Review

Part 4A of the National Parks and Wildlife Act 1974 Table of Contents

BACKGROUND ...... 3

NEED FOR REVIEW ...... 3

LEGISLATIVE FRAMEWORK...... 3

NATIONAL PARKS AND WILDLIFE ACT 1974...... 3 ABORIGINAL LAND RIGHTS ACT 1983...... 3 NATIVE TITLE ACT 1993 & NATIVE TITLE () ACT 1994 ...... 4

ABORIGINAL CO-MANAGEMENT ...... 4

CO-MANAGEMENT AGREEMENTS ...... 4 NATIVE TITLE AND INDIGENOUS LAND USE AGREEMENTS ...... 5 RETURN OF PARKS TO ABORIGINAL OWNERS AND LEASE BACK TO NPWS (PART 4A)...... 5

INITIAL REVIEW ...... 6

CONSULTATION ...... 6

CONCLUSION ...... 7

ATTACHMENT A - SCHEDULE 14 OF THE NATIONAL PARKS AND WILDLIFE ACT 1974...... 8

ATTACHMENT B - DRAFT RECOMMENDATIONS FOR THE PART 4A REVIEW ...... 9

ATTACHMENT C – OTHER PROPOSALS FROM THE 1999 PART 4A WORKSHOPS ...... 15

2 Background

In December 1996 Parliament passed the National Parks and Wildlife Amendment (Aboriginal Ownership) Bill 1996. The then Minister for the Environment identified the aims of the legislation in the second reading speech of the Bill on 20 November 1996,

recommendation 315 of the…report of the Royal Commission into Aboriginal Deaths in Custody aims to protect and preserve the rights and interests of Aboriginal people with cultural, historical and traditional association with national parks, through the negotiation of lease back arrangements which enable title to land on which national parks are situated to be transferred to Aboriginal owners, subject to the lease of the area to the relevant State authority on payment of rent to the Aboriginal owners and the encouragement of joint management between identified and acknowledged representatives of Aboriginal people and the relevant State agency. These aims provide the foundations upon which this Bill is constructed.

The Bill made amendments to the National Parks and Wildlife Act 1974 (NPW Act) and the Aboriginal Land Rights Act 1983 (ALR Act) and provided for the following: · The return of ownership of land reserved or dedicated under the NPW Act that are recognised for their significance to Aboriginal owners; · Co-operative management arrangements for parks and reserves between Aboriginal owners and the National Parks and Wildlife Service (NPWS); · The return of ownership of Aboriginal cultural property to Aboriginal people; · A means to reconcile certain outstanding Aboriginal land claims; · The establishment of a register of Aboriginal owners.

Need for review The Part 4A provisions also specified that the Minister was to “review the operation of this part to determine whether the policy objectives of the Part remain valid and whether the terms of the Part remain appropriate for securing those objectives”. The provisions stipulated that a report on the outcome of the review was to be tabled in both Houses of Parliament within 12 months after the end of 5 years of operation of the Part.

Legislative framework

National Parks and Wildlife Act 1974 Part 4A provides for the vesting of certain lands on behalf of Aboriginal owners, in one or more Local Aboriginal Land Councils (LALCs), and for those lands to be leased by the LALC(s) to the Minister for the Environment. The lands’ reservation or dedication must be revoked before vesting in the LALC(s) and then the land is re-reserved. The care, control and management of the lands is vested with a Board of Management which has a majority of its members appointed from the Aboriginal owners.

Lands that are reserved under the NPW Act which are of cultural significance to Aboriginal people can be transferred to Aboriginal ownership. These lands must be listed on Schedule 14 of the NPW Act before they can be considered for transfer.

Aboriginal Land Rights Act 1983 Certain sections of the ALR Act specifically relate to the operation of Part 4A. Accordingly, any recommended changes to the Aboriginal ownership provisions under the NPW Act may directly affect the operation of the ALR Act. Relevant provisions include Section 49C

3 of the ALR Act which determines that the Registrar is responsible for the development and maintenance of a register of Aboriginal owners and specifically defines how these Aboriginal owners are to be identified. Section 36A applies to certain Crown lands that have nature conservation value and are the subject of a land claim under that Act. If the lands are needed for the essential purpose of nature conservation, they may be dealt with under Section 36A (which invokes Part 4A and results in the same arrangements) but only with the agreement of the relevant LALC.

