Indigenous Peoples and Governance Structures A Comparative Analysis of Land and Resource Management Rights Garth Nettheim Gary D Meyers Donna Craig Indigenous Peoples and Governance Structures A Comparative Analysis of Land and Resource Management Rights Garth Nettheim Gary D Meyers Donna Craig Aboriginal Studies Press Australian Institute of Aboriginal and Torres Strait Islander Studies Canberra, Australia Cover Art: ‘Hot Sunday’ © Treahna Hamm First published in 2002 by Aboriginal Studies Press for the Australian Institute of Aboriginal and Torres Strait Islander Studies, GPO Box 553, Canberra, ACT, 2601. © Garth Nettheim, Gary D Meyers and Donna Craig 2002 Apart from any fair dealing for the purpose of private study, research and criticism or review, as permitted under the Copyright Act, no part of this publication may be reproduced by any process whatsoever without the written permission of the publisher. Views expressed in this publication are not necessarily those of the Australian Institute of Aboriginal and Torres Strait Islander Studies. National Library of Australia Catloguing-in-publication data: Nettheim, Garth. Indigenous peoples and governance structures : a comparative analysis of land and resource management rights. Bibliography. ISBN 0 85575 379 X. 1. Indigenous peoples - Legal status, laws, etc. 2.Indigenous peoples - Land tenure. 3. Native title. 4. Land tenure. 5. Aborigines, Australian - Legal status, laws, etc. 6. Torres Strait Islanders - Legal status, laws, etc. 7. Environmental management - Australia - Citizen participation. I. Meyers, Gary D. ll. Craig, Donna. III. Australian Institute of Aboriginal and Torres Strait Islander Studies. IV. Title. 333.20994 Copy edit by George Boeck, Aboriginal Studies Press Design and layout by Rachel Ippoliti, Aboriginal Studies Press 1000/3/2002 Aboriginal Studies Press The Institute logo is taken from a Gu:na:ni (Kunjen) shield from the Mitchell River region, Gulf of Carpentaria. The shield, which is on loan to the AIATSIS, was purchased by Ursula McConnel in the early 1930s on behalf of the Australian National Research Council and is part of the Commonwealth Ethnographic Collection. Contents Preface Lisa Strelein vii Chapter 1 1 Introduction Chapter 2 9 International Law Standards Chapter 3 27 Environmental and Natural Resources Management by Indigenous Peoples in the United States Chapter 4 61 Governance by the Indigenous Peoples of Native Alaska Chapter 5 79 Indigenous Resource Management in Canada: Development and Current Practices Chapter 6 119 Environmental and Natural Resources Management by the Maori in New Zealand Chapter 7 163 The North American and New Zealand Experience with Indigenous Land Rights and Its Application to Australia Chapter 8 185 The Significance of the Nordic Experience for Indigenous Governance in Australia Chapter 9 189 Indigenous Governance by the Inuit of Greenland Chapter 10 209 Indigenous Governance by the Sámi of Scandinavia Chapter 11 237 Australian Land Rights Legislation Chapter 12 319 Legislative Provision for Corporations and Councils Chapter 13 361 Native Title Legislation Chapter 14 377 Environmental and Resource Management and Indigenous Australians Chapter 15 431 Negotiated Agreements and Regional Governance Agreements Chapter 16 481 Conclusions List of Abbreviations 485 Contributors 487 vi Foreword The rights of Indigenous peoples to self-government have been explicitly denied by colonial governments, particularly in Australia. However the reality of Indigenous governance, the ongoing exercise of authority and the assertion of autonomy have led to the implicit acknowledgment of that right. While many decision-makers perceive native title to be limited to the recognition of interests in land, the collec- tive nature of the right necessarily encompasses the need and indeed the right to administer those lands. Outside the native title context, too, the recognition of Indigenous self-government has been implicit in other forms of land management that have devolved autonomy or integrated Indigenous peoples’ interests into the management of land and waters. While forms of statutory land rights have existed in many states and territories prior to the recognition of native title, the native title era has seen a greater recognition of the right of Indigenous peoples to be involved in decision-making over their tradi- tional lands and waters in a more general sense, regardless of the formal recognition of native title. This book, together with the companion volume on Prescribed Bodies Corporate, examines the policies and practices of various regimes of governance on Aboriginal land including the emerging regimes for the management of native title areas, and the incorporation of Indigenous