RES EAR C H

PUB Lie A T 1"0 N

No.3 1

Aboriginal and Torres Strait Islander interests in the Great Barrier Reef Marine Park

Dr Anthony Bergin
Department of Politics University College Australian Defence Force Academy University of New South Wales

A REPORT TO THE GREAT BARRIER REEF MARINE PARK AUTHORITY

© Great Barrier Reef Mari ne Park Authority ISSN 1037-1508 ISBN 0 642 17395 8 Published November 1993 by the Great Barrier Reef Marine Park Authority
The opinions expressed in this document are not necessarily those of the Great Barrier Reef Marine Park Authority.

National Library of Australia Cataloguing-in-Publication entry:
Bergin, Anthony. Aboriginal and Torres Strait Islander interests in the Great Barrier Reef Marine Park Bibliography ISBN 0642 17395 8

[11. Aborigines, Australian - Queensland - Water rights. 2. Torres Strait Islanders - Queensland - Water rights. 3. Marine resources - Queensland - Great Barrier Reef Marine Park Management. 4. Marine Parks and reserves - Queensland Great Barrier Reef - Management. 5. Great Barrier Reef Marine Park (Qld.l. I. Great Barrier Reef Marine Park Authority (Australia). II. Title. (Series: Research publication (Great Barrier Reef Marine Park Authority (Australia)); no. 31).
333.339

Great Barrier Reef Marine Park Authority
PO Box 1379 Townsville Qld 4810 Telephone (077) 818811

TABLE OF CONTENTS

Executive Summary Terms of Reference 1. INTERNATIONAL LEGAL DEVELOPMENTS RELATING TO RECOGNITION OF ABORIGINAL PEOPLES RIGHTS TO MARINE RESOURCES 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 2. International Covenant on Civil and Political Rights International Convention for the Elimination of all Fonns of Racial Discrimination International Labor Organisation Convention No. 169 1982 Law of the Sea Convention Draft Declaration on the Rights of Indigenous Peoples Agenda 21 Biological Diversity Convention SPREP GBRMPA Implications

I 3

4 4 5 5 7 8 10 12 13 13 15 15 18 21 21 23 24 24 25 26 27 28 29

OVERSEAS EXPERIENCE WITH INDIGENOUS SEA RIGHTS 2.1 2.2 2.3 2.4 2.5 New Zealand Canada United States South Pacific Implications forGBRMPA

3.

AUSTRALIAN EXPERIENCE WITH SEA RIGHTS 3.1 3.2 3.3 3.4 3.5 3.6 Sea Rights in the Northern Territory and Queensland Legislation on Aboriginal Fishing Rights Queensland Fisheries Legislation GBRMPA and Traditional Fishing TOITes Strail. Summary

4.

MABO AND MARINE TRADITIONAL NATIVE PROPERTY RIGHTS ....... 31 4.1 4.2 4.3 4.4 4.5 4.6 4.7 Summary of Mabo Judgement Mabo and Marine Traditional Native Property Rights Commonwealth Extinguishment of Marine TNPR State Extinguishment of Marine TNPR The Commonwealth and Marine TNPR Compensation for Loss of Marine TNPR GBRMPA Implications 31 33 35 36 38 38 39

iii

5.

GBRMPA AND INDIGENOUS RIGHTS ISSUES Smith Report 1987 Smyth 1990 Smyth 1992 Dugong Managemenl. Ziegclbauer Report 1991 The Cordell Report 1991 ESD Fisheries Working Group Report 1991 5.8 Smyth Report to the Resource Assessment Commission 1993 5.9 GBRMPA and AbOliginal and Islander Involvement 5.10 Summary 5.1 5.2 5.3 5.4 5.5 5.6 5.7

41 43 44 45 46 47 48 50 50 52 55 56

6.

FUTURE DIRECTIONS 6.1 Recommendations for Aboriginal and Torres Strait Islander representation on the Consultative Committee need to be aeted upon with a consequent change to the Act Augment the resources of the Aboriginal liaison offieer and move towards making this a higher level position 111e establishment of a separate Aboriginal and Islander Consultative Committee should be considered 111ere should be a formal recognition in the Aet that malitime clan boundaries and maritime elan estates wiII be recognised in zoning and management plans Recommendations for Aboriginal Management zones and Heritage areas in coastal regions near communities need to be acted upon Previous recommendations for Aboriginal communities to be involved in joint management strategies, using community rangers (see point 6.7 below) and to be dircetly consulted on marine resource use and management need to be acted upon The desire by Aboriginal communities to be involved in management through community rangers should be supported in ways Ulat stress local training and supervision Move towards local management struetures so that in the longer term the need for permits for traditional hunting wiII be rcduced or eventually not be necessary Strengthen information policies to target both Aboliginal communities and Ule public on issues of Aboliginal concern. Consult with the Lands Department on Trends in Aboriginal lands claims Improve effort.~ to consult with Torres Strait Islander people and engage them in the managemcnt of the marine park Collaborative Research Program Summary

56 57 58

6.2 6.3 6.4

59 59

6.5 6.6

60

6.7

64

6.8

66 67 68 69 70 71 73

6.9

6.10
6.11

6.12 6.13

Recommendations Acknowledgments Bibliography Appendix A: Extract from GBRMPA 25 year Strategic Plan 1992·2017

77
78

85

iv

TABLES TABLE 1: ABORIGINAL DEED OF GRANT IN TRUST COMMUNITIES IN QUEENSLAND 42 ABORIGINAL LOCAL GOVERNMENT COMMUNITIES 43

TABLE 2: TABLE 3:

ABORIGINAL INVOLVEMENT IN NATION AL PARKS AND PROTECTED AREAS 62 NATIONAL PARKS GAZETTED AS CLAIMABLE 69

TABLE 4:

v

Executive Summary The Great Barrier Reef Marine Park Authority (GBRMPA) is responsible for the care and development of a marine park within the Great Barrier Reef region. The object of the marine park is conservation of the reef. Reasonable use of the reef must be ensured in the development of zoning plans and management plans. Under its legislation, the Great Barrier Reef Marine Park Authority in drawing up zoning plans for usage of the area, must take into account all existing uses. Within the marine park there are Aboriginal individuals and groups who continue to identify themselves as traditional owners of maritime estates and who are keen to have their traditional claims to ownership of estates recognised. There is also a keen interest among maritime Aboriginal people to become more directly involved in marine management and decisionmaking within the park. The great strength of the bonds linking Aboriginal people and tlleir land is common knowledge but the knowledge and recognition of the cultural, economic and political importance of Aboriginal 'sea country' has not been given as much emphasis or attention. This report considers the broad direction of how Aboriginal and Torres Strait Islander interests should be incorporated in the marine park. Existing and emerging intemationallegal nonns support Aboriginal people with regard to entitlements to coastal marine resources as well as their strong interests as partners in comanagement regimes. These legal norms and principles should infonn the Authority as it structures its policies with respect to Aboriginal interests in the park. Political and legal developments in a number of countries that are attempting to deal with marine rights and indigenous people also need to be understood because these developments demonstrate that the political impol1ance of sea rights is now seen as a matter of some interest by Aboriginal people, not only as a focus for Aboriginal identity and to compensate for past wrongs, but also to gain the economic potential that the sea and its resources may provide. In Canada, New Zealand, tile US and the South Pacific indigenous groups have taken their battle for indigenous sea rights to the courts and won. Judicial decisions have been followed by legislative and executive changes which have given indigenous owners a primary role in tllC management of the marine resources of traditional domains. In framing its policies tile Authority should be aware that the broad political and legal trends overseas exhibit a respect for the existence of genuine, and possibly extensive marine resource rights and a commitment by govemmentto prepare for co-management negotiations. At the national level Aboriginal groups have concentrated on land ownership. Aborigines have thus put their political energies into negotiating land rights. TIus is reflected in the fact that the recognition of Aboriginal 'sea country' has not seen much movement at the legal or political level. However, Aboriginal groups are now looking closely at how indigenous marine rights issues are being developed overseas. It seems likely that marine oriented indigenous people in Australia will want to study such developments, legal trends and agreements and examine their relevance for their own situation. Perhaps the greatest boost to Aboriginal demands for marine rights has come from the Murray Island case, which in June 1992 effectively overtullled the long held legal doctrine of terra nllllills; that Australia was land belonging to no-one prior to Crown acquisition of sovereignty. Mabo certainly opens the way for arguments supporting marine traditional native property rights, although tllere are different problems in applying native title to the seabed than is the

case on land. Mabo has and will continue to raise expectations by Aboriginal groups for recognition of marine estates and to raise aspirations for a greater degrce of involvement in marine policy matters that affect their traditional maritime domains. The most likely offshore rights are those associated with fishing and marine hunting for food. Mabo principles if applied to native marine rights issues could see some groups take Uleir cascs to the courts. The Authority should avoid cosUy litigation by taking positive steps to respond to what have been Ule conservative claims of Aboriginal people to joint as opposed to exclusive management strategies in the park. GBRMPA has taken a number of steps to recognise Aboriginal interests in the park and it is perhaps unfortunate that there may have grown up a perception by some that the AuUlOrity has not considered Aboriginal traditional use and rights. There has certainiy been a category of traditional hunting and gathering with an associated definition of traditional inhabitant in all zoning plans from the Cairns plan onwards. In fact the AuUlOrity has led the way in commissioning research on various aspects of Aboriginal maritime culture. The reputation of the Authority has been given a boost by these reports. Again on Ule issue of consultation it is probably fair to say that for some Aboriginal communities the Authority was Ule first government agency to consult them on anything. While the Authority has undertaken a number of positive steps its efforts have been somewhat token. It has failed to come to grips with a number of key recommendations that it has already been given in previous research reporl~ on the way forward on indigenous issues in the marine park. The Authority needs to act on these if it is to be seen to be seriously addressing Aboriginal and Torres Strait Islander interests. Indigenous issues are really long-term and cannot be submerged by short-term considerations in marine managemcnt. As 1993 is the International Ycar for the World's Indigenous Pcople the Authority has a chance to be rccognised as undcrtaking positivc steps to realise Aboriginal and Torres Strait Islander marinc intcrcsts by devcloping comanagcmcnt arrangemcnts in appropriate areas in thc Marine Park. The key recommendations that the Authority needs to consider relate to places on Ule consultative committee, longer term structures to facilitate consultation, recognition of Aboriginal elan boundaries and maritime estates in zoning and management plans, establishmcnt of Aboriginal heritage zones, the need for Aborigines to be involved in joint management strategies, using community rangers and extra resources for Aboriginal liaison. The Authority will also need to liaise WiUl relevant Queensland State Government departments and be actively involved in negotiations on land claims and claims to tidal areas under the new Queensland Aboriginal and Torres Strait Islander Lands Acts. The new Acts may well see more Aboriginal coastal communities in the fulure. Resources will need to be provided if a successful Aboriginal and Torres Strait Islander strategy is to be implementcd.

2

Terms of Reference I. Analysis oflegal and political trends in Australia and overseas countries with respect to the recognition of the rights of indigenous people to marine resources. Analysis ofimplications of these legal and political trends for GBRMPA. Examination of the recommendations presented to the GBRMPA from commissioned research, workshop proceedings and MPA decisions etc. Analysis of actions which the GBRMPA could take with respect to ATSI interests having regard for compliance with Government policy and directions, moral obligations, statutory requirements and the State/Commonwealth division of powers, effects on other park users, current ATSI practices with respect to traditional hunting and fishing, endangered species legislation, establishment of co-management strategies, Aboriginal Management Zones, etc.

2. 3.

4.

3

1.

INTERNATIONAL LEGAL DEVELOPMENTS RELATING TO RECOGNITION OF ABORIGINAL PEOPLES' RIGHTS TO MARINE RESOURCES

International legal interest in indigenous peoples has increased steadily sincc 1982, when the UN Economic and Social Council created a Working Group on Indigcnous Populations. There has also been a growing direct involvement of indigenous people themselves in all levels of international decision·making (Barsh 1986; Hannum 1988; Williams 1990; Shutkln 1991; Torres 1991). The GBRM? Act (s.65) applies to all persons, vessels and aircraft 'subject to the obligations of Australia under international law, including obligations under any agreement between Australia and any other country or countries'. The GBRMPA should be aware that both existing and emerging international legal norms support Aboriginal peoples with regard to entitlements to coastal marine resources, as well as their strong interests as partners in co-management regimes. TIlese legal norms should be understood in the context of the GBRMPA developing its policies with respect to Aboriginal marine interests in the park. TIle instruments broadly recognise the rights of peoples to self·determination, the protection of cultural rights and to land and resouree rights. It is important that the GBRMPA in the development of its policies be informed by the international context of state responsibilities and human rights obligations, even though in many cases there may be very weak enforcement procedures. 1.1 International Covenant on Civil and Political Rights

Several areas of emerging legal norms are important as sources for protecting indigenous peoples' rights. Article 27 of the International Covenant on Civil and Political Rights I (ICCPR) provides that: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall/lOt be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. This provision has been interpreted by the UN Human Rights Committee as including a protection for tlle economic and cultural dimensions of resource harvesting. The case was in tlle context of a complaint by an indigenous person from Sweden relating to the right to carry out reindeer husbandry. The Committee found that while the regulation of an economic activity is nonnally a matter for the state, where the activity is 'an essential element in the culture of an ethnic community, its application to an individual may fall under article 27 of tile covenant'2 The Committee has also held that a law which prevented a member of an indigenous minOlity from residing on a tribal reserve was a denial of his rights to access his native culture and language if no such community lived outside the reserve. 3 In another case the Committee held that the leasing of Indian land by the Canadian government for commercial timber purposes violated article 27 because it could destroy the traditionallifeground of the Lubicon Lake band 4

1 Entered into (orce for Australia on 13 Augus11980. The Covenant is a schedule 10 the Huma" Righls flTld Eqwd Opporlul1ily Commission Acl1986 (Cth). Cultural rights under the International Covenant on Economic, Social and Cullural Rights (IeESeR) are worth noting. This treaty was ratified by Australia and came Into force In 1976. The ICCPR Is, however, more relevant to Australia as no sleps have been taken by Australia to incorporate the provisions of the ICESCR formally into domestic law. 2 Kl!ok v Sweden UN Doc CCPR/C/33/D/197/1985 released 10 August 1988 p,IO.

31.0v.I". v. Canada Report of th. Human RighI> CommJU.. UN GAOR 36th ..... Supp. No, 40, Ann•• Ag.oda n.m 18 atl66
UN Doc A/36/40. 4 Chief Ominayak and the Lublkon Lake Cree band v Canada UN Doc CCPR/C/38/D1671984 released 28 March 1990.

4

Article 27 will likely evolve in the context of Aboriginal rights to harvest resources, including marine resources, especially where it can be shown Umt the activity is integral to Aboriginal culture. It should be noted that Australia acceded on 25 September 1991 to the Optional Protocol of the International Covenant on Civil and Political Rights, whereby individuals (not groups) can in certain circumstances lodge a complaint with the Human Rights Committee concerning compliance by Australia with its obligations under the Covenant. 5 An individual must exhaust all available domestic remedies before submitting a written communication to the committee for a confidential hearing. This rule may be waived where the application of domestic remedies is unreasonably prolonged. This highlights the possible implications internationally if Australian human rights standards do not conform with standards as interpreted by the Committee. 1.2 International Convention for the Elimination of all Forms of Racial Discrimination

Australia ratified the International Convention for the Elimination of all Forms of Racial Discrimination in September 1975. Article 5 creates a positive obligation on Australia to prohibit and eliminate racial discrimination and to guarantee equality before the law. Such equality extends to equality of economic, social and cultural rights. The Racial Discrimination Act 1975 partially implements the Convention. Australia's obligations under the Convention require special measures to equalise the effects of past discrimination or to meet special need. Special measures are a form of discrimination in that they represent a form of different treatment toward an individual or group because of their racial identity or ethnic group. Article 4 of Ole Convention deals with this matter directly:

Special measllres taken for the sole pllrpose of secllring adeqllate advancemelll of certain racial or ethnic grollps or individllals reqlliring sllch protection as may be necessary in order to ensllre that sllch grollps or individllals eqllal enjoymelll or exercise ofhllman rights and ftmdamentalfreedolns shall not be deemed racial discrimination, provided, however, that stich measllres do not, as a conseqllence, lead to the maintenance ofseparate rights for different racial grollps and that they shall not be cOlllinlled after the objectives for which they were taken have been achieved.
The High Court has ruled that a provision in the South Allstrallan Lands Right Act which restricted access to Aboriginal land without special permission was prima facie discrimination on the basis of race but was valid because it was a 'special measure' under the Convention 6 1.3 International Labor Organisation Convention No. 169

In the field of international protection for Aboriginal rights, mention should also be made of Ole work of the International Labor Organisation. In 1989 it adopted a new Convention Concerning Indigenous and Tribal Peoples in Independent Countries. This far-reaching convention was the result of pressure from indigenous organisations to revise an earlier ILO convention No. 107 which was adopted in 1957. ILO 107 was adopted by only a few countries because of outdated references, in particular the emphasis on 'integration' was not seen as reflecting present thinking on Ule provision of a degree of autonomy and self-management for indigenous peoples. The drafting sessions were attended by indigenous NGO's-a first for the ILO, which ordinarily limits its meetings to governments, national trade unions, and employers' organisations. A coalition with the trade unions moreover gave indigenous peoples control of one third of the votes in the negotiations. This resulted in a comparatively strong final text (Barsh 1987). The treaty has Oms far been ratified by Bolivia, Colombia, Mexico and Norway and entered into force on 5 Septem ber 1991. The main theme of the Convention is indigenous
5 Justice Elizabeth Evatt has rcccnily been elected 10 the Commillcc.
6 Ccrhardy v. Brown (1985) 59 A.L.J.R. 311.

5

peoples' rights to 'control, as far as possible, their own development'. This includes their rights to continue to own and operate and manage every part of Ole ecosystem Oley have traditionally used, except minerals; to 'collaborate' in piarming and impact assessment if nearby lands are developed; and to be protected from adverse environmental impacts. It does include several provisions which could be very important in the future:

Article 7. Identification and Monitoring
I. The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural developmell/. In addition, they shall participate in the formulation, implementation and evaluation ofplans and programmes for national and regional development which may affect them directly.

2. The improvement of the conditiollS of life and work and levels ofhealth and education of the peoples concerned, with their participation and co-operation, shall be a mailer of priority in plans for the overall economic development of areas they inhabit. Special projects for development of the areas in question shall also be so designed as to promote such improvemell/. 3. Governments shall ensure that, whenever appropriate, sll/dies are carried ow, in cooperation with the peoples concerned, to assess the social, spiritual, cuill/ral and environmental impact on them ofplanned development activities. The results of these studies shall be cOllSidered as fundamental criteria for the implementation of these activities. Governments shall take measures, in co-operation with the peoples concerned, to protect 4. and preserve the environment of the territories they inhabit. Article 13. Public Education and Awareness In applying the provisions of this Part of the Convention governments shall respect the I. special importance for the cuill/res and spiritual values of the peoples concerned of their relatiollShip with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship. 2. The use of the term "lands" in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use. Article 14. Impact Assessment and Minimizing Adverse Impacts 1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Partic/llar allell/ion shall be paid to the sill/ation of nomadic peoples and shifting cultivators in this respect. 2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.

6

3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned. Article 15. Access to Genetic Resources 1. The rights of the peoples concerned to the natllral resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate ill the use managemellt and conservation of these resources. 2. In cases in which the State retaillS the ownership ofmineral or sub-slllface resources or rights to other resources pertaining to lands, governments shall establish or mailltain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their illterests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities. Article 23. Conference of ti,e Parties 1. Handicrafts, rural and community-based industries, and subsistence economy and traditional activities of the peoples concemed, such as hUllting,fishing, trapping and gathering, shall be recognised as important factors in the maintenance of their cultllres and in their economic self-reliance and development. Governments shall, with the participation of these people and whenever appropriate, ensure that these activities are strengthened and promoted. 2. Upon the request of the peoples concerned, appropriate technical andfinancial assistance shall be provided wherever possible, taking into account the traditional technologies and wltllral characteristics of these peoples, as well as the importance of sustainable and equitable development.
States which ratify Conventions are legally bound to meet their obligations under the provisions of the instruments. 1l1is convention, if ratified by Australia, will place a positive obligation to safeguard Aboriginal marine resource rights, particularly a right to continuity of enjoyment of subsistence resources, including fisheries.? The convention requires governments to negotiate and seek agreements with indigenous peoples before taking any action affecting thcm direclly, and to obtain their consent to measures which treat them differenlly from other persons. A decision on Australian ratification is expected to be made sometime in 1993. As Australia has consistently taken a prominent role in the development of international standards for the protection of the rights of indigenous peoples it would be consistent with this involvement for Australia to ratify this convention.

1.4

1982 Law of the Sea Convention

Another area of relevance may be the conceptual framework of the 1982 Law of the Sea Convention. Australia has signed but not ratified the Convention. The Convention is expected to enter into force in the next year. (Currently there are 51 States that have ratified the Convention. It requires 60 ratifications to enter into force.) Compensation may be paid to indigenous peoples displaced, marginalised or otherwise injured by marine or marine related
7 Some Aboriginal groups claim thallhe Convention docs nol go far enough. They claim firstly that it provides for consultation with Indigenous people rather than control by these people on issues affecting them, secondly Ihat il fails to address the issue of sovereignly, thirdly the use of the term 'peoples' in the Convention is given a restricted meaning, in particular as II affects the righlto self-determination and finally Ihat in parts it remains 'assimilalionlst', <Personal communlcalion Peter Sdmien!r, ATSIC).

7

developments. Article 235 urges states to develop the law and procedures for compensation payable because of pollution damage to the marine environment. Such an intcrnational obligation may be voluntarily assumed by states at a national level, as well as in a negotiated search with indigenous peoples as to the parameters of an adequate compensation scheme (Valencia and VanderZwaag 1989,156).

l.S

Draft Declaration on the Rights ofIndigenolls Peoples

Also important in the emerging international norms in the field of Aboriginal rights and of particular interest in considering Aboriginal marine interests is the recent United Nations Draft Universal Declaration of the Rights of Indigenous Peoples (Sanders 1989; Barsh 1990). The Working Group on Indigenous Populations has met every year since its establishment in 1982 except 1987, providing a uniquely unrestricted forum for indigenous peoples to express their concerns. Representatives of Australian indigenous organisations have participated in the Working Group's negotiations. Early drafts were prepared by the Chair of tile Working Group, Professor Elica-Irene Daes of Greece, but a new procedure was adoptcd in 1990, in which representatives of both governments and indigenous peoples participated in revising the text line by line. This recognised tile special character of indigenous peoples since non-government organisations (NGGs) do not have a formal drafting role in UN bodies. A number of the draft principles may open the door to greater maritime rights for indigenous pcoples: 8

Operative paragrap1l16 Indigenous peoples have the collective and individual right to own, comrol and use the lands and territories they have traditionally occupied or othenvise used. This includes the right to the full recognition of their own Imvs and customs, land-tenure systems and institutions for the managemem of resources, and the right to effective measures by States to prevem any ime!ference with or encroachment upon these rights. Nothing in the foregoing shall be interpreted as restricting the development ofself-government and self-management arrangemems not tied to indigenous territories and resources; Operative paragrapll17 Indigenous peoples have the right to restitution or, where this is not possible, to just andfair compensation for lands and territories which have been confiscated, occupied, used or damaged without their free and informed consem. Unless otherwise freely agreed upon by the peoples concerned, compensation shall preferably take the form of lands and territories of quality, quantity and legal status at least equal to those which were lost; Operative paragrapll 18 Indigenous peoples have the right to the protection and, where appropriate, the rehabilitation of the total environmem and productive capacity of their lands and territories, and the right to adequate assistance, including imernational cooperation, to this end. Unless othenvisefreely agreed upon by the peoples concerned, military activities and the storage or disposal of hazardous materials shall not take place in their lands and territories;

8 RetUN Doc E/CN.4/Sub.2/1992/20 Augus11992.

8

Operative paragraph 20 Indigenous peoples have the right to require that States and domestic and transnational corporations cOllSult with them and obtain their free and informed consellt prior to the commencemelll of any large-scale projects, particularly natural resource deve/opmem projects or exploitation of mineral and other subsoil resources, in order to enhance the projeclS' benefits and to mitigate allY adverse economic, social, environmemal and cultural effects. Just andfair compensation shall be providedfor any such activity or adverse consequence undertaken; Operative paragraph 21 Indigenous peoples have the right to maimain and develop within their lands and other territories their economic, social, and cullllral strucllIres, illStillltions and traditions, to be secure in the enjoyment of their traditional means of subsistence, and the right to engage freely in their traditional and other economic activities, including hunting,fishing, herding, gathering, lumbering and cllitivation. In no case may indigenous peoples be deprived of their means of sllbsistence. They are entitled to just andfair compensation if they have been so deprived. The declaration even recognises indigenous peoples' right to 'self determination', defined as their right to determine their relationships with the states in which they live. In other words it would call upon governments to negotiate with indigenous peoples, and come to constitutional agreements on the extent to which their indigenous peoples would govern themselves and their own territories. 9 Important in the Australian context are the right to traditional economic structures, the right to engage in traditional activities and the concept of fair compensation for deprivation for resource rights. These provisions will become an international declaration-a statement of policy by the UN General Assembly. Unlike a convention it is not legally binding on ratifying states. However in practice there is very little distinction between the two kinds of instrument when it comes to enforcement. The declaration will probably be 'implemented' through some annual discussions in the UN Commission on Human Rights while the lLO convention will, as noted above, require governments to submit periodic reports to the !LO. It should be noted that many UN declarations eventually end up as international conventions, which do of course create legally binding obligations on the ratifying state, including periodic reporting on domestic measures taken to give effect to its obligations under the instrument. The declaration will certainly be used by indigenous groups to support their goals and objectives. The Working Group on Indigenous Populations met in its tenth session from 20-31 July 1992. It decided to make every effort to complete its work on the Draft Declaration at its eleventh session in 1993, so that the text would be ready to be reviewed by the relevant bodies of the UN in 1994. Aborigines and the Australian government have played a significant role in the deliberations of the working group (Brennan 1991,110-120). Australia has taken an active role in the Working Group and at its last meeting the Minister for Aboriginal and Torres Strait Islander Affairs, Mr Tickner, emphasised the important role of !lIe Working Group in promoting and protecting the rights of indigenous peoples (Tickner 1992).

9 The conceptual framework in the declaration finds support in the World Commission on Environment and Development which stressed the need (or indigenous participation in resource development decisions.

9

1.6

Agenda 21

Various key indigenous NOO's were granted accreditation at the UN Conference on Environment and Development meeting (UNCED) convened in Rio de Janiero from June 3 to June 14 1992. Oceans matters were a major part of the UNCED negotiations from the first preparatory session in 1990 (Knecht and Cicin-Sain, 1993). The resulting oceans chapter in the 700 page program of national and international action ('Agenda 21 ') adopts a number of principles and actions that will impact on Aboriginal marine interests. Agenda 21 is not legally binding, but as Australia participated in the drafting of Agenda 21 and fonnally approved its content, it has associated itself with the fmdings of the Agenda (as to the existence of certain problems and needs), and with the prescriptions for solutions laid out in the document. Australia can be expected, therefore, to commit itself to implementing the Agenda's action programs.

17.6 Each coastal State should consider establishing, or where necessary strengthening, appropriate coordinating mechanisms (such as a high-level policy planning body)for illlegrated managemelll and sustainable development of coastal and marine areas and their resources, at both the local and national levels. Such mechanisms should include consultation, as appropriate, with the academic and private sectors, llOn-governmelllal organizations, local communities, resource user groups, and indigenous people. 17.15.Coastal States sllOuld promote andfacilitate the organization of education and training in integrated coastal and marine management and sustainable development for scientists, technologists, managers including community-based managers and users, leaders, indigenous peoples,fisheljolk, women and youth, among others. Managemelll, development, as well as environmental protection concerns and local planning issues should be incorporated in educational curricula and public awareness campaigns, with due regard to traditional ecological knowledge and socio-cultllral values. 17.75.States commit themselves to the conservation and sustainable use of marine liVing resources under national jurisdiction. To this end, it is necessary to: (a) Develop and increase the potential ofmarine living resources to meet human nutrWonal needs, as well as social, economic and development goals; Take into account traditional knowledge and interests of local communities, small-scale artisanalfisheries and indigenous people in developmelll and management programmes; Mailllain or restore populations of marine species at levels that can produce the moximum sustainable yield as qualified by relevalll environmelllal and economic factors, taking illlo consideration relationships among species; Promote the development and use of selective fishing gear and practices that minimize waste in the catch of target species and minimize by-catch of non-target species; Protect and restore endangered marine species; Preserve rare or fragile ecosystems, as well as habitats and other ecologically sensitive areas.

