous Estimated Percentage population Percentage of indigenous of State total population indigenous indigenous in coastal population population zone in coastal zone New South Wales 68 941 27 28 955 42 Victoria 16 570 6 7 125 43 Queensland 67 012 26 37 527 56 Western Australia 40 002 16 20 401 51 South Australia 16 020 6 8 811 55 Tasmania 8 683 3 4 602 53 ACT 1 768 1 141 8 Northern 38 337 15 13 418 35 Territory Total 257 333 100 120 980 47
Source: Adapted from ATSIC (Submission 398, p. 3).
10.06 Coastal land and estuarine and marine resources are of major economic and cultural importance to many Aboriginal and Torres Strait Islander people. Maintenance of traditional uses varies with local history, tenure and legislation. It is most evident among indigenous people who are living on lands they own or control, although many people who have been dispossessed of their traditional lands continue to hunt, gather and fish and to care for many places of cultural significance.
FIGURE 10.1 COASTAL ABORIGINAL AND TORRES STRAIT ISLANDER LANDS AND POPULATION CENTRES, 1991
Source: AUSLIG, from data supplied by ABS, ATSIC (Submission 398).
10.07 Box 10.1 discusses indigenous people's involvement in resource development and commercial fishing in the coastal zone, and the importance of marine resources in the diet of a number of indigenous communities.
Box 10.1 Economic uses of the coastal zone by indigenous communities
The economic importance of marine resources for some coastal communities is revealed in large measure by the dietary patterns of these communities; for example, seafoods have been estimated to contribute between 30 and 40 per cent of calorific intake in a coastal outstation community in the Northern Territory (Meehan 1982) and 20 per cent of calorific intake in an urbanised community in southern Queensland (Whalley 1990). Seafood consumption by Torres Strait Islanders has been ranked among the highest in the world (Johannes & MacFarlane 1991).
A few communities are involved in small-scale commercial fishing enterprises, although in some cases licences are held only for the sale of fish within the local community. Commercial ventures include full or part ownership of licences in the Northern Territory pearling industry and several of the Territory's fisheries (Grey & Lea 1993), harvesting of crayfish, trochus and pearl shells in Torres Strait (Johannes & MacFarlane 1991) and harvesting of trochus shells in Western Australia. In 1990 Torres Strait Islanders operated 200 of the estimated 230 boats involved in the crayfish fishery in Torres Strait, and it is primarily Islanders who are involved in collecting pearl shells in Torres Strait.
Very little commercial fishing is currently done by indigenous communities in southern Australia, but evidence suggests that there was greater commercial activity prior to increased government regulation of fisheries. At Wreck Bay (Jervis Bay), for example, many community members are said to have fished commercially before the repeal in 1966 of a regulation that had exempted Aboriginal people from requiring a commercial licence. Today only one member of the community holds and operates a commercial fishing licence (Smyth 1993b; Egloff 1993).
Some coastal communities are involved in various ways in other forms of resource development, including mining, tourism and agricultural and pastoral activities. For example, in the Northern Territory and Queensland Aboriginal interests have negotiated royalty arrangements for a number of major resource developments, including the Ranger uranium mine, the Nabalco bauxite mine at Nhulunbuy, the Groote Eylandt Mining Company's manganese mine, and the Cape Flattery silica mine near Cooktown. Other examples are exploration for mineral sands on Bathurst and Melville Islands (a joint venture between Tiwi Resources Pty Ltd and Renison Goldfields Consolidated) and contracts for a number of activities associated with mining by Yirrkala Business Enterprises Pty Ltd (a fully Aboriginal owned and operated company based at Nhulunbuy). There are tourism ventures such as Tiwi Tours, provision of accommodation at Cape York, Kakadu National Park and Cape Leveque in Western Australia, the Dreamtime Cultural Centre at Rockhampton, and Wreck Bay Walkabouts at Jervis Bay; numerous Aboriginal dance companies operate in various centres in the coastal zone. There are also several agricultural enterprises operated by Aboriginal people; for example, at Point Pearce in South Australia.
A consultancy report commissioned by the Inquiry summarises evidence of the importance of coastal zone resources in contemporary indigenous economic and cultural life (Smyth 1993b).
10.08 In addition to these interests in the coastal zone, many indigenous Inquiry participants expressed a strong and continuing sense of belonging to, and responsibility for, those parts of the zone they consider to be their traditional estates. The sense of custodianship extends to sea as well as land areas and often focuses on particular places of cultural significance, including Dreaming tracks, story places, 'poison' places, burial grounds and archaeological sites. Box 10.2 discusses the traditional links that indigenous people have with coastal waters.
Box 10.2 Indigenous peoples' traditional links with the sea
Sites of significance occur in all types of coastal environments, including beaches, headlands, estuaries, reefs and the sea. Sites offshore were identified by indigenous people in Western Australia, the Northern Territory and Queensland; such sites have been documented up to 80 kilometres off the coast in the Northern Territory (Bergin 1991). Some inland groups also have cultural links with the sea through Dreaming tracks that cover long distances to the sea (Smyth 1993b).
