Australian Indigenous Law Reporter
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At a ceremony at Mutawintji National Park on 5 September 1998, the NSW Premier Bob Carr handed over to the Chairperson of Mutawintji Local Aboriginal Land Council (MLALC), William Bates, freehold title to that Park and to Mutawintji Historic Site and Mutawintji (formerly Coturaundee) Nature Reserve, which are located north east of Broken Hill in the State's far west. The freehold was now vested in MLALC on behalf of Mutawintji's Aboriginal owners. In exchange, MLALC granted a 30 year lease (with provision for renewal) to the Minister for the Environment, for the lands to continue to be managed as part of NSW's conservation estate.
This was the culmination of 15 years of struggle on the part of the Aboriginal owners, commencing with their blockade of the entrance to the Historic Site in September 1983.
In November 1996 the NSW State Parliament unanimously passed the National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 (NSW), which had originally been introduced as a Bill in broadly similar terms by the Greiner (Coalition) Government. That Act inserted into the National Parks and Wildlife Act 1974 (NSW) a new Part 4A, which recognised the cultural significance to Aboriginal people of a number of conservation reserves in NSW, including Mutawintji, Mungo and Jervis Bay National Parks.
Part 4A empowers the Minister to negotiate with the Aboriginal owners of the named reserves, with a view to 'Uluru-style' title and joint management arrangements being agreed. Where agreement is reached in relation to a reserve, it provides for a Board of Management to be established with a majority comprised of Aboriginal owners. The Board then has care, control and management of the reserve in place of the Director General of National Parks and Wildlife. The Board is subject to direction by the Minister except in relation to decisions on the management of Aboriginal culture and heritage within the reserve.
The Aboriginal owners of Mutawintji, who had been so instrumental in promoting the development and passage of the legislation, were the first to request the Minister to negotiate under Part 4A. After 18 months of negotiations between the Aboriginal owners and the National Parks and Wildlife Service (representing the Minister), with Tim Moore (the former Minister in the Greiner Government, who had tabled the original Bill) as facilitator, the terms and conditions of the lease were finalised.
Only the preamble and the 'plain English' summaries of selected clauses are reproduced here.[1]
1. The lands now comprising Mutawintji National Park, Mutawintji Historic Site and Mutawintji Nature Reserve have always been part of the traditional country of the ancestors of the present day Aboriginal owners and a ceremonial centre for Wiimpatja[2] from a wide regional area.
2. The lands are of special cultural significance to many Wiimpatja and contain a wide range of important features including creation places, rock engravings, paintings and evidence of past occupation.
3. Beginning about 130 years ago, Wiimpatja in the Mutawintji area were dispossessed of their traditional lands by the Colonial Government without their consent to make way for the development of the pastoral industry.
4. As a consequence, the population of Aboriginal owners and other Wiimpatja with a cultural association with Mutawintji was reduced and they were soon subjected to unprecedented cultural impacts including violence, disease and marginalisation.
5. Those descendants of the original inhabitants who survived remained in contact with their ancestral country by adopting an uneasy but necessary co-existence with the pastoral industry.
6. By the 1960's, the last of the Aboriginal owners who were born in the first years of dispossession were dying and their descendants had largely moved to live in nearby towns as a result of economic changes to the pastoral industry.
7. The increase in the population and the beginnings of political changes to recognise Wiimpatja rights led to a new awareness of their inheritance by the Aboriginal owners.
8. The first Government recognition of the cultural significance of Mutawintji was the reservation in 1927 of an area for the 'Preservation of Caves, Native Fauna and Flora and Aboriginal Carvings and Drawings'.
9. In 1967, the present Historic Site was established over this earlier reserve under the first National Parks and Wildlife Act to protect what was perceived by government to be the relics of an extinct or, at least, dying culture.
10. As a reaction to more than 100 years without proper recognition of Mutawintji's cultural significance, and without Wiimpatja control and good management, the Aboriginal owners and their supporters on 4 September 1983 blockaded the entrance to the Historic Site.
