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Editors --- "World Wildlife Fund / Indigenous Nations Biodiversity Conservation Project Scoping Study: Legal and Policy Issues - Digest" [1999] AUIndigLawRpr 53; (1999) 4(4) Australian Indigenous Law Reporter 139

World Wildlife Fund / Indigenous Nations Biodiversity Conservation Project Scoping Study: Legal and Policy Issues

Indigenous Law Centre, University of New South Wales

February 1999

The main aim of the scoping study was to identify strategies and mechanisms which may enhance the work of Indigenous Australians in the conservation, management and use of land, waters and biodiversity. The scoping study involved at least three consultancies, which examined the relevant socio-economic, legal and environmental issues. These were intended to indicate possible future directions for WWF engagement with Indigenous Australians in the area of biodiversity conservation.

The project was directed by a Reference Group comprising a majority of Indigenous people or their representatives, and chaired by an Indigenous person. The co-ordinator of the Reference Group was WWF Project Officer, Anna Gilfillan.

The Indigenous Law Centre, at the University of New South Wales, successfully tendered for the legal and policy component of the scoping study. The Centre was asked specifically to address the following issues:

• Australia’s international commitments under various treaties and conventions regarding Indigenous Australians’ environmental rights,
• Australian government’s implementation of Articles 8(j), 10(c) and related articles of the Convention on Biological Diversity,
• Effect of federal, state and territory land and water management and biodiversity conservation laws on the capacity of Indigenous land holders to manage land and waters for biodiversity conservation,
• Legal and policy impediments to collaborative land management and/or the devolution of management responsibility for land and water conservation,
• Legal and policy incentives and changes required to improve the capacity of Indigenous people to contribute to the conservation of biodiversity (update of Gillespie and Cooke 1998),
• Relevance of native title legislation and processes, Indigenous Australians’ resource rights and intellectual property to the project goal, and
• Mechanisms for consultation, negotiation, advice etc, between Indigenous and government agencies on environmental issues.

This report responds to the brief. It begins with a brief overview of the increasing recognition of the rights of Indigenous peoples in international human rights and environmental law and policy. It then examines various categories of protected areas under international and domestic law, and the extent to which Indigenous land holders can manage land and waters within those protected areas for biodiversity conservation. Chapter 2 examines public participation strategies for enhancing the capacity of Indigenous Australians to contribute to biodiversity conservation. Chapter 3 examines traditional knowledge issues under international and domestic law and policy. It also examines issues of sustainable wildlife use, access to biological resources law and policy, and federal, state and territory laws relating to Indigenous Australians’ land tenures and resource management. Chapter 4 examines bioprospecting and benefit-sharing issues. Chapter 5 reviews relevant state and territory legislation, but not laws concerning waterways or forests. The conclusions then follow. Only the Executive Summary of the report is reproduced here.^[1]

Major findings and recommendations to World Wide Fund for Nature (WWF) concerning Aboriginal and Torres Strait Islander peoples land management and biodiversity conservation in this report are:

1. The federal comprehensive environmental law review resulting in the Environment Protection and Biodiversity Conservation Bill 1998 (Cth) (EPBCB) has provisions which will affect both conservation and Indigenous concerns in Australia. WWF needs to improve its legal and policy capacity to understand the inter-relationship between conservation and Indigenous concerns in federal, state and territory jurisdictions. This legislative proposal should be a priority area for WWF which should begin to forge partnerships with Indigenous organisations to influence the final form of the legislation and its subsequent implementation. This will require further legal and policy advice to WWF on the integrally related Indigenous and environmental aspects of this Bill, and other federal initiatives such as the Regional Forests Agreements Bill 1998 (Cth) and the Aboriginal and Torres Strait Islander Heritage Protection Bill 1999 (Cth). WWF needs to actively seek the views of Indigenous groups, organisations and communities on these initiatives and develop a protocol or agreement with peak Indigenous organisations about how submissions involving Indigenous and environmental concerns are formulated, submitted and lobbied for in relation to the Federal Government. Similarly, it should be the highest priority for the Federal Government to resource an independent national Indigenous Advisory Group on the environment. Should the Federal Government decline to resource such an advisory group WWF may wish to contribute funding and other support. We attach to this report a list of statutory and non-statutory advisory bodies in the federal environment portfolio at Appendix 10. It should be noted that many of these have been abolished under this Government. In particular the report notes that under some international instruments new approaches to Indigenous and local participatory management are being developed, including the Convention on Wetlands of International Importance, especially as Waterfowl Habitat, and that it would be desirable for such approaches to be incorporated explicitly in the EPBC Bill;

