New Zealand Journal of Environmental Law
Last Updated: 25 January 2023
Recognising Indigenous Rights through Co-Management Regimes: Canadian and Australian Experiences
Indigenous co-management of lands, waters, seas and resources is rapidly expanding throughout the world. The most highly regarded models have been developed in Australia and Canada. Their “success” has been largely anecdotal and based on informal practices and relationships developed by dedicated participants. The focus has been on practical means of making co-management work on the ground. Much has been gained in this process. However, fundamental conflicts and issues relating to Indigenous rights have often been ignored. It cannot be assumed that conservation and managerial agendas will be the same as the aspirations of Indigenous owners. This article critically reviews the very diverse Australian and Canadian experiences, having regard to international and national legal standards recognizing the comprehensive rights of
Indigenous peoples, and suggests that a more “rights based” approach to co-management is needed. More careful attention also needs to be given to the contexts and parties involved. Indigenous roles will vary depending on whether co-management is part of self government negotiations, or more limited agendas related to conservation, sustainable resource management or mainstream planning and development frameworks.
There is a growing literature about co-management processes and practices, predominantly in Australia and Canada. There is a wide diversity of models and approaches, depending on the overall political and legal recognition of the comprehensive and integrated rights of the Indigenous peoples involved, past experiences with cross-cultural institutions and the bona fides of the participants. The initial review of the literature, case studies and interviews with participants indicates that the concept of co-management should be critically reviewed having regard to the legal frameworks that underpin it, and the evolving international and national law recognizing the rights of Indigenous peoples.
This article commences with an overview of relevant international legal norms. This is followed by an introduction to the concept of co-management as it has evolved in Canada and Australia. The related concept of collaborative management will also be discussed, as it is particularly relevant to Indigenous participation in resource management in areas such as wildlife, forests and fisheries. There is an urgent need to reconsider the approaches taken in co-management in the following factors and contexts:
(a) The nature of the parties
Co-management arrangements vary considerably depending on the history, the experience and expectations of the Indigenous peoples involved, the constitutional powers of governments and their political will and track record in recognizing Indigenous rights. For example, the Australian federal government appears to implement stronger forms of co-management compared to State and Territory governments.
(b) The nature of the resources, areas or processes subject to co-management Co-management will vary depending on whether the principal purpose is to enable Indigenous peoples to reclaim their land and resources, to manage them as part of the conservation estate (eg national parks) or to participate in wider processes for the sustainable use and management of valuable natural resources and wildlife (eg, forests, fisheries). For example, community based
management initiatives often adopt conservation and resource management as the primary objectives.
(c) Indigenous Participation in the Mainstream Planning and Development Process
Wider legal, planning and policy frameworks may incorporate indigenous co- management into environmental impact assessment and other processes related to the use and management of resources, energy and other areas of critical concern to the long-term future and viability of Indigenous nations and the dominant culture.
(d) Long term Strategies of Indigenous Nations for Recognition of their Comprehensive and integrated rights, usually embodied in the aspiration for self-determination.
Co-management can be incorporated as a key aspect of “living treaties” for modern Indigenous governance such as the Canadian Comprehensive Land Claims settlements (often referred to as regional agreements) and related self government arrangements (such as Nunavut and Nisga’a governments).
(e) Co-management offered as a compromise strategy by governments that are unwilling to engage in the political development of Indigenous self- determination.
This is often associated with co-management arrangements that require extinguishment of native title and fail to recognize Indigenous law. These arrangements may provide for indigenous participation, rather than true co- management, as the key decision-making power remains with government with few check and balances.
Australia and Canada have adopted a diverse range of approaches and there are many practical issues associated with each co-management arrangement. There seems to be general agreement that strong legal frameworks do not work without good practice and trust evolved over a considerable period of time. Much of the literature has focused on these practical concerns.1 However, the last twenty years has seen many changes in the international and national legal recognition of Indigenous rights to land, seas, waters, living and non-living natural resources. Modern approaches to international law are challenging traditional monolithic concepts of sovereignty and there is growing emphasis on the new generation of
collective and integrated rights of peoples. The evolution of the international regime relating to Indigenous rights should be seen as part of this wider, and often overlapping, approach to human rights discussed below.
Australia and Canada are chosen as the main focus because modern approaches to indigenous co-management are most highly developed in these two jurisdictions. They are comparable “first world” nations that have recognized Aboriginal native title and there is significant experience with cross cultural negotiated settlements and management regimes. In Australia and Canada, Indigenous peoples are gaining greater government recognition of their native title, statutory rights, and constitutional rights. In Canada, this may extend to self government. Both nations have ratified major human rights conventions (eg, International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights) and modern environmental conventions (eg Convention on Biological Diversity). This article critically considers the strategies and frameworks for Indigenous co-management, in Canada and Australia, and the extent to which they reflect contemporary legal standards for indigenous, human and environmental rights.
Indigenous co-management has always been more than a bureaucratic process. The practical gains that have been delivered to some indigenous peoples should not obscure the need for continuous improvements to recognize and implement their comprehensive rights. Co-management arrangements, in their many forms and contexts, are spreading around the world. The positive and negative aspects of indigenous co-management in Australia and Canada will need careful consideration before applying these approaches to the developing world.
II. STANDARDS AND APPROACHES TO HUMAN, ENVIRONMENTAL AND INDIGENOUS RIGHTS
Traditionally, international law has focused on state sovereignty and nation states have predominated as legitimate parties. This has changed to a limited extent, in regimes such as the human rights conventions, which focus on the rights of the individuals. The role of Non Government Organizations in the negotiation and implementation of some global and regional environmental conventions has also challenged the dominant concept that international law purely regulates the relationship between nation states. These new challenges, in modern international law, relate to the:
Often, Indigenous peoples are seeking both collective and individual rights. The predominant Western legal traditions, based on social contract theory, tend to pit individual rights against the State.2 Indigenous strategies often involve this defensive role but they also assert their collective rights and (internal) collective obligations to maintain and continue to evolve their cultures and nations in the face of threats such as discrimination, dispossession, environmental change and the cultural, economic impacts of the dominant society.
Because Indigenous peoples have integral and unique relationships with the earth (including land, seas, resources, wildlife) they do not fragment or compartmentalise their rights and obligations relating to their ecological, spiritual, cultural, economic and social dimensions.3 The accumulated knowledge of countless generations, acquired in this way, has become a matter of global interest and exploitation.4 This can also be seen as a fundamental illustration of sustainable development as it draws “wisdom” from the idea of integrating these dimensions. Sustainable development (SD) has now become the central focus of modern environmental policy and the rapidly evolving “third generation of human rights”, such as the right to development and the right to a healthy environment (see national constitutions with rights to environment quality such as Philippines, Pakistan, and India).
Human rights are often characterised as follows:
Article 1 of the Declaration on the Right to Development5 reads:
Arizona Law Review 739, 740.
5 GA. Res 128, UN GAOR (41st mtg), UN Doc. A/Res/41/128 (1986).
The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.
An example of this newer right is Article 30 in the Convention on the Rights of the Child:
In those States in which ethnic, religious or linguistic minorities or persons of Indigenous origin exist, a child belonging to such a minority or who is Indigenous shall not be denied the right, in community with his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.6
International law and policy relating to SD was promoted by the Rio Declaration, Agenda 21, Convention of Biodiversity (CBD), Framework Convention on Climate Change (FCCC) and the Forest Principles which were the key outcomes of United Nations Conference on Environment and Development (UNCED) in 1992.7 The rights of Indigenous peoples are specifically mentioned in each of these global declarations and instruments except for the FCCC.
Arguably, basic provisions in international human rights instruments have become part of international customary law, known as “jus cogens”, and they are inextricably related to the rights to environment and development. Important jus cogens norms are as follows:
Ward goes on to argue that these provisions in human rights instruments (now jus cogens) establish:
[T]he right to be free from hunger, the right to an adequate standard of living, the right to health, free personal development, sustainable community development using environmental and social impact assessments, and the right to integrity of the community as a whole.9
Such overlaps have caused the United Nations to begin preparing a Declaration of Principles on Human Rights and the Environment.10 This Draft Declaration commences:
1. Integrated Rights Approaches
It no longer makes any sense to talk about “categories of rights”. None of the human rights instruments attempt any ranking — all rights and freedoms are placed on an equal footing. “All rights are, like humans themselves, inextricably singular and social.”11 Therefore, “first” and “second” generation should be approached as a unity rather than a duality.12 Brownlie maintains that there has been an assumption lying behind the classical formulation of human rights standards that “group rights would be taken care of automatically as a result of the protection of the rights of individuals”.13 This approach has been inadequate to protect the rights of Indigenous peoples and there is an urgent need to advance international law in the direction of a more unified conceptual framework.
International Labour Organisation Convention 169 (ILO 169) and the Draft Declaration on the Rights of Indigenous Peoples (UN Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities) provide examples of the integrated rights approach (the Draft Declaration being a better example). ILO 169 and Draft Declaration should be understood within the wider framework of international environmental, Indigenous rights and human rights law. This is discussed by Darrell Posey who argued that there has been a gradual evolution of sui generis “Traditional Resource Rights”.14 Thus, Indigenous rights in international law and policy are not the “poor relation”. They are a catalyst for developing more unified and effective approaches
to human rights and sustainable development which should be recognised and implemented in co-management regimes.15
2. Compliance With International Standards
The enforcement of international law and policy, relating to the human and environmental rights of Indigenous peoples, is often inadequate with the possible exception of the Convention on the Rights of the Child, ILO 169 and the optional protocol under the Convention on Civil and Political Rights. Regional human rights conventions (Europe and the Americas) arguably have stronger enforcement and complaint mechanisms. Increasingly, remedies and settlements being sought by Indigenous peoples involve co-management regimes. Many disputes, such as the Awas Tingni case discussed below, arise out of resource allocation and management decisions on Indigenous lands that are made without their involvement.
(a) Inter-American Human Rights Regime
The Organization of American States (OAS) is a regional agreement, founded on the principle that States, comprising North, Central and South Americas, must unify their efforts to ensure personal liberty and social justice based on essential human rights. The OAS system promotes the protection of human rights by establishing substantive norms, supervisory institutions, and accessible petition procedures. Member States of the OAS must accept the human rights standards indicated in the Charter of the Organization of American States and the American Convention on Human Rights, which are enforced by the Inter-American Commission on Human Rights.