Native Title Act 1993 & Native Title (New South Wales) Act 1994 It is clear from the Explanatory notes prepared in support of the 1996 Bill, that Aboriginal ownership under Part 4A was not intended to extinguish or impair the rights and interests of native title holders of the lands. The NPW Act currently has provisions which specifically aim to preserve those rights and interests in both the land title transfer and the subsequent management practices incorporated under the Act.

Aboriginal Co-management

The NPWS aims to work with Aboriginal communities to manage parks and other protected areas to conserve natural and cultural heritage. Aboriginal co-management is an arrangement in which the government shares the management of parks and reserves with the local Aboriginal people. The aim is to ensure that Aboriginal people can participate in planning, decision making and management for the park or reserve.

It provides benefits to both the parks system and the Aboriginal people of NSW. Access to land managed by the NPWS provides opportunities for Aboriginal people to sustain spiritual and cultural activities. In turn, Aboriginal culture and knowledge provides significant benefits to the parks system, including access to Aboriginal skills and knowledge in the conservation of both cultural and natural values, and land management.

There are a number of different ways that Aboriginal co-management can be achieved. These include: · Developing Indigenous Land Use Agreements with native title holders; · Returning protected areas to Aboriginal owners and leasing them back to NPWS under Part 4A of the NPW Act. (This is limited to lands listed in Schedule 14 of the NPW Act and to lands claimed under the ALR Act which are needed for the essential purpose of nature conservation where the relevant LALC agrees to the claimed land becoming a national park and being leased to the NPWS). · Developing other co-management agreements with Aboriginal communities.

Co-management agreements NPWS can enter formal agreements with local Aboriginal communities about their involvement in the management of national parks and other reserves. These agreements are often referred to as a Memorandum of Understanding (MoU). The MoU ensures that Aboriginal people have greater involvement in the management of the park and recognises their cultural association with that park. It does not resolve native title issues and it does not formally return the land to Aboriginal ownership.

There are currently eighteen Aboriginal co-management arrangements between the NPWS and local Aboriginal people regarding aspects of NPWS reserve management.

4 Native Title and Indigenous Land Use Agreements The provisions for Indigenous Land Use Agreements (ILUA) were introduced in the 1998 amendments to the Commonwealth Native Title Act 1993. NPWS can negotiate an ILUA with native title claimants about the management of national parks and the exercise of native title rights on those parks.

An ILUA provides the benefit of resolving native title issues as the native title rights established by an ILUA have the same force under Federal law as if they were part of a native title determination.

There has been one ILUA signed in NSW so far. The Arakwal ILUA is the result of lengthy consultations between the Arakwal people and the NSW Government through the NPWS, Department of Land and Water Conservation, a range of community groups and the Byron Shire Council. One of the outcomes of the Arakwal ILUA, amongst other things, was the creation of the which is jointly managed by the Arakwal People and the NPWS.

Return of parks to Aboriginal owners and lease back to NPWS (Part 4A) Under Part 4A of the NPW Act, some parks can be returned to LALCs to hold on behalf of the Aboriginal owners. This works in the following way: · National parks and reserves of Aboriginal cultural significance to Aboriginal people that are listed in Schedule 14 of the NPW Act can be returned to a LALC to hold on behalf of the Aboriginal owners; · The Aboriginal owned national parks are re-dedicated as reserves under the NPW Act and leased back to the NSW Government under mutually agreed conditions and the lease payments must be spent on the care, control and management of the park; · Boards of management which have a majority of Aboriginal owners manage the lands as national parks and reserves.

There are seven areas listed in Schedule 14 of the NPW Act that can be returned to Aboriginal ownership (see Attachment A for full list). Lands under claim by Aboriginal land councils and that are needed, or likely to be needed, for the essential purpose of nature conservation may also become part of these arrangements, but only with the agreement of the relevant LALC.

