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Weir, Jessica --- "Aboriginal Land Ownership and Joint Management of National Parks in NSW" [2000] IndigLawB 67; (2000) 5(3) Indigenous Law Bulletin 20


Aboriginal Land Ownership and Joint Management of National Parks in NSW

By Jessica Weir

One of the recommendations of the Royal Commission on Aboriginal Deaths in Custody was for the provision of greater Aboriginal control over Aboriginal cultural heritage through joint management of national parks.[1] Since amendments were made to the National Parks and Wildlife Act 1974 (NSW) (‘the National Parks Act’) by the National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 (NSW) it has been possible for national parks and other reserved lands in New South Wales to come under joint-management arrangements, similar to the management structures at Uluru – Kata Tjuta and Kakadu National Parks.

In almost four years, only one joint-management arrangement has been realised: Mutawintji in the State’s north-west. This transfer was ‘fast-tracked’, partly because of political will to see a result in the early life of the legislation. Since then however, not only has no other land been transferred, but no other reserved land is ready for transfer negotiations. The scale of what the amending legislation sets out to achieve and the extensive work required from those involved, as well as a lack of funding in previous budget allocations, have all contributed to the subsequent failure to maintain this initial momentum. It is important to consider what benefits, if any, the joint-management scheme offers, the title-transfer process and how it compares to other land rights options in the State.

The Transfer Process

The transfer process hinges on two things: the identification of reserved lands recognised as culturally significant to Aboriginal people and the identification of the Aboriginal people to whom these lands are significant. Culturally significant reserved lands have been identified in various ways – through recommendations, lobbying, and, in one case, as a result of the negotiations leading to the Eden Regional Forest Agreement. Five reserved lands were listed in Schedule 14 of the National Parks Act for initial handover and leaseback by the 1996 amendments. The now-expanded list of six reserved lands includes: Jervis Bay National Park; Mungo National Park; Mutawintji National Park (including Mutawintji Historic Site and Coturaundee Nature Reserve); Mount Grenfell Historic Site; Mount Yarrowyck Nature Reserve; and, as amended, Biamanga National Park. Further amendments to this list are only possible through an Act of Parliament.[2]

Identification of the Aboriginal people who will be involved in the negotiation and management of the lands, described as the ‘Aboriginal owners of land’, is at present one of the biggest issues in the transfer process. The Aboriginal owners of land are defined as those Aboriginal people named as persons having a cultural association with the land in the register of Aboriginal owners kept under Part 8A of the Aboriginal Land Rights Act 1983 (NSW) (‘the Land Rights Act’). Under the Land Rights Act, the Registrar is to enter in the register of Aboriginal owners:

The Land Rights Act prevents the name of an Aboriginal person from being entered in the register unless the person is directly descended from the original Aboriginal inhabitants of the cultural area in which the land is situated, and has a cultural association with the land that derives from the traditions, observances, customs, beliefs or history of the original Aboriginal inhabitants of the land, and the person has consented to the entry of their name in the register. The Aboriginal owners of the lands listed in Schedule 14 of the National Parks Act are given priority in this process.[3]

Such a registry of all the names of individual Aboriginal owners is fraught both logistically and ethically, particularly in a State where dispersal of Aboriginal people and groups has been so dramatic. Such a registry of individual Aboriginal people has not existed in NSW before, and deserves special attention that is beyond the scope of this article.

The Office of the Registrar has two research teams who, in consultation with Indigenous communities, are gathering evidence to support the identification process. The Office has been allocated funding to do this for the first time this financial year (2000-01), and they estimate that the Aboriginal owners of Biamanga and Mount Grenfell will be registered by the end of 2001.[4]

An e\Encumbered Title

The joint-management arrangements were designed to broker a compromise between the two main vested interest groups in relation to national park lands: conservation groups and Aboriginal owners. Accordingly, they offer an encumbered title as a compromise to reconcile different systems of land management.[5] Detailed lease agreements and terms, drawing on the Northern Territory experience, set out the day-to-day issues of national park management.

Under the transfer arrangement, leaseback of reserved land is mandatory in order to gain title to the land,[6] and the land in question continues to be subject to the various existing licences, rights, regulations, and authorities issued under the National Parks Act.[7] Rental income is paid by the NSW National Parks and Wildlife Service into special accounts for each park to compensate the Aboriginal owners for loss of full use and enjoyment of the lands. However, this income must be spent within the park in accordance with the park plan of management,[8] regardless of what the Aboriginal owners might deem most appropriate for their lands and community.