The characteristic that distinguishes it from the United Nations system is the accessibility of the “communication” of a petition is not restricted to Non- Government Organizations or member states, but the individual, family relation or third party may initiate proceedings. The Commission can appoint moderators to oversee “friendly settlement” proceedings whereby the parties agree, acting in good faith, to attempt to reach a resolution of the violations and have a six month deadline. A restriction on the OAS system for the protection of human rights is that similar proceedings cannot be ongoing in the United Nations system concurrently. The finding of a violation of a member State and subsequent ruling of the Inter-American Commission is not legally binding on the parties. However,
should the member State or Commission wish to pursue the matter further, they may petition the Inter-American Court of Human Rights for a hearing. The State must first accept the jurisdiction of the Court in order to make any decision legally binding on the parties and any non-compliance will be then enforceable in the domestic court system.
A recent decision of the Inter-American Court of Human Rights, The Mayagna (Sumo) Indigenous Community of Awas Tingni v The Republic of Nicaragua (Awas Tingni), was a landmark decision of the Court that recognized duties of the State to demarcate and preserve the integrity of ancestral lands of Indigenous peoples within its boundaries. It further recognized the right of all persons to expeditious and fair access to competent tribunals as not only a pillar of the American Convention but a Rule of Law in democratic societies.
The Court stated that it is not enough for Nicaragua to acknowledge the rights of indigenous peoples to their ancestral territories. It must put this recognition into practice by not engaging in actions that would diminish or affect Indigenous rights or interests in ancestral lands. This decision indicates that compliance may require an effective system of national implementation to give practical meaning to the legal rights of Indigenous peoples. As compensation for moral damage, by allowing the harvesting of natural resources on traditional Awas Tingni land without notification, consultation or compensation, the Nicaraguan government is required to pay a monetary award of US $50,000.00.
(b) United Nations Permanent Forum on Indigenous Peoples
The announcement of the United Nations Decade for the World’s Indigenous Peoples was indicative that the recognition of the fundamental rights of Indigenous peoples will continue to evolve internationally and nationally. The Permanent Forum on Indigenous Peoples, a new subordinate organ of the United Nations Economic and Social Council, has an innovative internal organization. It is comprised of eight representatives of Indigenous peoples and eight experts chosen by the member states of the United Nations, a combination not previously seen in other United Nations entities. The Forum is in response to the growing body of work on Indigenous issues at the international level and the resounding success and participation of Working Groups16 under the Human Rights Commission.
3. New Directions: Traditional Resource Rights
The Traditional Resource Rights (TRR) concept was first elaborated in an article by Posey entitled: “Traditional Resource Rights: De Facto Self-determination for Indigenous Peoples”.17 The term Traditional Resource Rights describes the many ‘bundles’ of rights existing and being developed which can be utilised for the protection of and compensation for the use of traditional knowledge and resources. Traditional resources include plants, animals, and other material objects, like minerals and cultural artifacts, which may have intangible (eg, sacred, ceremonial, heritage, or aesthetic) qualities. Traditional resources may also be totally intangible, metaphysical, or non-quantifiable with no physical manifestations, such as systems of knowledge. The term “property” is inappropriate, since property in traditional societies frequently has intangible, spiritual manifestations, and, although worthy of protection, can belong to no human being.
TRR encompasses not only conventional intellectual property rights mechanisms but basic rights and customary law defined in, or accommodated by, national and international laws, agreements and declarations. It is proposed that the TRR concept can form the basis for sui generis systems for protection and benefit-sharing. Also, it could be implemented locally, nationally and internationally as a set of principles to guide the process for dialogue between Indigenous and local communities, and governmental and non-governmental institutions. TRR could, for example, guide the development of innovative contracts providing benefits to local communities in exchange for the transfer of information and biogenetic material.
In short, TRR-guided negotiations can offer challenging opportunities for new partnerships based on increased respect for Indigenous peoples and their knowledge, new codes of ethics and standards of conduct, socially and ecologically responsible practices, and holistic approaches to sustainability. At the very least TRR-oriented discussions are certain to be more fruitful than those based on IPR because TRR brings the environmental concerns of local communities, and issues relating to SD and global trade, into the human rights debate. The process of developing TRR will involve further dialogue, debate and consciousness-raising.
4. Concept Of Ecologically Sustainable Development
The Brundtland Report18 has popularised the concept of SD. Taken out of the context of the Report such popularity is understandable. It seems to imply that we can continue to have economic growth, so long as we develop “better” ways
of managing the environment. The ambiguity of the term allows for such an interpretation. The common usage of the concept of sustainability originated in relation to sustainable yield from biological and physical resources.
We have now extended the concept to the socio-economic realm where the goal is not a sustained level of a physical stock or physical production from an ecosystem over time, but some sustained increase in the level of societal and individual welfare. This broader context was generated by the Brundtland Report, which stated that a wide range of other economic, social and cultural changes was essential to the objective of SD. A particular emphasis was given to poverty alleviation, equity, public participation and culturally appropriate strategies.
For the purposes of a critical reappraisal of Indigenous co-management regimes, it is important to recognise these integrated and comprehensive rights of Indigenous peoples as being an emerging international standard in international law relating to human rights, SD and Indigenous rights. Co-management can be seen as a practical implementation strategy for these standards, particularly at the national level.
III. CO-MANAGEMENT DEFINITIONS AND APPROACHES
Co-management exists in many different forms within jurisdictions such as Canada and Australia. It is usually a formal arrangement between local, state and federal parks and national resource management systems and other stakeholders such as Indigenous owners and claimants. Co-management can be contrasted to the normal hierarchical, “scientific” approaches to management that usually focus on an aspect of the environment, such as forestry or fisheries, or a specific area. Usher contrasts this with Aboriginal management systems based on communal property arrangements and strong cultural norms.19
A Canadian report defines co-management as involving:
Stakeholders working together to manage a resource in a sustainable way that achieves the goals of all parties consistent with their roles. Co-management does not imply legislated authority, jurisdiction, or devolution.20
The above definition is carefully neutral on the issue of power sharing. Another definition of co-management defines it as:
Power sharing in the exercise of resource management, between a government agency and a community or organization of stakeholders.21
This definition is more consistent with the Australian approach, known as joint management, of national parks where power is shared with an Aboriginal majority on the board of management. This form of management is most commonly associated with conservation strategies for important protected areas where the Indigenous owners live or retain significant interests within the area. It is preferable to reserve the terms co-management and joint management for the more genuine attempts at a power sharing arrangement based on an equal partnership. A more diluted form of management incorporates Indigenous participation without power sharing and is often referred to as consultative management.22
The approach to power sharing and management is more complex when there is a relatively large number of parties involved who have a stakeholder interest, where the management regime relates to a wide geographic area, such as a region, or the focus is on resource management relating to areas such as forestry, fisheries, wildlife and water resources. The object of these regimes is usually on a longer term planning and resource allocation process and it often involves many legitimate stakeholders with deeply entrenched conflicts and positions. The approach taken to develop more participatory and transparent management is sometimes referred to as collaborative management.
Collaborative management may involve Indigenous stakeholders as well as other relevant stakeholders. In the context of a protected area, the World Conservation Union (IUCN) suggests that the agency with jurisdiction over the area could develop partnerships which detail and guarantee the respective rights and responsibilities of stakeholders with regard to the protected area.23 Through their participations, an agreed set of issues, priorities and a management plan can be prepared along with procedures for conflict resolution and negotiating collective decisions, procedures for enforcing such decisions and specific rules for monitoring, evaluating and reviewing the partnership agreement.24 A distinction should be made between collaborative and co-management as collaborative management is rarely associated with a clear devolution of government power to the stakeholders.
24 Ibid, 27–45.
The following discussion of co-management in Australia, will emphasize the power sharing arrangements associated with the management of federal national parks such as Kakudu and Uluru, with some contrasting examples of state government and Aboriginal partnerships such as Nitmiluk, Gurig and Mutwintji National Parks. There are few well-documented examples of co-management or collaborative management of land and natural resources outside protected areas in Australia. The Kowanyama land and natural resource management strategy, in the Cape York Peninsula in Queensland, will be used as an example of evolving Indigenous self-governance unmediated by government agencies or models of co-management.
Co-management in Canada will largely be considered in the context of regional governance agreements resulting from comprehensive land claim settlements such as the Innuvialuit Final Agreement, 1984 (IFA), Nunavut Land Claims Agreement, 1983 and James Bay and Northern Quebec Agreement, 1975. These are modern treaties that provide for a wide range of power devolution by government bodies and there is constitutional recognition and protection provided by the repatriated Constitution Act, 1982. Co-management under these agreements can be with the federal or provincial governments and may take a variety of forms and levels of power sharing for land use planning, sustainable development, environmental impact assessment, protected area management and integrated resource management for wildlife, fisheries, water and forests.
The frameworks for Canadian co-management also require a consideration of self-government negotiations associated with some Regional Agreements such as the Nunavut Land Claims Agreement (1993) and Nisga’a Agreement (2000). Co-management needs to be seen as part of the long-term strategy for self- determination, which is finally gaining legal and political recognition in Canada.
Other forms of co-management in Canada have related to a narrow range of issues often associated with crisis management. A significant example is the Beverly-Quaminirjuaq Caribou Management Board (BQCMB) which was created to help manage two caribou herds whose migratory routes straddle two territorial and two provincial jurisdictions as well as four different native cultures (NWT, Nunavut, Manitoba, Saskatchewan, Dene, Inuit, Cree, Metis). The BQCMB arose out of the perceived crisis in caribou population. The government chose to work with the Aboriginal groups rather than increase enforcement on hunting licences. The government focus was on wildlife management and did not involve significant power sharing with Indigenous Nations.
Another crisis driven response led to the creation of the Gwaii Haanas National Park by the federal government, with consent by British Columbia, after it accepted a Haida comprehensive claim in 1983. At that time there were no interim measures to protect Haida land during negotiations. The Haida reserved their rights to self-government and the agreement states the divergent positions of the federal government on the ownership of the land. Subject to these
reservations a management agreement was concluded. This will be used as an example of Canadian co-management outside the comprehensive claims process.
It is not possible to do a exhaustive comparative study of these examples of co-management in Canada and Australia. However, emphasis is given to the nature of the power sharing relationships and the degree to which they support and practically implement the international and national legal standards relating to the human and environmental rights and specific Indigenous rights of the Canadian and Australian Indigenous Peoples. To date, much of the literature has focused on national and state conservation objectives and outcomes, rather than the recognition of Indigenous rights through co-management. This participatory approach may extend the normal citizenship rights of Indigenous peoples and provide more direct access to power in the dominant society.25 However, it is a long way from recognition of Indigenous comprehensive rights, including self- government. Even within the discourse of citizenship rights, Indigenous peoples need to be wary that co-management resources do not replace other services to which they would normally be entitled such as training, provision of roads and the usual resources for management of conservation areas and resources of provincial (State) or national concern.
