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.
Implications
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.