(b)

(c)

(d)

e)
(j)

10

17.83. Coastal States should ensure that, in the negotiation and implementation 0/ international agreements on the developmelll or cOlIServation 0/ marine living resources, the interests 0/ local communities and indigenous people are taken into account, in particular their right to subsistence. 17.95.Coastal States, with the support 0/ relevant subregional, regional and global agencies, where appropriate, should: (a) Develop research capacities/or assessmelll o/marine liVing resource populations and monitoring; Provide support to local fishing communities, in particular those that rely on fishing for subsistence, indigenous people and women, including, as appropriate, the technical and financial assistance to organize, maintain, exchange and improve traditional knowledge o/marine liVing resources and/islling techniques, and upgrade knowledge on marine ecosystems;

(b

Chapter 26 of Agenda 21 is titled 'Recognising and Strengthening the Role ofindigenous People and their Communities'. It defmes 'lands' to include the environment of the areas which the people concerned traditionally occupy. 26.3. In/ull partnership with indigenous people and their communities, Govemmellls and, where appropriate, intergovernmental organizations should aim at/uifilling the/ollowing objectives: (a) Establishment 0/ a process to empower indigenous people and their communities through measllres that incillde:
(I)

Adoption or strengthening 0/ appropriate policies and/or legal instruments at the national level; Recognition that the lands 0/ indigenous people and their commllnities shollid be protected/rom activities that are environmelllally ulISollnd or that the indigenolls people concemed consider to be socially and cul/llrally inappropriate; Recognition 0/ their vailles, traditional knowledge and resource management practices with a view to promoting eIlvironmentally sOllnd and sustainable development; Recognition that traditional and direct dependence on renewable resOllrces and ecosystems, incillding sllstainable harvesting, continues to be essential to the cllirural, economic and physical well-being 0/ indigenolls people and their commllnities; Development and strengthening 0/ national displl/e-resoill/ion arrangements in relation to settlement 0/ land and resollrce-management concems; Support/or altemative environmentally sound means o/prodllction to enslire a range 0/ choices on how to improve their qllality 0/ life so that they effectively participate in sustainable development;

(Ii)

(iii)

(iv)

(v)

(vi)

11

(vii)

Enllancemem of capacity-building for indigenous communities, based on tile adaptation and excllange of traditional experience, knowledge and resource-managemem practices. to ensure tlleir sustainable development;

(b)

Establisllmem. where appropriate. of arrangements to strengthen the active participation of indigenous people and their communities in tile national formulation ofpolicies. Imvs and programmes relating to resource managemem and other developmem processes that mtty affect them. and their initiation of proposals for such policies and programmes; Involvement of indigenous people and their communities at tile national and local levels in resource management and conservation strategies and other relevant programmes established to support and review sustainable development strategies. such as those suggested in other programme areas of Agenda 21.

(c)

The UNCED Declaration on Environment and Development ('Rio Declaration') ineludes the principle that; Indigenous peoples and their communities. and other local communities. have a vital role in environmemal managemem and developmem because of tlleir knowledge and traditional practices. States silO/lid recognise and duly supporttlleir idemity. cullllre and interests and enable tlleir effective participation in tile achievement ofsustainable developmem. Agenda 21 in terms of the standards endorsed represents a new benclunark in global consensus on the approaches states should be adopting to achieve sustainable development. Australia will now have to consider how its policies support these goals. It should be pointed out, however. that the reporting and review procedures that emerged from the UNCED process are not particularly rigorous. Under the heading of national implementation in the institutional chapter of Agenda 21, there is no reporting obligation, but 'states could consider Ule preparation of national reports ... and national action plans forthe implementation of Agenda 21'. The Commission on Sustainable Development that will be established under the UN Economic and Social Council with overall responsibility for follow up of Agenda 21 will 'consider information provided by governments, including, for example, in the form of periodic communications or national reports regarding the activities they undertake to implement Agenda 21'. 1.7 Biological Diversity Convention

The Biological Diversity Convention, signed by Australia as well as more Ulan 150 countries in June 1992 at Rio. is also likely to impact on traditional hunting and fishing practices. The Convention will enter into force 90 days after 30 countries have ratified it. TIle Convention. which sets out obligations and objectives for nations to combat the destruction of plant and animal species and ecosystems, recognises the rights of indigenous peoples in the following provisions: Article 8. In-silll Conservation
(j)

Subject to its national legislation. respect, preserve and maintain knowledge. innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for tile conservation and sustainable use of biological diversity and promote tlleir wider applicationwitlltlle approval and involvement of the 1I0iders of sucll knowledge, innovations and practices and

12

encourage the equitable sharing of the benefits arising from the lIIilization ofsuch knowledge, innovations and practices; Article 10. Sustainable Use of Componeflts of Biological Diversity (c) Protect and encourage customary lISe ofbiological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requiremeflts;

Article J8. Technical and Sciefltifjc Cooperation The Contracting Parties shall, ill accordance with national legislation and policies, 4. encourage and develop methods of cooperation for the developmeflt and lISe of technologies. including indigenous and traditional technologies. in pursuance of the objectives of this Convention. For this purpose, the Contracting Parties shall also promote cooperation in the training ofpersonnel and exchange of experts. Like most other international agreements, enforcement mechanisms are its weakness-there is a requirement for periodic reports to a conference of the parties for their review and comment. 10

1.8

SPREP

At the regional level Sutherland points out that governments in the South Pacific and Australia have been recently urged at a South Pacific Regional Environment Program meeting to promote 'protection, recording and integration into biological conservation of traditional knowledge and resource use practices'. TIle Convention on Conservation of Nature in the South Pacific (SPREP) which came into effect in March 1990 when Australia ratified allows contracting parties to make provision for customary use of areas and species in national parks and national reserves in accordance with traditional customary practices (Sutherland 1992). The Convention only mentions traditional practices in its preambular paragraph but Sutherland points out that the 1991 SPREP Ministerial Declaration on Environment and Development reaffumed principles in the 1982 Rarotonga Declaration on the Human Environment in the South Pacific. TIle latter Declaration urged the study of traditional marine tenure systems and their reconciliation with environmental management (Sutherland 1992: see generally Bergin 1992).

1.9

GBRMPA Implications

The provisions outlined above represent areas of emer~ng international nonms and arc likely to be the main features of human rights law in the future. I The GBRMPA should use these principles to structure the development of policy relating to Aboriginal and Torres Strait Islander marine rights. At the international level the enforcement of indigenous rights recognised by international law will lie in the pressure of other states and the encouragement of UN functionaries. TIlere are few incentives for governments to comply with the fonmal findings or recommendations of UN committees. Of course for an open society like Australia publicity
tOn.e United States has refused
10

sign the Biodiversity Convention. They objected 10 the language of the provision on patenling of

products made from nalural biological resources; they feared that the article on funding of conservation projects in developing countries

would nol leave suHicient control in the hands of donors and they also cited scientific uncertainty surrounding loss of diversity as a reason for not signing. See New Scielllisl 6 June 1992. The US ferussllo sign is unlikely to prevent the Convention from gelling the necessary 30 ratifications to bring it into force. lilt is worth noting !hat an important NGO, the International Union for the Conservation of Nature has recently established an IUCN Task Force on Indigenous Peoplt5. The Task Force will be funded by IUCN to examine cross sectori.1 issues in nalure consernUon in rel.tion to the involvement of indigenous people. The T.sk Force should act as forum to promote the awarent5s and involvement of indigenous peoples in the full spectrum of mCN activities. The mCN also hIS a working group on cuhu,.) sustainability.

13

and embarrassment as a result of international criticism may have some effect. In the past, though, Australia has used UN meetings to detail new initiatives on indigenous rights hoping to attract international support. In the municipal sphere Aboriginal rights under general international law do not generate rights except to the extent of any parliamentary response. Where statute law is silent the common law can only respond to international law in a very limited manner (McHugh 1991,216). However, countries have based their domestic initiatives on ideas which originated in international discussions. A striking example here was New Zealand's publication of the Draft Declaration of Indigenous Rights-in Maori-as a basis for continuing domestic negotiations on Maori rights. However, policy makers should also bear in mind that increasingly Australian courts are being presented with arguments that certain statutory provisions must be construed in conformity with a human rights treaty even though it has not been incorporated into Australian law; or that a court should treat a principle contained in the treaty as part of customary law that should be regarded as directly applicable; or that administrative discretions under statute must be exercised in conformity with, or having regard to those international law rules. Judges will therefore need to become more familiar with international material. Australia's acceptance of the Optional Protocol to the International Covenant on Civil and Political Rights may make Australian judges more conscious of human rights standards (Burmester 1992,20). While traditionally courts have tended to shy away from the whole area of international law becausc of its 'political character' (Crawford and Edeson 1984) courts are now being called upon to apply and be guided by international human rights standards. As to how the courts will use international law material the head of the Office of Intemational Law in the Commonwealth's Attorney General's Department has pointed out after an extensive analysis of tile case law that while it is early days and generalisations are difficult courts will use international law to resolve ambiguities and gaps. While a fairly narrow view of the types of customary rules that might be incorporated has been taken, where Australia is party to a treaty a court will be more prepared to consider the relevance of the treaty standard to a palticular situation and may be expected to give a wide purposive interpretation to the particular provision (Burmester 1992).12 Certainly indigenous peoples are arguing strongly that tileir relationship to the State should be treated as a maner of international law. As Nellheim has pointed out: 'What is already evident is tilat tile collective rights of indigenous peoples have joined the individual rights of humans generally as a legitimate concern of international law' (Nettheim 1991,19). In the evolution towards greater self determination indigenous groups will seek to rely on the development and application of international human rights doctrines. lllese doctrines will increasingly come to be relied on by indigenous peoples in a legal, political and moral sense in the control and management of marine resources and ocean space. In shaping its policies on indigenous marine issues the GBRMPA should be aware tilat these principles are likely to be the mainstays of international human rights law. They should be reyarded by tile Authority as the minimal requirements as it shapes a holistic marine policy. 3 Since many of tile international standards in Utis area arc still evolving the AutilOrity'S indigenous policy should be geared to tile norms and standards likely to be in force in a generation hence, even though, as noted earlier, in most cases these may possess nebulous enforcement procedures.
12 As Drennan J pointed out in the recent Mobo judg~menl: The common law does not necessllJily confonn with inlernationallaw, but international law is a legitimate and important innuence on the development of the common law, especially when inlemalionallaw declares the existence of univcll.1 human rights. A common law doclline founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to

entrench a diKriminatory rule which, because or the supposed position on the scale or social organisation of the indigenous inhlbitants of I senle<::l colon)', denies them a right to occup)' their lriditioniliands.' (1992) 66 A.L.J.R. 422. 13 It rna)' be worth noting thlt the Human Rights and Equal Opportunity Legislation Amendment Bill (No.2) 1992 creates a new Aboriginal and TOTTes Strait Islander Social Justice Commissioner who will preplU'C an annual reJ>Oft on the enjoyment and exercise of

human riahtl by Aboriainlland Torr" Slrlit blllIder peoplc, to be Ulbled in puliamcnt and lent to all SUltel and TClTitoriCl, S'Mr,

14

2.

OVERSEAS EXPERIENCE WITH INDIGENOUS SEA RIGHTS

In New Zealand, US, Canada, and the South Pacific indigenous groups have taken their battle for indigenous sea rights to the courts and won. Judicial decisions have been followed by legislative and executive changes which have given traditional owners a primary role in the management of the marine resources of their traditional domains. 14

2.1

New Zealand

The last decade has witnessed a dramatic advance in both statute law and case decisions concerning the recognition of Maori rights, originaUy provided in the Treaty of Waitangi of 6 February 1840 (see McHugh 1991). The Waitangi tribunal was set up in 1976 to inquire into any claims by the Maori people that some action of the Crown violated the principles of the Treaty of Waitangi, principles which the tribunal was also obliged to interpret. The tribunal's findings are not binding as it is more a commission of inquiry than a court. It passes recommendations to government, which has no specifically established procedure for dealing with them. In 1983 the New Zealand parliament amended the fisheries act so that 'nothing in this Act shall affect any Maori fishing rights'. Subsequently the courts, which prior to 1986 had consistently rejected Maori fishing claims, have held tllat validity and primacy of traditional fishing rights are exempt from the ordinary regulations and limitations under the act on fishing grounds and quotas. The rights are limited to the particular tribe and its authorised relatives for food supply. Some commentators suggest that in New Zealand sea rights are incidents of native title, recognised by treaty, ratller than deriving from treaty (see Boast 1990). The Waitangi Tribunal's view is that treaty rights do include tile right to commercial development of the fishery. In Muriwhenua, tile Tribunal found that the laws of general applicability made for the purpose of conservation are a valid exercise of the governorship granted to the crown, provided that the priority of treaty fishing interests over recreational fishing is taken into account (Muriwhenua 1988; 227; Mylonas-Widdall 1988; Austin 1989; Levine 1989). Just as importantly was a High Court judgement obtained by Maori interests in 1987 restraining tile government from implementing a quota system for sea fisheries (see McHugh 1991,142). The Maoris argued tlJatthe quotas were creating new property rights without reference to them and was contrary to tile principles of the Treaty of Waitangi. The upshot was a Maori Fisheries Act 1989. which recognises Maori fishing rights secured under the Treaty of Waitangi and reserved 10% of tile total fishery quota for Maori interests. According to the NZ fishing industry tllis equates in value to approximately 50% of the total inshore quota. This quota forms an important source of earnings for tribal trusts. The South Island's Ngai Tahu tribe has earned more than $1 million in 1992 by leasing its quota. This amount may well be boosted by the Waitangi Tribunal's 400 page report on the Ngai Tahu Sea Fisheries handed down on the II August 1992 (Waitangi TribunaI1992a). The Tribunal's recommendations proposed a negotiated settlement of the Ngai Tahu sea fishery grievance. It recommended that a settlement should include an additional percentage of quota to Ngai Tahu under the quota management system and the delivery mechanism should be the Maori Fisheries Act 1989. The Tribunal also recommended return of exclusive eel fishing rights in Lake Ellesmere and cancellation of existing eel fishing licenses with compensation to existing licence holders. The Waitangi Tribunal rejected the Ngai Tahu claim to all sea fisheries off their boundaries. The Tribunal found that Ngai Tahu has an exclusive treaty right to the sca
Hansard,24 November 1992, pp.3340·3341. The first Aboriginal and Torres Slraitlslander Social Justice Commission is Mr. Michael Dodson, the Director of the Northern Land Council. See 'Social Justice Commissioner named', The AUJlrOUOfl, 23-24 January 1993. 14This chapleT focuses 00 fisheries issues ahhough il is recognised issues relaling 10 cultural tourism may also be relevMI in the GDRMP.

15

fisheries surrounding the whole of their coastline to a distance of 12 miles or so. Ngai Tahu also has a treaty development right. exclusive to tile tribe. to a reasonable share of the sea fisheries off their coastline cxtending beyond the continental shelf and into dccp watcr fisheries within the exclusive economic zone. The Tribunal found that it was not in a position to cvaluatc accuratcly the value of sea fisherics to which Ngai Tahu is entitled. Howevcr. it was noted that appropriate allowance should be made for thc inshore fishery off the Ngai Tabu coastline when assessing the reasonable share of the Ngai entitlement. There is a need for the crown and Ngai Tabu to negotiate and reach a settlcment by way of compromise. According to the report. circumstances such as public conscience. the nation's ability to meet the cost and the need for a permanent solution should be considered. The Tribunal found that Ngai Tahu were prejudicially affected by various acts and omissions. policies and statutes of the Crown relating to their sea fisheries. 11lese breaches were inconsistent with the principlcs of the Treaty of Wailangi. The failure of the Crown to provide adequate land resources directly affected the tribe. preventing the continuation of their thriving and expanding sea fishing activity. A further serious brcach was the assumcd right of the Crown to dispose of Maori fisheries without the consent or consultation with tile tribe as if thc fisheries were crown property under the quota management system. FurUler breaches were a failure to protcct and conserve sea fisheries; the Crown's assumption that non-Maori had equal rights with Maori in the whole of thcir fishery; the Crown's wrongful assumption that it owned the oysters offered for sale for public tender; and tile Crown's failure to give statutory rccognition of the Treaty in fisheries legislation. The report also recorded that despite repeated requests from Ngai Tahu the Crown refused to give effect to legislative provisions which provided for the reservation of cxclusive Maori fishing grounds. Since the release of the report Maori and Crown negotiators have announced a proposal tllat tlley hope will take care of the Maori share in commercial fishing once and for all. The dcal involvcs the Crown buying for the Maori half of New Zealand's biggest fishing company. Sealords. All fishing claims undcr the Treaty of Waitangi would tllen be dropped. On thc 27 August 1992 thc New Zealand government announced that it would fund Maori interests in a joint venture bid to buy 100% of Sealord products. New Zealand's largest seafood company. mainly involved in dccpwater fishing. It holds about a quarter of all New Zealand fishing quotas. Carter Holt Harvey's income from the company in the year to March this year was nearly $NZ35 million. The company will sell Sealords for $NZ325-375 million. 11m government is seeing it, if the bid is successful. as a full and final scttlemcnt of commercial fishing claims. The Prime Minister has stated tllat thc funding arrangement 'will be a bold. fair and final resolution of Maori commcrcial fishing claims'. 15 Not all Maori are happy with the deal. Some argue that it is not clear how ordinary Maori will benefit. there are concerns about tile proposed repeal of statutes relating to Maori fishing ri!hts. the amount of quota transferred under the deal and the effcct on traditional fishing rights. I During September 1992 discussions were held by different tribes throughout New Zealand on the agreement. The Chairman of thc Maori Fisheries comminee pointed out that it spares Maori the necessity and costs of ncgotiating for many years in a situation where there are limited options. 17 The Chairman of thc Maori fisheries negotiators stated in mid September that the deal was not under any thrcat. 18 The agreement was signed on 23 Scptem ber 1992. Some

15 'Maori fishing rights go commercial' AlutraliQlt Financial Review 28 August 1992. 16 'Ngsi Tahu rejects deal ror Maori fisheries' Evenj"8 Post (NZ) 12 Sepl.emb« 1992: 'Maori spotlight on Sealord deal' New aaland

lIerald 12 September 1992. 17 'An honourable offer on fishing' Evening Post (NZ) 31 August 1992; 'Fishing deal Welcome' The Dominion September 1992.

t 8 'RatA perceives no threat 10 Sealord deal' New aa/aMi Huald 14 September 1992.

16

tribes have not signed, however, fearing that it pUtpOrts to extinguish a tribal right that it does not want to sign away. 19 The Treaty ofWaitangi (Fisheries Claims) Settlement Bill was passed by the New Zealand Parliament on 10 December 1992. 20 The Bill gives effect to the legislative proposals embodied in the Deed of Settlement of 23 September 1992 between the Crown and Maori whereby in return for the Crown providing for the purchase of Sealords by Maori BIL (Brierly Investments Ltd) Joint Venture, the payment of $150 million to Maori and the granting of indemnity to Waitangi Fisheries Commission against certain liability for goods and services tax, all claims both current and future by Maori in respect of commercial fishing would be recognised as rmally settled (ss. 5,6,7 and 8). The Bill also made provision for non-commercial Maori fishing rights and interests (s 9). ReOecting the disquiet felt by some Maori at the terms of the SetLlement, all six Maori MPs expressed dissatisfaction with, and strong opposition to, the Bill warning that 'it was doomed to fail'. They expressed reservations on the extent of Maori support for the terms of the Settlement and at L1le provisions for traditional fishing, arguing that many Maoris would not benefit from the Sealord deal. They also felt that the Bill abrogated the temls of L1le Treaty of Waitangi21 All these concerns had been considered by the Waitangi Tribunal in its Report on the Fisheries SetLlement. With regard to the question of ratification of L1le Deed of Settlement, the Tribunal found LIlat given the difficulty in determining who might be seen as possessing the necessary authority to negotiate on behalf of Maori, the Crown was correct in assuming that it had received 'a mandate for the settlement, provided however that the Treaty itself was not compromised'.(Waitangi Tribunal Report 1992,15). Tins difficulty in determining Maori representation was acknowledged by the Justice Minister when he referred to 'the main problem in negotiations (as being) the lack of a structure within MaOJidom to speak in a united way,.22 With the allocation of the benefits resulting from the agreement, the Tribunal found that L1le present provisions could not give adequate assurance that all interests would be dealt with fairly in the apportionment of fishing benefits and recommended that the 'Crown should appoint a special court or body to hear any objections'.(Waitangi Tribunal Report 1992,20). Tile Tribunal, wlnle commending the Crown for 'seeking to provide for Maori interests in commercial fisheJies', expressed strong reservations with 'the effective extinguishment of the Treaty interest' as embodied in the Deed of SetLlement (Waitangi Tribunal Report 1992,21). In the opinion of the TJibunal the obligation to 'actively protect the MaoJi fishing interest' (Waitangi Tribunal Report 1992,22) embodied in the Treaty cannot be extinguished, an o~inion with which the Justice Minister when addressing opposition to the Bill chose to disagree. 3 The provisions for establishing traditional fishing reserves (whereby local marae committees could apply to the FisheJies Minister for permission to set up seafood-gathering reserves), were attacked because access to such areas would be prohibited to both Pakeha and to Maori who did not belong to the area. Maori negotiator, Maitu Rata, believed LIlat L1le Bill 'formalised rather L1lan created fishing rights for Maori' and offered reassurances that tlle marae committees 'would not be able to rule against pakeha or Maori fishing because of their race or tribe' but could decide whether 'a species could only be fished for marae ceremonial use' in which case the prohibition 'would apply equally to pakeha and Maori'24

19 'Maoris pin lheir hopes on a slippery deal' The Australian 1 October 1992. 20 'Graham angry at Maori MPs' slance'. The Dominioll 12 Decembu 1992. 21 'Fisheries bill doomed, uy Maori MPs', The Dominio1l 10 December 1992; 'Graham angry at Maori MPs' stance', The Donll'"iol'. 12 December 1992. 22 'Graham angry at Maori MP," $lancc', The Dominion 12 D~ember 1992. 23 'Fisheries bill seen as fair 10 everyone', The Dominion 10 December 1992.

24 'Pakeha not shut out by fishing Bill - Rata', The Evening Posl II December 1992.

17

Concern was expressed also by the President of the Fishing Industry Association at the provisions for the distribution of new species quotas and the effect this could have on fishing companies. He believed that the Government's guarantee of 20% of the quota with the remainder subject to tender amounted to the fishing industry contributing to the Government's $150 million payment to Maoris. 25 In the New Zealand context the fishing rights issues are best understood as a 'medium for achieving a workable ideology, in an official forum, which could further the aims of Maori ethnic revival on a wider front' (Levinc 1989,26). While the courts will decide what fishing rights actually exist the Tribunal has, by creating a framework for insinuating the principles of the Treaty of Waitangi into the legal system, significantiy increased the chances that real gains will be made. Certainly in any expansion of Ule fishing industry Maori interests will be major players. Through the Maori Fisheries Act they now have 10 per cent of quotas. They will have acquired another II per cent, and a half share of Sealords quota will give them 12 per cent more. Through such programs Maori dependency on govenunent programs and welfare diminish and wealth and job opportunities flow back to the tribes. 2.2 Canada

In Canada the Supreme Court in 1990 handed down a landmark judgement statement on the nature of aboriginal fishing rights and on the constitutional protection afforded them (Sparrow 1990). In 1984. Ronald Edward Sparrow a member of the Musqueam Indian band, was charged under the Fisheries Act with using a driftnet longer than that permitted under the band's Indian food fishing license. Sparrow did not deny the fact, but defended himself against tile charge on the grounds that he was exercising an aboriginal right to fish, as guarantecd by the constitution, and that the driftnet restriction was therefore invalid. The court accepted this defence. The aboriginal right to fish cannot be extinguished by the Fisheries Act, only restricted by it. As well these rights must be interpreted in a generous way and the government has the responsibility to act in a trust relationship with respect to aboriginal peoples and is held to a high standard of honourable dealing with them. The court elaborated a two part test for determining whether a regulation under tile fisheries act infringes on an existing aboriginal tight, and where Ulat infringement is justified. TIle first test is whetiler tile legislation in question has the effect of interfering with an existing aboriginal right. Few aboriginal rights have been precisely defined in law, but the court then asks if the limitation is unreasonable. whether it imposes undue hardship, and whether it denies the holders of the right their preferred means of exercising it. TIlC court stated that a primajacie infringement would consist not just in reducing the catch below reasonable food and ceremonial needs, but even the imposition of undue cost or hardship in obtaining that catch. The burden of proof with respect to tile first test is on the Aboriginal person or group challenging the legislation. The tests for justifying the limitation and tile fact that the burden of proof falls on tile Crown arc novel features of Sparrow. TIlese tests are: • • Is there a valid legislative objective? Is the legislation consistent with the special relationship and the responsibilities of the government vis-a-vis aboriginals? Here the court said in effect that whatever surplus exists beyond the requirements of conservation shall be allocated to meet Indian food requirements in their entirety. Has there been as little infringement as possible in order to effect the desired result? In a situation of expropriation is fair compensation payable? Has the aboriginal group in question been consulted with respect to the conservation measures being implemented?

• • •

25 'Fishing chief fears industry value cuts', The Dominion 10 December 1992.

18

Sparrow opens the way for challenging the system of state management through the first three

tests. particularly the third tested noted above. If the infringement encompasses not just harvesting activity but also tenure and management arrangements the Crown will have to show that the regulation has the objective of conservation but also is the most efficacious and acceptable from the aboriginal viewpoint. The Sparrow case indicates that aboriginal fishing rights consist not just in a claim to a share of the harvest but also a stake in the management of the resource. The onus will be on Canadian governments to justify regulations affecting native harvesting in accordance with the Sparrow tests. Notably the court did not foreclose the possibility of constitutional protected rights to fish commercially. The case was cited in the recent Australian case of Mabo as demonstrating the requirement for clear and plain intention before aboriginal rights are taken to have been extinguished. In the Canadian context of marine resource management it is also worth noting the eight year old Inuvialuit Final agreement and the recent Nunavut arrangements. 26 The Inuvialuit agreement was proclaimed in force in July 1984. The Inuvialuit number over 2,500 and live in six coastal settlements in the western Arctic. in what is both the Yukon (one settlement) and tlle nortllwest territories (five settlements). Under the final agreement, tlle Inuvialuit gained title to approximately 35.000mi 2 of land, of which 5,OOOmi 2 included the sub-surface. In exchange for extinguishing tlleir Aboriginal title to tlle land and waters they traditionally used. the Inuvialuit were given $45 million (in 1977 dollars) payable over a thirteen year period. The settlement recognised Inuvialuit priority in the harvesting of marine mammals. including first access to all harvestable quotas. TIus recognises tllat the InuviaJuit have the right to harvest a subsistence quota of marine mammals. according to a quota set by them and the government. They are also entitled to harvest any portion of any commercial or other quotas tllat they can expect to take within any given quota year. once such quotas have been set jointly according to sound conservation principles. The Inuvialut have a preferential right to harvest fish for subsistence witllin the settlement region: tllis includes trade. barter, and sale to other Inuvialuit. Subject only to restrictions imposed by quotas each year. Inuvialuit are issued non-transferable commercial licences to harvest a total weight of fish equal to the largest alillual commercial harvest of that species taken by Inuvialuit from those waters ovcr the preceding tluee years. Access to commercial harvests above tllat level is granted on tlle same basis to Inuvialuit as to other applicants. A Fisheries Joint Management Committee became operational in 1987 and assists the Ministry of Fisheries and Oceans in the management of marine resources and provides advice on all matters relevant to harvests in tlle settlement. Its activities overlap Witll otller institutions such as a Game Council, and Hunter and Trappers Committees. It cUITCntly monitors Aboriginal subsistence harvests of both fish and marine mammals, as well as sports fishing on Inuvialuit lands. It monitors tile beluga whale hunt and managed a quota involving a total millual intake of 130. Inuvialuit hunters are hired as whale monitors and they record tlle number of animals stmck and the sex and size of tlle landed whales. TIley also take biological samples and make a report to tile Fisheries Joint Management committee after the whaling season. In sum the Final Agreement contains all the required ingredients for a co-management regime. As Doubleday points out: 'It recognises preferential or exclusive harvesting rights, control of access to the resource, participation in management, relevance of traditional knowledge. and modem scientific approaches to conservation-all of which represent clements of special status and self-government necessary for tlle survival of indigenous peoples' (Doubleday 1989,221).

26 1n addition 10 these final 8greements two recent final agreements have been reached on outstanding claims, the council for Yukon Indian

claims and the Dene and Melis claim in the Northwest of Canada. One earlier r.lified IlUld claim agreemenl which hal bun widely
criticised (or problems of implementation is the James Day and Northern Quebec Native Lands claim scllicment of 1976-77 (see Jkrkcs 1989). There are 8oouI20 other claims submitted by aboriginal peoples and arc WRiting discussion.