Many groups of indigenous people consider areas in the sea as integral parts of their traditional country. Anthropological research shows that distinctive maritime cultures continue to exist among some indigenous communities (see Chase & Sutton 1981) and records dating back to early this century describe instances of a system of indigenous property rights relating to reefs and seas (Cordell 1992). Customary rights of access to and use of areas of seabed, seas and estuaries are acknowledged in the Torres Strait Treaty between Australia and Papua New Guinea (Article 12) and a limited form of sea rights exists in the Northern Territory (where areas of sea up to 2 kilometres from the low-water mark can be partially reserved for Aboriginal use) and Queensland (where tidal waters adjacent to Aboriginal land may be subject to claim by indigenous groups).
Although the knowledge, observances and management practices associated with marine tenure systems may have disappeared in many parts of the coastal zone, recent studies show they continue to exist in varying degrees in some areas (Cordell 1992, 1993). The nature of those systems was discussed with the Inquiry during visits to indigenous communities.
The links that many coastal indigenous people have with the sea as well as the land are recorded in a number of land claim inquiries-(for example, Woodward 1974; and Seaman 1984)-and were acknowledged in the report of the Ecologically Sustainable Working Group on Fisheries (1991a, p. 153; see also Northern Territory Faculty of Law & Centre for Aboriginal and Islander Studies 1993).
10.09 Indigenous people seek increased participation in all aspects of coastal zone management. At present, their participation tends to be greatest where legislation or other special arrangements exist to provide specially for indigenous interests. For example, in the Northern Territory indigenous groups' participation in coastal zone management is facilitated by the Aboriginal Land Rights (Northern Territory) Act 1976, which transferred all Aboriginal reserves to inalienable title, instituted a mechanism whereby Aboriginal people with traditional links to unalienated Crown land could claim such lands, provided royalty rights to minerals extracted from Aboriginal land, and established land councils with responsibility to land trusts for the management of these areas (Altman & Dillon 1988).
10.10 Similarly, the right of Torres Strait Islanders to be consulted on the management of Torres Strait is provided for in the Torres Strait Treaty, the main purpose of which is to 'acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement' (Article 10, para. 3; see also Chapter 15). The Commonwealth Government has also recently introduced draft legislation to establish a Torres Strait Regional Authority in response to calls by Islanders for greater self-management and recognition of their traditional culture. The proposed authority would be charged, among other things, with recognising and maintaining the unique culture of indigenous people in Torres Strait, developing policy proposals to meet the needs of indigenous people in the area, and formulating a Torres Strait Development Plan, incorporating a marine strategy to improve the economic, social and cultural status of indigenous people.
10.11 Customary laws regulating access to resources, the observance of traditional estate boundaries, and the controlled use of fire are examples of traditional management practices. Some cultural activities-for example, participating in ceremonies relating to the well-being of places or species-also represent a form of management. Such practices still occur, particularly in parts of northern Australia. In recent years interest has developed in the biological aspects of traditional knowledge and practices and the prospects for incorporating such knowledge and practices in conservation programs (HORSCERA 1993, pp. 64-6).
10.12 The remainder of this section provides a brief overview of indigenous participation in particular aspects of coastal zone management; consultancy reports commissioned by the Inquiry provide detailed documentation (Altman et al. 1993; Smyth 1993a, 1993b). A consultancy report (Jull 1993) provides information on international developments of relevance to indigenous people's involvement in coastal zone management; its principal findings are summarised in Box 10.3.
10.13 Fishing for food provides opportunities for many indigenous communities to maintain contact with their traditional estates and for new generations to learn traditional skills and cultural knowledge about the coastal environment. In remote areas it also provides opportunities for people to monitor the activities of other resource users such as recreational and commercial fishers and to report any breaches of regulations.
10.14 Indigenous people are formally involved in the management of commercial fishing only in Torres Strait and to a lesser extent elsewhere in Queensland. Torres Strait Islanders have an advisory role in the development of fisheries policy for the Torres Strait Protected Zone, which was established under the Torres Strait Treaty. These arrangements were initiated by the Torres Strait Protected Zone Authority, which administers the Zone. Islanders have no express rights under the Torres Strait Treaty or the Torres Strait Fisheries Act 1984 to initiate consultations other than at a local level (Murray 1992) and they are not represented on the Authority. The Authority does, however, have a policy of maximising opportunities for Islander participation in all sectors of the Torres Strait fishing industry; as a consequence, further expansion of non-Islander commercial fishing has been prohibited (Elmer & Coles 1991, p. 289).
Issues relating to recognition of indigenous resource interests have been prominent in other countries for much longer than they have in Australia. This box summarises some of the key developments that have occurred.
The Norwegian Constitution has been amended to reflect the 1984 finding of the government-created Sami Rights Committee that Norway is obliged by international law (Article 27 of the International Covenant on Civil and Political Rights) to protect the natural resource base of the Sami people, so that Sami culture is protected.
A series of court decisions have recognised indigenous traditional rights; for example, in Washington State a 1974 court decision awarded 50 per cent of total fish catches to Indians. In the face of the State's opposition and non-compliance a federal court created a co-management structure to resolve fisheries management issues. Initiatives included the formation of the Northwest Indian Fisheries Commission, a coordinating body that provides assistance, technical advice, program development and public information.
In 1990 the Supreme Court of Canada, in the Sparrow decision, said that indigenous communities have a constitutional right (subject to conservation interests) to fish for food, social and ceremonial purposes, and that this right must be interpreted liberally to protect their evolution over time. It also said that indigenous people must be consulted before governments make resource allocation decisions that affect indigenous peoples' rights. As a result of this case, the Canadian Government has moved to co-management of marine resources and related land and sea environments with the Indian nations through the Aboriginal Fisheries Strategy, including initiatives expected to cost $A160 million over a seven-year period.
