Aboriginal Participation in Resource Management

994. Involving Aboriginal People in Resources Management. In the implementation of the principles elaborated above, it is necessary to consider the role of Aboriginal people and their organisations in the management of the resources in question. Two situations need to be distinguished: the involvement of Aboriginal people in seeking either exemption from wildlife laws, or priority over commercial or recreational interests, and secondly, the involvement of Aboriginal people in the management of resources on Aboriginal land. These are dealt with in turn.

995. Consultation with Aboriginal People in the Setting of Priorities. While it may be necessary to restrict traditional hunting and fishing for specific conservation reasons, such measures should only be taken after consultation with Aboriginal people affected. A genuine attempt should be made, where there are conflicting interests, to establish, in consultation with those Aboriginal people, the extent to which a particular species is threatened with extinction, and the likely impact of the numbers taken by Aborigines upon a species. Only when it is established that traditional hunting and fishing may endanger the species, whether generally or in the relevant area, should such hunting and fishing be limited. Reassessment and monitoring should take place, and there should be provision for restrictions to be lifted should circumstances warrant. This process occurs to some extent already: the principle that controls on Aboriginal hunting rights are best implemented in co-operation with Aboriginal land holders and organisations is supported in several States and at the federal level.[1861] The South Australian Interdepartmental Working Party on Aboriginal hunting recommended that this process should occur in relation to hunting in conservation reserves, and such an appraisal has been prepared in relation to the Gammon Ranges reserve in that State.[1862] Marsh gives the following account of a successful involvement of indigenous people in wildlife conservation programs:

The Dugong Management and Public Education Programme developed by the Papua New Guinea Division of Wildlife provides an example of how such a programme might develop. In 1976, the dugong hunters at Daru vigorously denied that there was need for a dugong management programme. One year later, they requested that some form of management be implemented in their area. After many long and heated discussions they decided to form the Maza Wildlife Management area incorporating traditional hunting grounds. The local people elected a committee which made rules for running the area; these rules were made law by publication in the Government Gazette. Initially the Committee decided that all dugongs which were caught for sale had to be sold via the Daru market so that catch statistics could be kept and specimens collected for laboratory analysis. They also banned (very effectively) the capture of females with attendant young. In 1979, the use of gill nets to catch dugongs for sale was also banned, and by the time the programme was terminated (due to lack of funds) in 1981, the hunters were talking about banning the use of motorized craft for dugong hunting.[1863]

The NT Conservation Commission has sought the co-operation of the Warlpiri Aborigines in the management of spinifex as a food source for the hare wallaby through the regular use of fire.[1864] As this and similar experiences indicate,[1865] consultation and local involvement in management programs is necessary, not only because the local people are affected by the decisions and entitled to some say in them, but also because management of resources is likely to be more effective with local support.

996. Requiring Consultation: The Need for Legislation. Even though there may be general support for consultation with Aboriginal people before controls are imposed on traditional hunting and fishing,[1866] the question is whether a requirement for such consultation should be written into legislation. In relation to Aboriginal land such a process of consultation is spelt out in the hunting provisions of the Kakadu Plan of Management (s 34.2.4)[1867] It is also spelt out in the James Bay Agreement’s requirement that. the Provincial and Canadian Governments shall exercise their powers to pass wildlife legislation and regulations only upon the advice and after consulting with the Coordinating Committee (s 24.5.1, 24.5.2).[1868] A legislative example in relation to Aboriginal land in Australia is s 73(1)(c) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which confers power on the Northern Territory Legislative Assembly with respect to:

laws providing for the protection or conservation of, or making other provision with respect to, wildlife in the Northern Territory, including wildlife on Aboriginal land, and, in particular, laws providing for schemes for management of wildlife on Aboriginal land, being schemes that are to be formulated in consultation with the Aboriginals using the land to which the scheme applies, but so that any such laws shall provide for the right of Aboriginals to utilise wildlife resources.[1869]