19

In April 1992 the Canadian government signed an agreement with the Thngavik Federation of Nunavut for the establishment of the new Nunavut territory. TIle land settlement was ratified in November 1992 27 TIle Inuit claim is the largest in Canada, involving 17,500 Inuit and covers a land area of 775,000 square miles of land and 800,000 square miles of ocean. The accord provides for a transition process leading to the creation of the Nunavut government no later than I April 1999. Like other lands claims the agreement provides for the effective extinguishment of AboriginaltiUe to lands and adjacent offshore areas in exchange for a variety of rights and benefits in the setUement area. Under the settlement Nunavut's inhabitants will be paid $1.44 billion over the next 14 years (Jull 1992). From the mid 1980s traditionally used offshore areas were admitted into the negotiating arena for purposes of harvesting rights and for participation in environmental management and resource sharing. TIle Inuit are by and large a sea-based people. They are a coastal people who spend much of the year harvesting marine mammals and all but one of the communities in Nunavut, Baker Lake, is located on the coast. Under the agreement (see Fenge 1992) Inuit will be guaranteed, subject to principles of conservation, the right to harvest marine and terrestrial wildlife throughout Nunavut sufficient to meet their consumption needs, and will be given priority in establishing sport or commercial wildlife ventures. TIle goverrunent is to give 'special consideration' to Inuit when allocating commercial fishing licenses in Hudson Bay and Davis strait, adjacent to, but outside the Nunavut settlemcnt area. TIle resourcc management provisions of tilC agreement operate on consensual principles as much as possible, and mesh the different experiences and expertise of Inuit and government (see Fenge 1992,28-32). They renect a commitment to cooperative management of natural resources by both government and users. A Nunavut Wildlife Management Board (NWMB) is established. It will be composed of nine members, four appointed by Inuit organisations, three appointed by the governor-incouncil upon the advice of ministers responsible for fish and marine mammals, the Canadian Wildlife Service and Indian Affairs and Nortilern Development and one appointed by the Commission-in-Executive council. Where a total allowable harvest for a stock has not been established by the NWMB, Inuit have a right to harvest tilat stock up to tile full level of tileir economic, social and cultural needs. Inuit must abide by a total allowable harvest established by the NWMB but they have first claim on any wildlife. The basic needs level shall constitute the first demand on the total allowable harvest. Where the total allowable harvest is equal to or less than tile basic needs level, Inuit shall have the right to the entire allowable harvest. A five year harvest study to assist the NWMB set a basic needs levcl will commence shortly. TIlC board is required to presume, however, that Inuit need the total allowable harvest of a number of listed species, including bowhead whales. The board is to periodically review the basic needs level to determine if an additional harvest allocation to Inuit is required in light of growth of the Inuit population, increased intersetUement trade or other factors. TIle resulting 'adjusted basic needs levcl' may over time reach the total allowable harvest, but may never be reduced below tile basic needs level. The surplus (animals that remain to be harvested) are to be allocated first to other residents of the NWT for personal consumption, second to sport or commercial operations existing at the time of ratification of the agreement, and third for new sport and commercial operations. TIle board or federal or territorial minister may restrict Inuit harvesting only to effect a valid conservation purpose, to give effect to the allocative system detailed in Ule agreement, or to provide for public health and safely (Fenge 1992,30). The board is to have a major role in preserving wildlife habitat, but the agreement makes clear that tilC primary responsibility for the management of lands shall be exercised by appropriate government agencies and such related bodies as may be established by the agreement. TIlis rider was insisted upon by government that feared an expansive board mandate might hinder tile disposition of rights to use and develop sub-surface resources. Fenge states tilat the 'ability of
27 'Eskimos granled land rights' CQltbtrla TimeJ I Noyember t 992.

20

the NWMB to exercise the various functions identified in the agreement will depend upon the budget that it receives, the number, quality and dedication of its staff, and foremost, the attitudes and skills of the board members' (Fenge 1992,32). 2.3 United States

As far back as 1905, the US Supreme Court recognised that the native American tribes of the North West coast were not 'much less dependent upon fishing than the air they breathed'.28 The Winans case established Ule fishing right as a property right that burdened both the tiUe of federal land grantees and state regulatory activities, even though the state was not a party to the treaty. 1his gave native American fishers the right to be treated separately from the rest of the fishing community and to participate meaningfully in the formulation of fishing regulations (Anderson 1987). In 1974 the district Court of Washington, in US v Washington recognised the right of a North West tribe to 50% of fishery allocations under treaty. 1his right was confirmed by the Supreme Court in 1979. 29 Cohen has pointed out that the response to Utis ruling has been the development of innovative institutional initiatives, including tribal fisheries committees, a three tribe cooperative which jointly provides harvest management, biological research enforcement and other functions for member tribes and the inter-tribal Northwest Indian fisheries commission which serves as a coordinating agency which provides services such as technical assistance and public information (Cohen 1989). Moreover the treaty right implied an environmental right which native Americans have successfully used to restrain development that threatens marine stocks. In 1985 treaty tribes were instrumental in negotiating the US-Canada Pacific Salmon Treaty which upholds the Indian right to take fish. The US legislation implementing the Pacific Salmon Treaty considers the tribes on an equal basis with the states, and gives them direct representation on the institutions established to implement the treaty (Yanagida 1987; Jensen 1986; Cohen 1989). Professor Meyers' recent article reviews the legal literature on native fishing rights in the US and Canada and concludes that Ule states and provinces are permitted to regulate native access to natural resources but only to the degree necessary to conserve those resources (Meyers 1991). With respeet to treaty-guaranteed rights there is emerging case law in boUl the US and Canada suggesting that treaty language providing the 'sharing of resources in common with' means that indigenous people have some priOlity to those resources, after conservation measures are met. 1his 'priority' reflects the duty to interpret agreements made between the natives and their governments as the natives understood them. The 'priority' also owes a debt to the nature of aboriginal rights, as rights existing from time immemorial. Additionally, in both countries, there is also an emerging sense that native rights may impose a servitude on the federal and state/provincial governments to protect the 'property right' in the resource. 2.4 South Pacifie

In the South Pacific there exist a large variety of marine tenure systems, although more often than not coastal villagers claim and exercise strong traditional rights over nearshore fishing grounds. Such institutions of customary marine tenure regulate fishing by limiting access to resource areas, restricting the use of various fishing methods and regulate the capture of certain species. Fishing grounds contained within customary marine tenure (CMT) systems of the
28 United Stales vs. Winans 198 U5.3711905.

29 Washington Passenger Fishing Vessel Assn 443 U,S. 658 1979.

21

South Pacific arc generally communally-held property, inherited as ancestral tille Illfough generations, and ealIDot be sold or transferred to outsiders. CMT is much more Illan a resource management tool: it forms an important part of the framework for organising political and social relationships and for defining cultural identities in Ille Pacific. Sophisticated local knowledge also tells them where and how they ought to fish to get the best catches. There is now an expanding literature that describes customary marine tenure and traditional environmental knowledge in the SOUIlI Pacific (Doulman 1992; Hviding 1991; Hviding and Ruddle 1991; Hviding 1992). Kenneth Ruddle has identified six basic social principles of CMT in the Pacific: (I) that rights in sea and marine resources depend on social status: (2) Illat resource exploitation is governed by resource use rights: (3) that resource use territories are defined: (4) that marine resources are controlled by traditional authorities: (5) that conservation is widely practised: (6) that sanctions and punishments are meted out for breaking regulations (Ruddle 1988). While CMT in the Pacific may be referred to as systems of 'traditional resource management' tllis does not mcan that 'tradition' is someUling static, rigid and unchanging. As Hviding and Ruddle point out: "'Tradition", as it exist in the rapidly changing world of indigenous peoples, is a system of knowledge and rules which has, on the one hand, strong roots in local history and experience, and which is on the other unwritten and uncodified, thereby allowing for flexibility in adapting to changing social, political, economic, or ecological circumstances. Thus, far from being overwhelmed by commercialisation and resource scarcity, many CMT systems in Oceania appear to have considerable capacity for handling and adapting to new circumstances, thereby becoming potentially important tools in the contemporary management of fisheries and of the coastal zone in general' (Hviding and Ruddle 1991,10). Most types of marine tenure systems are, as noted above, of traditional, unwritten kind, based on local customary law. However in Fiji, Vanuatu, Cook Islands, French Polynesia, Solomon Islands and Western Samoa the existence of viable CMT systems is given explicit legislative support (Hviding and Ruddle 1991,6).

It remains a difficult question as to whether and how far traditional-systems should be codified. At a workshop on 'People, Society, and Pacific Islands Fisheries Development and Management' held in Noumea 5-9 August 1991 there seemed clear agreement that it was not desirable to dilute the flexibility of CMT systems and several representatives noted that codification of CMT is very difficult and not desirable (Hviding and Ruddle 1991,80). At lhis workshop there seemed to emerge an approach of 'joint management' thaI has national goverrunent settling basic ntles and principles while simultaneously recogllising important aspects of customary resource rights, and local 'govellunent' handling locally appropriate management within this legislative framework. It was argued by several speakers that local 'tille to' resources should imply an obligation to manage Illat resource effectively. This stand is not unproblematic, however, since it involves political issues far beyond Ille restricted ficld of fisheries legislation, relating to local-level autonomy, ntral influence on development policy, and recognition of hereditary claims and customary rights, all of high importance in the contemporary South Pacific (Hviding and Ruddle 1991,8). A recent consultant's repolt to the Forum Fisheries Agency recommended Illat the transfer of traditional knowledge and practiccs to guidelines for resource use legislation be a logical focus for future action (Hviding and Ruddle 1991).
At the sixth technical Subcommittee of the FFA workshop on deeentralised Nearshore Fisheries management in Oceania held in Niue 27-30 April 1992 one subject kept coming up-to help people manage their resources more effectively they must be supported not only scientifically but also legally and politically. In the absence of strong legal protection local authority over marine resources is likely to break down if outsiders sec a /ligh enough value in obtaining access to them. This brings pressure on the courts to define precisely relevant local

22

oral traditions, such as those associated with CMT. This tends to freeze tradition, leaving villages less flexible in their response to population movements, changes in fishing methods, or other developments that require adjustments in local resource-use pattems and controls (Johannes 1992a). The Niue workshop recommended that FFA should conduct a review of regional constitutional and legislative provisions and intemational law relevant to customary marine tenure and management systems. The report should be available to member countries before Ole annual session of the Forum Fisheries committee in 1993 (Johannes 1992).30 As a member of the Forum and participant in the Niue workshop Australia could be expected to respond to the recommendations flowing from the report. 2.5 Implications for GBRMPA

In the evolution towards greater self-determination, indigenous groups have sought greater legal and political protection of marine resources. Legal and political aspirations for selfgovemment are in fact being incorporated in marine resources policies in the US, Canada, New Zealand and the South Pacific. Decisions in Canada and New Zealand, in particular establish a priority be given to aboriginal interests, an equitable allocation of Ole resource, and potentially, decision making in the co-management schemes. AlUlOugh these decisions are often clouded by treaties, not relevant to the Australian situation, it should be noted that Aboriginal peoples are being invited to become genuine partners in management and govemment interferences are having to be justified by cogent reasons. The scope of protected aboriginal rights to marine resources in the US, NZ and Canada is evolving through judicial elaboration and political negotiation. In the main that evolution is towards widerting the scope for co-management initiatives and joint conservation projects. In framing its policies the GBRMPA should be aware that while it may not have the power to act independently from Ole Commonwealth on some of these issues, the broad politieal and legal trends overseas exhibit a respeet for the existence of genuine, and possibly extensive marine resource rights and a commitment by govemment to enable aboriginal communities to prepare for co-management negotiations. On the basis of overseas experience this seems the si/le qua /lOll for effective policy development in tltis area.

30 1n July 1992 the first issue of the TraditiofILJl Mariftf! Resource MOllOgemen, aNI Knowltdge /Ilformatioll Builtl;n appealed. This provides a vehicle for communication among members of the Traditional Marine Resource Management and Knowledge Specialinteresl Group (SIO). This 510 was established 8S a result of recommendation No 12 of the 23rd Regionallechnical meeting on fisheries, held at SPF headqualttfS Noumea 5-9 August 1991, 10 provide a focus for collection, discussion and dissemination of infonnation on traditional marine ecological knowledge.

23

3.

AUSTRALIAN EXPERIENCE WITH SEA RIGHTS

The great strength of the bonds linking Aboriginal people and their land is common knowledge to a growing sector of Australian society. The political demand for land rights has ben very important in extending tllat knowledge. Land rights has been the focus for indigenous groups to maintain and recreate tile spiritual linkages essential to cultural stability as well as to achieve social and economic development. Over 12% of Australia is now under their control. As Young points out; 'Land not only reinforces aboriginal identity and gives confidence to withstand forces of an advanced industrial society, it is also a resource, possibly of considerable economic potential' (Young 1992,146). In general the current distribution of Aboriginal lands and the types of tenure granted depend on the different types of legislation which operate in each state and territory. No national Aboriginal land rights legislation exists and it is basically only the Northern Territory that is subject to federal legislation (Young 1992).31 While the value of land is recognised for the vitality it gives to Aboriginal society and the positive contribution tllat Aborigines can play in land management is also widely recognised (sec Young et a11991) the importance of sea rights for Aboriginal groups has reccived little judicial or legislative recognition in Australia (Cordell 1991). 1llere is no doubt that for many Aboriginal groups the boundaries of tlleir ancestral estates do not end at the water line and that there is an intimate relationship between land and sea (Cordell 1991; Johannes and MacFarlane 1991). In the case of tile Torres Strait it is impossible to isolate the sea from Torres Strait culture and this region also provides examples of customary sea tenure. The linking of land and sea is a fact of creation wiUlmythical beings leaving dreaming tracks and sacred sites far offshore. 1llese tracks define clan estates in marine environments as well as on the land (sec generally Davis and Prescott 1992). In tile northern section of the GBRMP Smytll suggests that any particular stretch of coastline and its adjacent sea, reefs, islands, cays and associated resources arc under the ownership and stewardship of a particular and identifiable descent group. 1llat group will have primary rights of access to those places and resources and primary responsibility for management (Smyth 1992,37). 3.1 Sea Rights in the Northern Territory and Queensland

The Northern Territory is the only place in Australia that provides for Aboriginal sea rights, although in a very limited way. The author has discussed tile Northern Territory situation extensively (see Bergin 1991) but in brief the situation is as follows: • S.I2(3) Aborigillal Lalld Act (NT) 1978 makes provision for the NT government to grant 'sea closures' over areas of the coast within 2 km of mean low water mark adjacent to Aboriginal land. To date there have been two sea closures. 32 Closed seas are not owned by Aboriginal land owners and they do not have management responsibilities. 33 Closed seas are still open to holders of commercial fishing licenses that predated the actual date of sea closure.

•

•

31 There is also federal land rights legislation for the ACf IAborjgjllOllANl Gralll (Jtrvis Day Terrj,ory) Act /986 (Clh») and fot Victoria ]Aboriginal Land (Loke Cottdah arid FramlitlghtJm Fortst) Act 19B? (e/h»). The Aboriginal aNl Torrts Strait Istander Heritage Protectioll Ac11984 (e/h) also has national reach. 32nree new sea closure applications have recently been made in the NT, two of which are the result of concern at 8 proposal to declare a marine park in !.he areas, without laking into account Aboriginal interests. Personal communication David Allen, Northern Lll1ld Council, Darwin. See also 'Dlacks claim part of NTs fishing grounds: council' CflItberra Times g Jll1lUflI)' 1993.

33 Aborigine. in the NT informed the Relource Aueumenl Commiuion in 1992 thai the sea closures hid (ailed 10 pre't'enl the Illughter
of importll1l1 fish species as well Age 8 Ocloher 1992.
IS

failing

10

prevenl damage to sacred siles off the coos!. See 'Aborigines call (or Sea Righls in NT' The

24

•

Sea closure applications have been expensive and slow to be resolved.

TIle only other Land Rights Act to provide control by Aboriginal people below high water mark is in Queensland. although the new Aboriginal land Act 1991 does not include provision for sea rights. 34 Under that Act Aboriginal people cannot claim marine estates unless they fall within the provision of 'tidal land'. tile requisite traditional. historic or economic association is established and the governor declares by Order in Council that the tidal land should be so claimable. s.2.15(1). Tidal land is land that is 'ordinarily covered and uncovered by the flow and ebb of the tide at spring tides'. s.1.03. Sea waters and non-tidal seabed cannot be claimed. s.2.19. As noted above claims for tidal land (and not the water inundating the land which would remain under govcrnment control) can only be made if the tidal lands are made available for claim by the government. It is the policy intention of the Lands department to consider those tidal lands adjacent to either transferable land or vacant crown land under the new Act. It is not envisaged that strips of tidal land not adjacent to transferable land or vacant crown land to be gazetted as claimable land will be considered. It is not envisaged that tidal lands adjacent to national parks would be gazetted if they are outside the national park. 35 No tidal land has yet been made available for claim in Queensland. 3.2 Legislation on Aboriginal fishing Rights

While current Australia law is silent on the question of customary sea rights it does accommodate to varying degrees customary marine usc rights. As will be noted in the next chapter. the High Court held in Mabo tllat traditional fishing as a usufructuary right is consistent WiUl the crown's radical title. Such rights would be territory bound and in most cases operate within fairly narrow areas. TIley can be extinguished in the same way as native title-if for example it was incompatible with other usages in areas of large public access areas or a particular statute regulated the activity in a particular way or explicitly extinguished the right. Brennan. J. concluded that: Indeed. it is not possible to admit traditional usufructuary rights without admitting a traditional proprietary community title. There may be difficulties of proof of boundaries or of membership of the community or of representatives of tile community which was in exclusivc possession. but those difficulties afford no reason for denying the existence of a proprietary community title capable of recognition by the common law. That being so. there is no impediment to the rccognition of individual non-proprietary rights that are derived from the community's laws and customs and are dependent on the community title. A fortiori. there can be no impediment to the recognition of individual proprietary rights (Mabo 1992,426). TIle Law Reform Commission in 1986 did a comprehcnsive analysis on Aboriginal fishing rights in Australia. TIle Committee found that there are no exemptions for traditional fishing under fisheries legislation in South Australia, Victoria or Tasmania. In New South Wales there is no exemption from general fisheries legislation. with the exception of inland anglers liccnse under the Fisheries and Oysters Farms Act 1935 (NSW). In Wcstern Australia Aboriginal people engaged in traditional fishing are exempt from the Fisheries Act 1905 (WA). However the government may restrict or limit this exemption if it is abused or the species is likely to become depleted. In the Nortllern Territory Aborigines are only subject to fishing laws which expressly apply to them. However they are not authorised to trespass on leases or to interfere with traps or nets on another person's property. nor engage in commercial activity under the
34 Sea rights are not even noted in Drennan's comJlfehensivc book on !.he Q,Jeensland l.ands Right legislation (see B,ennan 1992). Sutherland susgests Lhat Ihis may raise concerns about consistency with ArL27 of the Inlcmatiana! Covenant on Civil and Political Rights because it may prevent Aboriginal coastal communities (rom exercising their own culture in relation to lraditional marine estates (SuLhClland 1992,. I). Thi, h: 100 bload an interpretalion. The Qu«lIIll1ld Abori,ln.1 Land ACI doe, nOl really dial with marilime ellaleJ.

If it aClually slated lIlat Ihere would be no til1e 10 matine eslates then that may be a different malter. 35 Personal communication Ross Rolfe, Aboriginal Lands Officer.

25

fisheries aet. TItis Aet does enable a community license to be taken out for a nominallieense fee to use up to 200 metres of giIInet (mesh size loomm or less) and sell or barter fish in that community. TItis permits a quasi-commercial fishing operation to exist without other provisions of tilC regulations being enforced, such as tile need to provide detailed catch and sales returns. 3.3 Queensland Fisheries Legislation

In Queensland the Fisheries Act /976 (QId) prohibits the taking of fish or marine products in closed waters or closed seasons, and prohibits the taking of protected species. but residents of Trust areas (formerly Reserves) and Aboriginal lands who engage in non-commercial fishing WiUlOut explosives or noxious substances are generally exempt under that and other acts, exeept in relation to certain matters such as mangrove protection measures. A similar provision exists in the Community Services (Aborigines) Act /984 (Qld) s.77 and the Community Services (Torres Strait) Act s.76. It should be noted that an Aboriginal who is resident of an 'area' (defined as meaning a trust area) who takes marine products by traditional means for consumption by members of the community outside that 'area' is not liable for prosecution under the provisions of the Farllla Conservation Act /974. There are no words in the Community Services (Aborigines) Act or in the fisheries legislation to limit the taking to an 'area' as defined in the Aet so that the exemption applies to collecting anywhere in Queensland. The Minister may issue a permit to any person for the collection of protected species such as dugong and turtle, alUlOugh it is understood that this is rarely done. Approvals have been administered under tile exemption provision. Queensland Aboriginal communities are required to be licensed under the Fishing Industry Organisation and Marketing Act 1982 (Qld) for all commercial fishing. TIle Queensland Fish Management Authority (QFMA) issues community permits to engage in commercial fishing. Each DOGIT community has such a permit but these are utilised to varying extents (Sutherland 1992). TIle Queensland Department of Primary Industries and QFMA negotiate with Torres Strait Islanders through Treaty fisheries liaison meetings. The recent Nalllre Conservation Act (Qld) /992 applies to areas under Queensland jurisdiction. In areas where the GI3RMPA operates the Commonwealth legislation covers tile field so the state act would have no valid operation. It allows for tile taking and use of wildlife for traditional purposes, even in national parks. but only in compliance with conservation plans for areas and wildlife (ss.85,102). An offence is created when an Aboriginal or Torres Strait Islander person takes, uses or keeps protected wildlife in contravention of a conservation plan or other authority. A defence relating to unintentional taking or interference with a cultural or natural resource is provided. an addition 10 tile defences provided under the Criminal Code (s.57). TIle provisions relating to taking or using wildlife were based on the Law Reform Commission report on traditional hunting and gathering which provided for precedence of conservation principles (LCR 1986). Restrictions however would be developed cooperatively in close consultation with the community concerned.3 6 Departments may issue permits for taking wildlife which can include fish species in state waters and the !UCN categories for protected species will apply (part 7). Once tilC Act is proclaimed in whole any 'protected wildlife' under the Act will be removed from the definition of 'fish' for the purposes of tilC Fisheries Act and the Fisheries Industry Organisation and Marketing Act /982 (Qld). The Act also extends to tile natural and cultural resources of declared 'protected areas' to the exclusion of the Fisheries Act. The Commrmity Services (Aborigines) Act (Qld), the Community Services (Torres Strait) Act /984 (Qld) and the Local Government Aboriginal Lands Act /978 (Qld) are also amended to provide that the traditional taking of indigenous animals and plants which are prescribed under the Nature Conservation Act /992 (Qld) are undertaken in accordance with that latter Act. S.90 of the Act provides that an Aboriginal or Torres Strait islander does not
36 Second reading speech, Han. P. Comben, Parlilll1lenLtuy Debates, Queensland Legislative Assembly, 28 Aptill992,4584. 4588.

26

have the right to enter any land for the purpose of taking wildlife without the landholders consent. 'Land' in the act also includes 'waters'. The GBRMPA would not be a landholder under the Act given the definition in the Act of landholdcr, so permission would not be needed under the Act. But of course regulations made under thc GBRMP Act do require pcrmission to enter or use a zone for the purpose of traditional fishing. The Nature Conservation Act while making conservation a first priority in areas of national park claimed by traditional owners does recognise traditional fishing and provides for opportunities for Aboriginal involvement in agreed conservation plans in those areas of national parks gazetted as national park (Aboriginal land) and national Park (Torres Strait Islander Land). It allows for the process of setting up of management comminees to do the management plan similar to conservation plans under the Act. A National Park (Aboriginal Land) is to be managed 'as far as practicable, in a way consistent with any Aboriginal tradition appBcable to the area, including any tradition relating to activities in the area' s. I8(2). 3.4 GBRMPA and Traditional Fishing

As far as traditional fishing in the GBRMP is concerncd there is an absence of any recognition of traditional fishing interests in s.32(7) of thc GBRMP Act. 37 However, thcre is provision in zoning plans for Aborigines and Islanders to carry out traditional hunting and fishing. There has been a category of use, traditional fishing, and traditional hunting and gathering with an associatcd definition of traditional inhabitant in all zoning plans from tilC Cairns plan onwards. The original zoning plan made no such mention because there was no trace of any traditional hunting or fishing in the Capricorn bunker group.38 Pennits have to be sought for traditional hunting and fishing in the GBRMP consistcnt with zoning plans and GBRMP officers generally follow tile Fisherics Act when allocating permits which can be individual or community based. Traditional fishing is takcn to mean fishing, otherwise than for purpose of recreation, salc or tradc, in an area by a traditional inhabitant or group of traditional inhabitants. A traditional inhabitant mcans an Aboriginal or Torres Strait Islander who Bves in an area or arcas in accordance with Aboriginal tradition or Islander tradition, respectively. Regulation 13AC(5) requires that in considcring an application for permission to cnter or use a zone or designatcd area inthc Mackay/Capricorn and ccntral sections of the marine park, for the purposes of traditional hunting or gathering, the Authority have regard to tile need for conservation of endangered species and, in particular, the capability for the relevant population of that species to sustain harvesting; the means employed in the proposed traditional fishing or traditional hunting and gathering; tile number of plants and animals or tile amount of marine product proposed to be taken; the purpose of tile taking (primarily to ascertain whether the hunting will comply WiUl the provision of the zoning plan where traditional hunting and gathering is interpreted as 'collecting, otherwise than for the purposes of recreation, sale or trade'); whether entry and use of tile area in which the activity is to take place will be in accordance with Aboriginal or Torres Strait Islander tradition; the normal place of residence of tile applicant: whether the applicant is a traditional inhabitant.

37 5 .32(7) In the preparation of the plan, regard shall be had to the following objects: (a) the conservation of the Greal Barrier Reef; (b) the regulation of lhe usc of the Marine Pallc $0 as to protect the Greal Barrier Reef while allowing the reasonable use of the Great

D8JTitt Reef Region;
(e) the regulation of activities thai exploit the resources of the Great Barrier Re.efRegion so as 10 minimize the effect of lhose activities

on the Greal Barrier Red;

(d) the reservation of some Areas of the Great Barrier Red for its appreciation and enjoyment by the publie; and (e) the preservation of some areas of the Great Barrier Reef in its natural stale undisturbed by man except for the purposes of scientific research. 38 Personal communieation R. Kenchington.

27

For urban based Aboriginals and Torres Strait Islanders permits were in the past refused on the basis that they would not allow for compliance with the fisheries legislation. TIle Fisheries Act 1976 (Q/d) provides Ulat Aborigines 'who are not at Ule material time a resident of a reserve' are subject to the provisions of the fisheries legislation (s.6). However Ule recent trend has been for QDPI to interpret the fisheries legislation in a broad fashion and to allow non-reserve Aborigines to engage in traditional hunting on the proviso Umt only Aboriginal and Islander people who are residents of a reserve undertake the collection of dugong and turtles. (In the past prosecutions have occurred against non-trust Aboriginal people for dugong and turtle hunting.) As GBRMP permits are subject to Ule condition that 'all activities must be in accordance with the provisions of the laws in force from time to time in Queensland' this means that in assessing an application GBRMP must make sure that the permit is issued in the name of, and hunting will be undertaken by, a person who meets the QDPI proviso. Applieants are assessed against the criteria and if supported against the criteria applicants are advised of a QDPI requirement that hunting be undertaken under Ule direct supervision of a resident of a reserve (at least one member of the hunting party) or a DOG IT Community. 39 GBRMP officials use Ule working definition of a traditional inhabitant as adopted by the CommonwealUI in 1978: 'an Aboriginal or Torres Strait Islander descent who identifies as an Aboriginal or Torres Strait Islander and is accepted by Ule Community which he/she is associated'. Aboriginality is therefore defined in terms of self-perception not in terms of place of residence. Aboriginals are not restricted to using only traditional means of fishing or hunting under the Fisheries Act or in terms of how officials interpret the regulations in the GBRMP. Modem technology is permitted and there are no requirements to use traditional means such as the dugong harpoon or sailing canoes. This is in accordance WiUl the recommendation in Ule 1986 Law Reform Commission report that in determining whether an activity is 'traditional' attention should be focussed on the purpose of the activity rather than the method. TItis approach, as noted earlier, is adopted in the new Queensland Nature Conservation Act. The current permit system which regulates traditional hunting for dugong and turtle (specifically the green turtle, Chelonia mydas) by Aborigines and Torres Strait Islanders may be affected by the Endangered Species Protection Act 1992 (CES), designed to promote the recovery of endangered species and to prevent others from becoming endangered. CurrenUy dugong are not listed as endangered in Australia but are declared as vulnerable by the IUCN. They are 'declared animals' in schedule 1b of the GBRMP re ulations, thereby invoking the protective ambit of those regulations (Sutherland 1992,31 ).4 Four species of sea turtles are listed as endangered by the IUCN but only the loggerhead turtle is currenUy listed as endangered in Australia, the other three as vulnerable. Of course the categories indicating threat levels may be changed from time to time. It should be noted Umt current restrictions on traditional fishing and hunting that place emphasis on conservation are consistent with international human rights obligations, although arbitrary and non-justifiable restrictions may not be (Sutherland 1992,29).

6

3.5

Torres Strait

As far as Torres Strait Islanders are concerned Ulere is an extensive consultative structure pursuant to the Torres Strait treaty (Elmer and Coles 1991) and the treaty recognises the rights of traditional inhabitants of the protected zone to the marine resources of the region, so long as the fisherman is not prohibited from doing so under a Commonwealth or State law. Outside the protected zone Commonwealth fisheries legislation provides no recognition of indigenous fishing rights.
39 Personal communication Dr David Lawrence, GDRMPA. 40 This only means that a pennit is required and laking is only pennissable in certain zones.