The major court cases in Canada on indigenous rights, including the Sparrow case, have originated in British Columbia, which has been the scene of Canada's most persistent indigenous rights conflicts. Current local and regionally organised co-management arrangements have been developed 'without prejudice' to tribal and regional Indian 'treaty' negotiations, which are about to be negotiated. Marine and coastal co-management arrangements have also been implemented in the western Arctic following a 1984 agreement between the Canadian Government and the Inuvialuit; this agreement recognises preferential harvesting rights, control of access to the resource, participation in management, and the relevance of both traditional knowledge and modern scientific approaches to management. And in 1992 the government and the Inuit in the Northwest Territories (Nunavut) negotiated a political settlement that provides a comprehensive and unified resource management system on land and offshore, including the selection by Inuit people of particular lands for ownership and sub-surface rights.
In 1983 the New Zealand Parliament amended legislation to effectively recognise traditional fishing rights. Following a 1987 High Court decision restraining government from implementing a quota system for sea fisheries on the basis that it was creating new property rights without reference to Maori interests, new legislation was passed in 1989. This legislation recognised Maori fishing rights under the Treaty of Waitangi and reserved 10 per cent of the total fishery quota for Maori interests. Further settlements have since been negotiated to resolve Maori commercial fishing claims, including government funding of Maori interests in a joint-venture purchase of New Zealand's largest seafood company and reservation of 20 per cent of new fishery quotas for the Maori Fisheries Commission.
10.15 The Queensland Fish Management Authority has recently undertaken to include indigenous representatives on fisheries management advisory committees and has sought from the Queensland Department of Family Services and Aboriginal and Islander Affairs advice about the appointment of these representatives. At Kowanyama, on the west coast of Cape York Peninsula, the Aboriginal Community Council-the governing body for the local Deed of Grant in Trust area-has negotiated with relevant government agencies, in part through the purchase and subsequent surrender of fishing licences, the closure of some estuarine areas to commercial and recreational fishing to conserve fishery stocks. The Council has also established a Natural and Cultural Resource Management Office which, among other management tasks, monitors commercial and recreational fishing activity using a helicopter surveillance program. An Aboriginal ranger employed by the Council is a fisheries inspector under the Queensland Fisheries Act, with powers equal to those of government-employed fisheries inspectors. By agreement with the Queensland Fish Management Authority, the ranger limits inspection activities to the estuaries and coastal waters adjacent to the Kowanyama Trust Area. The Council controls the number of recreational fishers visiting the area and levies camping fees; revenue from the fees is used to help fund the helicopter surveillance program and fisheries research (Sinnamon 1992).
10.16 Formal indigenous participation in the management of marine parks is currently limited to representation on the Great Barrier Reef Marine Park Consultative Committee and the Queensland Marine Park Consultative Committee, which meet concurrently and have the same membership. Other types of participation include the employment of an Aboriginal liaison officer by the Great Barrier Reef Marine Park Authority and the recent establishment of councils of elders to advise the Authority on the allocation of dugong and turtle hunting permits. The draft 25-year strategic plan for the Great Barrier Reef World Heritage Area envisages a greater management role for indigenous people, but legislative changes will be required if indigenous interests are to be taken into account (GBRMPA 1992b).
10.17 The Authority currently takes account of indigenous interests in making decisions relating to zoning plans, but a recent review of the Authority (the Whitehouse report) proposes that the Authority be authorised to enter into formal management agreements with indigenous communities; the agreements would recognise a community's traditional rights of management in a particular area and constitute such an area as an Aboriginal Marine Management Area (Whitehouse 1993). Box 10.4 provides details of the review's recommendations. Zoning arrangements, including the establishment of 'outstation buffer zones' that restrict access to 'invitation only' and provide for an exclusive use zone for Aboriginal people, are also being considered by the Northern Territory Government as a possible means of meeting indigenous interests in some marine areas (Billyard 1993).
Box 10.4 Recognition of indigenous interests in the Great Barrier Reef
A recent review of the Great Barrier Reef Marine Park Authority for the Commonwealth Department of the Environment, Sport and Territories proposes that statutory recognition be accorded indigenous interests in the management of the Park. According to the review,
It is considered that the Great Barrier Reef Marine Park Act 1975 should be amended to authorise the Authority entering into formal management agreements with Aboriginal communities involving the following features:
(a) The Minister, following consideration by the Authority and the Ministerial Council, authorise the making of a management agreement between the Authority and Aboriginal communities recognising an Aboriginal community's traditional rights of management in an area of the GBR Marine Park and constituting such area as an Aboriginal Marine Management Area.
(b) In respect of each Aboriginal Marine Management Area there shall be constituted a Management Board comprising representatives of the Aboriginal community and the Authority but with a majority of Aboriginal representatives.
(c) The Board of Management would be empowered to prepare zoning plans and management plans and consider and determine permit applications within the area subject only to an overriding power by the Authority in circumstances where the Authority considered that the conservation values of the Marine Park were seriously threatened by any decision of the Management Board.
(d) Day to day management programs within an Aboriginal Marine Management Area would be undertaken under the supervision of the Management Board.
(e) The Authority would fund an Aboriginal ranger training program to provide identified Aboriginal ranger positions within the Queensland Department of Environment and Heritage to assist in DDM [day-to-day management] activities within an Aboriginal Marine Management Area.