Mutawintji National Park, Mutawintji Historic Site and Coturandee Nature Reserve were returned to the Aboriginal owners of the area under Part 4A of the NPW Act, in September 1998. The Board of Management receives annual rental funds from the lease for the care, control and management of the three reserves. The Board has progressed the management of the park to improve aspects of cultural heritage protection, conservation protection and administration. To date this has included upgrading infrastructure in the National Park and designing, constructing and erecting viewing platforms to protect art sites within the Historic Site. Funding has been allocated by the Board to the Yellow footed Rock-wallaby recovery plan. The Board is preparing a new plan of management for Mutawintji to incorporate the community’s needs.

Aboriginal communities and the NPWS are preparing for negotiations for the return of ownership and lease back of Mt Grenfell Historic Site, Biamanga National Park and , and for the creation of reserves in Warrell Creek and Stockton Bight and the return and lease back of those reserves under Part 4A of the NPW Act (these are two areas which were under claim by LALCs).

5 For , the Aboriginal community has decided not to pursue return of ownership and full joint management at this time and has instead entered into an alternative co-management arrangement with the NPWS. Initial review

In 1998 the then Minister commissioned a review by Mr Tim Moore of the Part 4A provisions. The review involved a series of workshops conducted over several months in 1999-2000 with representatives of the NSW Aboriginal Land Council (NSW ALC), Nature Conservation Council, the National Parks Association and the Colong Foundation for Wilderness.

In acknowledging the broad community support for the objectives of Aboriginal ownership and joint management of those areas of the national parks estate that have high Aboriginal cultural value, the 1999-2000 workshop participants focussed on identifying a range of technical and policy changes to improve the operation of Part 4A.

This review report is based primarily on the outcomes of these workshops.

Consultation

Consideration of the recommendations from the 1999 workshops and NPWS experience in implementing Aboriginal co-management arrangements formed the basis for identifying a series of preliminary draft recommendations.

NPWS has sought comments on the draft recommendations from: · NSW Department of Aboriginal Affairs (DAA); · Office of the Registrar of the Aboriginal Land Rights Act 1983; · NSW Aboriginal Land Council (NSW ALC); · NSW Native Title Services Limited; · Mutawintji Board of Management; · Nature Conservation Council*; · National Parks Association*; · Total Environment Centre*; · Colong Foundation for Wilderness*; · Environmental Defender’s Office.

(*Note that these stakeholders are collectively referred to as the “environment groups” throughout this report as a combined response was submitted).

The initial consultation has highlighted the complexity of the issues and stakeholders have indicated that more time is needed to fully determine the implications of each proposal. In particular, the NSW ALC considers that a period of six months is needed for the land council to fully consult with all LALCs. Native Title Services has also expressed the view that a longer consultation period is needed for Aboriginal peoples to contribute in a meaningful way. To ensure a comprehensive consultation with relevant Aboriginal people, the NPWS will also be consulting with Aboriginal owners currently preparing for Part 4A negotiations.

The proposed outcomes discussed at Attachment B to the report are preliminary policy positions pending more detailed review by the NPWS, in conjunction with stakeholders, in the first half of 2003. The findings are grouped into: i) those proposals where no issues

6 were identified by stakeholders during the current consultation; and ii) those proposals where stakeholders have identified issues requiring further consultation. (Discussion on the 1999 workshop proposals that are not proposed under this review is provided at Attachment C).

Conclusion

In light of the achievements to date, it can be concluded that Part 4A is operating to meet its policy objectives. The provisions of Part 4A have been successful at according respect and recognition to Aboriginal culture and nature conservation values through partnership and negotiation between indigenous communities and the NSW Government. A number of proposals, however, have been identified as potentially improving the operation of the Part and they are discussed at Attachment B. Note that the discussion includes, where appropriate, preliminary comments from stakeholders on the proposals. The NPWS will consult further on these draft recommendations and consider any new proposals recommended by stakeholders during an extended consultation period in 2003. An issue identified by Native Title Services as requiring closer review is the implications of the management of native title rights and interests on the operation of Part 4A. It is considered that there needs to be further consultation on, and consideration of, the operation of Part 4A in order to ensure that Aboriginal co-management arrangements are developed in a consistent, equitable and effective manner.