28

In contrast to the GBRMPA the Torres Strait Fisheries Act 1984 (eth) provides that in the administration of the Act regard shall be had to the rights and obligations created by the Torres Strait Treaty and in particular to the traditional way of life of the traditional inhabitants, including their rights in relation to traditional fishing (Article 12). The Protected Zone loint Authority established under the Act is to manage fisheries in Torres Strait and to seek the views of traditional inhabitants where it considers it appropriate to do so where a matter may affect traditional inhabitants interests. It is advised by a Torres Strait Fisheries management committee which includes Islander representation and this committee also receives advice from Torres Strait Fishing Industry and Islander Consultative committee. (Elmer and Coles 1992,28). The 18 member loint Advisory Council is to include three members representing traditional inhabitants from Australia and PNG. unless otherwise agreed. The Council should ensure traditional inhabitants are consulted and given an opportunity to comment on matters of concern to them. These consultative mechanisms are not enshrined in the Treaty or the Torres Strait Fisheries Act. They are instruments devised by the Protected Zone loint Authority. Commercial dugong and tu.tle hunting is not allowed in the strait but traditional hunting for consumption is allowed with catches monitored by the Australian Fisheries Management Authority (Coles and Depper 1992). Traditional inhabitants are entitled to engage in community fishing in the strait without a license unless the Minister has issued a declaration that a license is required or unless Queensland fisheries law applies (Sutherland 1992.32). The Torres Strait Fisheries Act allows community fisherman using vessels less than 6m in length to fish commercially in a Protected Zone loint Authorities fisheries without licenses. It does this by creating a special category of commercial fishing by Australian traditional inhabitants called 'community fishing'. According to Coles and Depper: 'Community fishing is allowed for fishermen who are Australian traditional inhabitants and who live in the TSPZ or in adjacent coastal area and maintain traditional customary association with areas in or in vicinity of the TSPZ. Community fishing is an Australian initiative and does not apply in PNG waters' (Coles and Depper 1992.9). Boats above six metres are required to be licensed for commercial fishing. Community fishing should not be confused with traditional fishing which can only be for private consumption. TIle commercial exploitation of barramundi fishery in the Torres strait is restricted to community fishing by Australian traditional inhabitants (Coles and Depper 1992.3) and botll the crayfish and spanish mackerel fishery are managed to promote the benefits of Torres Strait Islanders (Coles and Depper 1992,4). Despite the fact that Torres Strait Islanders are involved in an advisory capacity in fisheries management there has been concern expressed by Torres Strait Islanders about perceived damage to subsistence and Islander commercial fisheries by non-Islander operators. For example non-Islander use of underwater breathing equipment for catching crayfish is seen as a threat to the free diving and subsistence and commercial operations of Islanders. On Badu Island tile people have expressed the view that the resources of Torres Strait should be for the benefit of tile Islanders and that they should be given control of waters within 3 miles of their island (Smyth 1992b.37).

3.6

Summary

Australian laws do not recognise Aboriginal marine tenure, except in a very limited sense in tile Northern Territory. This is, however. a deficient approach. with tile 2 km limit being an inadequate buffer for Aboriginal people. (even if it were to exclude commercial fishing). In the Northern Territory no real Aboriginal management role is envisaged in areas of 'closed seas'. Some fishing legislation docs make provision for Aboriginal traditional fishing rights. although fishing rights have not emerged as an important indigenous political issue in the way they have in New Zealand. Traditional fishing is pennitted in all zones except in Preservation Zones in

29

the Great Barrier Reef Marine Parle. Aborigines can of course fish 'non' traditionally in thc appropriatc rones, at least for recreation, When considering traditional fishing 'tradition' needs to focus on the purposes of action rather than means, and so can include the use of modem technology. While Aboriginal sea rights have not had much prominence in Australia the political and legal setting in which these issues are considered has been transformed with the High Court's decision in Mabo. This is discussed in the next chapter.

30

4.

MABO AND MARINE TRADITIONAL NATIVE PROPERTY RIGHTS

On the 3 June 1992 a majority of the High Court ruled in favourofMr. Eddie Mabo and others in the elaim against the Queensland government for recognition of their ownership of most of Mer, one of three islands in the Murray Group in eastern Torres Strait. In Mabo the eourt effeetively overturned the long held legal doctrine of terra nllllillS, which maintained that Australia was land belonging to no-one prior to Crown acquisition of sovereignty. The High Court established that the people of Mer hold a 'native title' to their island which is recognised under Australian law. The case has changed the political and legal setting in which the Authority must deal with indigenous issues and therefore deserves careful attention. 4.1 Summary of Mabo judgement

All seven High Court judges in Mabo41 explicitly accept that (by varying names) traditional native property rights (TNPR) existed before European colonisation of Australia. Even Dawson J. who was the lone dissentient, assumed this was the case (Mabo 1992,465). Not that tllis made much difference: he laid emphasis on tlle need for the Crown to recognise any form of native interest in land and noted that had not occurred. In the absence of that recognition, on the assumption of crown sovereignty, any TNPR as may have existed were extinguished (Mabo 1992,480.481). The other six judges found botll that TNPR existed and had survived the assertion of crown sovereignty in Australia. Brennan J. (with whom Mason c.J. and McHugh J. concurred) formulated his judgement basically as follows. After a long historical survey of the law and relevant sociopolitical history, he concluded that TNPR existed and could continue to exist and were cognisable by the common law after colonisation. The assertion of Crown sovereignty in Australia delivered tile radical title to all land in Australia to the Crown. But tllat radical title did not equal absolute beneficial title. Radical title indeed could co-exist with TNPR; it was not incompatible with TNPR. Deane and Gaudron JJ. essentially came to the same conclusion, again after a long historical discussion where they canvassed the appalling history of Aboriginal deprivation and destruction in Australia in detail and with considerable feeling. TNPR, they said, have existed and survived into post-colonial Australia although they could be extinguished by tile Crown. 'TI1CY described TNPR as 'presumptivc common law native title' (Mabo 1992,456). Tllis formulation is somewhat different to that used by Brennan J but notlling seems to tum on tile difference. At least with respect to land-based TNPR the following aspects of TNPR arc now relatively settled in Australia 42 I. 2. 3. TNPR sUlvived the assertion of Crown sovereignty in Australia. The Crown's acquisition of radical title did not, of itself, disturb TNPR. TNPR arise from the connection of a particular Aboriginal group to particular land. 'TIle survival of TNPR to contemporary timcs requires the survival of the particular group(as recogniscd witllin the group) and a remaining general connection between that group and the particular land pursuant to the laws and customs of that group.

4.

42 Molt of the~ propositioru arc drawn from the judgement of Drennan J (A.L.J,R. 1992,434-435). The main diffucnce Dune, Gaudron

41 Eddie Mabo and Others v The State of QuCC'-nsllUld. (1992) 66 A.L,],R. 408. The Mabo decision is also reported in (1992) 107 A,L.R. I.

and Toohey JJ have with Drennan J is on the compensation point. This is discussed in the lext at point 4.6. Toohey 1. is also expensive on the issue of a fiduciary dUly owed by governments 10 indigenous people.

31

5.

TNPR may be lost 'naturally' with the deatil of tile last of the members of the relevant group or elan, or by severing of connection between the group and tile particular land through tilC group ceasing to observe tile laws and customs of tilat group.
It is immaterial, however, that the laws and customs of the particular group have

6.

undergone some change: TNPR can survive such modifications. 7. TNPR generally are inalienable although they may be voluntarily surrendered to the Crown. The nature ofTNPR may vary, in common law terms, from usufructuary (the right of using or taking tile fruits of something belonging to another), to proprietary. An example of usufructuary rights might be fishing rights (Mabo 1992,435). Subject to particular group laws and customs, TNPR usually will be communal title. A sub-group or an individual member of such a sub-group would have a sufficient interest to protect or enforce the communal title (Mabo 1992,431). The precise bounds of given TNPR are to be ascertained according to the laws and customs of the particular group which has connection with tilat particular parcel of land (Mabo 1992,434-435). Where the crown has validly alienated land by granting an interest that is wholly or partially inconsistent with the continuation of TNPR in a given case, the TNPR are extinguished to the extent of the inconsistency (Mabo 1992,434). Freehold titie extinguishes TNPR. The valid granting of leasehold interest at least where it gives a right of exclusive occupancy or possession is sufficient to extinguish TNPR (Mabo 1992,434,436). The valid grant of lesser interests, however, for example, authority to prospect for minerals, may not extinguish TNPR (Mabo 1992,434). Neither the creation of aboriginal reserves nor the appointment of trustees to control a reserve would extinguish TNPR (Mabo 1992,433). TNPR continue where waste lands have not been appropriated or where appropriation and use is inconsistent with the concurrent enjoyment of native title over tlle land (for example, where land is set aside for a national park (Mabo 1992,434). A law merely regulating the cnjoyment of TNPR or which creates a regime of control which is consistent WiUl the enjoymcnt of TNPR will not extinguish TNPR (Reg. v Sparrow (1990) 70 DLR(4th)385). The extinguishment of TNPR depends on the intention of the Crown in making tlle grant ratiler than on the effect which the grant has on tlle right to enjoy the native title. Until 1975, tlle states appear to have enjoyed fairly well unfettered power to extinguish TNPR. Since the passage of the Racial Discrimination Act 1975 (Cth), tlle ability of the states to extinguish TNPR has been significantly curtailed. The Mabo case of 1988

8.

9. 10.

II.

12.

13.

14.

15.

16.

17.

18.

19.

32

makes it clear that any attempt explicitly or via practical effect, to target TNPR for extinguishment will be constitutionally invalid (Mabo 1992,452).43 4.2 Mabo and Marine Traditional Native Property Rights

Can marine TNPR be recognised in common law following the Mabo case? The issue of rights to the seas, seabed and reefs of Murray Island was not addressed in the final judgement. Claims to Commonwealth and subsequently Queensland waters were withdrawn as the case proceeded, so the High Court was only called upon to rule in respect of the land of the island of Mer. It is understood that the Murray Islanders wish to reopen negotiations on this aspect of their claim witil the Queensland government and have indicated that they want a negotiated settlement ratller than go tluough the judicial process. A working group of Murray Islanders and people from Torres Strait and the mainland has been formed to further these claims. 44 Both Sutllerland and Bartlett suggest tllat there is no reason why following Mabo that customary marine tenure could not be recognised and that Mabo can be read as not just applying to land tenure. 45 This would appear to be a correct reading of the casc (see Sutherland 1992,12-18, Bartlett 1993), but whilc Mabo opens the way for arguments supporting the existence of native marine tenure there are different problems tllan is the case on land. If it can be cstablished that there is a continuing traditional association with the seabed then native title principles would appear to apply to it. A common law that did not recognise Aboriginal title to tile marine portion of an international state's territory would, after Mabo, seem arbitrary given that the Aboriginal claim to land and the states claim to land and water both stem from tlle legal consequences of discovery. Arbitrarily excluding the sea from Aboriginal title would not seem consistent with the sympathetic approach adopted in Mabo that looked to tile unity of the Aboriginal environment. The approach after Mabo would be to sce whetller tile territorial sea or beyond was being used. If, as was held in Mabo, loss of customs and connection with the land can be extinguish title then there would necd to be established such a connection witll seabed and territorial sea. It is clear from Mabo that you do not require to be physically located on the land (a nomadic lifcstylc would thus be accommodated). Of course as a matter of fact it may be more difficult to demonstrate a traditional connection willI the seabed than witll the land and it may be that the right recognised is simply a right to gather. A group of people, say, that caught turtlc every year would have a good prospect of establishing their association. Of coursc it may be necessary to draw a distinction here between the sea and seabed-a right to gather may not be a title to the seabed depending on the degree of association witll the actual seabed. The difficulty here is that it is not entirely clear from Mabo what tlle native title is-it may extend from an interest similar to fee simple to tllat simply of a right to traverse tile land/sea. lllUS it is possible that Aborigines may be ablc to gatller resources and tllat might be the extent of thcir native title. They may not be able to establish a fee simplc type title in the seabed. It is still native title but less than a fee simple. Traditional fishing, as a usufructuary right, was recognised as consistent with the Crown's radical titlc in Mabo (Mabo 1992,440-443). Brennan J. suggested that usufructuary rights could be protected by such legal or equitable remedies as wcre appropriate, including a representativc action (Mabo 1992,431). Thus assuming marine TNPR can be established the most likely offshore rights that may be applicable will be rights associatcd with fishing and that those
43 The Mabo CAse of 1988 concerned the preliminary issue of the validity of the Coastal/sfands Declaratory Act 1985(Qfd). That Act was found to be invalid by the High Court because it was in connie! with section 10 of the Racial DiscrimjrtaliOll Itcl (/988) 166 C.L.R. 186. 44 See '1slandr.r5 may claim walers of Strait' The AIUlralio" 23-24 January 1993.
45 In a recenl current issues paper on Mabo issued by ATSle the commission noles that there can be 'no doubl' thai under indigenous

sysleml of land tenure, ownecship could ,,,tend to stretches of coastline and adjacent &eaS, reefs, islands elC, Nevertheless, nalive Litle
claims to Ilteas beyond Ihe roreshores--e.g. 10 the seabed and terrilorial sea areas-may be matters or'international concern', incapable or detennination on Maoo principles see ATSIC 1993,7.

33

rights will be rights that involved fishing for food, that is not fishing rights of a more commercial nature, unless this could be established as an aspect of traditional custom (sec Dawson J., Mabo 1992,462-463).46 There are international law aspects to recognition of native tiOe to the seabed as opposed to land that may constrain recognition of native tiOe to the seabed, a fact acknowledged by Mr Justice Brennan. He suggested that under intcrnationallaw thc CommonwealUl government would have primary sovereignty ovcr the territorial sea, seabed and air space and continental shelf and inclinc (Mabo 1992,433). The application of international law of the sea would be relcvant here and no grant of tiOe to the seabed would, for example, allow restrictions to be placed on the right of innocent passagc. In the pivotal case, the Seas and Submerged Lands case 1975,47 the High Court fmds support for the proposition that both the territorial sea and the continental shelf accrue to the Commonwealth without any need of any legislative assertion of offshore rights. While the States retain Oleir inland waters, thcy cnjoy no property or property-like rights over other offshore areas, except by virtue of Commonwealth statute. The Commonwealth cnjoys sovereignty in the territorial sea which equates with proprietorial rights in Ole scabed, subsoil, sea and air space. These rights accrue through a process of absorption of customary and treaty international law principles into Australian municipal law (sec Cullen 1990,52-58)48 The court was unclear about whcn absorption occurred. It appears that the earlicst this could have occurred in the case of Australia was 1901. Basically thc court said that there had to be a recognised international cntity, being a coastal state, who could absorb OIC territorial sca. In the case of Australia, no such entity existed until federation in 1901 (Cullen 1990,56-57). In OIC case of the continental shelf it would appear that Ole earliest Australia acquired rights over OIC continental shclf was 1953, when Australia declared its rights over the shclf (Gazette II September 1953). Generally Ole courts have equated rights over Ole territorial sea as proprietal in the usual scnse. These rights arc described as 'sovereignty' in respect of the tcrritorial sea and the air space over it and Ole seabed and subsoil beneath it. In Ole case of the continental shelf Ole Commonwealth enjoys 'sovereign rights' to explore and exploit natural resources. The point here is Olat Ole courts have taken the vicw that offshore rights accrue only to international cntities (ie. a coastal state must be a nation or state recognised at international law). The lack of this status provcd fatal to the claims of the Australian states and also the Canadian provinces during the judicial phase of the offshore disputes in each country (see Cullcn 1990). The Statcs did not extend beyond low water mark-government power and indeed ownership beyond that point lay with the Commonwcalth. Offshore rights appear to be the product of the interaction of international law and municipal law and it seems that the earliest date at which it may havc taken effcct in Australia was 1901.49 It is doubtful the common law would recognise nativc marine tenurc on the basis of a long association in circumstances whcrc international law has only recently recognised the interests of nations in adjaccnt marine arcas. It could not be said that at the time of European seWement in Australia that international law recognised that nations had an interest in an area beyond 3 nautical miles from the coast. In those circumstances did the common law begin to recognise a right of ownership in individuals at the same time tllC right
46 Aboriginal C08stal people in North Queensland, for example, llIC interested in establishing mariculture enterprise5, particularly clam and O~5ler farming. A pilOl project has already been established off PilZroy Island near Cairns (Smyth 1993,44). 4 New South Wales v Commonwealth (1975) 135 C.L.R. 337. 48 As noled the High Court recognised thai there were land-adjacent walers of the sea which the Commonwealth did nol acquire offshore

rights. These were inland walers of the sea which, for various reasons, remained within the geographic boundaries of the States see Cullen
1990.87-88.

49 II is true that the High Court has recognised that the Australian Slates nowadays enjoy wide powers to legislate wi!.h effect in the offshore. This power is quile separale from enjoying My property rights in the offshore. To !.he exlent that lIle States do enjoy ally property righls in the offshore they do so pursuant 10 the 1979 Offshore Constilutional Settlement. The OCS conferred juri5dicLion and title (but nol sovereignty) on the States, with particular regimes set up for offshore petroleum ele. see Cullen 1990, 122-132.

34

of nations was recognised in intemationallaw? The accrual issue. and the temporal elements are not addressed in Mabo. However, for reasons noted above it is certainly possible that on Mabo prineiples an argument for native sea title could be constructed, although I tilink the accrual problems. in particular would be difficult to surmount. It should be bom in mind, however, that the brutal history of Aboriginal repression in Australia shaped the court's approach to the legal problem they confronted. It might also influence the approach taken on the question of marine TNPR. 4.3 Commonwealth Extinguishment of Marine TNPR

Assuming native title is there and the accrual hurdle can be jumped, can the Commonwealth extinguish native title? The answer is yes, the Crown can extinguish TNPR (Mabo 1992:434435). It must do so clearly although words expressly extinguishing TNPR are not required (Mabo 1992,433-434). This approach is not surprising since it is only since 3 June 1992 tilat we know (with legal certainty) that TNPR exists in Australia. Deane J and Gaudron J came to tile same conclusion as Brennan J: TNPR existed and survived into post colonial Australia although tiley could be extinguished by the Crown. The extinguishment of marine TNPR would not depend, any more than land based TNPR, on the intention of the Crown in right of the Commonwealth. It would depend on the effect of the Commonwealth action 50 In tile Seas and Submerged Lands case the High Court held that tilC Commonwealth had sovereignty over waters out to 3 nm and waters behind the baselines not within the limits of tlle states. There is no doubt that sovereignty has a certain title aspect to it as the Commonwealth later gave title to the seabed to the states in the Offshore Constitutional Settlement in 1979 (Cullen 1988,8-113.) There would be a strong argument that the Seas and Submerged Lands Act has extinguished any marine TNPR as the vesting of sovereignty in tile territorial sea and seabed is a sufficient alienation to satisfy the Mabo test and that really all that could be argued is that Commonwealth assertion of rights was not inconsistent with the continuation of marine TNPR to fish for food. Arguably the assertion of rights in the Seas alld Submerged Lallds Act (SSLA) and the offshore constitutional settlement could not be categorised as the marine equivalent of simply setting aside land for a post office or a national park 51 The same reasoning applies to the continental shelf, possibly more so where sovereign rights to explore and exploit the natural resources of the continental shelf are vested in the Commonwealth. There are no 'savings clauses' in the SSLA which could be applied to marine TNPR. On tile other hand an argument could be constructed that the Seas alld Submerged Lallds Act docs not extinguiSh any subsisting native title in the seabed, in much the same way that after Mabo the Crown's assertion of sovereignty in 1788 or thereafter did not extinguish it in relation to land. If marine TNPR could survive the assertion of Commonwealth rights in the SSLA could it also survive tlle further assertion of Commonwealth rights in tlle Coastal Waters (State Title) Act 1980 (Oil) and tlle Coastal Waters (State Powers) Act 1980 (Ctil)? These were the key acts in the 1979 Offshore Constitutional Settlement, whereby the CommonwealUl agreed to

SO It is for lhis reason lhat il is very doubtful whether the caveat the Authority has placed on lhe cover of its draft Illalegic plan has any legal effect, The caveat slates !.hat: 'Nolhing in this Slralcgic Plan is intended to diminish or extinguish nalive lille. In implementing lhis plan agencies and olher organigLions should not Lake an)' action which might unintentionally affect nalive lille'. As noted above it is !.he effects not jllt~f1ljolts which are imporlant in extinguishing native lille. 5! Drennan Ilhought such reservations may not be dfeclive to extinguish TNPR see Mabo 1992,434.

35

give to the states jurisdiction over coastal waters which equates to the traditional 3 nautical mile territorial sea together with internal waters (see Cullen 1990,108-128).52 The Coastal Waters (State Title) Act 1980 (Ctll) confirms that the sovereignty aspect of the Seas and Sllbmerged Lallds Act does have a title attribute to it because the former act in section 4(2)(a) states that: 'The rights and title vested in a State under sub-section (I) are vested subject to any right or title to the property in the sea-bed beneatll the coastal waters of the State of any other person(including the Commonwealth) subsisting immediately before the date of commencement of this Act, other than any such right or title of the Commonwealth that may have subsisted by reason only of the sovereignty referred to in the Seas alld Submerged Lallds Act 1973'. The States have been given title to the seabed out to 3 nautical miles but that is subject to subsisting rights as in 4(2)(a) of the CW(ST)A. Assuming that Aborigines have native title then that exists unless it has been extinguished by some clear legislative or executive action. This action must be unambiguous. While the SSLA has probably extinguished any marine TNPR which might be established it is doubtful whether the language used in the Coastal Waters (State Title) Act is sufficiently clear and unambiguous to extinguish any native title that might be there. If there was any native title when the Act was passed the title given to the States would be subject to preexisting title. Section 4(2)(a) only saves the 'right or title [of another person] to the property in tile seabed'. This saving clause looks of limited use to preserve marine TNPR, however, which appear most likely usufructuary in nature and more often than not related to the sea rather than the seabed. TIle States would, however, be subject to these preexisting rights. 53 While the States have title to the seabed out to 3nm as a result of the State Titles Act what about from 3nm out to the edge of 12 nautical mile limits? In November 1990 the Commonwealth extended the territorial sea to l2nm. At present the Commonwealth has no formal declaration of common law title to tile area from 3 to 12nm but tile Commonwealth still maintains a declaration of sovereignty. There is probably still a title aspect to tllat declaration of sovereignty despite tile fact tllat there has been no formal declaration of tlJis. Under the Coastal Waters (State Title) Act the title to tile seabed has been vested in the States but it is subject to section 4(2)(a) noted above. Assuming Aborigines can establish native title then that exists unless its been extinguished by executive or legislative action and tllat must be clear and unambiguous. As noted above the wording in 4(2)(a) is not sufficiently clear and unambiguous and therefore native title to the seabed from 3 to l2nm may not be extinguished. 4.4 State extinguishment of marine TNPR

As far as the effects of the GBRMP Act is concerned the Act makes provision for declaring parts of the sea and seabed as part of the marine park and that has been done in proclamations. 54 None of this extinguishes any native title that might be there and there are specific references in Mabo that national parks are not alienated land and do not extinguish title (ALl.R. 1992,434)55. But that it not necessarily to say tllat if someone had any right it could not be regulated by the GBRMP Act. The GBRMP Authority does this in zoning plans which
52 Coaslal walen do not extend to encompass Auslralia', new 12 nautical mile territorial see. See sections 4(1) and 4 (2) of the Coastal WtJltrl (Slalts Powlrs) Acl /980 (Cth) and seclion 3(1) of the Coastal Wafus (Slatt Title) Ac. /980 (Clh). 53 The CW(SP)A and the CW(Sf)A both were enacted after the Racial DiscrimiMtiofl Act /975. Unless the lalter Act enjoys some sort of quasi constitutional status, however, the CW(SPjA and the CW(ST)A probably are not subjecl (0 il. This is because of lhe doclline of implied repeal. The general rule of lhe common law for resolving connicts between two laws of lhe same legislative body is that lhe lallet law impliedly repeals Ihe former to lhe extent of any inconsistency. II is unlikely lhat lhe Racial DiJcrjmiltOfioll A.ct enjoys any quasiconstitutional slatus. There is a sllong argument that lhe Commonweallh parliament cannot impose 'manner and form' procedures on itself as lhis would infringe lhe clear reservation of all constitutional change power in Ausl1aJia to section 12g of lhe Australian constitution. See Peter Hanks, COIIJI,"ufioIt01LAw ill AUJlrafia (Butterworths, Sydney 1991,99·102). S4 The zoning plans have no independent legal effect. They are given legal effect by lhe Great Barrier Reef Marine Park Act.

55 It Ihould be nOl«l thlt thue Ito i1JlI1dl or pllli of illll1dl in the GrClt DlrTiu R",r Mtrino P"" which

Jr. owned by the

Commonwealth. Por the most part Queensland sold lhe relevant islands or parts of islllllds to the Commonwealth for the purpose of Iighlhouses. 11 may be that any pre-existing native title has been extinguished in lhe process,

36

provide for traditional hunting and gathering but in other areas such as preservation areas this right may not necessarily be carried out. If the GBRMPA make a preservation area and does not allow particular activities there it may extinguish that right in that particular area or the title to some reef if they do not allow a particular activity to go on. It should be noted that under 4(3)(a) of the Coastal Waters (State Title) Act the rights and duties are subject to the operation ofGBRMPA. I do not think this has relevance to the question of native title and appears to be in the Act to save any claims under s.5I(3 I) of the Constitlltion (the provision stipulating for just terms in any Commonwealth property acquisition) by reason of something done under the GBRMPA that might inhibit state title later. Most of the GBRMP is beyond 3nm and is subject to Commonwealth Fisheries Management Act 1991. That Act regulates commercial fishing so that there is no problem with Aborigines carrying out traditional fishing. Provisions in the Act also allow private fishing to be regulated and for prohibitions on particular species. The Commonwealth, if it prohibited the exploitation of a particular fishery may extinguish a particular right, so it would depend on what a particular group had a title to. The Minerals (Submerged Lands) Act and the Petroleum (Submerged Lands) Act do not have any practical application because under the GBRMP Act it is not permitted to undertake any operation to recover minerals. Even so a right to explore would not extinguish any preexisting native title. 56 As far as state legislation is concerned it can apply in the marine park to the extent that it is not inconsistent with Commonwealth legislation. Queensland has a Marine Park Act which purports to operate out to tidal waters which includes the 3nm territorial sea [Marine Parks Act 1982 Qld)]. This legislation would not appear to validly operate where the GBRMPA operates, because that latter act covers the field in its area of operations. Thus the Queensland Marine Park Act would not be relevant to determine whether there is subsisting title in the GBRMP. (It would be relevant to intertidal areas and internal waters of Queensland which may be in a Queensland marine park.)
It should be noted that State Acts can have extraterritorial application. The extraterritorial

aspects of this power have been considered by the High Court in a number of cases most recently in Port Macdonell Professional Fisherman's Association v South Australia. 57 The court held that tile extent of the extra-territorial power depended not on distance alone but on the existence and nature of the activity regulated and the state. Therefore it held that a law concerning rock lobster fisheries within 200nm of South Australia was valid. Given that is the case native title may have been extinguished by a range of state legislation affecting coastal management. 58 It was noted earlier that tlle Queensland Aboriginal Land Act provides that Aboriginal people cannot claim customary marine estates unless they fall within the definition of tidal land. This may have extinguished some customary marine tenure, but Sutherland correctly points out that to exclude areas from claim under that Act may not extinguish title-it may just be considered as excluding claims under that particular statutory process (Sutherland 1992,18). Where tile Governor in Council issues a declaration under the Aboriginal Land Act that certain lands, including tidal lands are excluded from claim following the expression of the wish of a substantial majority of Islanders resident in or concerned with transferred areas, that would probably effect extinguishment (Sutherland 1992,18).

56 Brennan J 't8led lhi, in Mabo in relation to e"ploralion, although not exploitation.
57(1989) 63 A.L.J.R. 167
58 Sec legislation listed in Coastal Prot«;tion SlIategy Green Paper Queensland Government 1991,38-41.

37

4.5

The Commonwealth and Marine TNPR

Could the Commonwealth move to recognise marine TNPR? The Commonwealth constitutional power to enact legislation relating to Ihe territorial sea was confinned by Ule Seas and Submerged Lands Act case. This case held Ihat the Commonwealth has powers to legislate with respect to mallers 'physically external' to Australia. This was recently reaffinned by Ihe High Court in the War Crimes case.59 This power would probably enable Ihe Commonwealth to legislate with respect to all mallers beyond mean low water on Ihe coast of Australia (although this particular consequence has not been confinned by Ihe High Court). There would also be scope to legislate under Ihe external affairs power of the Constitution (for example to give effect to Art 27 of Ihe ICCPR which provides a right of indigenous people to enjoy Iheir own culture).60 The Commonweallh also has an additional and wider power, namely s.51 (26) which allows it to pass laws wilh respect to Aborigines and Torres Strait Islanders. The Commonweallh enjoys virtually plenary powers in Ihe offshore and Ulere would be no legal barrier to pass legislation directly to recognise indigenous marine tenure and resource rights, where Ihese existed. The saving of existing title in the CW(ST) ACI, is an important factor in there being no barrier to recognition. As a mailer of policy, however, it would appear doubtful whelher Ihe Commonwealth would do so in isolation from national land rights legislation. Presumably Ule same sorts of concerns about inhibiting resource development Ulat prevented national land rights would also be operating when it came to recognising sea rights. 4.6 Compensation for Loss of Marine TNPR

In Ihe event of marine TNPR having survived, providing extinguishment is valid, a majority in Mabo found Ihat no compensation would be payable. What is different about the Dcane/Gaudron judgement and that of Toohey J. is Ulat all three justices argued that, in certain circumstances, any government extinguishing TNPR would be obliged to make compensation (Mabo 1992,452-453 and 456 per Deane and Gaudron JJ. and 499 per Toohey J.). However, Mason C.J. and McHugh J. in Iheir half page concurring judgement explain Ulat Ule combined views of Ihemselves and Brennan and Dawson JJ. constitute a majority against the proposition that: 'in Ihe absence of clear and unambiguous statutory provisions to the contrary. extinguishment of native title by Ihe Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages'. Thus a majority of the court considered that compensatory damages are not payable. The question of compensation for Commonweallh extinguishment of TNPR is not discussed in any detail by Ulese majority judges. Ralher, Uley say Ulat they disagree wiUI the argument of Ihe olher three judges Ihat compensation may be payable for extinguishment ofTNPR in some circumstances. A caution on Ihe issue of compensation needs to be noted, however. The majority rmding that no compensation appears payable was not argued Ihrough in any detail. Rather, it was an assertion of disagreement wilh Ihe proposition put by Ihe minority judges (on this point) that compensation could be payable for extinguishment of (land-based TNPR in certain circumstances). Could extinguishment amount to an acquisition under 5\ (3\). of the constitution? 111at is a difficult question. Because Ihe Commonwealth extinguished native title it would not necessarily follow Ihat Ihe government acquired a property right. There would also be Ihe 'live' question of whelher 51(31) in fact applies offshore. There are no precedents here. although when Ule Commonweallh cancelled petroleum licences in Ule Great Barrier Reef some time ago there was no compensation paid.