The traditional Aboriginal interests in the management of parts of the GBR particularly in the Far Northern Section are of such a strong and enduring nature as to justify a direct recognition of that management role within the overall umbrella of the management of the GBR Marine Park.
10.18 The Queensland Department of Environment and Heritage, which is responsible for day-to-day management of marine parks in Queensland, employs several Aboriginal rangers and other Aboriginal staff and is negotiating with the Yarrabah Aboriginal community about joint management arrangements for that part of Cairns Marine Park adjoining Yarrabah.
10.19 The Northern Territory Government and indigenous groups are currently in dispute about the extent of Aboriginal involvement in managing Cobourg Marine Park, which lies adjacent to the Aboriginal-owned Gurig National Park (Billyard 1993; Northern Land Council, Submission 211). In Western Australia a proposal by indigenous groups and government agencies for a jointly managed marine park in the Buccaneer Archipelago lapsed in 1991 through failure to obtain government approval. Indigenous participation on the Ningaloo Marine Park Advisory Committee, established in July 1993, is at present being discussed. An Aboriginal commercial fisherman is on the Shark Bay Marine Park Planning Committee, but formal management arrangements are yet to be established (Smyth 1993b).
10.20 Indigenous communities in Torres Strait and along the north-east coast of Arnhem Land are developing projects to improve management of the marine environment (Mulrennan 1993; Williams 1993). Funded under the Commonwealth Government's Ocean Rescue 2000 program, the projects aim to give expression to indigenous people's views on how the marine and coastal environment should be managed in these regions and to lead to greater indigenous involvement in management. The projects have no formal status at this stage but have had considerable success in facilitating consultation between indigenous communities, government agencies and researchers; the Torres Strait project may eventually provide the basis for the marine strategy to be prepared by the proposed Torres Strait Regional Authority.
10.21 In some coastal areas Aboriginal traditional owners are engaged in joint management of national parks. Such arrangements-as at Kakadu and Gurig National Parks in the Northern Territory-have been negotiated as part of government recognition of Aboriginal ownership of the land on which these parks have been established. Of the eight World Heritage areas that fall wholly or partly in the coastal zone, Kakadu is the only one that has substantial indigenous involvement in management. Many indigenous people regard the arrangements at Kakadu and Uluru National Parks as models for joint management.
10.22 In addition to the continued use of traditional management practices such as burning-off and ceremonial observances, some indigenous communities have established formal bodies to improve their capacity to manage coastal areas subject to pressures from such sources as recreation uses, weed and feral animal infestations, and commercial fishers. These include the initiatives at Kowanyama and a similar land management body that has been established at Nhulunbuy in the Northern Territory (Dhimurru Land Management Corporation 1992). Other Aboriginal community councils and local government authorities, as well as umbrella organisations such as land councils, are also actively involved in land management.
10.23 Since they began on Palm Island and at Kowanyama in the mid-1980s, community ranger services have been extended to many indigenous communities on Cape York Peninsula and others are being set up in coastal Arnhem Land and the Kimberley area. Although operating without formal authority in many cases, the rangers are engaged in a variety of activities, including tourism management, archaeological surveys, cultural site management, community education, and liaison with government agencies such as conservation, customs and quarantine agencies. The ranger system has been developed mainly through the initiative of local communities and reflects the interest many communities have in caring for their traditional country. The rangers are funded primarily under the Commonwealth's Community Development Employment Projects scheme, whereby they forego their entitlement to Job Search or Newstart allowances in return for a wage at least equivalent to those entitlements.
10.24 Government assistance for indigenous people's land management activities is provided mainly through Commonwealth-funded programs; for example, the Aboriginal and Torres Strait Islander Commission's Land Acquisition and Land Management Programs, the Australian Nature Conservation Agency's Contract Employment Program for Aboriginals in Natural and Cultural Resource Management, and the Bureau of Resource Sciences' Aboriginal Rural Resources Initiative. There is also some in-kind assistance from government agencies (for example, the provision of ranger trainers) and there are financial arrangements with companies (for example, Nabalco's contracts with Dhimurru for providing services to the company's operations).
10.25 On land owned or controlled by indigenous people the management of cultural heritage sites is determined by community members. Sites elsewhere are generally the responsibility of state heritage agencies, which employ officers to record archaeological sites and liaise with indigenous people about management of the sites. Resources for cultural heritage protection are also available from several Commonwealth agencies, among them the Australian Heritage Commission and the Australian Nature Conservation Agency.
10.26 The Victorian Government provides funds to Aboriginal communities to employ cultural officers who undertake heritage management work on behalf of those communities. Many of these officers also serve as Aboriginal heritage inspectors under provisions of a 1987 amendment to the Commonwealth's Aboriginal and Torres Strait Islander Heritage Protection Act 1984. The amendment applies only in Victoria and provides inspectors with powers to issue interim protection orders to prevent the imminent destruction of sites pending further investigations.
10.27 Local governments also have an important role in conservation of sites because of their powers over development. Some indigenous communities, local governments and heritage agencies are beginning to work cooperatively to develop site management programs. In New South Wales local Aboriginal land councils have developed policies for Aboriginal involvement in archaeological surveys undertaken in environmental impact assessments; Wyong Shire Council north of Sydney, in conjunction with the New South Wales National Parks and Wildlife Service and the local Aboriginal land council, has developed a cooperative system of heritage management. Other important local government initiatives include the employment of Aboriginal policy development officers by the Australian Local Government Association and local government associations in Victoria and the Northern Territory. In Carnarvon, Western Australia, the local council has employed an Aboriginal liaison officer to improve relations between the council and local indigenous people.
