Tuesday, 12 April 2016

Transforming Rangeland Policies: Indigenous Opportunities

In 2008, a Western Australian Parliamentary Committee, chaired by The Hon Tom Stephens MLC undertook a review into the training needs of Indigenous pastoral enterprises in WA. The review noted that of the some 520 pastoral leases across WA, some 60 were owned and operated by Indigenous interests. The review raised a multitude of issues and recommended, amongst other things greater focus on governance as a key driver of enterprise performance for Aboriginal owned pastoral leases, and an expansion of the allowed activities on pastoral leases.
In June 2015, all WA pastoral leases expired and were required to be renewed. The Department of Lands website has a page devoted to explaining the changes and the consultation process which led to the renewals. Somewhat surprisingly, 435 pastoral leases were renewed for terms of 50 years, representing 99.5 percent of the leases up for renewal. Implicit in this decision was confirmation that the renewed leases were meeting their lease conditions. Yet the reality was and is that the pastoral industry faces extensive commercial and environmental challenges across Northern Australia (notwithstanding the buoyant market conditions at present) and certainly a substantial proportion of the Aboriginal owned pastoral leases in WA are not commercially viable in their own right, and thus have trouble in meeting the lease conditions.
Substantial work was undertaken by the WA Government in the years leading up to the lease expiry date. The fact that a failure to renew a lease would mean it reverts to Crown Land, and that this would potentially lead to a native title claim by the traditional Aboriginal land owners, meant that the WA Government had a strong incentive to renew all the expiring leases whatever their actual compliance status.
It follows that the renewal of the 60 or so Aboriginal pastoral leaseholders does not resolve the ongoing challenge to find ways to sustain productive use of the lands into the future. Each pastoral lease will have its own set of unique opportunities, but overall a considerable challenge remains in front of the Aboriginal owners of WA pastoral leases.
Consequently, the recent moves by the WA Government to set in motion a reform of rangeland land use policy is to be welcomed as it will expand the range of options available to leaseholders in seeking to find ways to make productive and sustainable use of their lands. The Government has recently begun a process of consultations on a rangelands reform Bill, and released a rangelands reform Position Paper which explains the broad outline of the reforms. The rangelands cover some 87 percent of WA, and include both the pastoral estate and other land held under native title and by the Crown. I have not had a chance to undertake a close analysis of what is proposed, but on its face it seems a major improvement. The Government describes its proposals in the following way:
To increase investment in the Rangelands, the Government proposes to create a new lease type that allows for multiple and varied land uses. The lease will co-exist with native title and other interests in the land and will require land management that preserves the rangelands resource. At least one of the uses must be broad scale.

A rangelands lease enables a wide range of activities on the land, including: multiple uses – e.g. grazing livestock, horticulture, agriculture, tourism; Aboriginal economic development and land management; mining companies for environmental offsets, rehabilitation obligations or where their activities are substantially inconsistent with pastoral uses; conservation purposes; rangelands use in conjunction with off-lease activities; [and] taking advantage of future opportunities that do not currently exist.

The Government has released materials to underpin the consultations it is progressing. Of particular interest to Indigenous interests, the proposed changes will retain a reservation in favour of ongoing access for Aboriginal persons ‘to seek sustenance in their accustomed manner’. This replicates the longstanding reservation in WA’s pastoral leases. The changes will also require compliance with the Native Title Act’s future act processes to ensure that any new activities do not adversely impact any co-existing native title rights. This will generally require the negotiation of an Indigenous Land Use Agreement for new activities, and will mean that native title interests are protected.
The proposed reforms will also see the abolition of the Pastoral Lands Board with the Minister taking over decision making; but there will be a Pastoral and Rangelands Advisory Board to provide advice to the Minister on matters of general policy pertaining to the rangelands. Indigenous interest will likely be represented (along with tourism, mining, natural resource management and other expertise). Importantly, lease fees will be related to the viability of the activities undertaken on the leases, and will be reviewed regularly.  
There may well be devil in the detail which I have not identified, and I am sure that key indigenous organisations will be making submissions to the WA Government on the Bill. Nevertheless, the proposed changes appear sensible and to my non-expert eye, represent an improvement on the current regulatory regime which was essentially designed to meet the needs of a nineteenth century pastoral industry.
It seems clear that the Government is keen to push these reforms through by the end of the year, in advance of the expected state election in early 2017. There will not be much time to develop an Indigenous agenda on these issues.
On related matters, the most recent WA Department of Lands 2014-15 Annual Report includes a number of other Aboriginal related matters of interest.
These include the following three issues listed under the significant or emerging issues for the Department (p30):
The provision of access to Crown land is a significant component of the South West Native Title Settlement package between the State of Western Australia and the South West Aboriginal Land and Sea Council to surrender Native Title over six registered Noongar claims in the South West region. The department will implement the identification, selection and transfer of Crown land under the South West Settlement Agreement.