1. The Concept Of Regional Governance Agreements
There is no pre-ordained form which a Regional Agreement should take. Rather, it is a means for Indigenous peoples to define their own solutions and obtain legal, administrative, and political recognition for such definitions through negotiation with government(s). A possible working definition might be that:
A Regional Agreement is a way to organise policies, politics, administration, and/or public services for or by an Indigenous people in a defined territory of land (or of land and sea).26
The Canadian Comprehensive Regional Agreements are examples of wider sorts of Regional Agreements, which involve major efforts to implement land and sea rights, resource management, economic strategies and self-determination. Even where native title rights are recognised by the courts, as in Australia since the Mabo27 case and in Canada since the Calder28 case, it may not be possible to make such rights mean anything in practice without further expensive court actions
or without new laws and political and administrative structures. A Regional Agreement is a way to transform vague rights into a clear form of organisation and law so that Indigenous peoples have some real benefit from them. A person may have the right to food, but unless that person is able to hunt or buy or otherwise obtain food, an abstract right will not save them from starvation. Co- management regimes are often incorporated as part of the practical implementation strategies of regional governance agreements.
1. Overview Of Canadian Regional Agreements
At the heart of the Canadian agreements is the idea that they should be both regional and comprehensive. This means that the agreements are much more than a land tenure settlement for native land claims. It is Indigenous people’s unique relationship to the land and the sea that is the basis for their political and legal claims. The agreements are designed to provide a legal framework, procedures and rights for linking Indigenous self-determination with social justice, economic development and environmental protection over large regions.29 They are not “one-off” packages, but are meant to establish an ongoing policy framework whereby Indigenous and non-Indigenous interests can co-operate and co-exist through bicultural institutions for land management and planning. The most recent agreement, the Nisga’a Final Agreement 2000, also embodies the legal recognition of the inherent right of self-government. The formal title for such Canadian agreements is “Comprehensive Land Claim Agreement” which tends to understate these wider aspects. They are often referred to as “Regional Agreements” or modern treaties.
The regional nature of the settlement is important to Indigenous peoples because proper environmental management and protection of environmental rights (for example, hunting and fishing rights) can only succeed where decision-making is organised over a sufficiently large area to enable the various ecological and social interactions to be dealt with adequately by the responsible agencies. Environment management is an essential component of the Regional Agreements strategy, not only because of the central role of land care in Indigenous cultures and Indigenous value systems, but also because Indigenous peoples cannot expect
to determine their economic and social development without control over the forces which govern, and which can otherwise undermine, their natural resource base.
Canadian Regional Agreements (in themselves) have not always resulted in Indigenous peoples obtaining self-determination over their traditional territories. The Nisga’a Final Agreement 2000 is an exception to this. The Nunavut Self Government was recognised in legislation enacted at the same time as the Nunavut Comprehensive Land Claims Agreement (1993). The two processes were closely related. However, all of the Regional Agreements have provided a range of political, economic and social benefits that do give a significant degree of self- management and autonomy. For the Indigenous participants, the core objectives in pursuing Regional Agreements appear to have been to:
Nevertheless, as Usher31 notes, there has been considerable diversity in the models and strategies pursued among claimants, ranging from self-determination and political autonomy, to participation as full citizens in established Canadian institutional processes.
To date, fourteen Regional Agreements have been finalised with several claims advanced to Agreements in Principle. The final agreements are:
(2002) ch 15 at 436–437.
(a) Canadian Constitutional and Legal Framework
In 1973, the Canadian Supreme Court recognised the native title rights of the Indigenous peoples of Canada.32 They declared that native title existed at common law, irrespective of any formal recognition by the Canadian Government. It includes rights to fish, hunt and trap on traditional lands. These rights are collective, as they are based on communal occupation of the land, but also individual, as members of tribes have personal rights to harvesting resources.
Following this case, the Canadian government developed a Comprehensive Claims Policy to negotiate comprehensive Regional Agreements. The initial ‘trigger’ for this negotiation of claims was the recognition of unextinguished native title (similar to the Australian situation after the Mabo33 case). The James Bay and Northern Quebec Agreement (1975) and the Northeastern Quebec Agreement (1978) were finalised before the commencement of the new Canadian Constitution (the Constitution Act, 1982). These agreements were enacted under federal legislation.
The Constitution Act, 1982 provides a new legal framework for Canadian regional agreements (past, present and future):
35(1) The existing Aboriginal and treaty rights of the Aboriginal Peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “Aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
Section 25 of the Canadian Charter of Rights and Freedoms (part of the Constitution Act, 1982) protects “Aboriginal, treaty and other rights” from being diminished by other guarantees in the Charter (for example, the prohibition against racial discrimination).
Section 52(1) of the Constitution Act, 1982 provides that any law that is inconsistent with a provision of the Constitution is, to the extent of the inconsistency, of no force or effect. This provision establishes the Constitution as the supreme law of the land. Changes to existing Indigenous rights requires the consent of the Indigenous peoples concerned or an amendment to the Constitution.
The Canadian government can enact legislation regulating the use of Indigenous rights (eg, requiring an Indigenous person to fish under licence) according to the Sparrow34 case. Therefore, negotiated regional agreements which provide for the maintenance, rather than the extinguishment of native title rights, are constitutionally protected.
(b) Components of a Regional Agreement
The terms of these agreements generally are that the Indigenous claimants renounce all, or some of, their native title to the relevant territory, and in exchange receive:
Some of the Regional Agreements currently being negotiated do not require the extinguishment of native title after extensive controversy on this issue. The Canadian Government is now prepared to negotiate this issue (unlike the early Regional Agreements) following the revision of the Comprehensive Claims Policy in 1987.
(c) Structure for negotiating claims
The Canadian Regional Agreements are negotiated under the Canadian federal government’s Comprehensive Claims Policy. The key steps are outlined below:
It should be noted that the terminology of “Final Agreement” is misleading in the Canadian context. The agreements can be amended by a procedure defined in each agreement and each “Final Agreement” establishes on-going development and management processes that often lead to further issues being negotiated. In this sense they are “living” treaties. The key Final Agreements are discussed below.36
2. The James Bay And Northern Quebec Agreement (1975)
The James Bay and Northern Quebec Agreement was the first modern day comprehensive land claims settlement reached between Indigenous groups and federal and provincial governments. The province of Quebec in the early 1970s decided to engage in the construction of large hydro-electric dams on some major river systems in the north. The Cree and Inuit inhabitants of the region, upon hearing of the development, launched both a media campaign and legal action to stop the hydro-electric project to preserve their ancestral lands which they were still heavily reliant on for subsistence. Although the court proceedings were progressing favourably, an injunction was not secured to stop development so it was realized that by the time the Supreme Court of Canada heard the case, the dams would be completed. Therefore, the Cree, Inuit, Quebec government and
Canadian government began a series of negotiations to reach an agreement on development in the region known as the James Bay Territory.
For the Cree and Inuit, the essential positions were:
The Quebec government sought to:
The Canadian government was concerned that the resultant agreement would not set a precedent for in the settlement of other land claims issues with Indigenous groups elsewhere in Canada.
The James Bay Territory was divided into three distinct types of land — Category I, Category II and Category III lands. In Category I lands, the Crees and Inuit would have the greatest protection of rights and it would be areas including and surrounding their communities. Category II lands were in close proximity to Category I lands and would be exclusively held for the Cree and Inuit to exercise hunting, fishing, trapping, forestry or tourism development. The bulk of the ancestral land was given the title Category III lands, whereby the Quebec government would have rights to allow recreational hunting and fishing, forestry and mining activities and regulate development. To the Cree and Inuit, this was the land that for ten months of the year their families moved to and depended on for survival of not only their culture, but subsistence. The Cree and Inuit would be granted a form of usafructory rights but subject to other interests. The reasoning appeared to be that the majority of the territory had been leased out to forestry and mining companies long before the James Bay and Northern Quebec Agreement was in contemplation. There was unwillingness on the part of the provincial government to disturb the status quo.
The initial provisions of the Agreement state that “the James Bay Crees and the Inuit of Quebec hereby cede, release, surrender and convey all their Native
claims, rights, titles and interests, whatever they may be, in and to land in the Territory and in Quebec, and Quebec and Canada accept such surrender”. This is done in return for “Quebec, Canada, the James Bay Energy Corporation and the Quebec Hydro-Electric Commission, to the extent of their respective obligations as set forth herein, hereby give, grant, recognize and provide to the James Bay Crees and the Inuit of Quebec the rights, privileges and benefits specified herein, the whole in consideration for the cession, release, surrender and conveyance” mentioned above. The problem has been in the implementation of the Agreement, the whole was never delivered as evidenced in thirteen subsequent agreements since 1975 with the Quebec and Canadian Government and an estimated ongoing twenty-one court cases by the Crees over the failure of the governments to respect the provisions of the James Bay and Northern Quebec Agreement in determining development issues in the territory.
In February 2002, the Crees of Quebec and Government of Quebec reached a new agreement concerning future forestry, mining, hydro-electricity, economic and community development and settlement of a number of outstanding issues and litigation. The deal envisions the payment of 70 million dollars a year over the next fifty years for continued hydro-electric development in the James Bay Territory, the continuance of forestry activities and the facilitation of new mining activities — all are the backbone of the Quebec economy. The new agreement does not include the Canadian government or the Inuit interests. It is heralded as a co-management agreement in the sharing of natural resources and the language indicates the province has to try to act in the best interests of the Crees. However, it appears that the Crees have a limited consultative role.
(a) Proposed co-management of forestry resources under the 2002 Agreement between Government of Quebec and Crees of Quebec
The Quebec forestry regime will continue to apply to the territory under this agreement but it is intended to take into account the Cree traditional way of life (to a much greater extent), to integrate sustainable development and to allow participation (in the form of consultation) by the James Bay Crees in the various forestry operations, planning and management processes. The proposed new management units appear to take much greater account of groupings of Cree traplines, although the practical implementation in determination of management units could be very problematic given the criteria in the agreement.
