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Review Part 4A of the National Parks and Wildlife Act 1974

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Review Part 4A of the National Parks and Wildlife Act 1974 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 (NEW SOUTH WALES) 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 Arakwal National Park 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
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