7 ATTACHMENT A - SCHEDULE 14 OF THE NATIONAL PARKS AND WILDLIFE ACT

There are seven areas of land listed in Schedule 14 of the National Parks and Wildlife Act 1974 that can be returned to Aboriginal ownership. They are:

· and Historic Site and Coturandee Nature Reserve near Broken Hill;

· Mungo National Park near Mildura;

· Mount Grenfell Historic Site near Cobar;

· Biamanga National Park near Bega;

· Gulaga National Park near Bermagui;

· Mount Yarrowyck Nature Reserve near Armidale;

· Jervis Bay National Park near Nowra.

8 ATTACHMENT B – DRAFT RECOMMENDATIONS FOR THE PART 4A REVIEW

While the lease back arrangements for the Mutawintji lands demonstrate that the Part provides a workable policy framework, the following draft recommendations aim to improve the operation of Part 4A in terms of meeting the overall objective of protecting and preserving the rights and interests of Aboriginal people with cultural, historical and traditional association with national parks. The draft recommendations are: i) Those proposals where no issues were identified during the preliminary consultation

1. Procedures of Boards of Management The procedural processes of the Boards of Part 4A reserves are not set out in detail in the National Parks and Wildlife Act (NPW Act). It is proposed that the Boards be provided with governance rules including provision for alternate members; an Aboriginal owner majority to make up quorum numbers for voting; disclosure of pecuniary interests; and indemnity when acting in good faith.

2. Separate accounts for each Part 4A park An amendment would clarify that a separate account is required for each Part 4A land.

3. Variation to the lease of a Part 4A park Proposal to clarify that a lease may only be varied by the agreement of the parties and the Aboriginal owner Board members (other than a variation made by an Act of Parliament).

The Act provides that before the expiry of each term of a lease the Minister, the relevant LALC and the Aboriginal owner Board members must consider whether any amendments to the lease are needed to enable it to operate more effectively. This proposal would make clear that a variation to the lease in such circumstances would be by the agreement of the parties and the Aboriginal owner Board members.

4. Management agreements with neighbours It is proposed that the Board should be able to expend rent monies on joint management arrangements with lands adjacent to the Part 4A lands for the maintenance or improvement of the Part 4A park. Examples of expenditure would be ‘give and take’ fencing or co-operative pest management programs which are on and off park. Agreements would be entered into with the consent of the Minister.

The Mutawintji lease currently provides for the Director-General to enter into any agreement, such as for pest management programs, on behalf of the Board. This proposal would have the benefit of allowing the Board’s themselves to enter into an agreement with a neighbour.

5. Community development on Part 4A lands The NPW Act allows the Plans of Management for Part 4A reserves to provide for on park community development that is consistent with the management principles for the relevant reserve category. It is proposed that a generic regulation be made to clarify the use of Part 4A lands for community development purposes. It would be modelled on the current Mutawintji lease provisions as set out at clause 69 of the National Parks and Wildlife Regulation 2002. Stakeholder groups would be consulted on the making of the regulation.

9 ii) Those proposals where further consultation in 2003 is needed:

6. Land tax, dividing fences and other liabilities arising from transfer of the land An amendment to the NPW Act would clarify that Part 4A parks, like other reserves, are exempt from local government rates, and any other land taxes arising solely because of the change of status to Part 4A lands. The exemption for the NPWS estate areas in regard to the operation of the Dividing Fences Act would be clarified to include Part 4A lands.

In some circumstances if the Environment Protection Authority (EPA) so orders, the Contaminated Land Management Act 1997 makes the owner liable for the costs of investigation or remediation of land contamination which poses serious risk of harm to the environment. It is proposed that the Part 4A tenure holding body should not be liable for: the costs of investigation of or remediation of any contamination on the land which existed at the time the land was brought under Part 4A; or for contamination which occurs after the land was leased under the Part 4A provisions unless such contamination was caused by the tenure holding body or persons acting on behalf of this body.

NPWS will continue discussions with the EPA in 2003.

7. Tenure holding body Provision for a greater range of tenure holding bodies (for transfer to and leaseback of reserves) provided such bodies represent the interests of the Aboriginal owners and are confined to those established under NSW legislation.

Where a body other than the LALC holds the Part 4A land, the land council will retain the right to representation on the Board to give a broader perspective to the Board’s deliberations.

Although the NPWS is supportive of this proposal it is not one that could be easily drafted into legislation. For example, issues such as future insolvency and dissolution of such a body and continuing status of the land should this occur need to be carefully considered.