The department, on behalf of the State, is responsible for risk management of over 37 percent of the State that is unallocated Crown land or unmanaged reserves. The department manages this through Memorandums of Understanding with the Department of Parks and Wildlife and with the Department of Emergency Services for Crown land within townsites.

The department is continuing the ongoing development of State land policy in relation to the interaction of mining, petroleum and geothermal interests and consent under section 16 (3) of the Mining Act 1978, with the extinguishment of Native Title for exclusive possession land tenure grants and the operation of section 24 MD (3) Native Title Act 1993.

In relation to the South West Native Title Settlement, the Report also reports on progress towards finalising the land transfers involved:
The $1.3 billion native title settlement between the State Government and Noongar people is the first of its kind in Australia. In exchange for the surrender of Native Title rights and interests, the State has offered a package of benefits including up to 320,000 hectares of land. The department’s role is to identify land that is primarily stocks of unallocated Crown land and unmanaged reserves and transfer up to 20,000 hectares in freehold and up to 300,000 hectares as reserve to the Noongar Land Trust. Up to 30 June 2015, over 28,000 hectares of land was identified by the department and selected by the South West Land and Sea Council. A further 20,000 hectares is currently under assessment.

In relation to the unallocated Crown lands and the unmanaged reserves, the policy issue which jumps off the page here is the unfulfilled potential for Indigenous involvement in the management of these lands (notwithstanding the substantial growth in highly successful Indigenous Ranger Programs over the past two decades) and the apparently relaxed attitude to non-management of large parts of the state. As the process of native title claims are progressed, this management responsibility will flow to native title holders, as will the financial costs and potential liabilities. This is a huge issue for remote Australia, for native title holders and ultimately for the nation. For all the attention we allocate to managing our borders, it seems more than ironic that we are prepared to under-invest in managing the extensive land areas which comprise our sovereign domain.
The Annual Report also includes reference (p 78) to a number of contingent liabilities related to the extinguishment of native title land post 1975 when the Racial Discrimination Act was passed and which thus requires any compulsory acquisition of native title to be on just terms. The report notes that it is not possible to quantify the liabilities at this stage given the lack of judicial guidance on how to determine such amounts. There is currently a case underway based on in the Federal Court which will throw light on these issues. The case concerns the extinguishment of native title in the township of Timber Creek in the NT. Here is a recent legal analysis of the issues at stake.
I have spent some time outlining a number of the key Indigenous related issues relating to WA’s rangelands not because I wish to delve into the intricacies of the proposed reforms, but rather to give greater prominence to the policymaking activities which are currently underway. The Indigenous groups and organisations which will inevitably be affected either positively or negatively are quite diverse and geographically dispersed, and include land councils, PBCs or Registered Native Title Bodies, groups managing ranger groups and other conservation activities, and a relatively large number of Aboriginal owned pastoral properties.
There is a particular and pressing need for Indigenous pastoral leaseholders both to work together and to work with other Indigenous advocacy groups such as native title groups to advance their commercial perspectives and promulgate their policy aspirations. As Government brings more coherence to rangelands policy, encompassing a wider range of activities, Indigenous interests must also bring more coherence to their lobbying capacities across the breadth of rangelands issues.
Moreover, the fact that the policy framework for the rangelands is finally likely to be brought into the twenty first century means that Indigenous pastoral lessees in particular must also ensure that their management approaches and their capacity to influence government policy is also modernised. At present, there appears to me to be substantial strategic gaps in Indigenous policy influencing capacities across the rangelands. While my comments have focussed on Western Australia, I suspect that the implications are just as valid for the NT and North Queensland.
Aboriginal interests have over the past two decades come an enormous distance in strengthening their economic, social and cultural position in Australia’s rangelands. However, in the mainstream there is a major economic transformation underway as a result of the rise in Asia’s middle class, and this is driving major change to mainstream rangelands policy. Indigenous interests will need to continue to strengthen their footprint on the ground, think strategically about economies of scale (most individual pastoral leases are not sustainably viable on their own), and build more effective lobbying voices in Perth, Darwin, Brisbane and Canberra if they are not to fall by the wayside as the policy and economic changes currently in train in across rangelands in agriculture, aquaculture, water management, tourism, and carbon farming (to name just a few) roll out.
The opportunities for Indigenous interests are huge, but they require a coordinated and sustained investment in building capacity to manage and take advantage of the opportunities inherent in the transformational changes currently underway across Australia’s rangelands. The cost of getting it wrong will set Indigenous interests back for generations to come.