59 Polyukhovich v. the Commonwealth (1991) 172 C.L.R,SOI.
60 The scope of the 'cltlemal affairs' power of course includes mallers 'physically external' 10 Australia and also mailers affecling Australia's rellllions with other countries such 8S Irealy obligations.

38

4.7

GBRMPA Implications

Judicial recognition of cuslOmary marine TNPR following Mabo remains a potential. Indigenous groups may follow the palll of litigation. The Minister for Aboriginal and Torres Slrait Islander Affairs has stated 1I1at although there are no plans for test cases yet the government may facilitate test cases to clarify key issues left unresolved by Mabo and avoid a plelllOra of court challenges. The most likely source for the test cases is funding through 1I1e Aboriginal and Torres Strait Islander Commission. 61 Anolller option 1I1e government is considering is creating a statutory tribunal that would investigate 1I1e details of individual land claims and be used by the courts to help settle disputes arising from Mabo. A tribunal could conceivably be set up to arbitrate on unresolved differences. Other options the government is considering include a statutory framework to define native tille rights and the encouragement of negotiated setllements on land claims perhaps willI the appoinUnent of mediators. The most politically ambitious approach would be 10 broaden 1I1e Mabo debate by tying it into Canberra's existing 'process of reconciliation', under which a broadly representative committee is examining over several years Ule relationship between black and white Australians. 62 . The Minister for Aboriginal and Torres Strait Islander Affairs has also not ruled out a referendum as part of a long tenn solution to some of the uncerlainty surrounding Mabo. TIle Minister has statcd lila! the fallout from Mabo is 'very much linked to 1I1e reconciliation process' and in the longer term 'this idea of constitutional change to recognise the rights of indigenous people deserves serious consideration'.63 A referendum would no doubt be supported by Aboriginal groups concemed that any post-Mabo regime could change at the whim of a future government, although referendums have not had a great deal of success in Australia. Already Aboriginal communities in Queensland are expected 10 launch High Court challenges 10 lIlC Nawre COllservatioll Act, the Aborigillal Lalld Act and legislation proposed to manage the wet U'opies world heritage listing on the grounds that they have the effect of extinguishing native tiUe in a discriminatory way. 4 Queensland has large areas of State crown landUlat could be affected by the Mabo case. Sea claims based on Mabo prineiples may eventuate from Aboriginal groups to force governments to negotiate on political and management recognition of customary marine tenure. A group of traditional land owners from the Kimberley region of Westem Australia filed a statemcnt of claim to the High Court in July 1991 that includes offshore areas. TIle statemenl refers to adjacent seas, reef, islets off the Worora coast, the Mitchell plateau, and the Drysdale river regions in the Kimberley region. TIle claim refers to longslanding fishing interests in adjacent seas and water, the use of water of the 'deep oceans, beyond the farthest reefs, and from the coastal waters and rivers, for sustenance, medicinal and spiritual purposes'. It states 1I1at throughout known hislOry the people laws, rights, and traditions and practices have given them rights to coasts and reefs and the 'deep waleI' beyondlhe north-west of Western Australia,

61 The Ilrime Minister. Mr Keating, willltlso chair 8 cOl11mittee of Ministers to consult with Aboriginal groups, mining and (arming groups and the Stales about land rights in the wake of l\fabo. Both the National Farmers Federation and the Northern Land Council have stated that liley would prefer legislation rather than expensive COUll actions. The eQmll'lillee will provide an interim report by March 1993 and finAlise its inquiries by September 1993, Although some mining groups are pressing fOf a shOlter time frMle. The Coalition also supporls consultation with Aborigines and industry to detennine the dfccts of Mabo (lither than wfliting for the outcome of lengthy court cases. The Coalition docs SUp(Xlft the principle Ihat govemment funding should be provided in instances where test cases were initiated 10 establish a grinciple, see 1'he AI4$fralio", 28 Oclober 1992; Callbuf(I Times 29 OClober 1992. 2 See 'Tiekner to consider land rights tribunal' The 11l1S/rolia", 30 November 1992. '!lIe reconciliation process here refento the work of the Council for Aboriginal Rccoocilifltion, fl21 person body of prominent AuslIfilians established in September 1991 and appointed by the Prime Minister with bi-pllI1isan support. The Council has issued various press releases on the Mabo judgement and is intending 10 publish a booklet 'Making Things Right' this year whieh explflins the judgement in the context of the Council's nationfll eoosul!alion strategy. 63 See 'Mabo doubts mRy spark rderendum' The Alutraliafl I December 1992. 64 The Age 19 October 1992.

39

to the farthest territorial limilS and beyond'. They therefore claim a right to enjoy the ownership, use and occupation of such 'land and seas,.65 The GBRMPA would be wise to avoid a situation that saw it in conflict with indigenous Australians fighting to gain this kind of recognition. It would not be sensible, however, for the Authority to explicitly recognise native tenure when the location of it is unknown. There would also be political problems if the Autllority was seen to be too far ahead of Commonwealtll policy in this area. Rather, the AutllOrity needs to provide indigenous groups a decisive voice in park management, in appropriate areas. TIle broader political implications of Mabo need to be appreciated by the Authority-that Aboriginal peoples aspirations for greater involvement in all aspects of resource management have been raised by tlle decision and has created a climate of heightened expectations about what the Authority should deliver by way of Aboriginal involvement in the park.

It is understood for example that following Mabo the Cape York Land Council has withdrawn from the strategic planning process for the Barrier Reef region because it docs not explicitly recognise Aboriginal ownership of customary marine estates in the marine park. 66 In NSW also Aboriginal people are using Mabo as a defence to a charge of illegally taking abalone. Around a dozen Aboriginal people face charges of illegally taking abalone and tlle magistrate hearing the case has agreed to admit evidence of customary right to the abalone as a defence argument. As traditional fishing was recognised as consistent with the crowns radical title in Mabo the Authority would be wise to move towards a greater degree of community management of traditional hunting.
The Authority should avoid a situation of possible litigation (that would be a long, costly and uncertain process) if groups become dissatisfied with the lack of political and legal recognition of sea tenure and try and secure recognition of customary rights tllrough the courts. Smyth reports that elaims by coastal Aboriginal people to customary marine estates are under active consideration by legal advisers to Aboriginal organisations around the country and were raised in consultations during meetings at Broome, Cape Leveque, Maningrida, Cairns, Yarrabah, Gordonvale and Palm Island as well as at formal hearings of the Resource Assessment Commission in Darwin (Smyth 1993,80). Even without litigation, though, the Authority should be aware tllat in the post-Mabo environment there is going to be increased activity on issues relating to native title, certainly in the form oflegislation. This will all create pressure on the AutllOrity to be seen to be dealing with indigenous rights issues at a high level.

65 Slatementof claim UlemonM ors v. The Commooweallh of AuslIalia & On File Claim Pi8 1991 High Court of Ausltalia. The claim of the wik peoples of Cape York lodged in Ihe Federal Courl in 1993 alIa includes offlhorc areas. Personal communiclltion, Mr 8, Keon· Cohen. 66 Personal communication Ross Williams, ODRMPA. Of course lherc is no way such a document could, given ils nalUre, recognise
marine estates.

40

S.

GBRMPA AND INDIGENOUS RIGHTS ISSUES

The Aboriginal and Torres Strait Islander population of Queensland is unevenly distributed throughout the state. In the northern statistical section, which centres on Townsville the Aboriginal population is 7,204 persons. This is made up of 5,505 Aboriginal people and 1699 Torres Strait Islander people. From Cairns to Cape York the total Aboriginal population is 19,121 which includes 11,452 Aboriginal people and 7,669 Torres Strait Islanders. Almost 38% of Aboriginal people and over 60% of all Torres Strait Islanders live in the far northern statistical division yet, of the total Aboriginal population of Quecnsland, only 22.3% live in Ule Torres Strait island communities or in mainland communities des~nated by the Queensland Department of Family Services and Aboriginal and Islander Affairs 6 The largest populations of Aborigines and Torres Strait Islanders are in communities on Thursday Island, Palm Island and at Yarrabah. Thursday Island is an Aboriginal reserve, part of the Torres Shire (but not Port Kennedy). Palm Island and Yarrabah are the largest Aboriginal communities having direct access to Ule Great Barrier Reef and are reserve lands. Each of these communities has a representative on the Aboriginal Coordinating Council. ACC members include Wujal, Hope Vale, and Lockhart on the east coast and Umagico, New Mapoon, Injinoo (Cowal Creek) at the tip, as well as other communities in Queensland such as Cherbourg, Woorabinda, Doomadgee, Kowanyama, Pormpuraaw (Edward River), Old Mapoon and Weipa Napranum. The community in Cooktown (Gungarde) is included in deliberations but is not part ofUle ACC. In the Torres Strait all Islander communities including Bamaga and Seisa on the tip of Cape York, but excluding Thursday Island, Hom Island, Hammond Island and the Prince of Wales (Muralag) arc represented on Ule Island Coordinating Council. It is the main organisation representing Islanders at Ton-cs Strait Treaty meetings and at federal and state levels. There is little direct interaction between ICC and ACe. Sixteen Aboriginal councils arc charged with UIC managemcnt of lands belonging to Aboriginal communities in Queensland (sec table 3 and 4). Fourteen of these were constituted as Aboriginal Councils under the Community Services (Aborigines) Act 1984 and two as Shire Councils under the Local Government (Aboriginal Lands) Act 1978. While information on customary resource usage is patchy the GBRMPA has funded three important studies of Aboriginal resource usc in the marine park and these have provided opportunities for selected indigenous people to contribute to research relating to Ule management of the GBRMP. There has been a fair amount of Aboriginal site recording and estate mapping, in particular in the far northern section between Shelbourne Bay and Cooktown.

67 ADS 1989, C~llms 86-AborigiNJI attd Torres Strait Is/allder Poplllatioll

i" Quee1lJland.

41

TABLE 1: ABORIGINAL DEED OF GRANT IN TRUST COMMUNITIES IN QUEENSLAND
Area of DOGIT (hectares) 3,130

Community

Cherbourg

Population e.1200

Es'ablished 1904

Original Administration Qld Govt

QldGov, Admin

Major geographic origin of residents
Major receiving ccnlre fOT removals (SQ.

SWQ, Central Coast.
SEQ)

Woorabinda

c.1400

38,811

1927

Qld Gov'

Palm Island

c.3000

7,101

1928

Qld Govt

Major receiving centTe for removals (SWQ, Central Q. Central Coast) Major receiving centre
for removals (all
areas)

Doomadgee

e.1200

178,600

1933

Brethren

1983

Yarrabah

e.2000

15,609

1892

Anglican

1960

Local population (NWQ, NE Northern Territory) Local population and
some removals (Cairns

Wujalwujal

e.400

1,102

1957

Lutheran

Hope Vale

e.800

110,000

1886

Lutheran

area, Fraser Island) Local population (Annan and Bloomfield Rivers) Local population and
some removals (Cape

Kowanyama

e.950

252,000

1905

Anglican

1967

Bedford, Cooklown to Laura area) Local population (Mitchell and Gilbert
Rivers areas)

Ponnpuraaw

c.450

436,000

1939

Anglican

1967

Local population (Holroyd and Coleman
Rivers areas)

Napranum

e.800

200,730

1898

Presbyterian

1966

Local population and
some removals (NW

Lockhart River Injinoo New Mapoon

c.450 e.420 c.200 e.200

359,685 79,542 9,390 5,340

1924 1915 e.1962 e.1963

Anglican

1967 e.1949

Cape York Peninsula) Local population (NE Cape York Peninsula) Local population (N Cape York Peninsula)
Removals from

Qld Govt Qld Govt

Mapoon (N of Weipa)

Umagico

Removals from

Lockhart River

Source: Parliamentary Commitlee of Public Accoullls (1991). Financial Administration of Aboriginal and Island Councils, Report 2, Effectiveness of Councils and Support for Councils, Training, PCPA Report No.8, February 1991.

42

TABLE 2: ABORIGINAL LOCAL GOVERNMENT COMMUNITIES
Lease Community

Arukun

Population c.900

Area (ha) 750,000

Established 1904

Original Administration

Presbyterian

Qld GOVI Admin 1978

Major Geographic Origin of Residents Local Population (Embley River to Christmas Creek) Regional Population (Mom. Is .. Bentinck Is., Northern Gulf Region)

Momington

e.450

119,200

1904

Presbyterian

1978

Island

Source: Dcpartmenl of Family Services, Division of Aboriginal and Islander Affairs, May, 1991.

5.1

Smith Report 1987

The firsl was a study of marine resources by Aboriginal communities on Ihe cast coast, particularly Hope Vale and Lockhart River communities by Andrew Smith. SmiIh was funded by Ihe AuUlOrity 10 live and work with the Lockhart River community for the purpose of learning more of Ihe traditional underslanding of Ule reef and of sea rights and ownership righls (SmiIh 1987). When examining l!le importance of Ule marine enviromnent to the communities, SmiIh found Ihal • • • Ihe marine environmenl was inextricably linked to the overall/social cultural system; marine resources not only provided sustenance and material needs, but also fonned a cognitive resource; Aborigines developed a range of exploitation strategies to maximise the diverse range of utilisable marine habitats.

)

TIle Report highlights Ule need for consultation with, and education of, Aboriginal communities on Park managemenl issues. TIle Report recommended that: • TIle AUUlOrity should set up a fonnal consultative or coordinating committee for Ihe consultation and direct participation of Hopevale and Lockhart River communities in Ihe management of their marine resources, primarily dugong but with potential to include oUler species, A representative from the east coast Cape York Peninsula Aboriginal communities should be appoinled to the Great Barrier Reef Consultative Committee. TIle dugong hunting permit system be modified as follows: The areas presenlly used for dugong hunting by each community be declared 'hUniing areas'. The catch quota and attendant pennit system for Hopevale be discontinued, but Ule closed season be retained. The duration and liming of the closed season be negotiated wiUI tile Council. The Council have the right to apply for a special pennit to take dugongs for community occasions. Dugong hunting al Lockhart be pennitted in the hUllling area via a community dugong hunting pennit, and Ihal no other controls be applied at Ihis stage. QNPWS should attempt to maintain catch records for both communities. Provisions should be made for Ihe collection of skulls and/or tusks and associatcd capture

•

•

43

infonnation, which would be fOlwarded to appropriate scientists. Recommendation accepted and trialed Jan 1987. • • The imposition of any inappropriate or unenforceable restrictions should be avoided. GBRMPNQNPWS should continue and expand their extension/education programmes in Aboriginal communities explaining the need for, purposes of, and effects of Ule Marine Park. GBRMPNQNPWS should take immediate steps to control illegal trawling activities in the Marine Park 'A' Zone immediately norUl of Cape Bedford. That serious consideration be given to the potential problems of implementing management of turUe hunting. Aborigines should be employed as Liaison Officers and Rangers by GBRMPA/QNPWS to work in the Cairns and Far Northern Sections of the Park. Continuity of QNPWS Officers and Rangers should be maintained when working with an Aboriginal Community. The GBRMPA should undertake to support an anthropological study, or studies, in all the Aboriginal communities adjacent to the Marine Park, aimed at determining how the Aboriginal communities perceive the GBRMPA; and to provide guidelines on how best the GBRMPNQNPWS can present their aims and aspirations to those communities, so as to prevent confrontationist situations from developing. If Coastwatch nights are to be used for monitoring GBRMPA pennit conditions, then the Coastwatch observers should be encouraged to record the race of occupants of dinghies and runabouts in the areas adjacent to Aboriginal Trust Areas, and hunting/fishing areas. TIlat future eUmobiological studies in Aboriginal communities consider adopting a research strategy concentrating on specific topics in a geographically-broad range of communities. Smyth 1990

•

•

•

•

•

•

•

5.2

A second study of Aboriginal maritime sites in the Cairns section funded by the Authority was conducted by Dr Dennot Smyth (Smyth 1990). Smyth's study found U,at: • Only three sites out of 24 were in the marine park, the rest were in the Queensland marine park. TItis reinforced the idea that aboriginal exploitation of Ule reef was limited to inshore waters and some close offshore islands. There was little positive reaction among Aboriginal people to the idea of establislting separate Aboriginal hunting and fishing zones. Communities were satisfied with current multiple use zonings systcm, although they were critical of the dugong hunting system and they found the zoning system complex. The possibility of establishing Aboriginal management zones was seriously considered by community members The emphasis of each community where the idea was discussed was on involvement in the management of the zone, rather than exclusive use.

• •

•

44

• •

There was a need to establish Aboriginal management zones in areas of the marine park where Aboriginal cultural aff1Jiations persist. There was a clear need for intelpretive matetial about the aims and methods employed by thc Authotity itself, targeted specifically at Aboriginal communities adjacent to the Reef.

5.3

Smylh 1992

A third study was also undertaken by Dr Smydl on GBRMPA's behalf in the Far Northern section of the marine park (Smyth 1992). Smyth provided evidence dmt Aboriginal use of the marine park extended to the outer reef. His evidence included Aboriginal claims extending to the outer barrier reef, art sites on islands close to the outer Barrier reef (e.g. Clack island in the Flinders group), egg collecting sites on cays/islands (e.g. Claremont and Raine island), Aboriginal language names for the sea beyond the outer barrier reef, Aboriginal occupation of offshore islands, and usc of double out-rigger sea going canoes. 'TIle Rep0l1 providcs information on cultural sites and their implications for Park management, strategies for further research, Aboriginal concerns with Park management and the implications for Park managemcnt of the proposed Queensland Abotiginal Lands Bill and declaration of dle Cape York Marine Park. Proposals for the establishment of Aboriginal Management Zones and for fonnal joint management alTangements are discussed. The Report found that: • • Therc are Aboliginal individuals and groups who continue to identify with their traditional maritime domain in the Far Northern Section of the Marine Park. Primary AbOliginal knowledge, interest and concern relates to the inshore coastal areas, reefs and istands, but there are instances of use and knowledge of resources on the outer reef. Aboriginal people along eastern Cape York Peninsula consistently stated that their 'country' (traditional estates) includes all waters, reefs and islands within and including the outer barrier. 'TIle objectives of the AuthOlity, its management strategies, use of zones etc. arc very poorly understood by Aboriginal people with traditional links to the Marine Park. There is widespread concern by AbOliginal people consulted about the overexploitation of fish resources by commercial fishernlen, and in certain instances by recreational fishennen. There is keen interest among maritime AbOliginal people to be directly involved in m,Ulagement and planning decision-making wiUlin the Far Northern Section. The traditional Aboriginal maritime estates have been extensively mapped by anthropologists and Abotiginal people from Cooktown to Shelbourne Bay. Access by the Authority (or other government conservation agencies) to this anthropological mapping is likcly to be linked to dIe establishment of meaningful AbOliginai involvement in Matine Park management. AbOliginal people along eastem Cape York Peninsula are disadvantaged in regards to their access to traditional and economic fishelies as compared to Torres Strait Islanders. Aboriginal people are concerned about dIe social, economic and ecological impact of current Torres Strait Islander fishing and hunting activities within thc Marine Park, especially close to Aboriginal setdcments and outstations. There is currently no adequate forum for Aboriginal and/or Torrcs Strait Islandcr concems about Marine Park management to be discussed. 'TIle World Helitage Nomination document inadequately represents/documents the Aboriginal cultural dimension of the Maline Park.

•

•

•

• • •

•

•

• •

45

•

•

•

• • •

TIle Marine Park Act undervalues the significance of the Marine Park to Aboriginal people and inadequately provides for their involvement in i1s management. Consultative arrangements involving Torres Strail Islanders in the management of the Torres Strait Protected Zone can provide a first-step model for Aboriginal involvement in Marine Park management in Ole Far Northern Section. There has been inadequate consultation wilh relevant Aboriginal groups and individuals wilh regards 10 the imminent declaration of O,e Quccosland government's Cape York Marine Park. There is growing coocern amongst AbOliginal people about apparent reduction in availability of some marine resourccs wiOlin the Marine Park. Aboriginal aspirations for exclusive commercial exploitation of some marine resources cUlTently exist and arc I.ikely to increase. There is no feedback to communities from the Consultative Commitlee.

The Rep0l1 made a number of key recommcndations: • That the Authority commence as soou as possible cousultations and negotiations with Aboriginal maritime groups to further explore • the establishment of a Far Northern Section Aboriginal consultative Commitlee wilh the suggested composilion of at least two representatives of cach of Ole major language areas, and one representativc of the ACC, ICC and CYLC the establishment of Aboriginal Management Areas establishment of AbOliginal Heritage Zones.

• • •

That the Authority invcstigate the administrative and legal steps necessary to establish Boards of Management to administer Aboriginal Management Areas. In the Far Northern Section the maximum number of maritime areas would be nine and the minimum one. That Ole AuOlOrity proceed with the preparation and dissemination of intelpretive material re AbOliginal interests in the Marine Park as recommended in Smyth's 1990 report. That OlC design and implementation of fUl1hcr research into Ihe Aboriginalmaritimc culture in the Marinc Park be undcr mcaningful Aboriginal control (e.g. of Ihc FNSACC and subscquently Aboriginal Managcmcnt Area Boards of Management). That Ole AuOlOrity take due cognizance of Aboriginalmaritimc tcnurc systcms, and olher relevant aspects ofthc cultural, social and economic relationship between indigenous people and the marine cnvirolUllent, in all i1s planning, management and consultancy activilies. Dugong Management

•

•

•

5.4

The Authority has funded a number of studies by Dr Helene Marsh on dugong Management. Marsh found (1992 c): • That the potential impact of tradilional hunting on dugong stock is exaccrbated by a number of factors. The current demography of Aboriginal and Islander populations indicates a movement away from areas Supp0l1ing high dugong populations (Torrcs Strait and far north Qucensland) to arcas in thc south where dugong stocks arc lower.

46

•

•

'TIlis factor is further complicated by the present interpretation of Quccnsland Fisheries legislation which allows Aborigines and Islanders living in Trust TerritOlies to hunt anywhere in the State and for urban Aborigines and Islanders to hunt providing they are accompanied by a resident of a Trust Tenitory. An assessment of the impact of hunting on dugong is hindered also by the dearth of infOlmation on life cycle, rcproduction rates and causes of mortality. What is known is tilat dugong have a slow ratc of natural increase. For these reasons there is a need to limit the issuing of pemlils for areas south of Cooktown.

Marsh recommended: • 'TIle development of an extension program to allow for the participation of AbOligines and Islanders in deciding what should be done about allowing traditional hunting in areas away from Trust Tenilories.

In a recent paper (1991) Marsh and Saafcld found that: • • • At the present time there is insufficient information to be able to confinn whether the present catch rate for dugong in the Torres Strait is below the sustainable level. Continued monitOling of catches and aelial surveys are advocated as a means of addressing the paucity of data. The need for public education is considered to be important as a way of preempting any approaches tilat may be made for increased catches.

5.S

Ziegelbauer Report 1991

Ziegelbauer (through GBRCC) in 1991 pointed out in a paper on behalf of DOGIT communities that the Yarrabah, Hopevale and Wujalwujal communities wished for greater involvement in GBRMP management. Hc found that:
• It is important and necessary for Goverrunents and GBRMPA to recognise and understand the particular needs and aspirations of the Aboriginal people in relation to use of tile Great Barrier Reef Marine Park and that for cultural reasons, their use of the Park is more important tilan that of others. Major Concerns of DOGIT Communities with regard to tileir use and involvement in the Marine Park related to: • Thc recognition of traditional rights and traditional usc made of marine resources. • Desire to be involved in the management of the Maline Park and resources so as to have input into the conservation of the vaIious species utilised by AbOliginal people. • The impact of other users on resources, which also raises conservation issues for Aboriginal users.

•

Ziegelbauer's report recommended: • The GBMCC recommend that representatives from the GBRMPA and the QNPWS visit each of the AbOIiginal Communities affected by the Zoning Plan for the Caims Section to listen to their concems and discuss with them the Authority's intentions for the proposed new Zoning Plan. The GBRCC recommend to the Federal Minister and the Authority the need for legislative recognition of Aboriginal representation on the GBRCC.

•

47

•

The GBRCC recommend to the Federal Ministcr and thc Authority that they recogrtise Authorised Officers of DOGIT Community Councils where the relevant by-laws exist, and move to provide them with inspectoral powers under Section 42 and/or Section 43 of the GBRMP Act. The GBRCC recommend to the GBRMPA to implement Zones areas as Aboriginal Management Zones adjacent to the DOGIT Lands to be managed with the assistance of the Authorised Officers of those communities.

•

OTHER RELEVANT REPORTS Three recent reports are also worth noting in the context of Aboriginal involvement in the marine park. TIley are a report commissioned by the ESD working group on fisheries; the report of the ESD working group on fisheries; and third a report by Dr Dermot Smyth 10 the Resource Assessment Commission. 5.6 The Cordell Report 1991

Mallagillg Sea Country: Tellure alld Sustaillability ofAborigillal alld Torres Stmitlslalld Marille Resources by Dr John Cordell is a study commissioned by the Fisheries Working group on Ecologically Sustainable Development (ESD) to help answer some basic questions regarding the sustainabUity of fishelies and aquatic resources used by indigenous peoples in Australia. 68 The Report focuses on the kinds of things fisheries and marine protected area authorities ought to know and take into account in planrting programs and in forming relationships with indigenous commurtities. In recognition of the complex nature of Ule relationship between indigenous people and their marine domain UlC repon examines fishing-related customs, laws, beliefs and social interaction. While the sense of identification with sea countly is as strong as with the land for indigenous people, this relationship is more likely to be ignored by govel11ment authorities with an emphasis in law and public policy on the 'common propeny' nature of the sea and its rcsources. TIle communal nature of customary marine tenure (CMT) with its shared responsibilities and obligations, is not easily translated into European institutions and property law. The Report suggests that the establishment of marine parks has reduced rather than enhanced Aboriginal control over marine estates through the failure to recognisc tltis U1tique relationship between Aboriginal people and Uleir maline environment. While there has been some movement by marine park managcrs towards recogltising the rights of AbOliginal groups as being more than those of just another 'user group', it is not reOected in public policy or legislation. It is recommended that there must be legislative change, addressed nationally and cooperatively, directed towards recognising the existence of contemporary CMT systems and towards incorporating indigenous maline resource lights into all natural resource management legislation. Legislation would need to be flexible to accommodate differing geograpltic and cultural conditions. The Report raises the question as to wheUler ESD ean be adapted to accommodate and reconcile matters of indigenous sea tenure WiUl the country's economic and biodiversity SUppOlt priOlities and finds that there is compelling evidence which suggests that subsistence practices constitute a sound form of resource management. TIle Repon recommends exploring the potential for CMT-based management strategies as an ESD instrument but stops short of

68 The report remains unpublished and was made available to the author b)' Dr David Lawrence, GIlRMPA.

48

recommending what specific fOlID of recognition of indigenous rights and territories future CMT based management strategies should assume. The RepOlt suggests future research needs and offers poliey guidelines. RESEARCH NEEDS • Need to leam more about CMT. • Need for consent and close collaboration of indigenous groups - time and resources for consultation to reach all indigenous user groups and decision makers. Need for independent task force. Lack of knowledge of peli-urban groups. Sea rights studies should be designed to take into account not only urban-based Aborigines but Torres Strait Islanders living on the mainhmd. ESD needs to consider 'other cultural' factors (sacred sites etc) in ESD management frameworks. Need to increase indigenous community representation and decision-making participation in appropriate fishery management frameworks and advisory committees. Importance of consultation calmot be over-emphasised. The lack of it continues to confound nearly all relations indigenous groups have with state administration. There is a need to understimd how Ulese communities operate and their decision making processes. Local councils are not necessarily the places where decisions are made, particularly those relating to the disposition of resources. They are not necessatily representative and may not represent the actual owners of marine estates or resources. In the context of fisheries management, Ulere is a need to talk to the people WiOl direct responsibility for the area in question and with Ule right to make decisions about it. Sea tenure systems often embody solutions to fishery management problems. CMT is a potential method to help sustain resources. There are conselvation benefits to be gained from protecting communal rights to inshore fishing grounds.

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•

•

•

•

POLICY GUIDELINES • Cultural and Biological Diversity. ESD policy should promote and safeguard the cultural as well as Ule biological diversity associated with indigenous homelands. • Priority conselvation areas often coincide with indigenous homelands. The interests of indigenous groups and enviromnental concerns are not mutually exclusive. Management strategies should seek to complement and work within pre-existing customary territorial and resource systems. Indigenous peoples exercise customary claims and rights to extensive marine as well as terresltial domains. Indigenous peoples are the traditional inhabitants anel owners of coastal and aquatic areas and fishing grounds, not just peripheral 'users' of today's commercial fisheties. Indigenous peoples do not constitute just another 'user group'. They are a special group of stakehoders whose cultural survival depends on protection of local enviromnents.