The new management units will be determined jointly by the Cree-Quebec working team and sites of special interest to the Cree will have to be identified and mapped by the Cree, in cooperation with the Ministere des Ressources naturelles. In most cases, total area of the sites will not exceed one percent of a total area of a trapline included in a management unit. This is obviously an attempt
at multiple use, including forestry, while trying to maintain Cree subsistence, hunting and related activities. However, the safeguards for Cree interests are minimal.
The Cree-Quebec Forestry Board is intended to provide for longer term planning and management of forest activities. The Cree Regional Authority and Quebec shall each appoint five members to the Board. In addition, a chairperson shall be appointed for the Board by the Quebec Cabinet upon recommendation of the Ministre des Ressources naturelles. The Cree Regional Authority is consulted on the chairperson nomination and where agreement is not possible, after a specified further consultation and referral process, Ministre des Ressources naturelles may submit a name to the Quebec Cabinet for appointment without Cree consultation. The Board is given broad participatory powers but their role is to advise the Ministre. At the community level, joint working groups are proposed and their role is also advisory.
Funding for Cree participation in the joint working groups and the Board has to be provided by Cree themselves. The Quebec government will make available an annual volume of 350,000 cubic meters of timber volume, within the limits of the commercial forest situated in the territory, to the Cree enterprises.
This proposal seems to be primarily directed towards consultation and participation by the Cree rather than any clear power sharing usually associated with co-management. Another key objective, by the Quebec government, is to require that the Cree bring to an end all pending litigation against them. The parties agree to maintain their respective legal positions regarding the JBNQA and its interpretation and their powers and rights. However, the history of poor cooperation and lack of implementation by the Quebec government does not paint an optimistic picture for the future of this agreement. This will be particularly the case if the Cree remove litigation as a compliance measure.
3. The Inuvialuit Final Agreement (1984)
The Inuvialuit Final Agreement (1984) has been operating for 16 years. This agreement was negotiated over a much shorter time frame than the later regional agreements. However, agreement provisions were discussed with every household in the region on several occasions before it was enacted by the Canadian parliament. The agreement has proved to be flexible and a good basis for ongoing negotiations and evolving management arrangements (for example, the Inuvialuit are currently negotiating self-government for the western Arctic of Canada and have extended their management of parks, wildlife and natural resources). The Inuvialuit received compensation of $C152 million (payments between 1984 to 1987) and one-off economic and social grants of $C17.5 million. The mandate from the Inuvialuit community and elders, was that the capital of $170 million
should remain intact. The funds have grown to over $C230 million through the investments of the corporations (including the Aboriginal Global Investment Corporation). The Inuvialuit has been aggressive in their investment strategies to preserve and increase their capital.37
The Agreement provided for a number of corporate structures to administer and manage the Settlement funds, lands and other benefits. The Inuvialuit Regional Corporation, composed of representatives of the six Inuvialuit Community Corporations, functions as an umbrella organisation of the Inuvialuit to receive initially the Settlement funds and lands and to coordinate Inuvialuit implementation efforts. An Inuvialuit Land Corporation administers the Settlement lands. The Inuvialuit Development Corporation and the Inuvialuit Investment Corporation carry out the business on behalf of the Inuvialuit and invest Settlement funds on behalf of the beneficiaries. The Final Agreement does not provide for regional self-government as desired by the Inuvialuit. However, the Inuvialuit continue to press for a form of regional government for their Western Arctic homeland, as they believe that the wording of the Final Agreement facilitates this option. Clause 4 (3) provides that where re-structuring of the public institutions of the Western Arctic region occurs, the Inuvialuit shall not be treated less favourably than any other native peoples with respect to government powers and authority.
(a) Inuvialuit co-management regimes
The IFA establishes a number of institutions to deal with the various components of environmental management, including fisheries, wildlife harvesting and environmental impact controls.38 These structures are all managed by approximately equal numbers of government and Inuvialuit representatives, except in a few specified cases. A very complex and intricate wildlife system is established under the IFA. The Inuvialuit possess exclusive and preferential harvesting rights to game except for certain migratory species. Compensation is to be provided to Inuvialuit hunters from developers for actual losses that occur as a result of any development undertaken in the Settlement Region (cl 13). At the local level six
exclusively Inuvialuit Hunters and Trappers Committees (HTCs) provide representation to each of the communities in wildlife management. The HTCs encourage and promote Inuvialuit involvement in sustainable wildlife utilisation and are collectively represented on the Inuvialuit Game Council (IGC).
The IGC has responsibility for allocating quotas for the harvesting of wildlife among the Inuvialuit communities, as well as advising the two Wildlife Management Advisory Councils (one each for the Northwest Territories and the Yukon North Slope). These two authorities in turn advise the appropriate Minister on wildlife conservation matters. A Fisheries Joint Management Committee (FJMC) advises the Minister of Fisheries and Oceans on matters relating to fisheries and marine mammals in the Settlement Region. Finally a Research Advisory Council, with multi-party representation, coordinates research activities into wildlife and environmental management in the Settlement Region.
Despite the scope for local participation in wildlife and fisheries management, the IFA does not decentralise wildlife harvesting rights to Inuvialuit communities. The power to regulate, allocate and control public access and Inuvialuit participation in management rests with the Wildlife Management Advisory Councils and Fisheries Joint Management Committee. The Local Hunters and Trappers Committees and Game Council are left with the power to enforce and provide harvest data.
The IFA also establishes a comprehensive system of regional environmental planning and development control. The Agreement provides for an environmental impact assessment process through two agencies in which the Inuvialuit have rights to participate. It is stipulated that for “every development of consequence to the Invuialuit Settlement Region that is likely to cause a negative environmental impact” (cl 11), the development proponent must prepare an environmental impact statement for the assessment by an Environmental Impact Screening Committee (EISC) as to whether it “could have a significant negative impact on present and future wildlife harvesting” (cl 11). An Environmental Review Board (EIRB) undertakes the review of major development proposals referred to it by EISC. The Board makes advisory recommendations to the government body on whether or not the development in question should proceed, including any mitigative measures that it feels should be applied to a project to minimise its environmental impacts. The EISC and the EIRB both have seven members, divided among three Inuvialuit and three government representatives and a chairperson chosen by the Federal government with Inuvialuit approval.
Several major co-management planning initiatives have been completed to date. These are:
(b) Inuvialuit international co-management
The Inuvialuit have also recognised the importance of the international co-operative approaches to environmental management. In 1988, the Polar Bear Management Agreement for the South Polar Sea was signed by the Inuvialuit game council and the (Alaska) Inupiat North Slope Borough Fish and Game Management Committee. This was the first time that a wildlife management agreement had been concluded by Aboriginal user groups in two countries.40 An agreement modelled on this has been negotiated by the United States and the Russian Federation. A similar international agreement for the shared management of beluga whales, between the Inupiat and the Inuvialuit has also been negotiated resulting in a Beluga Whale Management Plan for the Region.41 The Inuvialuit were also in substantial advocacy work in southern Canada and the United States in the lead up to negotiations of the amendments to the Bonn Convention (Convention of the Conservation of Migratory Species of Wild Animals, 1979).42
(c) Evaluation of Inuvialuit co-management regimes
The Inuvialuit land, resource and environmental regimes were reviewed by Usher in his researcher report for the Canadian Royal Commission on Aboriginal Peoples.43 This was part of a wider review comparing negotiated regional agreements with each other, and other treaty experiences. He concluded that:
4. The Nunavut Final Agreement (1993)
The Nunavut Agreement is a land claim agreement as defined in section 35 of Canada’s Constitution. It forms a modern treaty between the Inuit of the Nunavut Settlement Area, who were represented in negotiations by the Tungavik Federation of Nunavut (4N), and the Crown in Right of Canada — the federal government. Inuit rights and benefits, which are “guaranteed” under Canada’s constitution, include:
As well, the agreement commited the federal government to introduce legislation to create the Nunavut Territory and the Nunavut Territorial Government. This is discussed, below, in the section dealing with self-government.
5. Yukon Umbrella Final Agreement (1993) — Yukon First Nations
The Yukon Umbrella Final Agreement (1993) involved another form of negotiation process and comprehensive regime. The Yukon Umbrella Agreement involved many First Nation Indigenous peoples. The areas of land claimed were often separated by land and resources owned by the Crown or non-Indigenous interests. This agreement will be described in detail as this situation has significant similarities to many regions in Australia.
The Yukon settlement was the first to reflect the federal government’s policy in 1986 of restricting the degree of surrender of Indigenous rights. The negotiation of a comprehensive claims agreement for the Yukon Territory was an extremely protracted affair, taking about 17 years. A Final Agreement was signed in March 1990, comprising 28 sub-agreements on various aspects of land management, non-renewable resources and implementation measures. The agreement is to be ratified by each Yukon First Nation. Other elements in this Regional Agreement package are a Self-government Agreement and Financial Transfer Agreement, which provide the basis for negotiating individual self-government settlements with each of the 14 Yukon First Nations.
The date, final agreements have been negotiated with the seven Yukon First Nations (YFNs) (approximately 4,000 beneficiaries) with settlement land of 27, 299 square kilometres and financial benefits of $137, 468, 620 to be paid in 15 annual instalments. This is their share of the total benefit lands and settlement for the YFNs referred to earlier in the discussion of the YFN Umbrella Agreement. An eighth YFN, White River First Nation, signed its agreements in 1999 and is in the process of ratification.
6. Nisga’a Agreement (British Columbia)
The Nisga’a Tribal council submitted a land claim to the Federal government in 1976 claiming title to 14,760 square kilometres of the Nass River valley. In 1991, the British Columbia government was included in the negotiations and a Nisga’a Comprehensive Land Claims Agreement was reached, setting the boundaries for making an agreement-in-principle and final agreement. This agreement was not negotiated under the British Columbia Treaty Commission Process and was concluded under the Federal Comprehensive Claims Policy. In 1991, Canada, BC and the Nisga’a Nation signed a framework agreement. The parties conducted over 500 consultation meetings and public events during the negotiations. The parties signed the final agreement in August 1998. The Agreement calls for a payment to the Nisga’a of $190 million in cash and the establishment of a Nisga’a Central Government with ownership of and self-government over approximately 2,000 square kilometres of land in the Nass River Valley. The agreement also
outlines the Nisga’a ownership of surface and subsurface resources on Nisga’a lands and spells out entitlements to Nass River salmon stocks and wildlife harvests. The Nisga’a voted in support of ratification of the Nisga’a Final Agreement on November 6 and 7, 1998. The Nisga’a Final Agreement Act, was introduced in the British Columbia Legislature on November 30, 1998 and received final Royal Assent on April 26, 1999. Federal ratifying legislation received Royal Assent in April 2000.