The Department of Aboriginal Affairs (DAA) and the Office of the Registrar recommend that such a proposal would need to ensure that if the alternate tenure holding body is liquidated or dissolved, the Part 4A land will not be sold off or revert to the Crown, but will be transferred to another like body (which may be a LALC). It is also considered that the proposal requires detailed investigation into alternative tenure holding bodies.

The NSW ALC’s preliminary response on this issue questions whether it is appropriate to form yet another Aboriginal organisation which may create layers of duplication while also creating extra costs from a pool of limited resources for Aboriginal people. There is also concern that other organisations would not provide the legal structure or protection of the land for Aboriginal people that is offered by a LALC.

8. Community development off Part 4A lands A recommendation of the 1999 workshops was to allow the Board to use rental monies to foster community development outside the Part 4A park, provided such expenditure benefited conservation on the Part 4A land itself. As part of the current review, the Government is considering a number of options in relation to off park rental expenditure including the 1999 proposal. The NPWS will be seeking comment on this issue from stakeholders in 2003.

10 9. Exercise by the Director-General of certain powers relating to Part 4A lands That for a range of powers, including Aboriginal cultural heritage protection, functions under the Wilderness Act, and statutory reporting on Part 4A lands, it is proposed that the Board should have a consultative role, with the Director-General (D-G) obliged to take the Board’s concerns into account. This consultative role would also apply to the D-G’s powers under the TSC Act (where it impacts on the Part 4A land). These powers fall under the following: · Part 3 – Identification of critical habitat of endangered species, populations and ecological communities – dealing with the duties to investigate and recommend to the Minister the identification of critical habitat. · Part 4 – Recovery Plans – dealing with the duties to prepare operational plans to enable species, populations and ecological communities to recover from the threats to its survival. · Part 5 – Threat Abatement Plans – powers to prepare plans which reduce threats to particular species. For example, this may include research into targeted pest control. · Part 6 – Licences – this part deals with the licensing of actions that are likely to harm threatened species, populations or ecological communities. · Part 7 – Stop Work Orders – dealing with the power to issue stop work orders where an action may be detrimental to a threatened species, population or ecological community.

This position would be different for Aboriginal cultural heritage if ownership/control of the Aboriginal objects is with the Aboriginal owner Board members pursuant to section 85A of the NPW Act. In this case, the lease could facilitate a consent role for the Board.

There are currently no provisions for consultation with the Part 4A Board of Management in relation to Aboriginal heritage protection under Part 6 of the NPW Act and functions under Part 2 of the Wilderness Act. This proposal would have the benefit of introducing a consultative role in relation to these powers where they relate to the Part 4A land.

Until recently, there was no explicit legislative requirement under the TSC Act to directly consult with Aboriginal people on aspects of threatened species management outside the current statutory public exhibition processes for the preparation of recovery and threat abatement plans. (During the preparation of recovery and threat abatement plans it is NPWS policy to consult with relevant Aboriginal communities). The TSC Amendment Act 2002 has now introduced a consulting process by directing that the D-G is to consider, when preparing a recovery plan or threat abatement plan, any special knowledge or interest of Aboriginal people. This approach is reflected in the Mutawintji lease which states that the D-G has agreed to consult with the Board concerning the draft recovery plan for the Yellow-footed Rock wallaby. The above proposal would ensure that the D-G consults on a range of functions under the TSC Act, in addition to the preparation of recovery and threat abatement plans.

It should also be noted that as the ‘park authority’ for the Part 4A lands under the National Parks and Wildlife Regulation 2002, the Part 4A Board of Management must consent to a range of activities relating to the trapping, hunting and taking of animals, and the gathering, picking or introduction of vegetation, or the person carrying out the activity has committed an offence.

11 The view of Native Title Services and the preliminary position of the NSW ALC is that the Board should have a consent role for nature conservation issues relating to the particular Part 4A land, not just for Aboriginal heritage matters.