•

•

49

5.7

ESD Fisheries Working Group Report 1991

The ESD Working Group on Fisheries (see ESD 1991) appeared to find favour with Cordell's Mal/aging Sea COllI/try Report. It found that: • There was a need to find ways to engage indigenous communities in all aspects and levcls of management. A framework must be found to work within customary tenure systems. Indigenous peoples are a special group of stakeholders whose cultural sUlvival as well as livelihood depends on protection of environment and wise management. Aspects of ecologically sustainable development, such as management principles and research priorities applying to fishing industry as a whole apply also to resource usc by indigenous peoples. Longstanding sea tenure practices and customary law were unrecognised in a legal or management context. TIlere was a need to devote more attention to long-tenn planning The Prime Minister's proposal to establish a national representative system of marine protected areas needs to consider indigenous rights All relevant user groups should be included in resource management and the indigenous population is not generally integrated in national fishelies adm inist ration. There was potential for increased inequities and conOicts between indigenous section and other user groups and management authOlities unless an integrated approach is taken. There were benefits of an integrated approach including increased social equity, incentives to sustainably develop coastal 'home reef and 'home country' fisheries and wildland economies and oppOltunity for authorities to take advantage of indigenous peoples' own resource management procedures.

• •

• • • •

•

•

TIle ESD Working Group recommended that govemments: • Undertake a comprehensive evaluation of govemment rclationships to indigenous coastal communities, with regard to fisheries management issues and arrangements, laws, obligations, local needs and customs, and traditional environmental knowledge. Intcgrate the indigenous sector in a national framework of coastal fisheries and marine management. Investigate new co-management procedures with indigenous communities. Ensure that indigenous communities have membership on management advisory committees of appropliate fisheries. Smyth Report to the Resource Assessment Commission 1993

•

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5.8

In January 1993 Dr Dennot Smyth presented a report to the Resource Assessment Commission (RAC) on Aboriginal and Islander Interests in Australia's Coastal Zone (Smyth 1993). The repOlt was commissioned by the RAC for its inquiry on Coastal Zone Management. The RAC's repOlt is to be handed to the Plime Minister in November 1993. 69 Smyth spent three months

69 The Commonwealth is also developing t1 policy for COlllmonwealth coastal zone responsibilities and DASE'T released a draft copy of the report in December 1992. In developing a Commonwcallh policy for the coastal zone the Report points out thai a significant number of Aboriginal and Torres Strait Islander communities arc located within or adjacent to the coastal zone. II Ihcn points oollhal : 'Prescnt and future rnanagt'mcnt of the coaslal zone must thl"rcforc incorporatc mechanisms that recognise and ensurc thatlhe rights, roles and interests

50

consulting with Aboriginal and Islander communities and organisations around Australia. The Resource Assesment Commission largely accepted Smyth's findings in its own dran RepOlt released on I February 1993 (RAC 1992). Smyth found that -

•

•

There was widespread frustration, disappointment and anger at the lack of opportunity for Aboriginal and Torres Strait Islander people to make decisions about, and to control Ule future of, their coastal areas. There were three major concems and conflicts repOlted by AbOliginal and Islander people. First a perceived failure by govemment at all levels to provide meaningful opportunity for Aboriginal and Islander participation in decision-making. * TIle second group of eoneems related to inadequate responses from govemnlent when administrative or legislative mechanisms have ben established to involve them in the decision-making process. * The third group of eoncellls relate to the lack of benefits (defined broadly) flowing to Aboriginal and Islander people from projects which commercially exploit what are regarded by indigenous people as their resources. Specifically Smytil found the following concellls about commercial fishing; commercial fishing competes with subsistence fishing; commercial vessels enter AbOliginal and Islander estates without obtaining penllission; and there is no structural involvement of subsistence fishermen and customary maline owners in the management of the commercial fishing industry. Mining was viewed as a serious threat to many coastal communities, and sand mining in particular was raised as an issue by coastal Aboriginal people in New South Wales, Queensland, the Nortilelll Territory and Westelll Australia. There was a common theme to exert control on tile impact of tourism on Aboriginal and Islander cultural life. There was a great deal of interest in sea famling, which included not only interest in becoming involved in tile industry (especially oyster and clam farming) but also concems about conflict developing between sea farms and area of continuing cultural and/or subsistence interest to Aboriginal people, and concellls about Ule exclusion of ;t1(tigenous people from maliculture operations. Concerns were expressed about the impact of building and associated development on AbOliginai cultmal sites as well as the envirorullental impacts oflarge new infrastlllcture projects. An underlying concelll was expressed about the lack of adequate protection offered by responsible agencies for Aboliginal cultural sites and a lack of Aboriginal involvement in the management of Aboriginal cultural helitage generally. TIlere was concem about the lack of fOmlal powers to control people and manage resources within marine areas adjacent to community land by community rangers, and the lack of long tenll funding for employment.

*

•

• • •

• • •

In the context of improved Coastal Zone Management, AbOliginal and Islander people have specifically asked the RAC to recommend or consider:

of Aboriginal and Torres Strait Islander communilics, including community councils and their representative organ is III ions, are incorporated in the management process' (see DASET 1992, 5).

51

•

Recognition of Aboriginal and Islander customary maJine tenure as an extension of customary ownership of land; Recognition of indigenous people's right to control traditional resources; Endorsement of ESD Fishelics Worldng Group recommendations in rcspcct of indigenous fishing; Legislative or other recognition of traditional Aboliginalland ownership; Legislative or other recognition of the right of AbOliginal and Islander people 10 be consulted about, and involved in, the management of coastal land, sea and resources; The establishment of new Aboriginal and/or Islander institutions to ensure the control by Australia's indigenous people of their cultural heritage, environment and customary domains on land and sea; TIle relevance to Australia of intemational developments in the recognition of indigenous people's rights to involvement in coastal zone managemenl.

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5.9

GBRMPA and Aboriginal and Islunder Involvement

Certainly the GBRMPA has done more to sponsor research on AbOliginal maritimc culture than othcr government agencies. Wllile a numbcr of the reports cited above have criticised GBRMPA's record on AbOliginal intercsts in the park it is certainly not the case thalthe GBRMPA has ignored AbOliginal intcrests in the park. An early contrary imprcssion may have arisen from the Law ReFonn Commission Report of 1986 which asserted that Aboriginal traditional lights had not bccn considered by the GBRMPA and implied there was no provision for traditional hunting and fishing (LRC 1986, 165). This was misleading for as already noted there has been a catcgory of use, traditional hunting and gatheling, wilh an associated definition of traditional inhabitant from the Cairns plan onwards. The OIiginal zoning plan for the Capricornia Section made no such mention becausc there was no (race of any traditional hunting or fishing in the Caplicom bunker group. While the Authority as Far as onc can tcll ncvcr prcsented any suggestions that certain arcas should be preserved, or morc propcrly resclvcd, for traditional use (the Authority appears to have avoided naming zoncs with a spccific UScI' activity for Fear of crcating problcms with other user groups) traditional hunting and fishing have been recognised. As alrcady noted zoning plans pcnnittradilional inhabitants to carry out traditional hunting and fishing activities which go bcyond thc practiccs allowed undcr other types of fishing (c.g. traditional hunting of dugong and tllltlc). On the matter of consulting with Aboriginal people certainly the evidcnec would appear to be thal this has been relatively recent (from the carly 1980's). It must be stalcd thalthe Authority undcrtook one of the first initiatives in this arca when it commissioned Andrcw Smith in the mid 1980's 10 work in the Lockhart community to gain an understanding of AbOliginal interests in thc rcef. According to the FOlmer chieF planning officcr of the GBRMPA, Richard Kcnchington, who was employed at the AuUlOrity from 1977 and was involvcd with all the initial zoning for thc park it was very difficult to arouse any Aboriginal interest in thc issue despite the Fact that it was simultaneously a major issuc in the Norlhem Tenitory 70 The situation was particularly complicaled by the deliberatc displaccmcnt of Aborigines to settlements many hundrcds of kilometres from traditional lands. This occurred untilthc 1960's. As a consequence it was difficult for the AuthOlity to find communities which were closc to the traditional areas of operation. Thc AuthOlity during the 1980's nevcr received claims that any
70 Thc following relies on personal communication with Mr. Kcnchington.

52

particular area was a traditional area for a particular group of AbOligines other than in areas in close vicinity to certain of Ule current communities. Tllis was despite efforts in consultation with Aboriginal commurlities. The Authority was in fact looking for this kind of infonnation so that it could be taken into account with the general consideration of zorling. While the consultation process was not ideal (and there was a cel1ain amount of resentment within the Authority that it was spending more time on consulting WiUl Aborigines Ulan other interest groups) it should be noted that the Aboriginal people of Hopevale said that the GBRMPA (Ulat had approached the people on the hunting issue) were the first goverrunent agency that had visited them and consulted them on anything. Nevertheless, the Authority should have spent more time with more members of Aboriginal commurlities. But for many in the organisation the whole idea of consultation and involvement with native peoples was fairly novel, as well as the whole concept of AbOliginal association with 'sea country'. There is no doubt that one of the real difficulties is the mutual problem of commurlication and comprehension. It seems that in developing zoning plans it requires three or four orders of magnitude more of direct one to one contact working with traditional commurlities than with other user communities of the Barrier Reef. 71 One of the basic problems is often to find the appropriate people to consult with. This can be affected by a vast range of factors (age, gender, language, the time involved etc). The AuthOlity has however, undertaken a number of initiatives here to make contact WiUl the AbOliginal communities. The most important are the following:

•

In 1978 AbOliginal and Islander people attended a marine ~ark workshop prior to the development of the first far northern section zoning plan'? In 1985 Aboriginal and Islander people participated in a workshop on Traditional Knowledge of the Marine Environment (Gray and Zann 1988)73 In 1988 AbOliginal and Islander people participated in an Innovative Planning and Management Workshop. In 1989 the Authority funded Dr Dermot Smyth to assist two AbOliginai commmlities to prepare submissions in relation the second zoning plan for the Cail11s section of the GBRMP. The submissions outline Aboriginal aspirations for greater involvement in the management of the marine park, and especially the protection of their mmine sacred sites (Smyth 1989). In 1990 Aboriginal and Islander people pal1icipated in the Torres Strait Baseline Study Conference (see Laurence and Cansfield-Smith 1991). Cail11s section zolling plan considered tile cultural and heritage values of an area for traditional inhabitants and involved commUility councils meeting with staff of the Authority. From the 3 Aplil 1992 changes to the assessment criteria have been implemented to read '(b) the need to protect the cultural and heritage values held in relation to the Marine Park by traditional inhabitants and other people'. Where the plans include areas of value to Aboriginal people they would be prepared jointly by community councils, GBRMPA, and QNPWS (Briggs and Zigtel11lan 1992,276).
An AbOliginal liaison group was established in 1991 WiUl representation from all sections ofGBRMPA, QNPWS, and ATSIC. This fOl1lm provides a focus for discussion

•
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•

•

•

71 Personal communication Mr. U. Kelleher, Chairman of the Great Barrier Reef Marine Park Authority. 72 A paper by Alhal Chase at the mecting c.anvasscd a number of significant Aboriginal maritime interests in the marine park. See Chase 1983. 73 It is interesting to notc that Mr Eddie Mabo spoke at this mecting. See Gray and Zann 1988,47-49.

S3

of Aboriginal and [slander use of marine resources and participation in marine park management. • The GBRMPA has employed community rangers on research projects under the ANPWS contract program. These projects involved the gathering and recording of infonnation about sacred sites and story places which arc within and/or close to marine parks. [n November 1992 funding was received from ANPWS for a three year training program for community rangers. They will be employed in nine communities and trained at Caims TAFE and the Authority in Townsville. The TAFE will also nm pilot inspectors courses from March 1993. The Authority intends to fund the communities so that they can administer the funds. The development of an AbOliginal employment strategy, including the appoinlment in 1992 of an AbOliginal Liaison Officer to consult with Aboriginal communities. [nvolvemenl in and support for community ranger courses conducted by Caims TAFE. The amendmem to the Great Barrier ReefMarine Park Act in October 1991 which will enable the appointment of Aboriginal and [slander people as special inspectors with limited powers 74 The involvement of Aboriginal communities in dugong management. While in the past the Hopevale Council did not wish to take responsibility for issuing pennits for dugong hunting because they did not feel that they could enforce it (which led to complaints by AbOliginal people of heavy handed enforcement carried out by other govel11ment agencies on GBRMPA's request) the communities now wish to be involved in management. Sclf regulation in tandem with scientific monitOling of dugong numbers was introduced and involved a high degree of consultation WiUl the GBRMPA. It has proved relatively successful although there is increasing pressure on dugong and turtle populations from the growth of communities, from increased mobility of people and from increasing requests from urban Aboriginal and Torres Strait [slander people, using the traditional ceremonies as a lever to gain hunting rights. A Working Group on dugong and turtle management has recently been established by the AuthOlity and tltis group has extensively consulted with Aboriginal groups from Hopevale, Lockhart River and Mackay. A draft plan will be distributed in 1993 to Aboriginals and Torres Strait Islanders for comment 75 On traditional fislting pennits an increased effort has been made to raise public awareness of the permit system, pal1icularly in the central and southem sections of the marine park where there is a good deal of illegal hunting. This will enable the Authority to identify the urban based population who could then be targeted by the Authority for resource use infonnation and gain a better idea of H1illual catch rates. Attendance by staff at a cross-cultural workshop with commllltity rangers, QNPWS, TAFE. An Aboriginal person was appointed in 1988 to the Authority's statutory consultative committee which reports direct to the Minister. (These appointments are at the

•

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•

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74 The ro:ason why this amendment was put in was that a number of compulsory pilotage inspeclOrs were being appointed to do these inspections. They were employed by the AuslIlIlian Maritime Safely Authority and were not doing marine parks type cnforceml'nt. h was fclt appropriate to diffcrcnti<lte betwecn thcsc (wo types of inspectors and so a third catc&ory~spccial inspectors was introduced. IL has not yet heen dccided exactly wh:u powers thc)' will get but probably not powcrs of seizure ofvcssels and aircraft. Personal communication Stephen Sparkes, GHRMPA. The Act docs allow the Authority to specify which powers an inspector has scc s.43(b) GIJRMP i\cI/975. 75 Thc Queensland Department of Environment and Heritage have also initiated thcir own process of consultation on traditional hunting and I1shing prusuantto provisions in the Notllre Conservation Act.

54

Minister's discretion howevcr and are individual appoilllments not representative ones.) Unfortunately the individual concerned did not attend any meetings. This was not the case with his successor. • TIle production of a special section on recognition of Aboriginal and Torres Strait Islander interests in a draft strategic plan for the AuthOlity which was released in 1992 (GBRMPA November 1992). TIle plan is yet to be endorsed by the Federal and Queensland governmellls. The main thl1lst of the strategy is to ensure that the interests of AbOliginal and Torres Strait Islander people are reflected in the management of the area and to establish cooperative arrangements between AbOliginal and stakeholder agencies in the area, as well as to provide the legislative basis to establish such arrangements. Projects related to ule social, cultural and economic interests of Aboriginal and Torres Strait Islander people should be included in research and monitoring programs. Other objectives and strategies dealing with the development of culturally relevant interpretative matelial, membership of advisory boards and ule development of AbOliginal and Islander training and employment progranls are also important initiatives (see Appendix A). TIle establishmelll of the Torres Strait Baseline Study in 1989 which GBRMPA has been charged with m,maging (the most nOllherly section of the Barrier reef, which fonns ule eastern boundary of Ule Torres strait, is not within the julisdiction of Ule Authority).

•

5.10 Summary Over the last ten years the Authority has made a number of limited effolls to offer participatory oppollunities for Aboriginal and Torres Strait Islander communities and ulere has been an improvement in liaison over the years. These steps have been broadly seen as positive by Aboriginal groups, particularly efforts by Authority staff to hold liaison meetings with communities. Meetings appear, however, to be arranged in response to particular problems rather than to develop co-operative managemelll arrangements. Of course, resources arc always limited but Ulere does appear to be a gradual recognition within the organisation Ulat it is not doing enough in tltis area and that its past effol1s on indigenous issues have been somewhat token. 76 The process of recognition of indigenous issues, the implementation of selfmanagement strategies and a recognition of such cultural and liFe-style issues as protecting sites and greater selF-management in dugong and turtle management need to be addressed. The recommendations that have been put forward to the Authority from previous reports appear, however, to have been considered in only a very generalised mHlUler. A more disciplined and focussed approach needs to be adopted by the Authority at a senior level, or the nineties will come to be secn as a lost decade as far as the Authority's handling of indigenous rights issues is coneemed.

761-1owcvcr, il should be nuted Ihallhere is no wrillcn policy document for example from !he QNPWS on Aboriginal use of marine parks. A recent consultants' report to DASET on Ausltalian marine prolected areas did nol rdcr (0 indigenous issues. Sec Carleton Ita)' and McCormick·Ray 1992.

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6.

FUTURE DIRECTIONS

While the GBRMPA has been active in researching and attempting to come to grips with AbOliginal and [slander interests a number of steps need to be undertaken by Ole AuOlOrity to incorporate indigenous maritime interests. The GBRMPA is acknowledged as a leader in the area of mu[tiple use marine park planning, but it has not been a leader in tenns of matching other national terrestrial parks such as Kakadu and Ulun! in involving Aboriginal people in park management. [n particular the AuthOlity needs to recognise traditional ownership and responsibility for marine estates, traditional responsibility for marine resources and customary stewardship of maritime sacred sites by putting in place co-management arrangements.
It should be stated that most of the recommendations that follow are not original. TIley have been put fOlward in one fonn or anoOler in a number of Ole previous reports already commissioned by the Authority. These studies suggest there is some fl1lstration at Ole pace at which the Authority is moving to provide opportunities for AbOliginal and Torres Strait [slander people to participate in decisions about areas of sea country in the park and manage thcir customary coastal domains. Needless to say the Authority, if it is to be seen to be dealing with these issues in a positive manner, must come to terms with Ole recommendations that it has already been given. TIle following issues are in my view the most important that the Authority needs to act upon:

6.1

Recommendations for Aboriginal and TOITes Strait Islander representation on the Consultative Committee need to be acted upon with a consequent change to the Act.

In 1986 the Law Refonn Commission recommended Olat there be Aboriginal representation on the Authority's Consultative Committec (LRC 1986,197). There is no statutory requirement for an Aboriginal person to be appointed to the committee. [n 1988, 13 years after the establislmlent of the maline park, the first Aboriginal person was appointed to Ole Committee. TIlere is now no Aboriginal appointment on the Committee, (the tenn of the last Aboriginal person appointed on the committee expired in early 1992)77 In 1991 the Aboriginal Coordinating Council passed a resolution calling on the Minster for the Environment to enlarge the representation on the Consultative body to 5 members (Smyth 1992,46). The argument against a large increase would be that there needs to be an approximate crosssection of interests represented over time and that it would inhibit tllis process, and reduce the long term effectiveness of the committee to require specific groups to be represented at all tinles. Arguably also if there were to be a specification that particular groups were to be represellled there would be pressure to define similarly a range of other groups. To expand Ole membersllip much beyond the previous 16 members could also make the committee difficult to

manage.
There is some force in these argumcnts but they ignore the fact that Abmiginal and Islander communities should be seen not just as another user-group, but rather as co-managers of some areas. As Cordell points out: 'Indigenous people are a special group of stakeholders, marginalised and displaced by colonialism, trying to hold onto what is left of their traditional homelands. Their cultural survival, not simply thcir subsistence livelihood, depends on protection of local environments and wise managcment of the remaining ancestral resource base' (Cordell 1991,129). As was pointed out in Chapter two indigenous groups are seen as comanagers in other parts of the world when it comcs to marine management issues. The effect of
77 The committee's appointmc.nls h".rrninatcd in the third quarter of 1992 and ncw members have not been appoinlcd. The committee members ar~ appointed by the Minist('.r on the advict". of DASET nnd the Queensland government. The Authority's advice is sought on appointlOl'nts. The Commillee comprises one member of the Authority and at IenSltwelve other members. Members are appointl'd on a pcrsonul basis, not delegates of particular groups. In earlier comminees, indigenous people's mterests were represented by the administr:Jtivc head of the Quee.nsland Government Dcpartmc.nt responsible for Aboriginal and Islander Affairs.

56

most legal struetures is in fact to assign different rights to specific classes of people according to different circumstances. Different conditions affect different groups. TItis will dictate different treatment. In the case of Aboriginal people the purpose here would be to give them special representation, but that is justi fiable on the grounds that as a group whose rights are threatened they deselve special protection. Aboriginal and Islander involvement should be inereased, probably by at least two members (one Aboriginal and one Torres Strait Islander) on the Consultative Committee and there should be a legislative requirement to this effect. Indeed the 25 year GBRMPA draft strategic plan seems to acknowledge the need for such a change by referring to the need to establish 'a legislative basis for cooperative arrangements'. Aboriginal people have a right to see their culture not only protected within the marine park, but also visibly present in the Authority's cltief advisory forum. A dramatic increase, however, would be hard to justify against the charge that it made other groups with an interest in the park 'second class citizens' and therefore open to the claim that it is undemocratic. A slight inerease will, however, ensure that the risks of Aboriginal and Islander people being marginalised or ignored by the Authority as a whole are minimised. 78 Great care must be taken in selecting the AbOliginal and Islander representation on the committee. It was somewhat unf0l1unate that the first person selected did not allend any meetings 79 The broad point is that the Authority should speak to AbOliginal people about who they prefer and that the actual process of selection needs to involve the communities. 80 The person(s) selected must be represelltative of the various AbOliginal and Islander communities and organisations. Unless this is done the representative(s) are unlikcly to have much credibility with the Aboriginal and Islander population. It will also be important tilat the AbOliginal and Islander person(s) be properly resourced to travel and to liaise with Aboriginal and Islander people. The people selected should be funded to take time off from their jobs to at least report back to communities after consultative meetings. They should also regularly allend meetings of the Aboriginal Liaison group. There is a broader point to make about the actual selection of tile Aboriginal and Torres Strait Islander representation. If there were Aboriginal managemem committees (see below) it would be a relatively straightfOlward process of getting nominees. It is nolthe best approaeh to start with the stlllcture at the lOp without tile structures in place at the bottom. Aboriginal people are going to be imerested in who has got comrol 'on the ground' rather than who is sitting in a high level consultative committee. It should not be assumed, therefore, that by pUlling people in at the top the Authority will solve all its problems. 6.2 Augment the resources of the Abol'iginalliaison officer and move lowards making this a higher levellJosilion.

Communication problems between the Authority and communities have been persistent, despite the recem appoimment of an Aboriginal liaison officer. TIle need for regular direct face to face liaison with Aboriginal and Islander communities will need a long term eommitment by the AuthOlity and a clear recognition lhat the role of the Aboriginal Liaison officer should be very much one of repol1ing to the AuthOlity from tile communities. In this respect the three

78 The govcrnmcnl's National Strategy for Ecologically Sustainable Development released in December 1992 states that Governments will examine lhe representation of Aboriginal and Torres Strait Islander peoples on decision-making Of' advisory bodies relevant to their interests in resource allocation on ESD-related issues ("ASET 1992a,83). 79 The person appointed was at the time chairman of the Aboriginal Co-ordinating Council, an organisation established by the Queensland government to provide advice on mailers relating to the management of Queensland's 16 designated Aboriginal Trust Territories. His agpointment was made with lillIe prior consultation with coastal Aboriginal communities. Personal communication Dr D. Smyth. 8 In 1990 the ACC nominated one of its employees as the replacement member of the Consultative Commiuee and he made a significant contribution to the Commiuee. Personal communication G. Kelleher, Chainnan, GUHMPA. When this person resigned from the ACC, the ACe unsuccessfully sought to ha\'c his appointment on the Consuhative Commillee terminated and replaced with another ACC staff member. As noted earlier the appointments of all Consullative Commiuce members have since lapsed. A new Committee is due to be appointed in 1993.

57

weeks allocated for the liaison officer to consult with Aboriginal communities on the draft strategic plan was clearly deficient. The plan itself refers to the need for an 'effective' consultation processes and this clearly did not happen. The need is for the Authority to seek advice rather than a heavy 'top down' approach. This point was implicitly made in Smyth's 1991 study that found that the Authority's approach to Aboriginal communities had been 'consultative' in the sense of the Authority dealing down to the communities rather than the communities up to the AuthOlity. Consultation. negotiation. and compromise have always been part of Aboriginal and ISlander ways and no Aboriginal or Islander would use another person's country without first asking pennission. Steps should be taken to adding staff in this area (strong consideration should be given to appointing at least one female officer) as one liaison member will not be enough given the range of issues and distances the officer has to cover. At least six officers are needed. TIlese people should come from the major communities. They would form an Aboriginal liaison unit placed in the organisation where they would be most useful. No doubt they would spend a lot of their time in the management section and so consideration could be given to placing them there. When zoning was taking place an officer from the unit would be located in planning to assist. 81 The same would apply to infonnation and education to allow the liaison officer to be part of the team for each major project. TillS would appear to be how the AuthOlity operates its projects gencrally. If the AuthOlity itself is to grapple with the complexities of Aboriginal and Islander interests and understand tlle different range of issues and concerns of each commUlllty it will need to appoint other staff in the area of AbOliginal liaison. In the post-Mabo environment native title issues will assume greater importance in the planning process and extra staff wilt be necessary to ensure that the Authority knows when its management and zoning plans adversely impact on marine tenure/native title. This wilt require some program to identify traditional owners and be aware of developments in documenting customary law. When such staff are on board it would make sense for an Aboriginal and Islander policy unit to be formed in the Authority to act as a link to an indigenous consultative committee(see below). In the short tenn consideration should be given to upgrading the seniority of these positions. The current appointment is at ASO 6 level. If the AuthOlity wants to be seen to be serious about embracing indigenous rights issues it should consider the example of some mining companies in negotiations on aboriginal issues-thcy appoint a selllor adviser to tlle Chief Executive Officer. That way the Chief Executive sends a mcssage to the whole organisation that these issues are to be dealt with at senior levels. The risk of only mailllailllng the liaison officer position (and this is no comment on the present occupant who is. by alt accoullls. doing an extremely good job) is that the AuthOlity is simply seen as only 'giving a little' on these issues. A more senior level position would dispel any perceptions that the organisation is simply adopting a 'holding the tine' position and is genuinely wilting to inculcate fresh perspectives. A more senior level position is also likely to command more resources to do the jobs that are required. 6.3 The establishment of a separate Aboriginal and Islander Consultative Committee should be considered.

TIle AbOliginal Liaison group. on which govemment officers arc in an overwhelming majority, has proved useful (Smyth 1992,47). The liaison group started as a 'worry group' among middle level (non-AbOliginal) staff that kept bumping up against indigenous issues in their work. It does //0/ provide for significant Aboriginal participation nor is it genuine fonlln for the Authority to really enter into dialogue with maritime Aboriginal people. To be fair. of course. it
81 Aboriginal and Islander ecosystem knowledge might, for example, be sought during environmental planning and implementation processes.

58

was never really intended to do tllis. However, what it has done rather effectively is to expose the need for tllis to happen. A separate indigenous consultative body would provide a means for the Authority to directly access the views of AbOliginalmaritime groups and to have its views rep0l1ed back to those groups. (For example the Authority already talks to other representative groups such as the Association of Maline Park TOUlism Operators in relation to tourism.) Such a commillee should not necessarily be viewed as a pennanel1l structure. The commillee should focus on gelling some resolution of issues of local control and be used to start a process of genuine consultation on setting up Aboriginal management committees. It may be a pel11lanent structure but it may turn out to be a stage in the process towards devolution of power to Aboriginal management commillees. Stmctures should be seen as evolving rather Ulan set in concrete. The risk of selling up an indigenous consultative commillee before the devolution of Aboriginal management commillees takes place is of course that the Authority may well end up with an unrepresentative body. This would cause more problems than it solves. That is why it should be used to get the process of dialogue going on devolution of control. 6.4 There should be a formal recognition in the Act that maritime clan boundaries and maritime clan estates will be recognised in zoning and management plans.

TIle GBRMPA has bccn managing Aboriginal marinc estates withinlhe park since 1975 without any formal rccognition of tllis fact. There has, however, been some recognition of aboriginal maritime cultural sites by the change in the regulations from 3 April 1992, acknowledging the need to protect the cultural and heritage values held in relation to the marine park by the traditional inhabitants. SmyUl's studies demonstrate thai for large parts of the Northem and Far n0l1hem sections of the marine park the traditional owners of the coast, inshore waters, reefs and islands can be easily identified. 82 These people have, however, played no significam part in managing the marine park. For example Ihey do not have a voice in detemlitling commercial fishing access within Uleir traditional marine estates. Wllile s.32 of the Act provides for an extensive process of public notification and consideration of publ.ic representations by the Authority a more formal recognition of Aboriginal clan boundaries and maritime clan estates would signal the imp0l1ance that the AuthOlity attaches to the just claims of AbOliginal peoplc. It should not be sccn as opening the gates to single out othcr groups in the Act. Varying circumstances will affcct different groups and tllis will sometimes warrant di ffcrcm treatment. The fonnal rccognition of cultural sites should facilitate the dcvelopmcnt of mminc protccted areas in Aboriginal and Islander traditional 'sea country,.83 6.5 RccomnlC.ndat ions for Aboriginal Management zones and Heritage areas in coastal regions near communities need to be acted upon.