2. This scoping report acknowledges that Indigenous peoples’ rights, interests and concerns, transcend sectoral and disciplinary boundaries. Therefore, in subsequent studies, conducted by WWF, we anticipate that the legal and policy research will be undertaken as part of a joint team covering the policy, legal, social, cultural and economic issues and that this team would be constituted by at least half Indigenous representation. This report provides an overview of the effect of federal, state, and territory land and water management and biodiversity conservation laws on the capacity of Indigenous landholders to manage land and waters for biodiversity conservation. Water issues relevant to Indigenous Australians have been covered in less detail because of an inadequate existing research base in this area. This report stresses the significance of integrated policy, legal and practical concepts on Indigenous approaches to biodiversity conservation. Native title determinations, potential rights and processes, negotiated agreements (regional, local, project-specific, or management frameworks), heritage laws and processes are important aspects which WWF will have to understand if they intend to continue to develop partnerships and support Indigenous initiatives in this area. We have briefly covered most of these issues except for heritage and indicate that these areas should be included in the WWF scope for further work. WWF needs a legal and policy framework in both environmental and Indigenous peoples’ rights areas. A comprehensive overview and discussion is beyond a scoping study.

3. This report stresses the importance of community-based approaches to the management of Indigenous territories, resources and wildlife (encompassing title issues, use issues and research activities). In particular, we highlight for future WWF initiatives the importance of existing and developing Australian models of joint management of national parks, Indigenous Protected Areas (IPAs), Indigenous conservation initiatives such as Kowanyama, the Uluru fauna study and fire management. Indigenous Australians’ involvement in marine planning and management is highlighted, using the Great Barrier Reef Marine Park Authority (GBRMPA) as an example. We also argue that native title extends to seas and marine resources and that this should be a priority focus for WWF in the future. Marine resources have the potential to provide a sustainable economic base for many coastal Australian Indigenous peoples and requires an extension of Indigenous and cross-cultural planning and management processes.

4. This report provides an overview of international treaties, conventions and policies regarding Indigenous environmental rights. In particular, we emphasise the terms of Articles 8(j) and 10(c) of the Convention on Biological Diversity and conclude that Australian governments’ implementation of these provisions has been poor. The terms of reference properly emphasise Indigenous intellectual and cultural property rights. This is a central part of the evolving international framework of environmental, human rights, intellectual property and specific Indigenous rights regimes in international law and policy. We also provide an overview of emerging integrated approaches to Indigenous peoples’ rights which will shape future international law and policy. The process, involving extensive Indigenous participation over 10 years, which has resulted in the United Nations (U.N.) Draft Declaration on the Rights of Indigenous Peoples, has an enormous intellectual and political momentum. At the moment it has not resulted in hard law instruments such as a convention but it provides a basis for arguing that many provisions are becoming or are customary international law. This is similar to the development of the U.N. Convention on Law of the Sea (UNCLOS), many parts of which became customary law during long delays before it came into force as a treaty. Some Indigenous peoples in Australia have argued that the Federal Government should ratify the less powerful treaty (International Labor Organisation Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries) but maintain that the Draft Declaration is a preferable basis for future international and national law. We provide the overview of the Draft Declaration as an appropriate international standard for WWF domestically and internationally. We recommend that WWF familiarise and update its understanding of the Draft Declaration, its status, and the views of Australian Indigenous peoples in relation to it. This provides a good insight into contemporary Indigenous Australian’s views about their integrated and comprehensive rights and aspirations. Indigenous Australians’ recommendations and other suggestions for the implementation of Art. 8(j) are summarised at section 3.1.

5. Our overview of international and national law and policy has indicated that there has been little real progress in Australia on Indigenous issues related to access to genetic resources. Therefore we propose, as an important priority for WWF, that it participate in a current initiative by the Australian Institute of Marine Sciences (AIMS) which proposes the development of a benefit-sharing policy for marine resource-owners. The focus of the participation ought to be the development of best-practice approaches to access and benefit-sharing to be developed under the leadership of Indigenous organisations. This involves two processes. There will need to be a protocol on access and benefit-sharing with Indigenous communities developed by AIMS which may serve as a model for terrestrial and other marine projects. If WWF wishes to work with Indigenous Australians they will need to develop an adopt similar protocols as the basis of their joint involvement in this initiative. WWF, AIMS and Indigenous peoples may see potential to extend this process into a wider community-based integrated conservation and development project. Income from access and development of marine bio-resources could provide funding sources for local community biodiversity conservation initiatives where they are most likely to succeed.