By contrast, in establishing priorities under the general law (as opposed to matters relating to management of Aboriginal land) there is little, if any, requirement for consultation written into Federal or State legislation. The Torres Strait Fisheries Act 1984 (Cth) does not require the Minister to consult with the Islander members of the Joint Advisory Body or with other representatives of the traditional inhabitants before exercising his powers over the ‘protected zone’.[1870] Nor is there any requirement for the Protected Zone Joint Authority to consult with the traditional inhabitants whose interests may be affected[1871] or any requirement that Islanders or the Department of Aboriginal Affairs be represented on the composition of the advisory bodies to the Protected Zone Joint Authority. Negotiations are currently underway to determine the composition of these advisory bodies. The Commission recommends that Islanders and the Department of Aboriginal Affairs both be represented on two such bodies; the proposed Torres Strait Fisheries Management Committee and the Torres Strait Fishing Industry and Islanders Consultative Committee. Given the clear expression of intent in the Torres Strait Treaty that there be consultation and involvement of traditional inhabitants, the Government should ensure the involvement of both the Department of Aboriginal Affairs and the indigenous inhabitants. Furthermore given the extremely complex legal provisions that surround the management of the Torres Strait Protected Zone, it is necessary that indigenous inhabitants receive adequate training and advice of their rights under the provisions of the Torres Strait Fisheries Act 1984 (Cth) and under any regulations and notices that may be issued, together with special representation to protect their interests if necessary. Neither the Great Barrier Reef Marine Park Act (Cth) nor the Regulations thereunder require consultation. Apparently the Great Barrier Reef Marine Park Authority has adopted a policy of consultation with Aboriginal people over and above the general statutory requirements of public consultation. But members of the Authority have argued against the view that this practice be given statutory recognition.[1872] While there is a general appreciation and interest by members of the Authority in the importance of consulting with Aboriginal people, it has been said to be neither necessary nor appropriate to write requirements for consultation into the Act, on the basis that, Aborigines are in no different position from the other interests (commercial, recreational, etc) that the Authority is required to take into account, and that there is no specific requirement in the governing Act to consult each of these other interests. In this respect the Act differs from Commonwealth legislation relating to Aboriginal land, where Aborigines are given a certain priority and there must be consultation and joint management.[1873] It has been argued that if the Commonwealth Government intended that Aboriginal interests be given priority over other uses of the Marine Park, this would have been specified in the Act. As a matter of statutory interpretation this argument has some force, but the issue for the Commission is one of policy, in the context of possible changes in Commonwealth laws. A further argument presented by the Authority against writing in a requirement for consultation is that it would create considerable administrative difficulties and would detract from the time available to consult with a range of other groups on other uses.[1874]

997. Commission’s Conclusion. The Commission has already recommended that Aborigines and Islanders engaged in traditional hunting and fishing for subsistence should have priority over commercial and recreational users of the reef. For this reason not only should consultation with Aborigines and Islanders be required under legislation such as the Great Barrier Reef Marine Park Act 1975 (Cth) s 32(2), but the legislation should be amended so as to require the relevant authority to take into account the implications of its operations, plans for Aborigines and Islanders. A similar approach was adopted by the Western Australian Aboriginal Land Commissioner in relation to the work of the Western Australian Environmental Protection Authority. He recommended that the Environmental Protection Act 1971 (WA) be amended to broaden the definition of ‘environment’ to include the impact of any proposals on Aboriginal people, and thus to require due consideration of Aboriginal aspirations.[1875] Similarly, amendments, for example to the Great Barrier Reef Marine Park Act 1975 (Cth) s 32(2), should be sufficiently broad so that consideration is given for special areas to be zoned for traditional fishing in the same way as consideration is to be given for zoning for scientific purposes. Similar amend-merits should be made to the Marine Parks Act 1982 (Qld),[1876] While the Torres Strait Joint Advisory Body is required to include representatives of the traditional inhabitants, there is no such requirement for the Torres Strait Protected Zone Joint Authority body and related advisory bodies and the Great Barrier Reef Marine Park Authority’s Consultative Committee. In the past the latter Committee has contained representatives from government, conservation, tourism, game, commercial and amateur fishing, and mining interests.[1877] The Commission recommends that at both State and federal level, legislation be amended

  • to require consultation with Aboriginal people affected before steps are taken to restrict traditional hunting and fishing;

  • to ensure that views of Aborigines whose traditional activities may be affected are taken into account in reaching any decision on the management of resources; and

  • as far as possible to ensure Aboriginal representation on decision making bodies such as the Great Barrier Reef Marine Park Authority’s Consultative Committee[1878] and on those Committees established to advise the Protected Zone Joint Authority.