10. Reporting on training and employment programs The NPW Act currently states that under matters to be covered in the lease, the Minister must undertake to implement the NPWS Aboriginal employment strategy. Given that the NPWS reports annually to Premier’s Department on workforce profile issues, including Aboriginal employment and equity, consideration should be given to removing the provision requiring the Minister to report to Parliament on Aboriginal employment planning. Monitoring of progress on implementation also occurs through the processes that establish the relationship between the D-G and the Board with regard to employment and training. Any proposed program is guided by the NPWS Aboriginal Employment and Development Strategy 2002 – 2006 and complies with the provisions of the Public Sector Management Act and its regulation. Program development also involves the Workforce Diversity Officers of the Human Resources Division of the NPWS who, amongst other things, ensure that the policies of the Office of the Director of Equal Opportunity in Employment are implemented.

Native Title Services and the NSW ALC indicate support for the continued reporting by the Minister to Parliament.

11. Status of land during a lease renewal Amend the current holding over provisions to retain the status of land during the period between the expiry of a lease and the negotiation of a new lease.

Environment groups are seeking to ensure security of reserve tenure. A further proposal of the 1999 workshops was the insertion of a new provision that explicitly stipulates that no change in the reservation status of the land is permitted during any holding over time at the expiry of a lease.

12. Comparative assessment of the Aboriginal significance of lands nominated for listing on Schedule 14 It has been proposed that the wording at Section 71AV (2) be clarified to make clear that the Minister must be satisfied that lands nominated for Schedule 14 are “consistent with that of the broad cultural significance of all the lands already listed in the Schedule”.

This proposal would ensure overall consistency as to the cultural significance of Schedule 14 lands without making an absolute comparative judgement as to various levels of cultural significance of different lands on Schedule 14. Given that the current wording seeks to ensure that the lands being considered for listing are at least “equivalent” to that of the lands already listed in the Schedule, it is considered that requiring a consistency as to the broad cultural significance would not have the effect of increasing the difficulty of listing nominated lands on Schedule 14.

Environment groups have expressed concern regarding the lack of specific measurable criteria against which lands being considered for listing can be assessed. The NPWS has developed detailed procedural guidelines for the assessment of reserved lands proposed to be placed on Schedule 14. Under the guidelines, a significance assessment report is prepared, in consultation with the appropriate Aboriginal peoples, which includes a summary of the source/s and nature of the evidence (with reference to any material which may be too sensitive to be included in the documentation and how this has been handled);

12 and a statement of significance prepared using the relevant Australian Heritage Commission criteria.

13. Process for adding reserves to Schedule 14 The decision on whether a reserve may be a candidate for listing under Schedule 14 is one that is the province of Aboriginal people. All of the criteria in the Act relate to Aboriginal significance. The NPWS Schedule 14 Assessment Guidelines provide for comprehensive consultation with relevant Aboriginal stakeholders.

While the significance assessment is one for Aboriginal people, it is accepted that the ultimate decision as to whether to list a reserve in Schedule 14 is one that may involve a broader range of issues. A proposal to be considered is that at the later stages of the process, that is, once the cultural assessment report is complete, the local community should have the opportunity to comment on issues other than those relating to Aboriginal cultural significance. The details of this public review process are to be developed.

Initial feedback from the NSW ALC indicates support for the current process as it is considered to be consistent with self determination and it may be that it is more appropriate for the Board to undertake consultation with the community once the lease back arrangements are in place. DAA and the Office of the Registrar are of the view that the cultural assessment process should remain the province of Aboriginal people.

Environment groups support some form of public exhibition process on issues other than cultural significance, with the D-G to report to the Minister on these comments.

14. Additions of further lands to lands already leased under Part 4A Land that is already reserved under the NPW Act but not listed on Schedule 14 must be put through the statutory assessment of its cultural significance before it can be added to a Part 4A land. The same process does not apply to unreserved Crown land or “Aboriginal lands” which can be added by the Governor’s proclamation, published in the Gazette.

It is often the case that reserve boundaries and culturally significant areas do not exactly overlap. Where this occurs, the ability to add minor areas of adjacent lands to a Part 4A reserve is a useful one, a benefit being that once added to the leased lands they will be reserved under the NPW Act. The NPWS is proposing that guidelines be developed to guide the assessment of cultural significance before a recommendation is made to the Governor. Such a guideline would need to factor in consideration of management issues where the purpose of the addition is to resolve, for example, an incursion into the Part 4A park.