7. British Columbia Treaty Process
One of the most important land claims was that of the Nisga’a First Nation. Some of the largest and most difficult land claims occur in British Columbia. Claims negotiations have been difficult because of hostility from the Provincial (State) Government, and the forestry and fishery companies. Some Indian First Nations, such as the Gitksan and Wet’suwetten have litigated their claims.45 The Haida Nation is considering a Native Title claim, through the courts, to their island of Haida Gwaii following considerable frustration with the British Columbia negotiation process.
In British Columbia (BC), the majority of first nations never signed treaties and Colonial governments resisted treaty making. In 1992, the Government of Canada, the Province of British Columbia and the First Nations Summit signed the British Columbia Treaty Agreement (BCTC). The BCTC was established on an interim basis in 1993 and the Federal Government introduced the BCTC Legislation, in 1995.The BCTC consists of five Commissioners: two nominated by the First Nations Summit; one nominated by each of the federal and provincial governments; and a Chief Commissioner chosen by all three Principals. The current Chief Commissioner is Mr Miles Richardson of the Haida Nation.
The BCTC is the “Keeper of the Process”. Its main functions are to assist the readiness of parties to begin negotiations, allocate negotiation funding to Aboriginal groups, assist parties to obtain dispute resolution services at the request of all parties, and monitor and report on the status of negotiations. The BCTC has also played a useful role in reporting to the Principals on the impediments to the process. The treaty negotiation process is open to all BC First Nations.
Fifty-three First Nations (127 Indian bands), representing over 70 percent of BC’s Aboriginal population, are negotiating treaties. Of these, four are in early stages of negotiations, four are negotiating a framework agreement, and 43 are negotiating an Agreement in Principle (AIP). To date, 45 First Nations have signed framework agreements. Claims in British Columbia represent slightly more
than half of the total number of claims (both comprehensive and self-government) currently being negotiated across the country.
The recent experience in British Columbia has been disappointing after initial hopeful signs that this would be expedited and fair proceedings. Many of the offers made by government, as the basis of final agreements, have been considered too low by Indigenous negotiators.46 This has undermined the role of the BCTC and some First Nations are withdrawing or considering withdrawal from the process. Unless urgent steps are taken to conclude some viable final agreements and action taken on interim measures supported by the majority of First Nations, this problem is likely to continue.47
8. Interim Measures
(a) Canadian Government initiatives in New Foundland and Labrador
In November 1999, the government of Canada, New Foundland, Labrador and Innu signed an Agreement-in-Principle on Interim Measures as a means to provide the Innu with the appropriate tools to address the various issues currently affecting their communities. The Agreement represents a series of interim steps providing the Innu with additional control over programs and services within their communities until the completion of land claims and self-government agreements. It provides for the transfer of provincial Crown lands to Canada, the establishment of Aboriginal policing, costs and eventual transfer of control over education and the establishment of appropriate governance arrangements for the Innu.
Since the signing of the Agreement-In-Principle, an interdepartmental working group has been established with officials from DIAND (headquarters and Atlantic Region), Solicitor General of Canada, Public Works and Government Services Canada and Natural Resources Canada to develop and review options for implementing the various components of the Agreement.
Tripartite discussions are being held in relation to education and governance. Canada has proposed approaches to the other Parties for implementing these two major components. To date, no agreement has been reached on an approach that is acceptable to all Parties.
(Oct. 2000), <http://www.bctreaty.net/updates/oct00progress.html> (visited Feb 22, 2002).
(b) British Columbia Interim Measures (TRMs)
The British Columbia Government has developed a new type of interim measure referred to as “treaty-related measures” (TRMs). The Canadian and British Columbia governments developed TRMs in response to a federal, provincial and First Nations’ report of February 1999. The report concluded that all parties wished to accelerate negotiations and create opportunities for earlier access to lands and resources that would be secured in treaties.48
TRMs can be used for several purposes:
Some examples of the BC government response to TRMs are provided by the Ministry of Environment, Lands and Parks. Their Guidelines on Interim Measures suggest that the Government objective for interim measures should be:
<http://www.bctreaty.net/updates/feb00interim_measures.html> (visited Feb 26, 2002).
To date, over 42 TRM’s have been completed, in BC. It is probable that co- management will increasingly be considered as an interim measure, particularly at the federal level, in Canada.
9. Indigenous Self-Government Negotiations
Along with the comprehensive claims process there has been a campaign by Indigenous groups for greater powers of self-government. Both the 1981 and 1986 Comprehensive Land Claims policy statements recognised that a limited form of self-government may be included in settlement agreements. The 1986 Comprehensive Land Claims Policy allows for the retention of Aboriginal rights on land which Aboriginal people hold following a claim settlement, to the extent that such rights are not inconsistent with the settlement agreement.
The Nunavut and Yukon agreements provide for the greatest measure of self-government, but by different means. Elsewhere, “self-government” has basically involved the transfer to Indigenous communities of program administration rather than real control over policy making.
In April 1986, the Federal government released a policy on Indigenous community self-government negotiations. The policy involved giving communities greater administrative control and service delivery of Federally sponsored programs. The DIAND was reorganised into four divisions with one division having responsibility for Indigenous self-government. The work of this division is directed towards new forms of government established through special legislation and the giving of greater responsibility for administration to band and village units within the terms of the Indian Act.52
There is no blueprint for community self-government, but a schedule for negotiation of new governmental arrangements is laid down. First, a “Framework Agreement” for further negotiations is written up. This leads to a Final Agreement, which is put to community members, and Federal Cabinet for acceptance. An
implementation plan is part of the agreement. Finally, a law for the operation of self-government is made in the Canadian Parliament.
The negotiation of self-government agreements cover:
Under the Government of Canada’s 1995 Inherent Right and the Negotiation of Aboriginal Self-Government Policy, self-government arrangements may be negotiated simultaneously with lands and resources as part of comprehensive land claims agreements.53 The Government of Canada is prepared, where the other parties agree, to constitutionally protect certain aspects of self-government agreements as treaty rights within the meaning of section 35 of the Constitution Act, 1982.54 Self-government arrangements may be protected under section 35 as part of comprehensive land claims agreements. In Gathering Strength — Canada’s Aboriginal Action Plan announced on January 7, 1998 — the Government of Canada affirmed that treaties, both historic and modern, would continue to be a key basis for the future relationship between Aboriginal people and the Crown.
Ivanitz outlines some of the differing Indigenous vision of self-governance:
The Inuvialuit and Gwich’in regions support Aboriginal self-government with public government. The Sahtu regional emphasis is on community government as the senior level of government. The Dogribs further south in the Mackenzie Valley place a strong emphasis on extensive self-government, in the form of direct governing authority rather than co-management. Treaty Eight Dene reject the federal Comprehensive Claims Policy as a latter-day attempt at assimilation and, instead, are involved in treaty land entitlement negotiations with the federal government. It is obvious that no group or community in the NWT is unanimous in its political and constitutional views but the residents of the Western Arctic hold a particularly diverse range of opinions on their future political course.55
(a) Territory of Nunavut
The negotiations for the creation of an Inuit self governing territory, known as Nunavut, occurred over several decades. In 1992, the Canadian Prime Minister officially committed the Canadian Government to the establishment of Nunavut and the Government of Canada enacted the legal framework for self government of Nunavut in 1993. It is a territorial government and all residents of the territory are able to vote, run for office and are eligible for jobs in Nunavut’s public service. However, the Inuit make up 85% of the population and Inuit culture, tradition and aspirations are able to shape government systems in an unprecedented way. The Inuit language, Inuktitut, is the working language of government but services are also offered in English and French. Training and development for government has occurred over many years, although Premier Paul Okalik argued that training did not start soon enough.56
The Government of Canada committed about $40 million for the recruitment and skills upgrading and, by 1999, about 600 Inuit had benefited from the training programs. The implementation plan under the Nunavut Land Claims Agreement, 1993, played a crucial role in these preparations.
In April 1999, the legislative assembly of the Nunavut Government elected its first Premier and Cabinet Ministers. The Government structure is very decentralised as it serves remote communities. The budget for the first year of operation of Nunavut was $600 million.
(b) Nisga’a self-government
The Nisga’a Final Agreement provides for the establishment of an open, democratic and accountable Nisga’a government. It includes representation for Nisga’a citizens through the Nisga’a Lisims Government, four Nisga’a Village Local Governments, and three Urban Locals which will provide a voice for Nisga’a who do not reside in the Nass Valley. This is the first time Aboriginal self-government powers have been expressed in a Canadian treaty. The Nunavut arrangements for self-government were contained in legislation passed after their land claims agreement.
The Final Agreement also sets out significant protection for non-Nisga’a residents of the proposed Nisga’a Lands. Those protections include rights of consultation, participation and appeal, where decisions of Nisga’a Government may directly and significantly affect them.
The Nisga’a Final Agreement, 2000 and the Nisga’a Constitution establish the key elements and structure of Nisga’a Government. Key features of this democratic structure of government include the following:
The Nisga’a Final Agreement, 2000 exhaustively sets out the Nisga’a rights of self-government. Consequently there is no need to set out a list of subjects over which Nisga’a Government could not exercise authority. Nisga’a laws would only be valid if they are consistent with the Final Nisga’a Agreement; Canada’s Constitution and the Nisga’a Constitution.
The Nisga’a Final Agreement did not provide any exclusive law-making authorities to the Nisga’a Government. All Nisga’a laws would operate concurrently with federal and provincial laws, like other jurisdictions in Canada where Canadians are subject to federal, provincial and municipal or regional laws simultaneously. The relationship between Nisga’a laws and federal or provincial laws will be determined by specific rules of priority set out in the Final Agreement.
(c) Western Northwest Territories Self-Government
The Canadian Government considers that the western NWT has a unique opportunity to develop self-government arrangements compared to the situation south of the sixtieth parallel.63 They would prefer that the inherent right find
expression primarily, although not exclusively, through public government with specific guarantees for Aboriginal peoples.64
(d) Yukon First Nation self-government
The YFN agreement also achieved a breakthrough on the role of self-government for Indigenous communities. The federal government had previously ruled out the inclusion of self-government clauses in Regional Agreements because of its fear that such clauses would attract constitutional protection under s 35(1) of the Constitution Act. However, the Agreement obliges the Canadian government to negotiate self-government agreements with each of the interested 14 Yukon First Nations.