Furthermore, as the Department of Aboriginal Affairs themselves, have advised, they do not know how effective discussions between the Great Barrier Reef Marine Park Authority and Aborigines and Islanders has been so far in relation to traditional fishing in waters off Queensland.[1879] The Commonwealth should immediately take steps to satisfy itself that consultations to date have been adequate and that Aborigines and Islanders have been fully informed of and understand the implications of the new laws and regulations governing their traditional fishing activities. Where necessary, the Department of Aboriginal Affairs will need to maintain an increased involvement in areas also falling within the province of other Commonwealth Departments such as the Department of Primary Industry to ensure that the interests of indigenous inhabitants are properly represented. As the Department of Aboriginal Affairs has submitted in relation to the Great Barrier Reef Marine Park Region:

… given the complexity of marine park management I would say Aboriginal communities stand in need of a special advocate to protect their interests.[1880]

998. Questions of Resources. The processes of consultation recommended in the previous paragraph may well require additional resources. As one submission commented:

I must commend your [the Commission’s] emphasis on the principle of consultation when it comes to integrating interests of Government and different community groups. I can, however, see some procedural problems arising from your suggestion that it would be necessary to ‘establish’ that hunting is likely to endanger the species before excluding hunting. To do so in any legal sense would require resources far beyond those available to State agencies. Wildlife conservation management consists for the most part of taking pre-emptive actions against the possibility of detrimental change.[1881]

In other words, this process may require a knowledge of wildlife population and biology that may currently not exist,[1882] or which can only be discovered through the use of scientific and field resources that are not available. However, the requirements of consultation, or a preference for restrictions rather than outright prohibitions upon traditional use, do not prevent decisions being taken on the balance of available information and on the basis of an informed judgment. Consultation with Aborigines affected can, in the light of local knowledge of species, increase the fund of available information and further inform judgment. Measures taken in the light of proper consultation are also likely to be more effective, thereby possibly reducing costs of enforcement. Furthermore as an examination of the legislation detailed in Chapter 35 demonstrates, current legislation and departmental practice raise complex legal questions. Resources will be necessary to ensure that Aborigines and Islanders are to be fully informed of their legal position.

999. Consultation or Control? The general recommendations made in paragraph 934 may also be criticised on the basis that they accord too little influence to Aboriginal people, that they provide for ‘consultation’ rather than ‘control’. As one Canadian authority commented:

I would question whether the term ‘consultation’ is strong enough, for is not the [issue one of] aboriginal participation in resource management decisions? … [Flor a long time Canadian aborigines has distinguished between ‘mere’ consultation and meaningful involvement in decision making.[1883]

But the diversity of situations, problems and authorities in this field in Australia will have become clear from Chapter 35. As the Canadian experience shows, indigenous authority or control over particular resources can only be a matter for negotiations in the particular context (negotiations often subsumed in Canada under a wider discussion of self government or autonomy). The overriding need for unitary management of scarce resources also means that no general formula for Aboriginal control is likely to be acceptable — though the management of resources on Aboriginal land may be at least a partial exception to this. Boards of management should be entrusted with the management of Aboriginal land, including making regulations for its use. In doing so it has been suggested that Aborigines should be able to determine priorities as between, for example, community fishing and conservation. The claimants to the Jawoyn land claim, anticipating a successful resolution of the claim proposed a draft Jawoyn National Park Bill cl 26(7) which provided that the Board itself should determine priorities to be given to the following purposes:

(a) maintenance of the Aboriginal tradition of the traditional Aboriginal owners of the Park;

(b) nature conservation;

(c) public recreation;

(d) tourism;

(e) such other purposes as are determined by the Board.[1884]

This represents a significant development in terms of Aboriginal control of natural resources and activities on Aboriginal land. These proposals predate the 1985 Amendments to the National Parks and Wildlife Conservation Act 1975 (Cth) s 11(11A), 14A-14D. These amendments make detailed provision for the sharing of functions and decision making power between the Aboriginal controlled board and the Director of National Parks in relation to the preparation and implementation of management plans their monitoring and the provision of advice. Disputes are to be resolved by the Minister.[1885] Barsh would prefer greater indigenous control. He argues that:

a far better course is to give each indigenous community full ownership of the wildlife in a clearly demarcated area, and permit the community to set its own priorities. The incentive to conserve rests with the fact that each community has a fixed portion that cannot be replaced. Within that share, the flexible re-allocation between, say consumption and export can be made over the years. This accords with a goal of self-determination or ‘self-management’.[1886]