11. Through the blockade which had been triggered by the establishment of the National Park and the Nature Reserve, the Aboriginal owners asserted their desire to regain ownership, control and management of their sacred lands.
12. Between 1983 and 1991 the Mutawintji Local Aboriginal Land Council representing the Aboriginal owners and other Wiimpatja with a cultural association sustained a long and at times difficult campaign to persuade the New South Wales government to recognise their rights and interests in the Historic Site, National Park and the Nature Reserve.
13. In 1991 the first Bill was tabled in the Parliament to enable recognition of Wiimpatja ownership of certain national parks and reserves in New South Wales.
14. Between 1991 and 1996 the Mutawintji Wiimpatja negotiated with the New South Wales Government and continued to press the New South Wales Government for improvements to the proposed legislation and its ultimate enactment.
In December 1996 the National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996 was passed unanimously by both Houses of Parliament. That Act provides for this Lease between the Land Council and the Minister for the Environment.
15. The Lease has been negotiated over an 18 month period with the aim of resolving the historical conflicts over this area of such special cultural significance to the Aboriginal owners, whilst at the same time reserving the status of the Mutawintji lands as part of the conservation estate of New South Wales.
By means of the execution and operation of this Lease, the Land Council and the New South Wales Government wish to make a significant contribution towards reconciliation between indigenous people and non-indigenous people of New South Wales.
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This is the legal definition of the Mutawintji lands which are included in the lease.
This sets out that the new name of the Park, the Nature Reserve and the Historic Site will be Mutawintji.
The Mutawintji Land Council, the Minister and the Director-General of National Parks confirm the Land Council will not own the land for itself. This also says that the Land Council only holds the Mutawintji lands on behalf of the Aboriginal owners and will not do anything about this without the agreement of the Board members who are Aboriginal owners.
This says that the issue of whether the Nature Reserve and or the Historic Site should become part of the National Park will be dealt with in the development of a new Plan for the Mutawintji lands. If this decides that there should be any changes, the Minister agrees to do her best to get the Parliament to agree.
The Mutawintji Land Council, the Minister and the Director-General agree the Wiimpatja freehold title is inalienable and that neither the Land Council or the Minister will otherwise deal with the Mutawintji lands without the written agreement of the other one of them.
This says that, if land in the vicinity comes on the market, talks will be held about whether any of it should be bought to add to the Mutawintji lands. If the land between the two sections is offered for sale, this should be the priority for any new land being added. In any event there should be regular discussions about possible additions. No land can be added without the Board and the Land Council agreeing.
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This means that this lease does not change any native title rights which may exist over the Mutawintji lands.
This clause is an acknowledgment that Wiimpatja cultural values and the special significance to Wiimpatja with a cultural association with the Mutawintji lands were considered in the negotiation of this lease.
This clause is an acknowledgment that the nature conservation and wilderness values of the Mutawintji lands were considered in the negotiation of this lease and that, to Wiimpatja with a cultural association, the natural values form an integral part of the cultural values of the lands.
This clause leases the three areas comprising the Mutawintji lands back to the Government as a National Park, Historic Site and Nature Reserve.
The lease is for thirty years finishing on 3 September 2028.
This says that any renewal of the lease after 3 September 2028 must be for at least another 30 years and that there is no limit to how many times it can be renewed.
This means that this lease continues to operate until it is replaced by a new one - even if that is after the formal finishing date of this lease.
...
This section means that the parties to the lease have to look at it every five years and decide if there are any changes to be made. If there is a difference in ideas between the parties about changes which effect the management of the Mutawintji lands the dispute could be arbitrated. Changes to the lease cannot make the overall level of benefits to and rights of the Land Council and the Aboriginal owners lower than it is the previous year.
If any parties to the lease believe that there has been a major breach of the lease the party must notify the other parties in writing within fourteen days letting them know what the problem is. The parties can then appoint a mediator to help solve the problem. If the parties still can’t agree on how to fix the problem an arbitrator will be appointed who will resolve the problem for the parties.