In contrast to Nunavut which creates a territory-wide government for the people of the region of which the Inuit are the overwhelming majority, the Yukon agreement is based on Indigenous groups holding pockets of land that are non- contiguous. The YFN self-government agreements are likely to be model agreements for many other First Nations.
Each self-government agreement spells out the nature of First Nation constitutions, financial reporting and other measures for ensuring that the self- government bodies are held accountable to their citizens. The type of broad legislative powers provided are illustrated in the case of the Champagne and Aishihik First Nations Self-government Agreement.65 Clause 13 provides that the Champagne and Aishihik First Nations shall have the exclusive power to enact laws in relation to the administration of Champagne and Aishihik First Nations affairs and operation and internal management of the Champagne and Aishihik First Nations such as:
10. Co-Management Outside Regional Agreements: Gwaii Haanas National Park Reserve And Haida Heritage Site
The Haida Gwaii (formerly known as the Queen Charlotte Islands Archipelago) is a spectacularly rich and diverse marine and terrestrial area. It is also the homeland of the Haida Nation. There is archeological evidence that they have continuously lived in the Archipelago for at least ten thousand years. The area is extremely important from an environmental, cultural and archeological perspective with nearly 600 documented archeological sites documenting Haida occupation of the islands. Their mortuary and memorial poles are particularly well-known. Traditional activities continue to take place, on Haida Gwaii, as part of the living and evolving culture of the Haida. More endemic plants and animal species are found here than anywhere else in Canada. It is believed many unique life forms evolved here because of the island’s location and because it was a refuge area during the most recent ice age. There is an abundance of plants, fish, shellfish, animals, seabirds and marine mammals.
In 1974, the future of what is now the Gwaii Hanaas protected area was threatened by plans for logging of the area. Proposals for the designation of the “South Moresby Wilderness Area” were put forward as a response to the potential risks posed by logging activities . In 1985, the Haida Nation designated Gwaii Haanas to be a National Heritage Site. The area known as SGang Gwaay was, with the agreement of the Haida Nation, declared a World Heritage Site under the World Heritage Convention in 1981. In 1988, the Canadian and British Columbia (BC) governments signed the South Moresby Agreement. They committed to protect the South Moresby area through designation of marine and terrestrial national parks. The terrestrial Gwaii Hanaas National Park/Haida Heritage Site was created in 1988. Fourteen years after this agreement, the Marine national park has still not been created.
The co-management agreement between the Haida Nation and the Canadian Government (for the terrestrial park) took six years to negotiate and was signed by the parties in 1993. The South Moresby Forest Replacement Account (SMFRA) was created in 1988, following the park reservation, to mitigate the impacts of the loss of timber supply. The federal and BC Governments each contributed
$12 million to the SMFRA and the account now focuses on strategies to improve forest yields, maintaining forest jobs and supports community involvement in forest planning processes. It is intended to supplement, rather than replace, existing forestry programs. The Haida Nation, Pacific Oceans Fisheries and the
Government of Canada have prepared a Joint Management Plan for the Razor Clam Fishery (2001).
There are some unique features of Haida co-management which deserve closer examination. Independent Haida initiatives, such as the Declaration of the Haida Heritage Site and the role of the Haida Gwaii Watchmen, have demonstrated effective and long term commitment to protect their heritage. The Gwaii Haanas Agreement, 1993, discussed below, was an attempt to set aside the question of ownership of the park (and reserve the rights of the parties on these issues) so that interim measures could be agreed to protect Gwaii Haanas through a co-management regime.
(a) Gwaii Haanas Co-Management Agreement
The Gwaii Haanas Agreement between the government of Canada and the Council of the Haida Nation establishes the co-management regime for Gwaii Hanaas National Park/Haida Heritage Site (the Archipelago). The agreement states that the viewpoints of the parties converge with respect to the objectives, protection and enjoyment of the Archipelago and diverge with respect to sovereignty, title and ownership, as follows:
The Haida Nation sees the Archipelago as Haida Lands, subject to the collective and individual rights of the Haida citizens, the sovereignty of the Hereditary Chiefs, and jurisdiction of the Council of the Haida Nation. The Haida Nation owns these lands and waters by virtue of heredity, subject to the laws of the Constitution of the Haida Nation, and the legislative jurisdiction of the Haida House of Assembly ...
The Government of Canada views the Archipelago as Crown land, subject to certain private rights or interests, and subject to the sovereignty of her Majesty the Queen and the legislative jurisdiction of the Parliament of Canada and the Legislature of the Province of British Columbia.67
It was agreed between the governments of Canada and British Columbia that the Crown in right of Canada was to become the owner of the Archipelago for the purposes of declaring it a national park of Canada. The intention of the government of Canada to designate the marine national park was explicit in the agreement. The Archipelago Management Board (AMB) has the role of examining all initiatives and undertakings relating to the planning, operations and management of the Archipelago and the preparation of a joint purpose and
objective statement and management plan. The AMB was initially to comprise of two representatives of the government of Canada and two representatives of the Council of the Haida Nation. The total number of members may be increased or decreased by mutual agreement of the parties, providing that equal representation is maintained. Each party designates one of its AMB members as a co-chairperson, both of whom are jointly in charge of calling and conducting meetings and authenticating minutes. They may agree to alternate the responsibilities of the chair between the chairpersons.
The powers of the AMB are advisory. Their deliberations on any particular proposal, or initiative, seek to achieve a consensus decision of the members, which will be deemed recommendations to both the government of Canada and the Council of the Haida Nation. In the event of a clear and final disagreement of AMB members on a matter, it is referred to the Council of the Haida Nation and the government of Canada to attempt to reach agreement on the matter in good faith. The parties may request the assistance of a neutral third party in an attempt to reach an agreement. There is provision for the continuation of specified Haida cultural activities, sustainable, traditional renewable resource harvesting activities in the Archipelago.
The parties were to jointly review the agreement two years after it came into effect and thereafter each five years. Either party may request a special review by providing written notice to the other party. This review should be completed in a six month period. After the expiry of the six month review period, and within three months, either party may terminate the agreement on six months notice to the other party.
1. Diverse Regimes For Australian Indigenous Management
Joint management (co-management) agreements, over protected areas, are the longest-established type of Australian land management regime that has involved Indigenous landowners and governments. Natural heritage trust funding agreements are increasingly being used to extend the range of contexts in which Indigenous Australians are involved in joint management and collaborative management. Indigenous Land Use Agreements under the Native Title Act, 1993 are a recent development incorporating joint management and collaborative management, although land use agreements have existed under some land rights Acts for many years. The Kowanyama land and resource regime will be reviewed to provide an important example of collaborative management developed outside legislative frameworks through the initiative of the Aboriginal people of Kowanyama.
The overall situation is similar to Canada in that there is a diverse range of models and experiences. The joint management of Australian national parks, under federal jurisdiction, provide the best known examples of power sharing regimes. However, other frameworks, such as Indigenous Land Use Agreements, have considerable potential to extend Indigenous joint management to more protected areas as well as to other contexts such as planning, resource allocation and management for sustainable use.
2. Overview Of Australian Co-Management
(a) Agreements under the federal legislative process
The federal government’s major consolidation and reform of its environmental legislation, the Environmental Protection and Biodiversity Conservation Act, 1999 (EPBC Act), includes various provisions that recognise the important contributions that Indigenous Australians can make to the conservation of biological diversity and sustainable development and continue the tradition of joint management in Australia. Some of these features of the Act were negotiated during the passage of the EPBC Bill through the federal parliament. This demonstrates the importance of negotiating outcomes to enhance governance for Indigenous Australians. The “objects” of the EPBC Act include the promotion of a cooperative approach to the conservation and ecologically sustainable use of Australia’s biodiversity, involving governments, the community, landholders and Indigenous peoples. Other objects include recognising the role of Indigenous people in the conservation and ecologically sustainable use of Australia’s biodiversity, and the promotion of the use of Indigenous knowledge with the involvement of, and in co-operation with, the owners of such knowledge. The Act also provides for:
reserves”. Such traditional usage rights are protected under several Commonwealth Acts such as the Native Title Act, 1993 (NTA), Aboriginal Land Rights (Northern Territory) Act 1976 and the Aboriginal Land Grant (Jervis Bay Territory) Act 1986. However, such activities may be restricted by regulations applicable in a Commonwealth reserve if such regulations have been made to conserve biodiversity and are expressed to affect the traditional use of the area by Indigenous persons;
The EPBC Act also provides that regulations may control access to biological resources in Commonwealth areas. In 1999 the Commonwealth convened an inquiry into issues associated with access to biological resources which would, amongst other things, address issues of importance to Indigenous communities, such as the equitable sharing of benefits arising from the co-operative use of Indigenous Australians’ knowledge. The recommendations of the inquiry were under consideration in 2000.68
The EPBC Regulations already provide that the Director of National Parks and a land council may agree to conditions under which Indigenous Australians may engage in certain activities in Commonwealth reserves, which are then not offences under the Act. These activities include entry into restricted or prohibited areas; the taking or keeping of a member of a native species; the use of a means of transport where that is prohibited; the taking of a dog into a Commonwealth reserve; the taking of firewood; and the carrying out of a cultural activity.69
3. Australian Joint Management Regimes
The joint management of protected areas is the most significant and sustained example of cross-cultural resource management in Australia to date, although increasingly Indigenous Australians are asserting rights of self-management and close control over the provision of external assistance. The concept of Indigenous ownership and joint management of national parks in Australia emerged as a response to the increasing legal recognition of Aboriginal rights to traditional lands. The Aboriginal Land Rights Act 1976 (Cth) was an important impetus for Aboriginal land claims, although other states have provided (usually weaker mechanisms) for recognizing Indigenous Australians’ interests in their customary territories. Historically, the need for joint management arrangements arose when existing national parks or conservation reserves were claimed under these various laws.
A variety of different models for joint management are currently in operation. Apart from Commonwealth legislation for the Northern Territory, at the state and territory level only New South Wales and Queensland have legislated specifically to address the joint management of mainstream national parks, but there is sufficient scope under existing legislation in other jurisdictions to enable joint management of diverse types of land tenure and protected status to be established, given the evolving context of native title recognition and land transfers by the Indigenous Land Corporation. There are differences in the legislative provisions that establish their joint management and differing lease provisions. Most importantly, from the perspective of practical Indigenous governance, each plan of management is distinct, along with differing levels of resources and day to day management arrangements.