10.28 In many places indigenous organisations undertake a heritage management role independent of or in conjunction with government agencies. In Tasmania, for example, the Tasmanian Aboriginal Land Council and the Tasmanian Aboriginal Centre are involved in documenting and protecting archaeological sites and Aboriginal people are participating in the management of several conservation areas in which there are significant cultural sites.
10.29 A number of important issues in coastal zone management arise from a consideration of the interests of indigenous people in Australia and developments overseas in relation to the rights of indigenous populations. Of particular concern for Australia's indigenous people are issues relating to the following:
10.30 The lack or perceived inadequacy of land tenure arrangements commensurate with their status as original owners of the coastal zone is the main issue concerning many indigenous groups. Governments' responses to requests for recognition of indigenous land rights have been varied, ranging from the Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976, which provides for the grant of inalienable freehold title to traditional owners and has resulted in the grant of some 35 per cent of Territory land to indigenous people, to the situation in Tasmania, where no land rights legislation exists. Other states have enacted various forms of land rights legislation, resulting in the transfer to indigenous groups of varying amounts of land under freehold or leasehold title.
10.31 A related issue is the lack of recognition given to indigenous ownership of marine estates, despite the findings and recommendations of several major inquiries. For example, in 1986 the Law Reform Commission recommended that in cases where a traditional association or special link with the sea could be established 'there should be provision for areas of the sea adjacent to Aboriginal land to be preserved for traditional fishing' (1986, vol. 2, p. 226). And, more recently, the Ecologically Sustainable Development Working Group on Fisheries said, an appropriate [coastal resource management] framework must be found to work within the customary tenure systems which extend over the land-sea interface and coastal waters used by indigenous groups in much of Australia, particularly north of the Tropic of Capricorn. (1991a, p. xliii)
10.32 The hopes of indigenous people for recognition of their status as prior owners and occupiers of Australia have been raised since the High Court's recognition of native title. Some coastal management agencies-for example, the Great Barrier Reef Marine Park Authority-are examining the implications of the High Court's decision for their operations and are working closely with local indigenous communities to ensure recognition of indigenous people's rights and interests.
10.33 Considerable disparities also exist between states in the recognition given to traditional hunting, fishing and gathering rights. In the Northern Territory, Western Australia and Queensland, for example, indigenous people are wholly or partly exempt from a range of legislation that regulates these rights; on the other hand, there are no such exemptions for indigenous people in Victoria or Tasmania (see, for example, Blokland & Flynn 1993; Halsbury's Laws of Australia 1991). In states where there is little or no recognition of these rights, particularly fishing rights, there is continuing tension between indigenous communities and relevant authorities, which has resulted in reports of harassment of indigenous people and a number of prosecutions (Chalk 1993; Smyth 1993b). Only in New South Wales is there a specified process for resolving disputes over access to land for traditional hunting, fishing and gathering purposes: the Aboriginal Land Rights Act 1983 provides for local land councils to apply to the Land and Environment Court for an access permit; the Act also provides for the appointment, as conciliation and technical assessors of the court, of persons with knowledge of land rights matters and qualifications and experience suitable for the determination of disputes involving Aboriginal people.
10.34 These differences in the extent of recognition of traditional rights persist despite recommendations for the Australia-wide recognition of such rights by the Law Reform Commission. That Commission based its opinions on the grounds that indigenous people should have the right to retain and develop their traditional lifestyle and identity, that a people should not be deprived of its own means of subsistence, and that food obtained for subsistence forms an important part of the diet of many indigenous people in remote areas (1986, vol. 2, p. 177). Similar recommendations have recently been made by the Royal Commission into Aboriginal Deaths in Custody (1991) and the Queensland State Government Inquiry into Recreational Fishing (1993). Recognition of such rights is provided for in several international conventions and in overseas countries such as the United States, Canada and Norway (Sutherland 1992a; Jull 1993).
10.35 A great deal of concern was expressed to the Inquiry that indigenous heritage, including sites of cultural significance in coastal areas not under indigenous control, is inadequately protected or managed by government agencies and that such heritage should be under the control of indigenous people. The Aboriginal and Torres Strait Islander Commission submitted, Coastal areas in Australia frequently contain large numbers of [culturally significant] sites and their protection and management is of prime importance to Aboriginal and Torres Strait Islander peoples. The divergence in the scope and administration of the State legislation has resulted in inadequate preservation and protection of sites of significance. Indeed, the greatest threat to significant cultural sites in the coastal zone lies in the process of rapid urbanisation which is now occurring in the zone and, in particular, residential developments controlled at the State and local government level. (Submission 546, attachment. para. 4)
10.36 A draft agreement on cultural heritage protection is being considered by governments but is limited to the protection and return of cultural property legally held by public organisations (Australian Aboriginal Affairs Council 1993). The Australian Heritage Commission does not have a management role in cultural site protection (see Transcript, p. 1929); it registers sites and advises on their management if asked to do so, but site management and protection are generally the responsibility of state agencies. Similarly, under provisions of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 the Commonwealth has limited powers to intervene where damage may occur to a significant Aboriginal site but it does not have responsibility for the management of protected areas. Nor does it have the power to ensure that the traditional owners of protected areas are involved in the management of those areas, although, as noted, special provisions in the Act relating only to Victoria can result in Aboriginal people being able to issue interim protection orders in that state.