Although the Director General is a party to some clauses of the lease, he is also a representative of the Minister. Therefore where there is a breach of the lease that involves an action of the Director General, the breach is really the responsibility of the Minister.
This says that if the Minister fails to comply with certain specified sections in the Lease then the Land Council can choose to consider that as a fundamental breach of the lease. It also says that any new laws which cut the rights or powers of the Land Council, the Board or the Aboriginal owners can be treated by the Land Council as a fundamental breach. Except for breaches by new laws, the Land Council has to give the Minister one month’s notice to fix up the problem before the Land Council can treat the lease as being fundamentally breached.
If this lease is terminated by a fundamental breach, the Mutawintji lands continue to be managed under the terms of this lease until a new lease has been sorted out.
...
The rent to be paid by the Government each year for the Mutawintji lands is $275,000 but other clauses say how it is to be adjusted each year and reviewed each five years.
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This means that for rent purposes, the year starts on 1 July and that the rent must be paid by 31 July except for the first rent payment which must be paid by the end of the second month after the Mutawintji lands are transferred to Wiimpatja ownership and joint management with the National Parks Service.
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This clause means that the rent is compensation to the Land Council for the fact that the Mutawintji Land Council does not have complete control over the use of the Mutawintji lands.
This means that the Board is to spend rent money under the lease for purposes which may include certain community development or buying land to add to the Park.
This clause sets out how the rent is to be adjusted for inflation each year after the first year.
This sets out the things which were considered in the rent negotiations during these lease discussions.
When the lease is reviewed, that review includes looking at the amount of the rent. When looking at the rent, the review will take into account any change in visitor numbers to the Mutawintji lands.
In this clause, the Mutawintji Land Council agrees that it has responsibilities to Wiimpatja who have cultural links with the Mutawintji lands but who are not able to register as Aboriginal owners of the Mutawintji lands.
...
This says that the Land Council holds any other property (other than Aboriginal cultural items) it gets with the Mutawintji lands for use as directed by the Board.
This clause says that everyone thinks co-operation between the Board and the Parks Service and between all the parks in the Western Division is a good idea. This clause does not create any additional legal obligations on anyone.
This means that the new Plan of Management to be prepared by the Board will say where and how new community facilities can be built.
The Minister agrees to try to have the words 'community development' mean the same thing in the regulations as it means in the lease.
This means that the Mutawintji Land Council agrees to some restrictions on how or when the Board can use powers which would otherwise be used by the Director-General of the Parks Service if the Mutawintji lands were an ordinary National Park rather than a Wiimpatja owned one.
...
This means that the Minister agrees to promote Aboriginal training and employment within the National Parks Service including at Mutawintji and that Mutawintji will get fair treatment under the Parks Service general Aboriginal employment plan in addition to the new Aboriginal jobs created by this lease.
This means that the Minister agrees to do what is necessary to implement decisions of the Board unless the Minister directs that the decision is not to be implemented.
This means that the Minister will protect the Board and its members from legal action if they are acting legally.
This clause means that the Land Council has a say (and has to be given two weeks notice if the rights of Wiimpatja about the lands are significantly changed) before the Minister can propose new laws to Parliament where those new laws will affect the Mutawintji lands.
This means that the Minister will not make any rules which apply to the Mutawintji lands unless the Land Council has been consulted first.
This means that the Minister will not make any special rules for the Mutawintji lands unless the Land Council agrees to them first.
This clause acknowledges that the Minister can tell the Board what to do except about advice from the Board or about its lawful decisions on Aboriginal cultural and heritage matters at Mutawintji.
...
This says that the Board is to be confirmed as the decision maker for the Mutawintji lands by making a regulation under the National Parks Act.
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This says that normally the Minister would not delegate authority to direct the Board or that something be done on the Mutawintji lands. It also that a direction may have to be given if an emergency occurred and quick action was needed. If this happens, the Board must be told straight away and will be able to stop things if the Board decides to do so.