interests into land administration. The authors have augmented this assessment with a comprehensive comparative analysis of regimes in operation in other jurisdictions. This study highlights the need for such structures of engagement to be designed in ways that reflect Indigenous peoples’ interests, perspectives and aspirations. To do so, Indigenous peoples must be involved in their design and implementation. While the non-Indigenous sector may wish to place controls and accountability structures in the institutions of Indigenous governance, this should not undermine the Indigenous interests they represent. This book will be an important point of reference as new structures emerge in response to an ever increasing number of native title determinations and as innova- tive approaches are explored in land management and governance. The diversity of Indigenous communities across the country will be reflected in the adopted models of governance. The benefit of learning from a rigorous assessment of the successes and failures of other models will no doubt be greatly valued. Lisa Strelein Research Fellow and Manager Native Title Research Unit AIATSIS vii viii Chapter 1 Introduction The project An Australian Research Council (ARC) Collaborative Research Grant for a project under this title was awarded for 1997-99 to Emeritus Professor Garth Nettheim (University of NSW), Associate Professor Gary Meyers (Murdoch University) and Associate Professor Donna Craig (Macquarie University) to work in collaboration with the National Native Title Tribunal (the NNTT) serv- ing as the grant’s industry partner. The major component of the NNTT’s in-kind contribution was to attend to the most urgent element of the project, the design of prescribed bodies corporate for the purposes of the Native Title Act 1993 (Cth) (the NTA). This work was conducted by Christos Mantziaris and David Martin as a separate, but linked, project. Their overall study1 was distilled into a shorter volume2 which was released in advance of the final report as an aid to those charged with the task of establishing such bodies. These studies are referred to in Chapter 13. The larger part of the remaining research was published in the form of Discussion Papers (DPs) on specific aspects of the project. These DPs were eventually disseminated to a mailing list which grew to about 165 addresses in Australia and overseas. The DPs were also placed on the internet, courtesy of the Australasian Legal Information Institute (AustLII).3 The DPs attracted a number of helpful responses. Further feedback was sought in the context of a workshop held at University House in Canberra on 31 March 2000, sponsored by the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS). Some sixty or so people took the time to partic- ipate in the Workshop which generated valuable information and ideas. Additional papers finalised subsequent to the workshop were not published in print but were placed on the Internet site, while work proceeded on revising and updating the research for publication in book form. The first discussion paper gave a broad outline of the project, based on the original appli- cation to the Australian Research Council. Some of the principal elements of this paper are reproduced here, adjusted in the light of the fact that the project is now at its conclu- sion rather than its beginning. 1 Indigenous Peoples and Governance Structures Background In Mabo v Queensland 4 (Mabo (No 2)) the High Court held that the pre-existing rights of Indigenous Australians in respect of land and waters may survive under the common law as native title. Legislation was subsequently enacted to fit native title into the legal landscape, notably the NTA, as amended, and complementary state and territory legisla- tion. It is in this particular context that the project was developed. The project was seen to be significant at both theoretical and practical levels. In terms of theoretical significance, the decision of the High Court of Australia in Mabo (No 2), one of the most significant judicial decisions in Australia’s history, reversed the convenient assumption that the non-Indigenous settlement of Australia could proceed without any acknowledgment of the pre-existing rights of the Indigenous peoples in rela- tion to land and waters. It was not, however, unprecedented, because other common law countries had long acknowledged pre-existing rights. In particular, there was a substan- tial body of North American jurisprudence on which the High Court was able to draw. There was also Australian jurisprudence drawing on experience under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act). While that Act was predicated on the earlier denial of native title in Milirrpum v Nabalco,5