Thc establislunent of these areas would (as Smyth notes in his repol1s) greatly assist the Authority in its il1leractions with Aboriginal communities. The current focus by Aboriginal commullities in the marine park is onjoillt managemem of areas raUler than exclusive rights to those areas. TIlis is of course a different clirection from the way in wllich land lights issues

82 The usc of the term 'owners' is meant in a moral sense, not necessarily legal. 83 Some Aboriginal groups have suggested that the GORMP should he nominated to the world heritage list for its cIIltural values. If this was done important legal obligations regarding the identification, preservation, transmission of those values would arise. Mixed natural/cultural nominations under the list currently include Knkadu, the TaslllAnian south· west forests and the Willandra Lakes region. The Wct Tropics World Heritage Protection and Management Agency is eXAmining the prospects for reonominaling at least part of the. wet tropics world heritage area for its cultural vlllues. Should the area he renominated, the World Heritage Properties Conservation Acl J983 (CIIJ) provisions regarding cultural heritAge might also then be more readil)' used in the GBH.MP if need arises. 1am grateful 10 Ms 1. Sutherland, I.aw School, James Cook University, for this point.

59

,

have gone elsewhere (see Young 1992). Aboriginal communities want involvement in the management of areas where they have livcd and worked for many ycars. Maritime areas are of additional importance when they provide sea access to aboriginal land. A small Aboriginal management area is being declared at Mission Bay within the Cairns marine park, close to Yarrabah. That agreement was possible in part because commercial fishing is excluded in the bay. In their submission, the Yarrabah community indicated involvement in the management of all maritime areas within 5 kilometres from their land. including Fitzroy and Green Islands. After negotiation with the Yarrabah community council by QNPWS, Ihe Council endorsed the designation of Mission Bay as an AMA as part of the proposed new zoning plan for the Caillls M31ine Park (Briggs and Zigtemlan 1992,279). AbOliginal Management zones would need to involve consultation with elders responsible for particular areas, patrolling by community rangers and joint management by the Authority and Aboriginal people appointed by the local community councils. Such options would provide the community with a degree of control over the sea and access to tmst lands, aClive involvement in the management and protection of sites of significance within the marine areas, and official recognition of inshore waters within traditional clan estates. It would also provide a structured process for consultation and management of areas of Aboriginal significance within the marine park. Such zones could not have provisions which were inconsistent with a zoning plan, except where a special mm13gement area applies. The evidence taken du.ing Smyth's consultations with Aboriginal and Islander people for the RAC strongly supports the desire of Aboriginal and Torres Strait Islander people to regain control of their sites of significance. This was UlC most striking concelll aboul cultural site management-the only place where hannony in site management is achieved is where Aboriginal people have ownership and control of their land, so that control of cullural sites is under their control (see Smyth 1993 68-69). 6.6 P"cvious rccommcndations for Aboriginal eommunities to be involvcd in joint managemcnt strategies, using community rangers (see point 7 bclow) and to be dircctly consultcd on marine rcsource use and managcmenlneed to be acted upon.

In most Australian Statcsffenitories Aborigines now have some degree of input into the operation and management of national parks (see Young et aI., 1991,136-50). This situation owes mueh to cerlain components of Northern Tenitory land rights, in the course of which aboriginal land has been leased back to the Federal agency, ANPWS, to fonn Kakadu and UlulU/Kata Tjuta national parks. In both these cases AbOIigines exert substantial power in the boards of management (AbOliginal people are in a majOlity and the Board approves Ule management plan). Aborigines are heavily involved in decisions over tourist usc and access. and are employed permanently and on contact by the parks authorities. The granting of Aboriginal ownership was and remains conditional upon Aboriginal consent to the existence of a National Park on their Imld. (The Ulul1l model is reslricted to four national parks in the NOIlhelll territory, a tiny minority of the more Ulan 500 other national parks and Olher protected areas throughout the country.) The Conservation Commission of the NorUlern Territory has shown a sympathetic attitude to Aboriginal involvement in tourist activities on Iheir land and a number of collaborative agreements are now in operation. Interestingly however in the marine park surrounding Coburg peninsula there has been a reluctance by the NT government to accede to AbOIiginal demands for management in the marine park (Cordell 1991.96). Similarly in the recently proposed Beagle Gulf Marine Park off Darwin Aboriginal people have expressed concelll that they have not been consulted about Ule proposed management of the

60

park, which includes areas of cultural and subsistence interest to Aboriginal people (Smyth 1993,55).84 In WA, SA, and NSW AbOJiginal and environmental and spiritual knowledge and interests in safeguarding resource use in parks is being incorporated into management plans. A proposal for leasing back sea areas to U,e traditional Aboliginal owners of the Buccaneer Archipelago region in WA, to be managed as an 'Aboriginal marine park' by a board of management failed to get the endorsement of Depallment of Fisheries and did not receive cabinet endorsement. TI,e proposal appears to have lapsed (Smyth 1993,53)85 The recent Queensland Land Rights Act will allow Aboriginal ownership of national Parks and the introduction of a modification of the Uhuu management model (AbOJiginal ownership, UlOugh with compulsory leaseback). However, it is unelear wheUler the govelllment intends to allow majOJity AbOliginal membership on management boards as in the Northelll Territory. The Queensland Act merely provides for Aboriginal representation on the management boards, and unlike the NT Act Ule Crown is not liable to pay rent to traditional owners for leased land (see generally Brerman 1992 chapter 6). The specific agreements under which these State and Territory parks functions vary a great deal, from a strong degree of Aboriginal control in parks leased from Aboriginal land to joint management schemes with a high degree of Aboriginal input: to agreements which restrict Aborigines purely to an advisory capacity, with IitUe real influence over policy. TIle various joint management agreements negotiated even where the land is not held by Aborigines provide interesting models of compromises which may be adapted elsewhere. For example, in recognising the rights of traditional owners in the Purnululu (Bungle Bungle) National park in the East Kimberley region of Western Australia the park allows for the establishment of aboriginal living areas, encourages abOJiginal patlicipation in related commercial ventures and aeecpts subsistence activities. However AbOligines do not exel1 full powers on the board of management; their role is advisory mUler than controlLing. Other Western Australian parks Karijini (Hamersley Ranges) and UlOse proposed for the Mitchell Plateau are adopting similar models, as arc parks in South Australia. Cellainly the evidence would suggest that the accommodation of indigenous people's interests in marine meas has not yet developed to Ule same extent as in some terrestrial national parks. Table 4 gives an overview of Aboriginal involvement in protected areas around Australia under current State and Commonwealth legislation. The focus of AbOliginal groups in the GBRMP has, as noted earlier, been on joint management of areas and not exclusive rights to those areas. From the Authority's viewpoint it seems encouraging that Aborigines have not pushed for ownership rights or the very substantial degree of control exercised elsewhere in those national parks leased back to govermnents. What the Authority should therefore appreciate is that Ule request by Aboriginal people for protection of traditional sites, involvement in the active management of the park, consultation on such issues as trawler access to inshore waters arc not only legitimate claims but also quite conservative. It should be bOllle in mind that we live in a time when Aboriginal people everywhere arc increasing their control over thcir own affairs.

84 ln the Minister's press release announcing the creation of the park there is no mention of Aboriginal interests. See Media Release 14 No\'emher 1991, Conservation Minister, ~Iikc R('ed 85'I11C Gulingi Nanggj's proposal contains Lhe following principles. Thai an Aboriginal marine park be created in the archipelago willi most of the islands and all thc surrounding waters and the seabed included within it; that all the islands in the archipelago down to the low WAter mark be proclaimed as Aboriginal reservcs and vest.:~1 in an Aboriginal landholding bod)'; that excluding seven islands which arc of special cultural significance to the traditional owners, all islands bc lcased back to the E:<ecutive Director of the Department of Conservation and LHnd Management to run as a nationalllll1rine park; that lilt the waters of the archipelago be vested in the national parks and nature conservation authority and leased 10 the Aboriginal association; that the Aboriginal ml1rine !l3rk be managed by a board of management represenling Aboriginal and conservalion interesls, wilh an Aboriginal major it)' and an Aboriginal chairperson. See Nesbiu

1992.

61

TABLE 3: ABORIGINAL INVOLVEMENT IN NATIONAL PARKS AND PROTECTED AREAS

Statefferritory Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes

Key protected areas involved

Aboriginal ownership of parks and Aboriginal involvement in orotected areas protected area management Genuinely Responsible for Involved in Aboriginal detenninable management ownership lease management Aboriginal rights to forage Outside In protected protected areas areas

Commonwealth

Uluru (Ayers Rock) Kakadu

Northern Territory

Gurig (Cobourg Peninsula) Nitrniluk (Katherine Gorge) Watarrka (Kings Canyon) No Proposed Yes

South Australia

Ganunon Ranges Witjira Unnamed Conservation Park Nullabor No Was proposed Yes

Yes (with proclamation)

Yes

0N

I Western Australia

Purnululu (Bungle Bungle) Karijini (Hamersley Range) Karlamilyi (Rudali River) Proposed No Proposed Yes

Yes (not nature reserves)

Yes

Myala (Buccaneer Archipelago) Proposed (if have ownership) Yes Proposed (if No
have

New South Wales

Mutawintji (Mootwingee) Lake Mungo Mt Grenfell Mt Yarrowyck Proposed No

Yes

Queensland

Archer River Mcllwraith Range No No No

No ownership) No No No No No No No Yes No No Yes With pennit

Victoria

ACT

Tasmania

Source: Robertson, M., K. Vang and AJ. Brown (1992), Wildemess in Australia Issues and Options Discussion Paper, Canberra: ANPWS, 127.

It should also be recognised that demands for joint managcment are essentially issucs to do with power and control and are therefore highly political. AbOliginal issues should not therefore be seen by the Authority as purely management questions. At the same time, however, Ihe Authority ought to recognise that joint management strategies ean bring practical management benefits-reducing connicts, minimising Ule impact of visitor access, maximising the protection of traditional sites and promoting belle I' overall envirorunentalmanagement. Joint management approaches not only give indigenous resource users a sense of ownership, reduce enforccmcnt costs and offer Ule best approach to ecologically sound management but also co-management means that personnel can be recruited with a sound knowledge of local areas and ean generate indigenous cmployment on traditional land and seas. Joint management approaches will also improve cross-cultural communication and understanding between Ule Authority and Aboriginal groups (Berkcs, George and Peterson 1991). To establish comanagcment regimes will require some change to the Act as it does not really provide for Ule management plans as legislative documents. This is raised again in point 7 below.

Given a growing support for Aboriginal and Islander involvement in the park, Ule Authority's reputation would be boosted by responding to the modest claims of Aboriginal people to have a greater degree of input into the operation of the marine park. There will be lillIe point in the AUlhority moving to set up particular stnlctures, however, until AbOliginal people have some input into the kinds of management stl1lctures that are most appropriate. Smyth's suggestions on management structurcs and management areas (see Smyth 1992,51-56) should certainly provide the basis on which the Authority should approach the Aboriginal owners for their comments and suggestions. As Smyth very correctly notes, this must commence with the AuthOlity declaring that it is willing 10 negotiate on these issues 'in an open-minded way it would then bccome necessary to establish consultative, research <md negotiating processes that could arrive atmutuall y acceptable joint management arrangements' (Smyth 1992,53). It will mean that the Aboriginal liaison officer will have to have dircct links to the highest levels of planning and managemcnt in the Authority. While Aboriginal people should be given time to suggest their own structures the Authority should bear in mind that Aboriginal couneils in Queensland are often over-worked, under-resourced and inappropriately structured, limiting their control over natural resource use planning in their own communities and participation in regional planning development processes (Dale 1992). The consultation process may therefore be a lengthy one. It will not be made any easier by the fact Ihat there still exists a fair degree of distrust by Aboriginal communities about govenunent and government agencies. Tllis attitnde will also obviously bear on the Authority'S requirement for a long teml commitment to the consultation process. In the immediate 111ture this obviously will need to be taken into account as far as the far northern section of the park, when it comes to the rezoning over the next two years. Aboriginal pcople will need to be aware of the process of how the work will proceed before it actually begins. One hopeful exam pIc is that of Kowanyama, on thc castern side of thc Gulf of Carpentaria, that is following a 'grass-roots' raUlCr than a 'top-down' approach to commlulity developmcnt. There the community is implcmcnting a managemcnt strategy aimed particularly at marinc rcsources and dcvcloping a watcr catchment plan for Ule Mitchell river, on which the settlement is based (Dale 1991). The plan has involved consultation and cooperation with a wide range of non-Aboriginal people and orgarlisations. Maline resource management has involved consultation with the fislling industry aimed at controlling tourism and recreational fishing (quotas raUler than sca closures) and organising patrolling to record illegal fislling. A conference on a long tenn management plan for the Mitchell River was held in Kowanyama in 1990 attended by local land users (mostly non-Aboriginal) State and Federal management agencies, Aboriginal agencies and people from the fishing and pastoral industries and local govenunent seetor. Working pa.ties set up following this meeting are now considering a watershed management plan. These activities have involved many members from Ule

63

Kowanyama community. Significant fishing closures have been negotiated as well as enforcement powers for its ranger selvice. The community has established its own Land and Natural Resource Management Office. Special land and resource education programs have been introduced in Ule school and extended into the adult education arena and visits to Kowanyama have been organised by AbOligines involved in land management elsewhere as well as by the Sealth people from Washington State U.S.A., a coastal Indian group experienced in negotiating over subsistence fishing rights and water use issues (Dale 1992,40). Kowanyama shows that Aboriginal communities can coordinate a planning process involving predominantly nonAboriginal organisations and that they can develop longer teml strategies. The planning mechanisms and the initiatives taken could fonn Ule basis for a community strategy Ulat could usefully fonn a prototype for others. The point of this example as far as the GBRMPA is concerned is that if Ule Authority gives the relevant AbOliginal communities the opportunity to discuss the stmctures Ulat they believe are appropliate and approach these communities wiUlOut bias then negotiated solutions are possible to issues concemed with marine management. On UlC other hand one call11ot expect all communities to have the same human and other resources of Kowanyama and Ule AuthOlity should not simply expect that small groups with major social problems should have to fight the same problems as Kowanyama did over a ten year period. The AuthOlity should be looking at stmctural solutions along joint management lines and be willing to recognise local control withollt a decade long stmggle. Leaving aside the ethical issues with respect to a 'sit back and wait policy' towards Aboriginal communities, the Autholity may well find it develops gaps in its management if it were to adopt such an approach. Many issues will not get resolved if there is not a pro-active approach towards AbOliginal communities. The AuUlOrity must approach Aboriginal communities in an openminded way saying in cffcct: 'Wc wish to talk about ways in which you can control these areas'. 6.7 The desire by Aboriginal communities to be involved in management through community rangers should be supported in ways lhat stress local training and supervision.

We have already noted that a number of Aboriginal communities are explicitly involved in managing national parks. These strategies have most often been implemented by employing Aborigines as rangers with park agencies. This does not however satisfy all needs and more recently some groups have promoted the idea of appointing community rangers, to work not only in conjunction with parks but also land management issues affecting the community in general (see generally Birkhead, de Lacy and Smith 1992). The concept of community rangers, people with the prime responsibility for monitoring and supelvising resource husbandry and management in thcir own communities, has been under discussion since the mid 1980's (Morgan, Smyth and Butler 1986), but has only recently gained support for its practical introduction. Nonh Queensland communities, where around 70 community nmgers were employed in 1990/91, have so far been in the forefront of Ule movement and Aboriginal community ranger selvices have now been established in almost all communities in Cape York peninsula (see Morg,m, Smyth, and Butler 1992,29-37). Around half of these have completed an Advanced certification in Natural and Cultural Resource management at Caims TAFE. They have obtained funds for paying wages by tapping into the Community Development Employment Program, a federally administered scheme which provides funds for community employment in lieu of unemployment benefits. It does not pay full time workers, clearly a disadvantage given that community rangers in carrying out their tasks (monitoring tourist use of marine resources, provision of interpretive material, preparation of management plans for Aboriginal management areas, patrolling beaches,

64

carrying out customs and quarantine surveillance and generally watching resource use in the community) do not usually work by the hour or day. Full time work would be fairer and more appropriate. The training of community rangers has demanded a significant local iniliative, without which the special courses organised through the Cairns TAFE would not have been established or maintained. It has involved senior, culturally knowledgable Aboriginal men and women as teachers (Hill 1992,269). The community ranger idea is now being more widely discussed in a number of AbOliginal communities in Australia (see Birkhead, De Lacy and Smith 1992,239-283), although as yet govenunent recognition of these initiatives remains limited in practicat ternls. As pressures on resource use intensify through tourists seeking access to remote areas of AbOliginallands such recognition is, however, becoming more pressing. The GBRMPA should recognise that community rangers will enable AbOliginat communities to become actively involved in joint management as well as provide an AbOliginal dimension to visitor experiences to the matine park. TIle key to thcir success has been local community control of thcir training and supelvision and the Authority should avoid any impression that it is somehow trying to take over such training. Through the employment of community rangers the Authority will need to cooperate closely with QNPWS. Aboriginal people not only find these kinds of positions attractive but because they have a long telm commitment to living in remote areas they maximise continuity in management. Community rangers also encourage continuation of traditional aboriginat land and sea management practices. The initiative of the Authority in gaining access to ANPWS funds for community rangers is a welcome one and all efforts should be made to ensure that these rangers arc able to assist the Authority's liaison officer gain Ule views of particular communities. At present the Authority can oniy appoint rangers who are officers or employees of Queensland or local goveming bodies in Queensland, or members of the Queensland police force. 86 An Ahoriginal to be appointed as a ranger would thus have to be employed by an AbOliginal group and that group would have to have the status of a local council. As a number of Aboriginal community organisations arc corporations they would be incapable of being employed at the present time. Legislative change is currenlly being proposed that will rectify litis so that the Authority will not be constrained in litis way.87 Depending on the level of traitting for marine park work they would be appointed as special inspectors or maritle park inspectors. The maritle park inspectors would have all necessary effective powers except arrest powers. These powers have not been given to non-police officers. It is yet to be decided if special itlspectors have powers of seizure. In giving inspectors powers to rangers through inspectors courses care will need to be taken that Aboriginal communities reaction docs not see such inspectors as becoming 'just like those other enforcement officers from (pick the agency)'. Of course rangers, if they are inspectors, will need to enforce the laws of the park without favour. 88 On the other hand, if they do not represent the community and the community'S values they arc goitlg to be ineffective. Rangers will have greater authOlity in areas where the communities have some degree of marine tenure and where Ulere is established Aboriginal management zones. Where a comnnntity knows that an area is under a particular Aboriginal management committee and these arc the rangers doing the day to day management then they are less likely to be seen as heavy handed enforcement

86 S.42 (jfJRMP Act 1975 (Gill). 87 Pcrsonnl communication SICph{'n Sparkes, GBRMPA. Currently GBRMPA has 3 types of inspcclors-compulsory pilotage inspectors;
normal marine park inspectors Rnd a third category spccial inspectors, to which no-one has been appointed as yel.

88 The CiIlRMPA has only one enforcement officer who is a direct employee of the Authority. The majority of the inspeclors arc employees of Queensland govcrnm~'nl departments, (such as Environmcnl ant.llieriloge) and thc AUSlralinn Maritime Safcly AUlhorily. The Auslralian Federal Police nrc aUlomalical1}' insprctors undrr the Icgislalion.

65

officers from Townsville. Brisbane or whereever. 89 In other words. we come back to the need to put in place Aboriginal self-management strategies.
It will also be important for the Authority to resolve issues relating to the legal liability of community rangers and the lines of repolling accountability.90 Clearly the liability and reporting issues will need to be resolvcd before training courses get very advanced. It is rccommcnded that the Authority and thc Queensland Environment and Heritage Departmcnt foml a joint working party to resolve these issues and put in place a general framework that allows for clear repOlling lines and deals WiUI liability issues.

6.8

Move towards local management structures so that in the longer term the need for permits for traditional hunting will be reduced or eventually not be necessary.

lllere appears to be a clear need to understand AbOliginal and TOITes Strait Islander resource exploitation strategics and the establishment of thc rcccnt working group on dugong and turtle managcmcnt should achieve Ulis aim. lllere arc ccrtainly some problems with one-off penn it requests from urban communities and some communitics not renewing their pennits. lllere is also somc rescntment at the fact that a permit is necessary at aU to carry out what is seen as a traditional right. Urban Aboriginals do not necessarily welcome the fact tllat they can only hunt if accompanicd by a rcsident from a TlUst tenitory who has obtained a pennit. The AuthOlity is, as noted in chapter 5, already moving to deal with tllis gcncral issuc by enteting into discussions with Aboriginal and Islander groups to review the pennit issues. To get around some of these problems strong consideration should be given here to longer tellll permits (around 5 years), non-renewable penn its for Aboriginals living in towns and perhaps permits for use in the park as a whole (exeluding restricted areas) to get around the problem of hunters visiting other communities and taking food away. However, as Smyth has pointed oul (see Smyth 1992) the Authority should not foeus too hcavily on the problems of Aboriginal hunting and fishing. AbOliginal hunting and lislling is not/he issue. It is really only a subissue of tile main issue of AbOliginalmanagement of marine park areas, and conselvation of the dugong and turtle should be seen in the broadcr context of co-management strategies. Once the AuthOlity has in place a devolved AbOliginal management stntcture many of these issues can be resolvcd at the local level. It may be possible to do away with permits altogether if such stntctures are put in place. In the post-Mabo envirolUncnt where traditional hunting and fishing rights involved in fislling for food are the most likely rights to bc recognised under matine TNPR the AuthOlity should move towards providing community m,llIagement for these resources. It should not be assumed, however, lhat solutions are going to be the same everywhere. For example in some remote areas local Aboriginal groups may decide that pellllits are not necessary and incorporate dugong and tUl1le management in overall management area strategies, wllile in others there may be a need for a consensus type fonnn whereby urban AbOligines are invited on a representative working group. This will require giving back powers to local communities and tllis will only work if the hunters have pall of the power. As currently traditional hunting and lislling ean only be done with a pemlit under zoning plans amendments would need to be made. Undcr the Act tllis would require two phases-public participation; then ehanges would have to go to the Minister and sit in the Parliament for 15 sitting days.91 But ifit were to be done outside the normal zoning reviews it would probably

89 Il is also regarded by some Aboriginal people as inappropriate 10 appoint Aboriginal rangers or other authorised conservation officers to unless they are connected to areas under customary law. Gender sensitivities may also arise with respect to particular sites. 90 It may be thRllhey would be liable through Aboriginal corporations if legislative change pennils them to be appointed as inspectors. 91 S.33 GBRMP ACI /975 (e/Ii).
ar('3S

66

take a minimum of 6 months. It is understood that public participation takes around six months ifit is to be done in an effective manner. The AuthOlity has never amended zoning plans outside the normal reviews every 5 years. As the Act does not prescIibe the range of zones Ulat may be included in zoning plans a zone that specifically provided for traditional fishing or hunting without a pcrmit is possible under existing legislation without amendment. All that would be required would be to remove it from the 'requiIing a pennit' section of the zoning plan to 'as of light section' of each plan zoned. 92 Ifit was left it out altogether it is likcly to be prohibited. While changing the zoning plan is more difficult than changing Ule Act (as you do not require any public participation phase to change the Act) whatever mechanism was chosen would need to cross the hurdle of public opinion. Environmentalists would probably not go along with a rezoning or legislative change that wished to do away with permits. TurUes are on the endangered species list and dugong are declared vulnerable by the IUCN-The World Conselvation Union. There would have to be assurance from the management agencies that taking these animals was to be on a sustainable basis. Without the requirement for permits Ulere would need to be other mechanisms in place to make sure they were not over-hmvested. Presently the Act does not provide capacity to make management plans in the sense of legislative, not policy documents. The Act should certainly be amended to provide a clear statement Ulat the Authority can enter into co-managemcnt agreements with traditional owners, so that you end up with a co-management plan for a pal1icular area if native title exists. It would include development in conjunction with the traditional owners of the management plan for a particular area or a species and also the actual co-management once the management plan is in place for a region or species. It may include limits to hunting. That would be the preferable way forward, and it is understood such legislative changes are to be made 93 Management of wildlife and fisheIies would take place under the provisions of a management plan and one that had statutory 'teeUI'. Conservationists should be satisfied that their interests were looked after. The community rangers will be important in feedback catch reporting (the current pennit system does not appear to have worked particularly well here). The development of the community ranger scheme and moves towards local co-management strmegies is likely to provide the best solution in the longer tenn. A move from community pemlits to effective local ranger management areas is desirable ,with Ule emphasis being on community environmental management groups achieving community input into decisionmaking. Self management rather Ulan regulation is preferable and here the Authority should extend its efforts in conservation infonnation through kits, betler extension work and Ule use of the media, print, radio and television. The wider use of video should be considered here. Where necessary materials could be in local languages. I have not been in a position to determine whether resources are being used in the best possible ways but the Aboriginal liaison group should review this issue, bearing in mind the importance of community involvement.
6.9

Strengthen information policies to target both Aboriginal communities and the public on issues of Aboriginal concern.

What comes through a number of the commissioned rep0l1s is that Aboriginal communities do not understand or have a poor understanding of the Authority, its management strategies, use of zones etc. This suggests Ulat current effol1s at education and infonnation necdto be strengthened so thaI more communities are reached. For many Aboriginal people, English is a
92 In zoning plans one finds a list uf things that Clln be dune without II permit and a list thai can be done with a IlCfmit. Anything notlislcd in either is prohibited unless it is lkcide-J 10 pennil it under any olher purpose which is consistent with Ihc purpose of tlle zone. 93 Personal communication, Stephen Sp;ukes, GDRMPA.

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second language and they may have infrequent access to newspapers in which invitations to participate in the planning process arc placed. They may not be in a position to make detailed written submissions, outlining their concems. There may be scope for tile Authority to require maps and management prescriptions include Aboriginal and Islander interpretations of areas, (if the areas are not secret). There may also be scope for some material to be in relevant indigenous languages. To have an adequate education program, AbOliginal people have to be involved in its fonnation, the production of materials, its dissemination and its interpretation. (Material for groups such as the fishing industry involves close contact with that industry.) Unlike some of tile other issues that involve issues of power, control and lights tlus one appears relatively straightforward, although there arc always resource constraints. The AuthOlity is currently negotiating with ATSIC to get an officer on secondment for 6 months to produce education material for Aboriginal communities as well as the public. 94 The Authority wiU need to work more closely with ATSIC regional councils. Extension and information requirements will become more imp0l1ant if as some suggest there is a further growth in the outstation movement, as a result of the lands right legislation with commmuties going back to their own estate clan areas. Tlus will follow on from improved services in many areas 95 TIle use of videos is likely to become much more imp0l1ant. The need by project officers in governmelll agencies for information on Aboriginal interests in the park exists and is growing. 6.10 Consult with the Lands Department on Trends in Aboriginal lands claims. As a result of the new Queensland Aboriginal and Torres Strait Islander Lands Acts the Authority will need to consult widely WiUl Aboriginal groups and the Queensland Lands depal1ment on likely trends on land (and potentially sea) claims. With claims to vacant crown land anywhere in Quecnsland a possibility as well as access to tidal lands (granted only by the Governor in Council) the structure of Aboriginal commluuties may be expected to alter. With this may come more Aboriginal and Islander coastal commurJities and this will necessitate the Authority being actively involved in negotiations on such claims (see Smyth 1992,38-39). The land claim process will clarify who arc the traditional owners for pal1icular tracts of coastline. Islands within the GBRMP may have special significance for Abori[,rinal people who could expect a major role in the managemelll of adjacent waters. TIle AbOliginalliaison officer will have a vital role to play here in information dissemination to seluor planrJing policy makers in the Authority. To date 13 national parks and 14 pockets of vacant crown land have been gazetted for claim by AbOligines since the Act was proclaimed in December 1991. Thil1een parks have becn gazetted, totalling about 2,359,000 hectares. TIle people of Torres Strait have not made any applications under the legislation. Details arc provided in table 4.

94 The officer will also Ix:. coordinating the communit), rllngers program for the ANPWS funding. Personal communication, Ross Williams, GIlRMPA. 95 In such places fishing and hunting arc primary economic llctivities, with commercial lobster fishing and muriculturc also possibilities.