10.37 According to the Aboriginal and Torres Strait Islander Commission, state governments have resisted recent Commonwealth proposals to strengthen Aboriginal heritage legislation and the emphasis in most existing legislation is on the protection of relics of past occupation or art sites rather than sites that embody sacred and secular traditions (Submission 701).
10.38 Sometimes legislation protecting sites and cultural objects is the only legal recourse people have for asserting their claims (Altman et al. 1993, pp. 62-3). Cultural information can thus be used by indigenous groups as a lever to increase their participation in coastal zone development and management processes. But indigenous people face a dilemma in providing cultural knowledge to governments and the public because it often means that they lose control over subsequent uses of that knowledge. The dilemma was succinctly expressed by the Cape York Land Council and the Aurukun Community Inc. Ltd: Information and ownership of it is a significant resource in its own right ... governments must accept that Aurukun people are very worried about the threat that public ownership of resource information poses to their efforts to preserve their cultural integrity and protect their land for their children ... we feel that public ownership and access to information relating to our land will only serve to increase pressure on us to permit development of these resources or allow greater access to them. (Submission 292, p. 14)
10.39 There is also widespread concern among indigenous people that pollution, environmental degradation and the depletion of fisheries are undermining the welfare, sustenance and cultural heritage of communities. According to the Aboriginal and Torres Strait Islander Commission, A significant number of government agencies approach environmental issues from the narrow perspective of natural resource use and conservation, or from their own particular perspective such as financial implications or the impact on local government. We believe that this situation also applies in relation to coastal zone management. Whilst ATSIC is cognisant of the importance of these perspectives it considers that a broader focus which encompasses social and cultural issues, and especially those of Australia's indigenous peoples, is now required. (Submission 546, para. 21)
10.40 As noted in Section 10.2, indigenous interests are represented on very few authorities responsible for the management of coastal zone resources. Nor do many decision-making processes make allowance for the time and cost involved in consulting indigenous communities, which are often highly decentralised both geographically and in authority structure. Many environmental impact assessment studies fail to take account of social and cultural issues, with the result that indigenous interests are considered poorly, if at all (Chase 1990; Craig 1990; see also Holden & O'Faircheallaigh 1991; World Bank 1991a). Frustration on the part of the indigenous people affected, and on the part of coastal managers and planners who must deal with conflicts that subsequently arise, is a common outcome of inadequate consultation.
10.41 The Council of Australian Governments has in principle accepted the need to negotiate with and maximise participation by indigenous people in the formulation of policies and programs that affect them (COAG 1992, p. 5). Some Inquiry participants noted that greater involvement is also required by a variety of international treaties, conventions and declarations covering such matters as the recognition of customary tenures, traditional knowledge, and participation by indigenous people in the administration of their traditional lands (see, for example, Sutherland 1992a; Jull 1993).
10.42 Despite some progress in this regard, including joint management or advisory arrangements for some national and marine parks, governments have been slow to act on the recommendations of previous inquiries into related matters. The Commonwealth has yet to respond to the Australian Law Reform Commission's 1986 inquiry into customary law, which, among other things, recommended amendments to the Great Barrier Reef Marine Park Act 1975 and the Torres Strait Fisheries Act 1984 to improve consultative arrangements. With the exception of Queensland, no government has acted on the recommendation of the Ecologically Sustainable Development Working Group on Fisheries 'that indigenous communities have membership on management advisory committees of appropriate fisheries' (1991a, p. xliv). And the Commonwealth has yet to successfully follow through its expressed intention to seek Australia-wide adoption of recommendations of the Royal Commission into Aboriginal Deaths in Custody relating to indigenous involvement in national park management. These recommendations included the encouragement of joint management, participation in the development of management plans, and access rights for subsistence and cultural purposes (Royal Commission into Aboriginal Deaths in Custody: Response by Governments 1992, vol. 3, pp. 1194-6). In 1993 the Royal Commission's recommendations were endorsed by the House of Representatives Standing Committee on Environment, Recreation and the Arts in its report Biodiversity: the role of protected areas (HORSCERA 1993, p. 70).
10.43 There are also impediments to the widely acclaimed community ranger system realising its full potential: an uncertain funding base; the lack of a career structure and long-term security of employment; difficulties associated with training and accreditation requirements; and the absence of powers commensurate with responsibilities (Birckhead & Wallis 1993).
10.44 Indigenous people throughout the coastal zone expressed dissatisfaction with the quality of consultation about coastal development. In some cases this dissatisfaction exists because consultation is perceived as 'too little, too late'. In other cases it is because resources and information are insufficient to enable effective participation in consultation processes or because those individuals and groups that are consulted do not represent the traditional owners or custodians of areas or resources in question.
10.45 Ways to improve communication and understanding between indigenous people and the mining industry were recently considered by the Mining Committee of the Council for Aboriginal Reconciliation (Council for Aboriginal Reconciliation 1993). The Committee recommended strategies for dealing with issues relating to communication, Aboriginal and non-Aboriginal education, access to land, Aboriginal employment and enterprise, and Aboriginal heritage legislation and resource development. In particular, it proposed the establishment of a Joint Council on Aboriginal Land and Mining to ensure action on these strategies. The Joint Council would be made up of representatives of the mining industry and indigenous people, and a senior officer of the Department of the Prime Minister and Cabinet; it would report to the Prime Minister on progress.
