Aboriginal and Torres Strait Islander Concerns
Australia's indigenous peoples have a particular interest in the protection of the environment. However, what the environment means to indigenous peoples may be broader and more inclusive than what is commonly understood by the mainstream population. For many indigenous people, the biophysical landscape cannot be considered without reference to its social, heritage and cultural significance.
The Commonwealth and States have legal obligations to ensure the protection of Aboriginal and Torres Strait Islander interests in forested, and other, environments. The Native Title Act 1993 (NTA) in particular obliges the Commonwealth, the States and others undertaking acts which may affect those rights and interests to comply with certain requirements regarding the recognition and protection of native title rights and interests.
In the regional forest agreement process, it is intended that these rights and interests will be addressed through both the environmental/heritage, and the social/economic streams of assessments, and in the development of the agreement itself.
Aboriginal and Torres Strait Islander people have a range of interests in forested areas in Australia. These interests include matters related to:
The common law and now legislation, including the NTA, recognise native title rights and interests. These rights are existing rights: they do not depend on formal recognition by a court. The areas subject to native title are therefore unresolved, although the issue will be clarified in time. Native title may exist over forested areas. The rights involved may range from exclusive possession, to rights of access and to the use and enjoyment of resources, depending on the traditions of the title holders and the impact of past government actions.
The NTA imposes conditions on actions that affect native title. The conditions apply to actions of all governments, as well as to others. Failure to comply with the conditions will invalidate the actions, unless the agreement of the title holders is obtained.
Regional forest agreements may not, in themselves, affect native title, so the NTA may not have any application. However, activities leading to the conclusion of agreements (such as access to land and sampling of resources), and carried-out in implementing the agreements, may well affect native title. Under the NTA, the Commonwealth has a particular responsibility for the protection of native title interests.
Forested areas contain places of significance to indigenous peoples. These range from places of a sacred nature, through archaeological sites, to places with significant historical associations. Indigenous interests in these areas are recognised and protected in a range of Commonwealth and State/Territory legislation.
The protection of heritage places is primarily a State responsibility. While the Commonwealth is not generally involved in day-to-day management, it has responsibilities under the Australian Heritage Commission Act 1975 to identify heritage places of national significance.
The Commonwealth is more directly involved in heritage management in Victoria where amendments in 1987 to the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 do allow for consultative and clearance processes. The Commonwealth Act primarily provides for indigenous people to apply to the Commonwealth to protect significant places from threats of injury or desecration when States are unable or unwilling to provide effective protection to places of significance.
Indigenous people's economic use of forests may range from hunting and gathering foods, or craft materials, for consumption and use within the domestic economy, to commercial harvesting of resources. Considerable numbers of indigenous people are employed within the timber industry, and have a direct economic interest in decisions which affect the forestry industry.
Traditionally, forest peoples may claim to have a particular cultural identity within indigenous Australia. The preservation of the values of certain forested areas is therefore of concern to people whose identity is defined by their relationship with those environments.
At the United Nations Conference on Environment and Development in 1992, Australia became a signatory to two international undertakings relating to the environmental interests of indigenous peoples; Agenda 21 and the Biodiversity Convention. Notable among Australia's obligations now is the protection of relevant indigenous knowledge, and particular rights of indigenous peoples in relation to biodiversity.
It is the goal of the Commonwealth to advance the right of indigenous peoples to take part in decision making over matters which may affect their lives. Aside from existing legal obligations, the Commonwealth would wish therefore to involve indigenous peoples in making decisions impacting upon such matters as their heritage, native title, their economic position, and their cultural and social identity.
The major Commonwealth responsibilities involving indigenous rights and interests that will need to be taken into account in the agreement process include the following:
- assessment of National Estate natural and cultural heritage values;
- assessment of World Heritage natural and cultural values;
- assessment of environmental impacts on indigenous communities under the Environment Protection (Impact of Proposals) Act 1974;
- Aboriginal and Torres Strait Islander involvement in endangered species;
- recovery programs and their management and use of endangered species, as recognised by the Endangered Species Protection Act 1992;
- identification of areas, species and genes of significance in the context of the United Nations Convention on Biological Diversity, recognising the need to protect the interests of, or to compensate, or both, Aboriginal and Torres Strait Islander peoples for use of their intellectual property;
- protection of native title rights and interests under the Native Title Act 1993.
The regional forest agreement process aims to streamline and coordinate the assessment of environment and heritage, and economic and social issues. These fields overlap the areas of interest to indigenous peoples outlined above, and in line with the Commonwealth's legal obligations and policy commitments. With regard to indigenous self-determination in particular, the Commonwealth is obliged to integrate indigenous decision making and the protection of indigenous interests within the regional forest agreement process.
Addressing indigenous concerns within the regional forest agreement process will therefore involve ensuring full consultation and planning in order to anticipate and act to minimise the emergence of heritage, native title and other concerns after the completion of the agreement. This end is best served by processes of consultation, effective administration of State legislation, site survey and clearance process, and shared decision making. All these processes require the active involvement of affected indigenous communities, and clear communication between the parties including the proponents of work, governments and affected indigenous communities.
Where consultative and assessment measures within a regional forest agreement process have been unable to accommodate the legitimate cultural heritage interests of indigenous peoples, a community or group has recourse to the provisions of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. If the Act is triggered in this way, the Commonwealth Minister for Aboriginal Affairs may require an assessment of the significance of cultural values, threats to those values, protection requirements, and adequacy of State legislation and management decisions.
Matters relating to representing and preserving indigenous interests in the regional forest agreement process are outlined below:
- At the beginning of efforts to establish a regional forest agreement, affected communities need to be identified and communication protocols need to be developed. The appointment of liaison officers is appropriate at this stage, as is the identification of contact persons within each government and community. Representative Aboriginal/Torres Strait Islander bodies determined under the NTA might provide a useful point of contract.
- It is necessary that both formal and informal lines of communication remain open, and that agreed consultative processes are established early in the regional forest agreement process, and that the purpose and nature of the process are clear to all involved
- Latitude and flexibility is required to provide indigenous people with time to consult, consider issues and alternatives and develop agreed positions.
- Identification of areas of concern, involving interviews with community representatives and elders, archaeological fieldwork, archival research and similar, are likely to be required as part of both National Estate, and State government, heritage assessment processes. Such work should be strategic and targeted to solve particular concerns. Methodologies could include 'predictive' surveys to characterise the general distribution of sites and detailed surveys of particular forest areas as forest use operations proceed, and as needs are identified.
- Proposals affecting native title will need to comply with NTA requirements, and, where native title may exist, agreements will need to address the rights and interests of indigenous peoples. This may include joint management of relevant areas and the development of appropriate management plans.