This clause deals with the Director-General’s exercise of powers on the Mutawintji lands and says that the Director-General will not exercise such powers without the Board’s consent except in an emergency but that the Board must be reasonable in considering such requests. The Director-General also will not prosecute anyone for an offence relating to the Mutawintji lands without advice from the Board.
This means that the Director-General agrees to do what is necessary to implement decisions of the Board provided the Board has also authorised the money to pay for it.
Any money for the Mutawintji lands will be kept by the Parks Service in a separate account. The money for any other parks which have arrangements for Aboriginal ownership in the future will be kept separate from Mutawintji money.
...
This means that the Director-General agrees to promote Mutawintji as part of the National Parks system of NSW and to consult the Board before printing and releasing anything new which substantially mentions the Mutawintji lands.
This means that the Parks Service representative on the Board will be the local Regional Manager or a deputy agreed to by the Land Council.
This will enable the Board to enter into management agreements, such as 'give and take' fencing arrangements or pest animal programmes which are on and off park, with neighbours.
...
This clause says that the Board is responsible for the care, control and management of the Mutawintji lands.
...
There will be thirteen Board members. The thirteenth member is picked by the Land Council or the Land Council can get the Minister to pick an extra Aboriginal owner for the Board. The Joint Management Co-ordinator can’t be on the Board but other Park Service staff can but can’t be the Chair of the Board.
The representative of Central Darling Shire on the Board has to be an elected member of the Council not a staff person.
The Board has to finalise the budget submissions for its operations and capital works programs by 30 November each year and the Parks Service will submit them without change to the Government as part of the overall Parks Service proposed budget. This does not mean that these will automatically be agreed to by the Government.
The Board has to meet at least four times each financial year.
To make a proper decision, the Board must have a quorum of at least 7 members (or their deputies) of which at least 4 have to be Aboriginal owner members (or their deputies). Also if one of the members is temporarily out of the meeting because of having a 'pecuniary interest' (see clause 10.12 below), they can still be counted as part of the quorum although they can’t vote.
This means that a majority of Wiimpatja members with a cultural association voting on any decision of the Board must support the decision or it is not valid.
This says that the Minister must try and get an even balance of family interests as Aboriginal owner representatives on the Board when making Board member appointments.
...
Board members will be paid sitting fees and travel costs as decided by the Minister and the money will come from Board funds. The rates will be the same as similar government boards.
...
The normal term of office for a Board member will be 4 years but the Central Darling Shire representative will cease if they stop being a member of the Council. Members who replace someone who stops being a Board member will be appointed only until the end of the term of the person who has left.
...
This clause records the financial accountability required of the Board and says that the Minister may direct that the Board is subject to Park Service internal audit. It also deals with how the Board has its end of financial year accounts audited.
The Board can get independent advice from outside experts to assist in them in making a decision.
This means that the Board can give preference to the Mutawintji Land Council in contracts for works on the Mutawintji lands where the Board is allowed by law to do so.
This clause means that Board members and Service staff working on the Mutawintji lands will have to do Wiimpatja cultural awareness training run or approved by the Land Council if they are not Wiimpatja with a cultural association.
...
This sets out the duties and role of the Joint Management Co-ordinator. This person can’t be on the Board. It also means that the Joint Management Co-ordinator will report to the Board and will assist the Board with making joint management of the Mutawintji lands run smoothly by working cooperatively with the Service’s Assistant District Manager at Mutawintji.
The Regional Manager will give instructions to Service staff to implement Board decisions.
There is agreement that the joint management co-ordinator, rangers, field officers, administration officers and trainee positions for the Mutawintji lands will be Aboriginal designated positions. It also means that the Board can have non-Wiimpatja staff or extra trainees if suitable Wiimpatja do not apply but this will be decided by the Board.
The Board will be responsible for appointments to work on the Mutawintji lands and the Board will have to follow the normal public service rules for appointments.
This means that everyone agrees that all Park Service positions (including Aboriginal designated positions) spending all or most of their duties looking after the Mutawintji lands are subject to all normal public service rules.