10.46 According to the Northern Land Council, 'Aboriginal land owners do not primarily assess their traditional estate as a commercial asset, and may not see the generation of cash from its resource use as a major priority' (Submission 211, p. 8). But there is a clear and growing interest in developing resources in order to generate income and community employment and to break away from welfare dependency. The results of welfare dependency are most recently documented in the report of the Royal Commission into Aboriginal Deaths in Custody. For Aboriginal communities, it is the ability to control and effectively participate in the management of their resources that is the greatest incentive for them to use their traditional assets in new ways.
10.47 As noted in Section 10.2, some indigenous groups are already involved either directly or indirectly in the commercial exploitation of coastal resources. Governments are seeking to encourage such initiatives: for example, in 1992-93 expenditure by the Aboriginal and Torres Strait Islander Commission on enterprise development programs specifically for indigenous people totalled $12.46 million; additional funds were provided for a variety of commercial activities, including tourism, horticulture, and retail property and entertainment operations through the Aboriginal and Torres Strait Islander Commercial Development Corporation (Social justice for indigenous Australians 1993-94). Indigenous industry development strategies are being developed for the arts and rural and tourism industries.
10.48 Many indigenous groups expressed concern to the Inquiry about the negative social and cultural impacts of development; in most cases the concern is associated with a lack of prior consultation, an inability to control or negotiate the nature and pace of change, and a failure to receive any or sufficient benefits or compensation (for example, employment or royalties). In the case of fisheries, there is additional concern about the cost of purchasing licences or quotas, as well as some objection about having to pay for the right to exploit a resource that communities perceive as traditionally their own.
10.49 Experience overseas suggests that providing greater property and resource use rights to indigenous communities may assist in resolving some concerns and conflicts about coastal zone management (Jull 1993). In the view of some Inquiry participants, the introduction of market-based incentives through such a specification of ownership rights could lead in the long term to a more efficient use of the resources. Options proposed to the Inquiry included the transfer of mineral rights to Aboriginal landowners, as recommended in the Industry Commission's report on the mining industry (1991b, p. xviii); the earmarking of a share of rents from resource use for indigenous interests; and acquisition of tradeable commercial fishing and mariculture licences.
10.50 Coastal land and marine resources are important both economically and culturally for many indigenous coastal communities throughout Australia. Depending on the manner in which these resources are managed, conditions of life for indigenous communities can be improved or degraded. As the original owners and managers of the coastal zone, Australia's indigenous people have a right to participate in, and benefit from, the management, development and protection of the zone.
10.51 Indigenous people seek greater involvement-through legislation where necessary-in resource management in order to achieve greater economic self sufficiency. There is considerable variation between governments and between government agencies in the extent of recognition of indigenous interests in coastal zone management. Although special legislative or administrative arrangements for indigenous people undoubtedly facilitate recognition and involvement, some indigenous communities have shown considerable initiative in negotiating participative arrangements, establishing commercial ventures based on coastal resources, and managing local natural and cultural resources.
10.52 The National Coastal Action Program provides governments with the opportunity to implement measures that are consistent with the agreement by the Council of Australian Governments to 'empower Aboriginal peoples and Torres Strait Islanders to protect, preserve, and promote their cultures and heritage' and to adopt as a guiding principle 'empowerment, self-determination and self-management' for indigenous people (COAG 1992).
10.53 The Program also creates the opportunity to respond to the recommendations of previous inquiries relating to indigenous people that have not yet been acted on and to build on the work of bodies such as the Mining Committee of the Council for Aboriginal Reconciliation.
10.54 Finally, the Program provides the opportunity to respond to important developments in recognition of the nature and extent of indigenous people's rights through constitutional and Aboriginal claim processes and in international forums such as the United Nations.
10.55 Considerable conflict, including situations of undue harassment (as have arisen in some cases), will be avoided if governments and indigenous people can negotiate an agreement that recognises the importance of hunting, fishing and gathering in many indigenous people's diets and cultures across Australia.
R.17 The Inquiry recommends that the Council of Australian Governments, in conjunction with representatives of land councils and other indigenous organisations, initiate a process whereby traditional hunting, fishing and gathering rights are recognised by governments and amendments are made to laws and regulations to incorporate this recognition and provide mechanisms for resolving disputes; in the interim, governments ensure that there are no unreasonable prosecutions relating to these matters under existing laws and regulations.
10.56 In this regard, the Inquiry deplores governments' lack of action in response to the recommendations of previous inquiries, in particular the Law Reform Commission's 1986 inquiry into the recognition of Aboriginal customary laws.
R.18 The Inquiry recommends that in the event of failure during 1994 to negotiate satisfactory nationwide arrangements for traditional hunting, fishing and gathering rights, the Commonwealth enact legislation to establish national criteria for such rights; the legislation be based on the principles, priorities and definitions recommended by the Law Reform Commission in its 1986 report on customary laws and be agreed through negotiations with the Aboriginal and Torres Strait Islander Commission and representatives of land councils and other indigenous organisations.
10.57 There is considerable variation across Australia in the extent of involvement of indigenous people in the management of conservation areas such as national parks, marine parks and World Heritage areas. In view of the importance of land and coastal waters in indigenous society, there is scope for much greater involvement in the management of these areas.