The title vested in the land council is freehold but in contrast to the situation with joint managed parks in the Northern Territory, it is not inalienable freehold title. The Minister has the power to retain title of the land if there are disagreements concerning the lease arrangements, until a new lease is in place, and there is no limitation on lease renewals (leases are arranged for a minimum of 30 years).[9] Thus, in comparison with standard tenancy and landlord lease arrangements, the tenant (the NSW government) has considerable rights over the Aboriginal land owners. In the Northern Territory, the lease arrangements end after 99 years (or earlier if there is a fundamental breach of the lease).

It could be said that what the amendments offer is not ‘land rights’, but a step forward for conservation because of the value of Aboriginal conservation practices and traditional ecological knowledge for national park management. On the other hand, the arrangement, while prescribed, is a funded opportunity for Aboriginal people to manage lands while still providing the critical environmental and public benefits of reserved lands.

Other Land Rights Options

Other forms of land rights for Aboriginal people exist in NSW under the Land Rights Act and the Native Title Act 1998 (Cth) (‘the Native Title Act’). Under the Land Rights Act, enacted to redress the past loss of rights and dispossession, Aboriginal people do not have to establish a specific association with the land in order to claim vacant Crown land. Membership of local Aboriginal land councils, whose members have the authority to make land claims, is primarily based on residence.[10] Crown reserves, including national parks, are also claimable and in 1997 a statutory land claim over reserved Crown land was upheld by the Land and Environment Court.[11] Further, there is provision for Crown land with nature conservation value to come under the joint-management provisions of the National Parks Act on the granting of a land claim if there is the agreement of the land council/s involved.[12]

In comparison, the registration process under the Native Title Act requires claimant groups, not necessarily identified individuals, to prove a relationship with the land based on the prior and continuing observance of traditional laws and customs, and to show that extinguishment of these rights has not occurred. A successful native title claim could provide greater control of land than the joint-management lease conditions, however it may not be possible for some people or groups to succeed because of the impact of land tenure history on establishing a claim, or the intensive claimant process required to establish native title rights and interests, or because of historical dispossession. A native title determination over national park land in NSW has yet to occur but in Western Australia native title rights and interests were found over Keep River National Park.[13]

While the different land rights processes available mean that Aboriginal people can pursue the option which best suits their situation and aspirations,[14] there is also the potential for conflict over who is claiming what land and by which method. Differences between Aboriginal people living in the same area, for example between those who are the traditional owners and those who have historically moved to that area, will lead to different opportunities for having land title recognised.

The 1992 recognition of native title (in the Mabo case) has contributed substantially to overturning the concept of terra nullius, and hopefully an appreciation of the benefits of Indigenous and non-Indigenous Australians working together will extend into all areas of land management. It is worthwhile noting that the joint-management amendments were passed unanimously by both Houses of Parliament, a rare event on matters of substance, unopposed even by Members elected to represent the Greens.[15] Despite its limitations, the joint-management scheme can play a role in ensuring that the national park system in NSW adopts a more inclusive approach to park management. Moreover, while there are delays, the processes set in chain will keep issues of land rights and land dispossession on the agenda.

Jessica Weir is a research assistant in the Native Title Research Unit at the Australian Institute of Aboriginal and Torres Strait Islander Studies.


[1] Recommendation 315.

[2] See s 71AW of the National Parks Act.

[3] See s 49C of the Land Rights Act.

[4] Personal Communication, Warwick Baird, Registrar, 19/10/2000.

[5] For the debate, see New South Wales, Parliamentary Debates, (20, 21 and 27 November 1996), 6081-7139. Also of interest is the National Parks Association May 2000 policy position on Aboriginal Land Rights, at <http://NPANSW.cjb.net/> .

[6] When land has been negotiated for transfer, the title is revoked and ownership vested in the relevant land council/s, and the lands are then simultaneously re-dedicated as national parks and leased back to the Minister.

[7] National Parks Act, s 71O.

[8] Ibid, s 71AE and ss 138-9.

[9] Ibid, s 71AD. See also the Mutawintji Local Aboriginal Land Council Lease to the Minister for the Environment, clause 5.12, at <http://www.austlii.edu.au/au/special/rsjproject/remote/mutawintji/lease.html> .

[10] New South Wales Department of Aboriginal Affairs, Review of the Aboriginal Land Rights Act 1983 (NSW), Background Paper, (2000), 38, at <www.daa.nsw.gov.au>.

[11] Deerubbin Local Aboriginal Land Council v Minister Administering The Crown Lands Act No. 30025

of 1996 [1997] NSWLEC 119 (14 August 1997).

[12] Land Rights Act, s 36A. (The Act does not define ‘nature conservation value’.)

[13] Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159.

[14] New South Wales Department of Aboriginal Affairs, above n 10, 39.

[15] Personal communication, Gavin Andrews, (then) Manager of the Aboriginal Heritage Policy Unit, NSW NPWS, 16/06/99.


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