The NSW ALC suggest that the Boards of Management should develop such a policy, while DAA and the Office of the Registrar are seeking further background information before commenting on the proposal.

Environment groups would prefer the NPWS Advisory Council to have the opportunity to comment to the Minister on the necessity for formal public consultation on proposed additions of unreserved Crown lands.

15. Review of the term “ownership” Anecdotal evidence from NPWS Officers involved in co-management suggests that some Aboriginal people may not want to be registered as Aboriginal ‘owners’ as the term ‘ownership’ is considered inappropriate in this context. The NPWS is seeking the views of

13 the Registrar of the Aboriginal Land Rights Act, the NSW ALC and DAA to determine if any change is warranted.

All relevant stakeholders have requested further consultation before any comment can be made.

16. Preparation of the Plan of Management (PoM) for Part 4A lands It is understood that the Mutawintji Board has benefited from the experience of managing the Part 4A park before developing the PoM. It is proposed that the Act be amended to allow a PoM to be prepared by the Board for the Part 4A lands within 5 years (instead of 2 years) after the transfer of the land.

DAA and the Office of the Register suggest that 3 years may be more appropriate. The NPWS will seek further clarification on this position.

17. Clarification that it is discretionary to enter into a lease agreement The Act provides that negotiations are to be conducted to determine whether the relevant land council wishes to proceed to the vesting of lands in the council. It is proposed that it be made clear that the Minister’s role is also discretionary.

A situation may arise where the Minister considers that it is not appropriate to commence negotiations at that time. An example would be if the Aboriginal owners determine that they do not wish the negotiations to go ahead. In other cases it may be appropriate to finalise the addition of lands to a reserve before negotiating the lease. There may be instances where it is best to delay commencement of negotiations in order to complete the Aboriginal owner identification process.

DAA and the Office of the Registrar have requested clarification regarding the circumstances where it is envisaged that the Minister might exercise this discretion.

14 ATTACHMENT C – OTHER PROPOSALS FROM THE 1999 PART 4A WORKSHOPS

(a) Membership of the Board for Part 4A lands Proposal for the conservation representative on the Board to be a representative nominated jointly by the Nature Conservation Council of NSW and National Parks Association of NSW (NPA).

The NPWS is concerned that it may not be appropriate to have a State based conservation representative on the Board as local or regional conservation bodies are likely to be more knowledgeable about the local region. The current provisions do not preclude, for example, a member of the local branch of the NPA seeking nomination.

(b) Change of classification at the time of initial lease of the Schedule 14 reserve Proposal for changes to a reserve category to be through the Plan of Management (PoM), except where a higher reserve category is proposed.

It is considered that the introduction, under the National Parks Amendment Act 2001, of management principles for each reserve category ensures that reserves are managed in order to meet specific management objectives depending on the perceived management requirements of the reserve.

A change of reserve category requires an Act of Parliament, or in the case of Part 4A, the proposal is laid before each House of Parliament. The objects of the NPW Act include provision for the management of lands in accordance with the management principles applicable for each type of reservation. The intention is that the PoM be based on the reserve as it is classified, and the management principles of the reserve category.

(c) Notification of environment groups of Schedule 14 proposals This provides for the addition of an obligation to notify environment group(s), to the list of bodies specified in the NPW Act, of any proposal to add a national park reserve to Schedule 14.

The participation of environment groups in the cultural assessment process may not be appropriate as such input would not assist in the matter to be determined which is the cultural significance of the land. A proposal to provide for some form of public discussion on such a proposal on consideration other than those criteria on which the proposal has been made, is discussed at item 13 of Attachment B. NPWS will consult further on these issues in 2003.

(d) Aboriginal objects on Part 4A reserves This provides for the transfer of ownership of Aboriginal objects located on Part 4A lands to the body holding ownership of the lands, to be held on behalf of the Aboriginal owners. The Board would have care, control and management of all such Aboriginal objects.

It is considered that this proposal is already achieved through section 85A of the NPW Act. Under this provision, the D-G may dispose of objects that are the property of the Crown by returning them to an Aboriginal owner(s) entitled to and willing to accept possession, custody or control of the object in accordance with Aboriginal tradition. This approach ensures that the Aboriginal owners with cultural responsibility specifically have possession of the objects.

15