R.19 The Inquiry recommends that the Australian and New Zealand Environment and Conservation Council, in conjunction with the Aboriginal and Torres Strait Islander Commission and representatives of land councils and other indigenous organisations, establish criteria for the participation of indigenous people in the management of conservation areas, including national parks, marine parks and World Heritage areas; the criteria include provision for indigenous people's representation on relevant authorities and boards of management or equivalent bodies, and for the establishment of indigenous consultative committees to advise these bodies on issues that affect them; the Commonwealth take the initiative in this process by amending the Great Barrier Reef Marine Park Authority Act 1975, in accordance with this recommendation and the recommendation of the 1993 Whitehouse report that the Authority be authorised to enter into formal management agreements with indigenous communities.
10.58 The Inquiry notes the important contribution that some indigenous communities make to coastal zone management. Steps should be taken to ensure that more indigenous communities participate effectively in the National Coastal Action Program.
R.20 The Inquiry recommends that the Aboriginal and Torres Strait Islander Commission and the Australian Nature Conservation Agency, in conjunction with state resource management agencies,
10.59 As with local communities in general, the interests of indigenous communities need to be taken into account at an early stage in policy making relevant to coastal zone resource use.
R.21 The Inquiry recommends that state and Commonwealth natural resource management agencies establish units to provide advice on indigenous interests as part of policy-making mechanisms and consult with representatives of indigenous organisations and peak industry bodies in establishing these units; the Aboriginal and Torres Strait Islander Commission ensure that land councils and other indigenous organisations in the coastal zone have sufficient resources to carry out their responsibilities effectively when administering procedures for development proposals.
10.60 There is a need to improve communication and understanding between indigenous people and particular industries. The Inquiry commends the constructive work of the Mining Committee of the Council for Aboriginal Reconciliation.
R.22 The Inquiry recommends that the Department of the Prime Minister and Cabinet provide full support for the Committee's proposed Joint Council on Aboriginal Land and Mining.
10.61 Although many uncertainties remain about the long-term impact of the High Court's decision on native title, further exploration of the nature of customary marine tenure systems and traditional fishing practices is necessary if indigenous interests in fisheries management are to be recognised. Measures are also required to encourage self-reliance and the economic development of marine resources among indigenous coastal communities.
R.23 The Inquiry recommends that the proposed Ministerial Council on Forestry, Fisheries and Aquaculture, in conjunction with the Aboriginal and Torres Strait Islander Commission and representatives of land councils and other indigenous organisations, prepare an Aboriginal and Torres Strait Islander Fisheries Strategy. the key elements of the Strategy be as follows:
10.62 Improved educational and training facilities for indigenous people are necessary to ensure that those wishing to take part in commercial fishing ventures are able to do so effectively.
R.24 The Inquiry recommends that the Aboriginal and Torres Strait Islander Commission evaluate the experience of the Australian Centre for International Agricultural Research in supporting indigenous fisheries in the Pacific Islands, with a view to determining options for improving education and training among Australia's indigenous fishing communities; this evaluation include assessment of the potential education value of the experience gained by relatively successful indigenous organisations such as the Tiwi Land Council on Bathurst and Melville Islands and Yirrkala Business Enterprises Pty Ltd in north-east Arnhem Land; the Aboriginal and Torres Strait Islander Commission provide financial assistance and management training to indigenous people, to facilitate their participation in the commercial fishing (including mariculture) industry.
10.63 Information about cultural heritage generally-that is, for both indigenous and non-indigenous people-is an important component of the information needed for integrated management of the resources of the coastal zone, and it is essential for ensuring that heritage values are adequately protected. At present, state heritage bodies, the Australian Heritage Commission, and some museums, universities and other bodies collect, store and generally facilitate the gathering of heritage information. Some indigenous communities have also compiled and hold detailed records relating to their sacred sites and other areas of cultural significance.
10.64 Issues connected with the ownership and control of cultural property require resolution at intergovernmental level. Progress towards finalising an agreement between governments on cultural heritage protection is slow and the categories covered by the current draft agreement are very limited.
R.25 The Inquiry recommends that the Australian Aboriginal Affairs Council, in conjunction with representatives of land councils and other indigenous organisations, speedily adopt a national policy on ownership of and access rights to indigenous cultural property, including places, objects and information.
10.65 It is essential that the recording of sites-both those that have value as material evidence of original occupation and those that embody the sacred and secular traditions of contemporary indigenous people-occurs in as many indigenous communities as possible, to ensure that other users of coastal zone resources take account of the presence and significance of such sites and traditions. Existing agencies have insufficient resources to carry out this task in a comprehensive and coordinated fashion. Moreover, indigenous people believe that the process and the information should be controlled by local communities. The Inquiry agrees with this.
R.26 The Inquiry recommends that the Aboriginal and Torres Strait Islander Commission, the Australian Heritage Commission and the Australian Nature Conservation Agency, in conjunction with representatives of land councils and other indigenous organisations, review the role of Commonwealth programs and legislation in securing a national approach to recording and protecting indigenous cultural heritage; the review be conducted with a view to establishing a national Aboriginal and Torres Strait Islander Heritage Council to provide funds and advice to local indigenous communities so that they can record and protect cultural heritage sites and information and to coordinate the activities of existing government agencies administering programs of this kind; the review be conducted with a view to extending to other states provisions in existing Commonwealth heritage protection legislation that relate only to Victoria; the review examine the option of this Heritage Council playing a central role in helping local communities to implement natural resource management initiatives.