In 1981 Gurig National Park became the first Australian national park to be jointly managed by Aboriginal traditional owners and a government conservation agency. Smyth and Sultan argue that the various models of joint management that have evolved over the last 18 years reflect changing political and legal realities and changing community expectations.70 They summarise the distinguishing features of these models:
Jointly managed national parks provide good examples of the capacity of Indigenous Australians to participate in land-use policy and management in an intensive and effective way. It has also led to advances in cross-cultural education, training and the development of new institutions such as joint management boards. The initial stage of joint management usually focuses on the practical and urgent goals of Aboriginal and Torres Strait Islander people to achieve an equal decision-making role in how the land is controlled and managed. It allows Aboriginal owners to utilise useful resources provided by the national parks services (NPS) and conservation agencies, without allowing the NPS to become the controlling authority. NPSs have also been able to access new financial resources and knowledge by involving and employing Indigenous people in park activities.
Lease agreements (between the Aboriginal owners and a Commonwealth or state or territory NPS and conservation agencies) are particularly important in negotiating the terms of management. The lease is crucial for working out the details of the relationship between the joint managers and for acknowledging changed circumstances when the terms are re-negotiated.
Joint management can help create ongoing institutions, which play a positive role in educating non-Indigenous Australians, and it can also provide an opportunity for Aborigines to remain on their land and to exercise political and cultural power over decisions affecting their lives and land. Aboriginal people have demonstrated that they can manage both the political and environmental implications of the joint management process effectively. It is clear that they can and ought to be
increasingly involved in regional, state and national decisions about environmental and resource management in a far more significant way.
Kakadu National Park will be used as a more detailed illustration of joint management institutions and processes in an Australian federal protected area.71
4. Joint Management: Kakadu National Park
Kakadu National Park is an Aboriginal cultural landscape located in the wet-dry tropics of northern Australia. The park covers an area of 19,804 km2 within the Alligator Rivers Region of the Northern Territory of Australia. Major landforms and habitats within the park include the sandstone plateau and escarpment, extensive areas of savanna woodlands and open forest, rivers, billabongs, floodplains, mangroves and mudflats. The area is richly diverse, ecologically and biologically.
Aboriginal people have been associated with the area of land now known as Kakadu National Park for a very long time. Archaeological evidence suggests that humans have lived in the Kakadu region continuously from around 50,000 years before the present. This is the earliest date that humans are believed to have arrived in Australia. Aboriginal people, or Bininj/Mungguy as local Aboriginal people refer to themselves, know that they were placed in this land at the time of the first people, the Nayuhyunggi. Some creation figures, like the Rainbow Serpent, are regarded as still active today. These creation figures gave the people laws and a way of living that they still follow. That Aboriginal people have lived continuously within Kakadu for 50,000 or more years is one of the most important aspects of the cultural significance of the park. Evidence that humans have lived in the area is found throughout the park, particularly in the rich heritage of Aboriginal art and archaeological sites.
The natural and cultural heritage of the park has been recognised by the inscription of the park on the World Heritage List under the World Heritage Convention. Kakadu is one of only a few World Heritage sites listed for both its
natural and cultural heritage. Kakadu is on the Register of the National Estate because of its national significance to the Australian people. The wetlands of Kakadu are recognised for their international significance, under the Convention on Wetlands of International Importance (the Ramsar convention).
The park was proclaimed under the National Parks and Wildlife Conservation Act 1975 and is managed through a joint management arrangement between the Aboriginal traditional owners and the Director of National Parks and Wildlife. The Director manages Commonwealth national parks through Parks Australia, which is a part of Environment Australia.
Approximately 50% of the land in the park is Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976, and most of the remaining area of land is under claim by Aboriginal people. Title to Aboriginal land in the park is held by Aboriginal land trusts. The land trusts have leased their land to the Director of National Parks and Wildlife for the purpose of a national park for the enjoyment and benefit of all Australians. Traditional owners have also expected that having their land managed as a national park would assist them in looking after their land in the face of growing pressures such as tourism and invasive species. The EPBC Act provides for boards of management to be established for parks on Aboriginal land.
(b) Lease agreements
On 3 November 1978 leases were executed between the Kakadu Aboriginal Land Trust and the Director of National Parks and Wildlife for land in stage one, Kakadu National Park. On the same day, the Director and the Northern Land Council (NLC) signed an agreement, which broadly laid down the principles and conditions under which the park would be managed. The agreement provided for protecting the rights of the traditional owners, employing traditional owners and training Aboriginal people in managing the park.
Revised lease agreements covering Aboriginal land in the park were signed on 27 March 1991 between the Director of National Parks and Wildlife and both the Kakadu and Jabiluka Aboriginal Land Trusts. The main features of these agreements included increased lease payments, a share in revenue generated by the park and more protection of Aboriginal interests in the park. A breach of any of the lease Covenants provides a legal basis for terminating the lease and full control of the land would return to the Aboriginal owners. An Arbitration provision is included to deal with conflict between the parties.
In 1996, a memorandum of lease was signed between the Gunlom Aboriginal Land Trust and the Director of National Parks and Wildlife for managing Jawoyn lands in the south of the park. The lease agreements provide for traditional owners and relevant Aboriginals:
The Director of National Parks and Wildlife also agreed to lease covenants:
A further provision of the new lease arrangements, which needed much negotiation, involves the issue of detriment (things that are against the interests of traditional owners). The new arrangements provide for termination of a lease if issues of detriment to the Aboriginal traditional owners cannot be resolved.
The lease agreement with the Gunlom Aboriginal Land Trust includes special provision for managing and protecting sacred sites, particularly the Sickness Country, and a plan to rehabilitate old mine workings in the Gunlom Land Trust area. This lease also provides for cultural advisers to be employed to supervise managing the Sickness Country. The full provisions of the leases are included, as Appendix 1, to the Kakadu National Park Plan of Management, 1999. The current lease is overdue for re-negotiation.
(c) Kakadu Board of Management
On 26 July 1989 a Board of Management with a majority of Aboriginal members was established for the park. The Board’s functions are set out in the Act. They are:
In making decisions about the management of the park, the Board is also responsible for determining the overall allocation of resources in the park and setting priorities to meet the actions in the Plan.
The precise composition of the Board is defined in a notice published under the EPBC Act. The Board usually has 14 members, ten of whom are appointed as representatives of the traditional owners of the park area. The Commonwealth Minister for the Environment appoints all members to the Board. The Bininj/ Mungguy (Aboriginal) representation on the Board covers the geographic spread of Aboriginal people in the region as well as the major language groupings.
(d) Plan of Management
The Act requires that the park has a Plan of Management. Since the establishment of the Board, the Director of National Parks and Wildlife and the Kakadu Board of Management have produced the plans of management jointly. The main purpose of a Plan of Management is to describe how it is proposed to manage the park. A plan generally runs for a five year period (although the Act permits a plan to be in force for up to ten years) and takes nearly two years to produce, from advertising of intent to passing by Parliament.
Two important features of the Act in relation to the Plan are that in the case of Kakadu:
The last provision says that the Director must take account of the interests of Aboriginal people in the region who may not be traditional owners of the park. A special consultative committee process is used to involve these people effectively in consultation while the Plan is being developed. The Aboriginal Consultative Committee is a body established with the advice of Northern Land Council to represent traditional owners and other Aboriginal residents of the park in the process of developing a new Plan of Management. In preparing the most recent Plan (1999), the Committee had 43 members representing the communities and living areas in the park. Meetings were held monthly over the consultation phase at various locations in the park. Several management issues were discussed at each meeting with a final meeting held to assess public representations and staff comments. The Board of Management, along with public comments and staff comments, then heard the comments of the Aboriginal Consultative Committee.
The Plan of Management describes how the Board believes the park should be managed and the direction of management for a specified period of time. It enables management to proceed in an orderly way; it helps to reconcile competing interests; and identifies priorities for allocating available resources. It lays down general principles to be followed, it increases the efficiency and consistency of decision-making and makes it clear how and why particular decisions are made. The EPBC Act also provides for arbitration and ministerial direction where the Director and the Board are unable to agree on the contents of the Plan of Management.
5. Evaluation Of Australian Joint Management
Joint Management is a Western cultural model, which tries to recognize Indigenous, concerns within the dominant Australian regimes relating to the land management. The separation of ownership and control, and the vesting of residual power in the Director of Parks Australia, holds some risks for Indigenous peoples. The Aboriginal owners of Uluru-Kata Tjuta held the title to their land for 35 seconds
before they leased it back to the Australian Government.72 The lease-back is a paternalistic arrangement that derogates from the full legal recognition of Indigenous ownership. The joint management arrangement could be developed through contractual arrangements with governments, without requiring the lease back. Economic issues related to the intensive use of Aboriginal land by non- Aboriginals remain a contentious issue. To date, most emphasis has been on increasing the annual rental return.
The first ten years of joint management in Kakadu and Uluru were characterized by strong relationships between Aboriginal people and national parks staff.73 This was associated with a heavy reliance on informal structures and on-the-ground operations.74 This was particularly important in establishing Kakadu joint management where some Aboriginal owners had poor literacy and numeracy skills.75 However, the second and third Plans of Management (1986– 1991) for Kakadu reflect a different social and political environment:
The strong relationships between Aboriginal owners and national parks staff changed with the growth of the park and the movement of influential staff away from Kakadu. The political climate in the Northern Territory, strongly antagonistic to continued Commonwealth management of national parks within the Territory, worsened, and this created a highly charged atmosphere both inside and surrounding Kakadu. The growth of the park and the heavy political atmosphere meant that management was increasingly subject to external demands, and less able to devote time to strengthening informal relationships that had meant so much to traditional owners. As a result, conflicts emerged between the management agency and the Aboriginal owners over the delivery of promised training programs, employment levels, promotion of Aboriginal people and a growing awareness of the complexity of the development of a national park of international standard. The Australian National Parks and Wildlife Service came to recognize that the success of the park depended as much on formal statutory arrangements as on informal liason between Aboriginal people and park managers.76
A recent report raises very significant concerns over the operation of joint management, in Uluru-Kata Tjuta National Park, related to inadequacies in structure, process and personal relationships.77 The structures, required under
the EPBC Act, have unclear lines of power, confusion of duties and duplication of roles and this has seriously impeded the liaison responsibilities of Parks Australia, the Mutitjulu Community and the Board of Management.78 The Report also states that here is a breakdown in the working relationship between the Director, Parks Australia Staff and Aboriginal owners because of conflict and competition leading to isolationist attitudes and dysfunction.79 Inadequate empowerment of the Board and the Director make the fulfillment of lease obligations a very difficult task.80
Power considers that:
One of the main failings in the Park has been that the structure of joint management has operated without a strong culture of accountability and performance assessment, often allowing failure on the part of key structure to go unnoticed.81
It appears that Australian joint management of national parks has been supported by extraordinary efforts, informal practices and dedication by key participants during the early evolution of the process in Kakadu and Uluru and this is a key reason for international recognition of this model of cross-cultural management. However, this approach has been eroded as personnel has changed, parks and bureaucracies have grown (with associated formalization of management processes, employment conditions and meetings) and Aboriginal bodies and communities have struggled to meet the demands of joint management without adequate powers and resources.