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TABLE 4: NATIONAL PARKS GAZETTED AS CLAIMABLE
Simpson Desert Archer Bend Alice Mitchell Rivers Rokeby Croll Cape Melville Jardine River Iron Range Cliff Island Lakefield Cedar Bay Forbes Island Flinders Group (Two parks) Source: Queensland Department of Lands. Annual Report 199/-/992;25. 1012000 ha 166000 ha 37 100 ha 291 000 ha 36000 ha 237000 ha 34600 ha 43 ha 537000 ha 5650 ha 109 ha 2975 ha

6.11 Improve efforts to consult with TOl'l'es Strait Islander people and engage them in the management of the marine park, The Great Barrier Reef Maline Park does not cUlTentIy extend up into Torres Strait and e1early if that were to happen the AuthOlity would need a full-time presence to handle the difficult issues there 96 Torres Strait Islanders, however. regard the northem section of the marine park as part of their traditional fishing grounds for trochus and beche de mer. In recent consultations with Dr Demlot Smyth. Torres Strait Islanders expressed anger at the lack of consultation plior to implementing zoning plans which limited the areas in which they could engage in commercial fishing. (The last zoning plans for the far nOllhem section were done 7 years ago.) They also expressed a strong interest in becoming actively involved in the management of tile marine park (Smyth 1993,51). The problem in pall stems from the overlapping mind sets of traditional sea country. For example the Badu people believe that their traditional hunting areas extend south along the coast of Cape York peninsula and as far as they are concemed coastal Aboriginal maritime territOlies extend only a stones throw from the coast. Similarly the Murray Islanders believe that their traditional hunting areas extend south into the Far NOIlhern section and they have exclusive lights to those places 97 There is no easy solution to this. but e1early these problems nced to be discussed. To date Islander involvement in the marine park has been indirect and spasmodic (Smyth 1992,44). The Authority obviously needs to repair its damaged relations with the Islanders and the first step is to engage Islanders in the management of the marine park. This could include representation on the Consultative Committee and regular visits, particularly when tile zoning plans for the far northem area are done over the next two years. The Authority could. in a low key, infOll11al way offer resources (or let it be known via others that it is willing to offer resources) and support for development of the Marine Strategy for Torres Strait (MaSTS) which Islanders are working on in cooperation with the Australian National Univcrsity's NOIlh Australian Research Unit (see Mulrennan and Jull 1992). The stratcgy is developing under the auspices of the Ocean Rescue 2000 project (administered by the GBRMPA).
96 Indeed, without a huge injection of resources the Authority would almost certainly fail if it went inlo Torres Strait. 97 Personal communication, Dr Dermot Smyth. One noled expert on traditional marine tenure in the TOrTes Slrait infonned the author that when he lmd anothcr co-researcher interviewed the Islandru cxtcnsively on thc extent of their traditional fishing grounds they did not claim exclusive rights in the northern scction of thc GIlR. Murray Islanders told them that the)' did not think lhey ever claimed exclusive rights to areas south of Sevl:n i\'lile Reef and Yule Entrance, although they sometimcs uscd th(m. The northcrn boundary of the Far Northern Section ofthc GBR~tP appears 10 be around 30 miles sOUlh of there. On that basis Ihis rcs(archer informed Ihe author that lhe Par Norlhern Section could nol be called pari oflheir Iradilional/e'fi,ory; a portion of it was merely a remoter part of their Irad;I;OIlal TOnge. Personal communication Dr R. Johannes, CSIRO.

69

The Islanders 'Principles and Objectives for the Future of Torres Strait' issued in May 1991 centres on a Torres Strait ecologically sustainable strategy. At its heart is a marinc strategy, with marine resources being vital to Islander peoples continued survival (Mulrerman 1992,3). TIle establishment of the MASTS is likely to become a priority of the ICC and the ATSIC regional council (the same people as ICC, plus two others). In October 1992 Islanders persuaded the Federal Resource Assessment Commission to go to Torres Strait to hold hearings there as part of its coastal zone inquiry. In September 1992 Islander leaders reconfinlled the priority of taking the initiative in envirolUllental and political issues with the ICC Chainnan issuing a one page press release at a conference in Darwin that stated as follows: In our studies of sClf-government we are looking at practical options for securing Islander land, reef, and sea tenure; managing appropriate social, health, and education services, and facilities; protecting the marine and coastal environments; encouraging appropriate economic development; and maintaining and strengthening unique Torres Strait culture and language. Goveming inslilutions will also be considered (Lui 1992). At an Octobcr 1992 workshop in Darwin thc Islandcr cnvironmental coordinator reminded experts that there were sllict practical limits on how much could be done in achieving the Islander environmental agenda due to limited financial and staff resources (Mulrennan and lull 1992,11). The strategy is consistent WiUl recently announced intentions by the ICC to obtain self-govemment for Torres Strait wiUlin the Australian federation by the year 200 1. 98 Given this link there may well be a reluctance by Islanders to welcome any assistance from the Authority, but rather prefer to control it exelusively eg getting consultants but not bringing in govcmment agencies. While Ule Authority has been charged Widl the management of the Baseline Study (Lawrence and Cansfield-Smilh 1991), and tlus has been scen as helpful, it also needs to be taking a pOSitive role in involving Islanders in the marine park. Regular face to face meetings when rezoning is in progress to discus zoning issues in the far n0l1h areas (as opposed to the Baseline study) would help. With the Torres Strait m31ine environment being perceived to be at a clUcial point in its history the AuthOIity's prestige and reputation will be enhanced if it is seen to be actively trying to repair relations with the Islanders. As Torres Strait Islander leaders have had extensive contact with intemational indigenous agencies (sec Mulrcnnan and lull 1992,6), such action offers the opportunity for Ule Authority's role to be put in a positive spotlighl. 99

6.12 Collaborative Research Program
TIle AuthOIity should consider initiating a collaborative rescarch program with relevant AbOIiginal and Torres Strait Islander represcntativcs on indigcnous issues. TIle program would focus on m31ine tcnure bounda.ies and usage, register important cultural sites in the Marine Park, develop a database of local knowledge and indigenous management practices and strategies for effective consultation and social impact assessment procedures. 100 The infollllation could be integrated with biological and social information in zoning and the drafting of management plans. It would be closely associated with the existing socio-economic program. It would require a seluor management position as counterpart to the recommended

98 Sec 'Islanders push for self-government' Tile AIIJfrafian 4 December 1992. The Queensland government would no doubt {C'.sist such a development. 99 The IslAnders arc developing close ties with the Inuits of Canada and arc closely examining the agreement to establish Nunavut (see Mulrcnnan and lull 1992). 100 There. is to date no research done by U13RMPA on social impacts and processes in a cross cultural situation. The UBRMJ'A Research lind Monitoring section rccently initiated a project on social impacts Assessment guidelines but not rocussed on the special case or indigenous people. Personal communication Ms D. Bcnzaken, GRRMPA.

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senior advisory position. 11le Authority should be aware here that the Prime Minister's statement on the environment issued on 21 December 1992 committed the govemment to allocating funds to ensure greater involvement of Aboriginal and Torres Strait Islander people in marine conservation and management (Keating 1992.26). Funding arrangements should be monitored closely by the Authority as such a collaborative research program as proposed may well fit the funding criteria here. 6.13 Summary Self determination and the provision of funding provides the basis of AbOliginal policy at the Commonwealth level and. to a lesser extent, at State level. ATSIC's objectives encompass selfdeterrnination. 101 11lat is. Aboriginal peoples are involved in policy through the operation of the Commission and the regional Councils. 111ese organs are subject to Ministelial discretion. Australia has taken a strong stance in supporting the concept of self detel1nination in the Draft Deelaration on the Rights of Indigenous Peoples. Australia is one of the very few states to have supp0l1ed this view, with many counllies fearing that the inclusion of such language would open the way for indigenous groups to e1aim sovereign status within larger states. Australia has taken the concept to mean the continuing light of all peoples and individuals within each state to participate in the political process by which they are govemed. and that indigenous peoples are among those groups which may have to overcome barliers inhibiting their full democratic pa'1icipation in the democratic process. Specific recognition of the light of self-detelmination for indigenous peoples, as separate and distinct peoples. will. Australia has argued, assist them to overcome the barriers to full democratic participation. It does not extend to the choice of separate status as an independent sovereign state (see Milner 1992; Tickner 1992). The government's major commitment to the plinciple of self-determination has been the creation of ATSIC. and its system of regional councils. Within the Great Barrier Reef Marine Park the evidence appears to be that Aboriginal people remain concerned that their pal1icipation in policy development. priority setting and overall management issues has been fairly IUdimentary. On the other hand the evidence from previous reports is Ulat Aboriginal people are not hostile or bitter towards the Authority or in any way seeking to shame or blame the Authority for any failings that it has it has shown towards incorporating Aboliginal interests in the park. If Ule AuthOlity genuinely recognises that it can improve its perfol1nance then the way is open for real progress in a lot of the issues noted above. Certainly Aboriginal people are interested in thejiltlll'e of relations with the AuthOlity, not going over the past. Broadly speaking the steps outlined above should ensure Ulat Aborigines are not only consulted but actively involved in determining policies and progrrun design and implementation for appropriate areas of the Maline Park. The key issues are ule establishment of Aboriginal management areas and AbOliginal heritage zones in areas of sensitive cultural interest. the implementation of self-management strategies, places on the consultative committee and ensuring that the AbOliginal Liaison officer has the resources to provide direct linkages with plmming and management. Credible models for indigenous involvement in protected area management have been established in such places as UlulU and Kakadu and the general trend towards such involvement does seem fairly inevitable. 111ese recommendations have been made in one fOlm or another in previous rep0l1s but unless the Authority considers implementing them Aboriginal people will no doubt be somewhat
lOlThe A'tSIC Act docs not usc the term self-determination but has the objective of ensuring 'ma:dmum participation of ATSI persons in
the fannulation and implcmenk11ion of government policies that affect them', and promoting 'self management and self sufficiency' Rmong

Aboriginal persons and Torres Strait Islanders 5.3(a)(I» An'le Act /989. Australia wide there arc 60 ATSrC regional councils, whose members arc elected by ATSI people living in the region. The regional councils arc corporate bodies whose principle functions include the preparatiun of regional plans to improve the economic, social and cultural status uf ATSI people in the region and 10 prepare draf! budgets for consideration by the commission. Regional councils arc required to report annually to the commission about the implementation of the regional plan.

71

cynical about the very positive features of the draft strategic plan. In other words, while Ule strategic plan could be very useful in presenting the Authority in a positive way to Aboriginal groups Ulere does need to be a genuine commitment to implement the recommendations that the Authority has already been presented wiUI in commissioned reports and other studies.
If there arc to be changes made then the first steps must be for the AuthOllty to acknowledge that it needs to improve its perfonnanee in the area of indigenous rights and to muster the political will to make changes. There should however be no easy assumption Ulat a quick fix is possible-the process will be just as important as the outcomes and a careful atlentionto process will be very important. Of course planning for change must take place and a number of the recommendations will provide the structure to undertake such a process. Resources will have to be provided if the Authority is to move on these issues. The AuthOllty'S overall funding from the federal govemment is not high-around $llmillion a year (around the same as Ule Maritime Museum in Sydney) and this financial year it reccived a 20% cut from this relatively small base. There is no doubt that the amount of resources needed to consult WiUI Aboriginal groups is much higher Ulan with other groups and unless the resources are provided a consultative process with Aboriginal people will fail. ATSIC should certainly be approached in a direct way for extra funds for positions and training and employment of rangers. The Authority should be honest in stating that it wants to improve its effOlls in the area of indigenous issues, but also present any proposals as an opportunity to funding bodies. After all, the GBRMPA is recognised around the world as a leader in marine management and improving its perfOlmance on Aboriginal and Torres Strait Islander issues is a win-win situation. While the funding and resource constraints issues arc extremely important it should also be borne in mind that a number of the strategies advocated do not require a huge injection of funds (allhough they will obviously require people to spend time on these issues) so much as the inculcation of fresh perspectives at senior levels within the Authority.

As 1993 is the International Year for the World's Indigenous People this will provide a unique oPPOllunity for Ule Authority to take action on the full set of recommendations it has received. The AuthOllty, along with other government agencies, may come under strong questioning on its indigenous rights policies and it therefore has a vested interest in seeing that it is taking the issue of indigenous marine rights seriously. The Authority's reputation can only receive a boost if it responds to the conservative and legitimate claims of Aboriginal and Islander groups. Indeed the very high intemational reputalion that the Authority has may well be jeopardised if it does not move on the set of recommendations it has been given over the years. The implications of Mabo should provide an added sense of urgency to the Authority here, for Ihe Authority may have 10 deal with indigenous people as 'owner groups' rather than simply as another 'user-group'.

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RECOMMENDAnONS

It would not be sensible for the Authority to explieitly recognise native tenure when the location of it is unknown. TIlere would also be political problems if the Authority was seen to be too far ahead of Commonwealth policy in tllis area. Rather, the Authority needs to provide indigenous groups a decisive voice in park management, in appropriate areas. The broader political implications of Mabo need to be appreciated by the AuthOlity-that AbOliginal peoples aspirations for greater involvement in all aspects of resource management have been raised by the decision and has created a climate of heightened expectations about what the Authority should deliver by way of AbOliginal involvement in the park.
Aboriginal and Islander involvement should be increased, probably by at least two members (one Aboriginal and one Torres Strait Islander) on the Consultative Commiltee and there should be a legislative requirement to tllis effect.The person(s) selected must be representative of the various AboIiginai and Islander commullities and organisations. Unless this is done the representative(s) are unlikely to have much credibility with the Aboriginal and Islander population. It will also be important that the Aboriginal and Islander person(s) be properly resourced to travcl and to liaise with Aboriginal and Islander people. The people selected should be funded to take time off from their jobs to at least rep0I1 back to communities after consultative meetings. They should also regularly attend meetings of the AbOIiginal Liaison group. Augment Ole resources of the AbOliginalliaison officer and move towards making this a lligher level position. Steps should be taken to adding staff in this area (strong consideration should be given to appointing at least one female officer) as one liaison member will not be enough given the range of issues and distances the officer has to cover. At least six officers are needed. TIlese people should come from the major communities. TIley would form an Aboriginal liaison unit placed in Ole orgmlisation where they would be most useful. When such staff are on board it would make sense for an Aboriginal and Islander policy unit to be fOlmed in the AuthOIity to act as a link to an indigenous consultative committee(see below). In the Sh0l1 teml consideration should be given to upgrading the seniority of these positions. The current appointment is at ASO 6 level. If the Authority wmlts to be seen to be serious about embracing indigenous rights issues it should consider thc example of some mining companies in negotiations on aboriginal issues-they appoint a setlior adviscr to Ole Chief Executive Officer. The establishment of a separate AbOliginal and Islander Consultative Committec should be considered. A separate indigenous consultative body would provide a means for the Authority to directly access the views of Aboriginal maritime groups and to have its views reponed back to those groups. Such a commiltee should not necessarily be viewed as a penn anent stIllcture. It lila)' be a pemlanent stIllcture but it may turn out to be a stage in the process towards devolution of power to Aboriginal management committees. StIllctures should be seen as evolving rather than set in concrete. There should be a formal recognition in the Act that maritime clan boundalies and maritime clan estates will be recogllised in zoning and management plans. While s.32 of the Act provides for an extensive process of public notification and consideration of public representations by the Authority a more formal recognition of Aboriginal clan boundaries and mmitime clan estates would signal the importance that the Authority attaches to the just claims of Aboriginal people. It should not be seen as opelling the gates to single out other groups in the Act. Varying circumstances will affect differelll groups alJ(l tllis will sometimes warrant different treatment. The fonnal recognition of cultural sites should facilitate the development of marine protected areas in Aboriginal and Islander traditional 'sea country'.

73

Recommendations for Aboriginal Management zones and He,itage areas in coastal regions near communities need to be acted upon. Aboriginal Management zones would need to involve consultation with elders responsible for particular areas, patrolling by community rangers and joint management by the Authority and Aboriginal people appointed by the local community councils. Such options would provide the community with a degree of control over the sea and access to Oust lands, active involvement in the management and protection of sites of significance within the mmine areas, and official recognition of inshore waters within traditional clan estates. It would also provide a stmctured process for consultation and mmmgement of areas of AbOliginal significance within the marine park. Such zones could not have provisions which were inconsistent with a zoning plan, except where a special management area applies. Previous recommendations for Aboriginal communities to be involved in joint management strategies, using community rangers and to be directly consulted on marine resource use and management need to be acted upon. The focus of Aboriginal groups in the GBRMP has been on joint management of areas and not exclusive rights to tllOse areas. From the Authority's viewpoint it seems encouraging that Aborigines have not pushed for ownership rights or the very substantial degree of control exercised elsewhere in tllOse national parks leased back to governments. What the AutllOrity should therefore appreciate is that the request by Aboriginal people for protection of traditional sites, involvement in tlle active mmlagement of the park, consultation on such issues as trawler access to inshore waters are not only legitimate claims but also quite conservative. There will be liltle point in tlle Authority moving to set up particular stJUctures, however, until AbOliginal people have some input into the kinds of management stmctures that are most appropriate. Smyth's suggestions on management stJUctures and management areas should cel1ainly provide the basis on whieh the Authority should approach the Aboriginal owners for their comments and suggestions. As Smyth very correctly notes, tltis must commence with the Authority declaring that it is willing to negotiate on these issues 'in an open-minded way it would then become necessary to establish consultative, research and negotiating processes that could anive at mutually acceptable joint management arrangements' (Smyth 1992,53). It wiJi mean that the Aboriginal liaison officer will have to have direct links to the highest levels of plmuting anc!management in the Authority. TIle desire by Aboriginal communities to be involved in management through commllltity rangers should be supported in ways that stress local training and supervision.
It will also be important for the Authority to resolve issues ,dating to the legal liability of community rangers and the lines of reporting accountability. Clearly the liability and reporting issues will need to be resolved before training courses get very advanced. It is recommended that the Authmity and the Queensland Environment and Heritage Department fmm a joint working pal1y to resolve these issues and put in place a general framework that allows for clear reporting lines and deals with liability issues.

Move towards local co-management stl1letures so that in the longer tenn the need for pennits for traditional hunting will be reduced or eventllally not be necessary. The Authority should not focus too heavily on the problems of Aboriginal hunting and fishing. Abmiginal hunting and fislting is not the issue. It is really only a sub-issue of the main issue of AboJiginal management of mmine park areas, and conservation of the dugong and turtle should be seen in the broader context of co-management strategies. Once the Authority has in place a devolved Aboriginal management stl1lcture many of tllCse issues can be resolved at tlle local level. It may be possible to do away with pennits altogether if such stl1lctures are put in place.

74

A move from community pernlits to cffcctivc local ranger management arcas is desirable, with the emphasis bcing on community environmental management groups achieving community input into decision-making. Self management rather than regulation is preferable and here the Authority should extend its efforts in conservation infOlmation through kits, better extension work and the usc of the media, print, radio and television. The wider usc of video should be considercd here. Where necessary materials could be in local languages. Strengthen information policies to target both Aboriginal communities and the public on issues of Aboriginal concern. Aboriginal communities do not understand or have a poor understanding of the Authority, its management strategies, usc of zones etc. TIlis suggests that current efforts at education and infornlation need to be strengthened so that more communities are reached. For many AbOllginal people, English is a second language and they may have infrequent access to newspapers in which invitations to participate in the planning process arc placed. They may not be in a position to make detailed wlltten submissions, outlining their concerns. There may be scope for tile Authority to require maps and management prescriptions include Aboriginal and Islander interpretations of areas, (if the areas arc not secret). TIlere may also be scope for some material to be in relevant indigenous languages. To have an adequate education program, Aboriginal people have to be involvcd in its formation, the production of materials, its dissemination and its interpretation. Consult with the Lands Department on trends in Aboriginal lands claims. As a result of the new Queensland Aboriginal and Torres Strait Islander Lands Acts the Authority will need to consult widely with Aboriginal groups <lIldthe Queensland Lands department on likely trends on land (and potentially sea) claims. Witll claims to vacant crown land anywhere in Queensland a possibility as well as access to tidal lands (granted only by the Govell1or in Council) the structure of Aboriginal communities may be expected to alter. With tllis may come more Aboriginal and Islander coastal communities and this will necessitate the Authority being actively involved in negotiations on such claims. Improve efforts to consult with Torres Strait Islander people and engage them in the management of the marine park. The Authority nceds to repair its damaged relations with tile Islanders and the first step is to engage Islanders in the management of themaline park. This could inelude representation on the Consultative Committee and regular visits, p3lticularly when the zoning plans for the far no,thell1 area arc done over the next two years. TIle Authority could, in a low key, infOllllal way offer resources (or let it be known via others that it is willing to offer resources) and support for development of the Marine Strategy for Torres Strait (MASTS). TIle Autholity should consider initiating a collaborative research program with relevant Aboriginal and Torres Strait Islander representatives on indigenous issues. TIle program would focus on maline tenure boundarles and usage, register important cultural sites in the Maline Park, develop a database of local knowledge and indigenous management practices and strategies for effective consultation and social impact assessment procedures. These recommendations have been made in one fOllll or another in previous reports but unless the Authority considers implementing them AbOllginal people will no doubt be somewhat cynical about the very positive featmes of the draft strategic plan. In other words, wllile the strategic plan could be very useful in presenting the Authority in a positive way to Aboriginal groups there docs need to be a genuine commitment to implement the recommendations tllat the Authority has already been presented with in commissioned repOlts and other studies. There is no doubt that the amount of resources needed to consult with Aboriginal groups is much lligher than with other groups and unless the resources arc provided a consultative

75

process with Aboriginal people will fail. ATSIC should certainly be approached in a direct way for extra funds for positions and training and employment of rangers. The Authority should be honest in stating that it wants to improve its efforts in Ole area of indigenous issues, but also present any proposals as an opportunity to funding bodies. After all, the GBRMPA is recognised around the world as a leader in marine management and improving its perfOimance on Aboriginal and Torres Strait Islander issues is a win-will situation. While the funding and resource constraints issues are extremely inlportant it should also be bome in mind that a number of the strategies advocated do not require a huge injection of funds (although they will obviously require people to spend time on these issues) so much as Ole inculcation of fresh perspectives at senior levels within the AuthOlity.

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ACKNOWLEDGMENTS
Many people helped the author in the course of prepaling this report. From the Great Barlier Reef Maline Park Authority I would like to thank Dr David Lawrence for his cheerful guidance in overseeing the project, Ross Williams for his valuable perspective on indigenous issue and Stephen Sparkes and Dominique Benzaken for their comments on an earlier draft. Professor G. Kelleher, the Chaimlan of the Autholity was generous in giving his time to discuss many of the themes in Ole RepOlt. Outside the AuthOlity I would like to thank Dr Demlot Smyth for spending some time with me discussing indigenous issues relating to maline management. Dr Elspeth Young from the Geography and Oceanography Department and University College, ADFA was velY helpful in allowing me to examine here collection of matelial on Aboliginal involvement in national parks. Dr Bob Johannes from CSIRO provide advice and matelial on customary maline tenure in the South Pacific. I would also like to thank Sue Moss for valuable research assistance and Bev Lincoln for prepaling the final manuscript. Bev Cooper from Unisearch was also helpful in project management. Finally I would like to thank the three referees of the report for their comments.

PUBLICAnON NOTE

Chapter 4 of this report draws heavily on an opinion on offshore native tille wlillen by Dr Richard Cullen, acting head, Department of Professional Legal Education, City Polytechnic of Hong Kong. Parts of this chapter usc wording very closely based on Dr Cullen's OIiginal opinion.

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BIBLIOGRAPHY

Aboriginal Land Act 1991, No.32 of 1991, Queensland Govt. Printer 1991. Anderson, Michael R. 1987. 'Law and the Protection of Cultural Communities: the Case of Native American Fishing Rights'. Law al/d Policy 9:126-142. ATSIC 1993. The Mabo Jlldgemellt Cllrrel/t Issues, February 1993, Canberra. Austin, Graeme 1989. 'Maori Fishing Rights in the New Zealand Courts: Ministry of Agriculture and Fisheries v Pono Hakaria' Western Allstralial/ Law Review 19:401-10. Australian Bureau of Statistics 1989. Cel/SIIS 86-Aborigil/al al/d Torres Strait Islal/der Poplliatiol/ il/ Qlleel/slal/d. Canberra: AGPS. Barsh, Russel L. 1986. 'Indigenous Peoples: An Emerging Object of International Law.' Americal/ JOllrnal of Illternatiol/al Law 80: 365-89. Barsh, Russel L. 1987. 'Revision of ILO Convention No. 107.' Americal/ JOItrlwl of II/ternatiol/al Law 81 :756-60. Barsh, Russel L. 1990. 'An Advocate's Guide to the Convention on Indigenous and Tribal Peoples.' Oklahoma City UI/iversity Law Review 15:209-36. Bartlett, R. 1993. 'Aboriginal Sea Rights at Common Law: Mabo and the Sea' Paper given at 'Turning the Tide - Indigenous Peoples and Sea Rights, Darwin, July 1993' Bergin, A. 1991. 'Aboriginal Sea Claims in the Northern Territory of Australia.' Oceal/ al/d Shorelil/e Mal/agemel/t 15: 171-204. Bergin, A. 1992. 'Marine Policy in the Soutil Pacific-SPREP Moves into the 1990s.' Oceal/ al/d Shorelil/e Mal/agemel/t 17:92-99. Berkes, F. 1989. 'Co-Management and the James Bay Agreement.' In Co-Operative Mal/agemel/t of Local Fisheries: New Directiol/s for Improved Mal/agemel/t al/d Commlll/ity Developmel/t, ed. E. Pinkerton. Vancouver: University of British Columbia Press. Berkes, F, P. George and R.I. Preston 1991. 'Co-management: TIle Evolution in Theory and Practice of the Joint Administration of Living Resources.' Alternatives 18(2): 12-18. Birkhead. J., T. De Lacy and L. Smith 1992. Aborigil/al II/volvemel/t il/ Parks al/d Protected Areas. Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies. Boast, R.P. 1990. 'Treaty Rights or aboriginal rights?' New Zealal/d Law JOIII'llaI16:32-36. Brennan, F. 1991. Sharil/g the COllI/try. Penguin. Brennan, F. 1992. Land Rights Queel/slal/d Style: The Struggle for Aborigil/al SelfMal/agemel/t. St. Lucia, Queensland: University of Queensland Press.

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Young, E. el al 1991. Carillgfor COlllltry: Aborigilles alld Lalld Mallagemellt. Canberra: ANPWS. Ziegelbaur, W. 1991. AborigillallsslleS Relatillg to Use of the Marille Park. Report to GDRMP Consultative Commiltee.

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APPENDIX A Recognition of Aboriginal and Torres Strait Islander Interest* RATIONALE-WHY? For thousands of years Aborigines and Torres Strait Islanders have used the natural environment of the Area for both cultural and economic purposes in an ecologically sustainable way. Present and future management of the Area should recognise this continuing use and Olat populatioll changes. modem technology and other activities may impose incrcased pressurc on resources requiring innovative managemenl. 25 YEAR OBJECTIVE-WHAT? To have a community which recognises the interests of Aborigines and Torres Strait Islanders so that they can pursue their own lifestyle and culture, and exercise responsibility for issues, areas of land and sea, and resollrces relevant to their heritage within the bounds of ecologically slls/aillable lise and consistent with onr ohligations under the World Heritage Convention. BROAD STRATEGIES-HOW? o Where such plans are appropriate. Aborigincs and Torres Strait Islanders to devclop with appropriate stakeholder agellcies and organisations. management plans to ensure that Oleir traditional use of resources is ecologically sustaillable. Ensure Olat use by Aborigines and Torrcs Strait Islanders is takcn into account in the devclopment of resource management plans. Ensure that Aborigines and Torres Strait Islanders havc opportunities for membership of. and full involvemcnt in, the relevant consultative and decision-making bodies. Provide Ole full range of employment opportunities for Aborigines and Torrcs Strait Islanders in agellcies and industries in Ole Area. Educate the general coII/lIl/lIlily, oOler users and managers about the cultural hcritage and aspirations of Aborigines and Torres Strait Islanders. Develop culturally appropriate and understandable formats for regulatory and informative material that is distributed to Aborigines and Torres Strait Islanders. Consider the legal implications of Ole Mabo ruling for the legislative framework for. and management of. the Great Barrier Reef World Heritage Area.

o o o o o o

From: 'Ille Great Darrier Reef: Keeping it Greal, A 2S Year Strategic Plan for the Greal Barrier Reef World Heritage Area 1992-2017, Draft o(lhe Final Draft November 2.1992.

•

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5 Year Objectives 6.1 To ensure that the interests of Aborigines and Torres Strait Islanders are reflected in the management of Ihe Area.

Strategies 6.1.1 Develop effecti ve participation processes and structures in conjunction WiUl Aborigines and Torres Strait Islanders. 6.1.2 Cooperatively develop guidelines for stakeholder agencies and organisations for culturally appropriate interaction with Aborigines and Torres Strait Islanders. 6.1.3 Ensure negotiation occurs on all aspects of managemenl. 6.1.4 Ensure that use by Aborigines and Torres Strait Islanders is taken inlo account in the development of resource management plans. 6.1.5. Where plans are appropriate, Aborigines and Torres Strait Islanders to dcvclop. with stakeholder agencies and organisations. management plans to ensurc Ulat their traditional use of resourccs is ecologically

sllstail/able.
6.16. Provide opportunity for Aborigines and Torres Strait Islanders for membership on, and fllll involvement in. advisory committees and management boards. 6.1.7 Develop and implement employment and training programs in stakeholder organisations for Aborigines and Torres Strait Islandcrs. 6.1.8. Consider the implications of relevant legislation for native tille.

6.2
To Inform Ihe general public of the culture and economies of Aborigines and Torres Strait Islanders in relation to the Area.

6.2.1. Develop educational and interpretive materials and programs. in conjunction with Aborigines and Torres Strait Islanders. 6.2.2. Incorporate information about Aborigines and Torrcs Strait Islanders in education curricula and interpretive programs.

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6.3
To develop a culturally appropriate information program for Aboriginal and Torres Strait Islanders, regarding the Area and its management.

6.3.1 Produce culturally -appropriate matcrial 6.3.2 Disscminate information in a cUlturally-appropriate manner 6.4.1 Establish a legislative basis for cooperative managemcnt arrangements. 6.4.2 Establish cooperative management arrangements for specific areas. 6.4.3 Provide for Aboriginal and Torres Strait Islander representation on advisory committees and managcment boards.

6.4
To establish co-operative management arrangements between Aboriginal and Torres Strait Islanders and stakeholder agellcies in the area.

6.5
To ensure that projects related to the social, cultural and economic interests of Aboriginal and Torres Strait Islanders are included in the research and monitoring programs.

6.5.1 Identify and develop research and monitoring projects in consultation with Aborigines and Torres Strait Islanders. 6.5.2 nvolve Aborigincs and Torrcs Strait Islanders in projects that affect Ole interests of their people.

88