While Aborigines should as far as possible be given control over resources on Aboriginal land, this control should be subject to overriding principles of conservation, which should be a matter for ultimate determination by government. Recent amendments to the National Parks and Wildlife Conservation Act 1975 (Cth) referred to above reflect this principle. As para 979-80 conclude, conservation represents a legitimate restriction on traditional hunting and fishing interests. Subject to this principle there is no reason why by-laws passed by Aboriginal councils should not, within appropriate limits, regulate the control of hunting and fishing on Aboriginal land under the council’s jurisdiction. One limitation on this power, contained in the James Bay Agreement, is that by-laws made by Cree and Inuit local governments affecting hunting and fishing by natives (and in some areas by non-natives) must be ‘more restrictive than those passed by the responsible Provincial or Federal Government’ (s 24.5.3). The effect is to give the responsible Government a legislative veto in case of over-exploitation of resources, but not in the case of under utilisation.

1000. Forms of Joint Management of Aboriginal Land. There are a variety of ways in which land use can be regulated. Under the James Bay Agreement, a Co-ordinating Committee was set up to review, manage, supervise and regulate the hunting, fishing and trapping of the land covered by the Agreement (s 24.4.1). The composition of this Committee, which consists of four representatives of each of the Cree Native party, the Inuit Native party, Quebec and Canada (s 24.4.2), and two members of the Naskapi Native Party, has already been described. Voting powers are so arranged as to give the relevant Governments, and the Indian groups, a substantial voice in those issues most of concern to them. However, these provisions have not been without their difficulties and the operation of s 24 is currently under review.[1887] Power states that:

The weakest link in all the clauses and definitions in the agreement seems to be the method of decision making related to natural resources.[1888]

Apparently the lack of expert advice and experience has led to a tendency to contract out surveys which lack continuity and consistency, and lead to the ‘accumulation of a lot of data of rather dubious value’. As a result decisions have sometimes been made on the basis of personality, or of political or other extraneous factors. In consequence some species of fish have been severely depleted and some indeed practically eliminated.[1889] The Western Arctic Claim (s 12-14)[1890] contains detailed provisions for the joint management of the Yukon North Slope and for wildlife harvesting and management of the Western Arctic Region. Clearly there is no one model for formal power sharing in relation to question of control and management of natural resources between government authorities and indigenous people. In Quebec, government policy recognises hunting and fishing rights in general, but:

offers to negotiate separately with each nation the modalities of application of these rights in relation to land occupation and to needs. We feel that we cannot deal with these rights for all aboriginal peoples at once because again of the variety of situations. The rights are recognised but remain to be defined in each case.[1891]

Different models of joint management of Aboriginal land currently exist in Australia. For example, the Kakadu plan of management involves informal mechanisms for Aboriginal participation, whereas the Cobourg scheme focuses on formal mechanisms of participation with a board, composed of Aborigines and non-Aborigines, having policy as well as planning functions.[1892] Particularly in the Cobourg plan of management a structure is created that enables formal power-sharing to take place.[1893] Both plans of management are innovative and experimental. They involve participation by Aborigines as park rangers and cultural advisers. Advice is provided by bodies such as the Gagudja Association. They involve administrative and management challenges for Aboriginal and non-Aboriginal personnel alike. Similarly as has been seen the Jawoyn proposals and the amendments to the National Parks and Wildlife Conservation Act 1975 (Cth), anticipating a successful resolution to the claim, have put forward a proposal which, building on the Cobourg model, ensure a degree of Aboriginal control on Boards of Management and Aboriginal control over planning priorities.[1894] Negotiations have recently been completed pursuant to these amendments in relation to Aboriginal control of the Board of Management of Uluru National Park.[1895] These questions of co-operation and control are properly matters for negotiation between the relevant Aboriginal bodies and Commonwealth or State authorities. No single pattern of control or consultation can be stipulated, but the principle of close co-operation and collaboration remains a vital one.