Aboriginal land use and management does not fit well into the dominant cultural and legal model.82 It exists within the confines of patterns of administration which tend to become highly centralized. Aboriginal organizations (such as the Central and Northern Land Councils and Mutijulu Community Inc.) have been artificially created to carry out a multiplicity of roles to satisfy the requirements of the dominant political and legal frameworks relating to the recognition of Aboriginal ownership of land, decisions about future acts involving Aboriginal and resources management and the management of the conservation estate. Overall, there has been a good faith attempt to recognize Aboriginal interests, within these constraints.
The Kakadu and Uluru models of joint management developed before Australia recognized native title under the common law and many of the recent developments in international norms. They were based on the recognition of Aboriginal “interests” (rather than rights ) and that most of these interests were negotiable (in the lease agreement) and assumed to be consistent with conservation
82 Lawrence, supra note 71, at 19.
objectives. It soon became evident that there were many conflicts relating to the objectives and priorities of the parties. The development of joint management can provide mechanisms for communication and conflict resolution but it is not the panacea for solving all conservation and land rights issues.83 Currently, Aboriginal opinion seems to be that joint management in Kakadu and Uluru provide the minimum conditions for co-operative management.84
There appears to be an understandable desire to continue to promote the Aboriginal gains in Australian joint management and not “throw the baby out with the bath water”. However, it is unlikely that the problems in relationships, structures and functions can be seriously reviewed and changed without a “rights based” approach taking full account of existing indigenous rights under international and Australian law, Indigenous customary law and future claims and negotiations (such as Indigenous Land Use Agreements) that may affect the management regimes. Joint management urgently needs to incorporate clear standards and principles to protect Indigenous rights and to provide the basis for evaluation.
Indigenous aspirations for self determination should be facilitated by joint management and not eroded by bureaucratic procedures and top-down discretions. This situation can be contrasted with co-management under the Canadian Regional Agreements. They are established under a comprehensive claims settlement that is constitutionally protected. Canadian Regional Agreements are now negotiated as part of the evolution of Indigenous self government.
6. Other Forms Of Indigenous Management
(a) Indigenous Land Use Agreements under the Native Title Act, 1993
The NTA has introduced a framework that is designed to facilitate the negotiation of Indigenous land use agreements (ILUAs). They have very significant potential to contribute to ecologically sustainable development for Indigenous communities. The ILUA provisions of the NTA, potential native title claimants can enter into ILUAs concerning territories under claim, both onshore and offshore. Many of these agreements are likely to address issues relevant to biodiversity conservation and sustainable use, including the management of terrestrial and marine protected areas, waterways, rangelands and pastoral holdings, and species which may be the subject of native title rights and interests. Canadian, United States and New Zealand precedents concerning common law and treaty-based rights suggest that biodiversity issues are likely to grow in importance legally, politically and economically within agreements concerning native or customary title to territories.
In 2000 the Federal Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund established a public inquiry into the operation and effectiveness of ILUAs.
An ILUA registered with the Native Title Tribunal has effect as a contract when registered, except that all native title holders are bound as if they were parties to the agreement. The process for registration varies for each of the three types of ILUAs and is specified in the NTA. All future acts authorised by the registered ILUA are valid to the extent that they affect native title. These negotiated agreements will allow for much greater certainty and elaboration of environmental and natural resource governance issues. ILUAs can potentially involve parties other than native title holders and may provide an affordable and flexible mechanism for their involvement in environmental and natural resource governance.
Some types of ILUAs can involve:
In summary, the 3 types of ILUA, under the legislation are:
Specifically, an ILUA may deal with the following matters in relation to an area:
(b) Kowanyama Land and Natural Resource Management Office
The Kowanyama community has become a respected major stakeholder in the management of the west coast of Cape York Peninsula in Australian State of Queensland. Its environmental governance has evolved subtly and over a relatively long period of time. It is evolving towards self-governance, unmediated by government agencies, legal bases or the usual models of co-management. The Kowanyama Office has management responsibilities over about 2000 sq km of the Mitchell River delta and catchment, which includes Deed of Grant in Trust land, and a former pastoral station. It is also manages the increasing competition within and outside the Indigenous community for natural resources (including fishing, grazing, mining, conservation and tourism).
The Kowanyama Office gets its directives from an active Community Council and a Council of Elders, comprising elders from the three main clan groups in the area. The Office is run on the following principles: community development, intergenerational sustainability, recognition of native title rights, capacity building, caution towards externally driven large-scale projects, and seeking external expertise only in accordance with community requirements. The Office has achieved substantial respect and credibility for its pro-active professionalism and innovation in negotiations with external agencies and resource users such as the commercial fishing industry and tourism interests.87
Kowanyama community has followed an incremental strategy to achieve joint management of fisheries resources in the Mitchell River delta. Until the
mid-1980s the community had no say in the management of the fisheries. They were concerned that illegal fishing practices would reduce subsistence fish stocks, while licensed commercial fishermen were concerned about alleged Aboriginal interference with nets. The community sought to achieve recognition as a legitimate resource user by government and the fishing industry by:
Through these activities Kowanyama developed relationships with government and industry bodies. These led to the negotiation of management agreements designed to protect subsistence and commercial fisheries stocks in waters adjacent to Kowanyama lands. With the authorities’ concurrence, the community closed sections of the river by purchasing commercial fishing licenses which it had no intention of using. The Community has also been successful in the enforcement of these policies.
In dealing with the problems of over-fishing, the community employed a community ranger. The Head Community Ranger went to Sydney in 1993 to train in fishery law enforcement. He has now been appointed a fully authorised fishing inspector who has the power to search and seize vehicles, boats or aircraft that he suspects of breaking state fishery or community by-laws. This enforcement function has been a very important dimension in the success of the Office.
Kowanyama community is also developing a Water Catchment Management Plan for the Mitchell River basin, as the integrity of the ecosystem affects land and natural and cultural resources in the delta. Their ideas have been inspired by contact with Native American groups in Washington state. Co-operative planning, incorporating all interest groups, is integral to Kowanyama’s plans. A Mitchell River Watershed Management Conference with other landowners and interest groups including representatives of government departments and the fishing industry established a representative working group to plan for the sustainable management of the catchment and its resources. This working group, on which Kowanyama has two representatives, is assessing the condition of the watershed and is working on the development of an integrated management strategy.
VI. CRITIQUE: CO-MANAGEMENT OR JUST PARTICIPATION
This review of evolving international law and policy (related to human rights, Indigenous rights and sustainable development) provided the necessary context for the critical evaluation of the wide range of models and approaches to Indigenous co-management in Australia and Canada. Some of the co-management models originated before the more recent international standards such as ILO 169 and the Convention on Biological Diversity. Many of the experiences with co-management originated because of environmental crises, impending large scale resource developments and a history of desperate and frustrated attempts by Indigenous peoples to return to their “country” and to manage, land, seas, resources and wildlife. Most of the literature has focused on practical implementation issues and conservation objectives, particularly in relation to co-management of national parks. It appears that there has been no systematic attempt to evaluate co- management regimes, in Australia and Canada, having regard to the contemporary evolution of these international standards and domestic legal developments, such
as Indigenous self-government in Canada.
A review of the extremely diverse experiences with co-management indicate that there are some significant gains for Indigenous peoples where there is genuine power sharing. The Inuvialuit co-management regimes and the Australian federal co-managed parks of Kakadu and Uluru Kata Tjuta provide useful examples of positive experiences. Although they need improvement, they provide much of the evidence for embracing co-management as a positive legal and practical strategy which gives real meaning to Indigenous rights.
It is evident that many co-management regimes do not involve equal power sharing arrangements or any real kind of Indigenous self-determination. They tend to confuse collaborative management (without very much devolution of the central government planning and regulatory role) or mere forms of public participation with co-management. The James Bay and Northern Quebec Agreement and some of the Australian experiences of joint management with territorial and state governments raise some concerns about this confusion. These experiences also indicate that co-management involving federal governments, as the major party, give a greater recognition of indigenous rights than co-management regimes with State, Territory and Provincial governments.
It appears that collaborative management, without clear power sharing arrangements is more likely to be offered by governments for the co-management for a large geographic areas or in relation to natural resource management (eg, forests and fisheries). The Canadian regional agreements tend to provide a stronger legal frameworks to protect Indigenous rights in this context. In many ways co-management can be expected to operate much more effectively where a whole regional governance regime is negotiated, as has occurred in some Canadian Regional Agreements and self government arrangements.
The stronger form of power sharing may be more readily negotiable where Indigenous legal claims to land are granted, or likely to be granted, and there is a consensus on a conservation objective, such as the management of a national park. This has provided a strong basis for the early Australian experience in co- management of national parks but it fails to reflect potential divergence in the views and aspirations of the parties in relation to Indigenous self-government. Serious concerns remain about how the Indigenous contributions to co- management ought to be valued and resourced and how ‘rent’ and other revenue sources should be allocated to Indigenous managers.
The requirement that Indigenous owners lease back their land, in many of the Australian co-managed national parks, also raises some serious issues. These arrangements are highly regarded in Australia because of good practice evolved by the parties, but the legal framework retains much of the usual regulatory process such as a dominant role for the Minister (if consensus decision-making fails). A few co-management regimes provide for arbitration in this situation.
These concerns must be addressed if co-management is to keep pace, in the long term, with international and national legal standards that are applicable. Some more immediate problems arise where co-management has been used by governments to avoid, or delay settling issues of Indigenous ownership and self- determination. There could be some significant concerns about this delaying tactic in relation to the Gwaii Haanas Agreement. Co-management also appears to be used as a means of negotiating the settlement of outstanding legal suits against the Quebec government in their proposed 2002 Agreement with the Crees. At another level, there is an urgent need to ensure that co-management arrangements and resources are not used as a substitute for the normal public services and citizenship rights that Indigenous peoples should be entitled to in a region regardless of co-management.