6. This legal and policy overview indicates that there are currently few or inadequate economic and legal incentives for Indigenous involvement in biodiversity conservation. There are some incentives provided by native title determinations and negotiations, other negotiated agreements such as conservation agreements and joint management agreements. In particular, the federal initiatives in joint management, emerging state and territory initiatives in joint management and participation in conservation and Indigenous self-management through the Indigenous Protected Area (IPA) program provide some incentives. Also we consider some co-operative research, management and monitoring programs that have been greatly enhanced by Indigenous partnership or control. We undertake a more detailed analysis of Indigenous sustainable use of wildlife as this is a central aspect of their approach to biodiversity conservation and a potential economic base for many small and remote communities. The recent recognition in the common law of a native title right to trade in the biological resources of native title territories reinforces the importance of this issue (Ben Ward & Ors v State of Western Australia & Ors (1998) 1478 FCA). Therefore if WWF is considering priority areas of Indigenous participation in biodiversity conservation we recommend that WWF select a project involving the sustainable use of wildlife by an Indigenous community or communities. Another possibility for a WWF project would be to assist in the development of a new IPA which increases public understanding and benefits of this concept. We list a number of possible wildlife projects at section 3.4.

7. Most of the incentives for Indigenous involvement in biodiversity conservation relate to clarification of title, access, use, participation and resourcing the planning and management of territories, resources and wildlife. Indigenous Australians have to work long and hard to take advantage of these meagre opportunities. They deserve greater support from environmental NGOs internationally and nationally in this area. We recognise the emerging role of WWF and the World Conservation Union (International Union for the Conservation of Nature—IUCN) as NGO leaders through the development of WWF’s ‘Indigenous Peoples and Conservation: WWF Statement of Principles’ and their best practice documents concerning co-management forestry and access to biological resources. We note potential coalition work with the IUCN at p.10. However this is only the beginning of educating environmental NGOs at the national level. A major incentive for Indigenous empowerment and development (especially at the local and regional level), is that conservation objectives such as biodiversity conservation, are only likely to be achieved in an enduring way, on this foundation. On ethical and international law grounds this is also the only appropriate foundation. We also recommend that the WWF consider collaborating with the IUCN Commission on Environmental Law concerning the development of the Earth Charter.

8. This report considers the legal and policy impediments to collaborative land management and/or the devolution of management responsibility for land and water conservation. They can be summarised as follows:

• Indigenous perspectives which involve suspicion and distrust of government agencies, NGOs and other sectoral interest groups;
• power imbalances related to access to information, expertise and resources for negotiations and management;
• inability of some Indigenous communities to re-occupy their lands in order to care for their country, and this struggle which consumes their energy which might otherwise be available for conservation projects;
• lack of understanding of the social and cultural context for conservation which treats biodiversity and cultural heritage as if they were independent of one another;
• lack of recognition and respect for traditional systems of knowledge, ownership of information and management principles, and inadequate understanding of Indigenous perceptions about territories, resources and wildlife. Some Australian IPAs adopt the IUCN categories of protected areas which currently do not adequately reflect Indigenous ownership and management rights. WWF and several IUCN Commissions and programs are currently reviewing the protected area categories and management principles with the aim of better recognising the rights of Indigenous and traditional peoples. We support this initiative but recommend greater co-ordination between WWF, IUCN Commissions and Indigenous peoples’ organisations. This issue is particularly urgent given the current recognition in Australian domestic law and policy of IUCN protected area categories and management principles;
• differential organisational capacities, resources and legal status of Indigenous organisations in their ability to be involved in biodiversity issues. This is exacerbated by the huge agendas of Indigenous organisations and the lack of a co-ordinated approach to funding and action by governments.

^[1] This draft report was prepared within an extremely short time-frame and could only be a desk-top study given the project's small budget (less than $20,000) and time-line. The Indigenous Law Centre indicated its expression of interest for the project, that it would have preferred to have wide-ranging consultations with Indigenous organisations but this was just not possible given the project's time frame and budget.