This means that the Board can’t refuse to approve payment of wages for Park Service staff looking after the Mutawintji lands.
The parties agree to review the jobs being done by Park Service staff looking after Mutawintji to see if the sort of work being done should be changed. This will happen for each job one year after someone is employed in it for the first time.
This means that the Land Council will own and the Board will control all items of Wiimpatja heritage on the Mutawintji lands.
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This sets out the rights of Aboriginal owners to go on to and use the Mutawintji lands in accordance with Aboriginal tradition but that this entry and use of the Mutawintji lands has to be in accordance with the rules and laws governing the Mutawintji lands.
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This means that the Land Council is not entitled to interfere with the Minister doing what is required by the lease.
This clause acknowledges Wiimpatja hunting and gathering rights of foods for domestic purposes and for ceremonial and cultural purposes.
This clause means that the Board will set the rules for Wiimpatja hunting and gathering on the Mutawintji lands.
This means that the Board will control planning and building approvals subject to legal requirements and the plan of management for the Mutawintji lands.
...
This clause deals with World Heritage listing and says that the Minister may ask for listing but only if the Board and the Land Council agree. If the Mutawintji lands become World Heritage listed, it is agreed that management of the Mutawintji lands would meet World Heritage standards.
This clause deals with how the Wilderness Act will operate on the Mutawintji lands including in relation to input from the Board.
This means that entry, camping and any other fees will be set by the Board but need the Minister’s approval.
This means that ordinary people who have State-wide National Parks entry permits will not have to pay extra to enter Mutawintji. In return the Park Service must fairly promote the Mutawintji lands as part of any general National Parks promotion.
This clause deals with how commercial tour operators permits which allow entry to Mutawintji are controlled by the Board.
This means that Aboriginal owners and Wiimpatja with a cultural association with the Mutawintji lands will not have to pay entry, camping or any other fees at Mutawintji but that they can’t use park equipment that is not available to the general public unless the Board agrees.
This means that the Board can develop kangaroo plans for the Mutawintji but cannot permit any commercial or other culling if the Minister says that this cannot occur.
This clause deals with how the Threatened Species Act will work on the Mutawintji lands including in relation to input from the Board.
This means that the Board will be consulted about the Yellow-footed Rock-wallaby recovery plan as soon as possible. It also means that no Yellow-footed Rock-wallaby will be removed from the Mutawintji population without the agreement of the Board and the Land Council - except in an emergency.
This deals with monitoring of visitor numbers to the Mutawintji lands.
...
The Board will have to get the preparation of a new plan of management started by the end of December 1998.
This means that Service staff will remain responsible for law enforcement on the Mutawintji lands and the Director-General will agree to reasonable requests from the Board to prosecute. It also says that the lease will not remove any existing rights of the Mutawintji Land Council or anyone else to take legal action under the Parks Act.
This means that there can be a cemetery at Mutawintji for Wiimpatja with a cultural association with the Mutawintji lands. The Board and Land Council can agree that other people may be buried there when a cemetery is established.
This means that no new approvals for commercial activities can be given by the Board unless one months notice is given of the application before the meeting that decides on the application.
Park Service staff on the Mutawintji lands will have access to a fair share of training programs within the normal Park Service training structure and that Board members can take part if there is room on courses.
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This means that the Board must agree if any new permit etc to use the Mutawintji lands is to be given when the Mutawintji lands transfer to Wiimpatja ownership.
This means that any payments of money from the Mutawintji account must be approved by the Board.
This clause means that the tools and machinery used at Mutawintji now will be transferred to the Board when the Mutawintji lands are handed over to the Land Council.
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This clause means that Wiimpatja art and designs and other cultural property at Mutawintji will be owned by the Aboriginal owners, through the Mutawintji Local Aboriginal Land Council, but that the Parks Service may use them for free to promote Mutawintji or the National Parks system.
[1] The full text is available at: <www.austlii.edu.au/au/special/rsjproject/remote/mutawintji/lease.html>
[2] Wiimpatja in the Paakantji language simply means Aboriginal people.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1999/49.html