Indigenous management of marine turtle and dugong: legal and policy opportunities and impediments

Transcription

1 Indigenous management of marine turtle and dugong: legal and policy opportunities and impediments A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase

2 Indigenous management of marine turtle and dugong: legal and policy opportunities and impediments Produced by Jann Crase Consulting for the North Australian Indigenous Land and Sea Management Alliance, Dugong and Marine Turtle Project. Jann Crase Consulting Mob: North Australian Land and Sea Management Alliance, Dugong and Marine Turtle Project Charles Darwin University, Darwin NT 0909 Tel: Fax: Printed July A PDF version of this report can be downloaded from ISBN: Acknowledgements Sincere thanks to Dr Kennett for his tireless patience and perseverance to see this report finalised and for providing support and insightful advice on draft versions. Thanks also to the reviewers of the draft report for their comments and input. For all those interviewed for this report thank you for your time, frank and highly useful comments and suggestions. This report was supported by funding from the Australian Government. Acronyms used in this report AAPA...Aboriginal Areas Protection Authority (NT) AAPA Act...Aboriginal Affairs Planning Authority Act (WA) AFMA...Australian Fisheries Management Authority (Cth) ALRA...Aboriginal Land Rights Act (NT) ALRC...Australian Law Reform Commission (Cth) AMC...Australian Maritime College ATSIHP Act...Aboriginal and Torres Strait Islander Heritage Protection Act (Cth) CALM...Department of Conservation and Land Management (WA), now Department of Environment and Conservation (DEC) CDEP...Community Development Employment Program (Cth) DAFF...Department of Agriculture, Fisheries, and Forestry (Cth) DEC...Department of Environment and Conservation (WA), previously CALM DEW...Department of Environment and Water Resources (Cth), now Department of Environment, Water, Heritage and the Arts (DEWHA) DFACSIA...Department of Family and Community Services and Indigenous Affairs (Cth), now the Department of Families, Housing, Community Services and Indigenous Affairs DIA...Department of Indigenous Affairs (WA) DPIF...Department of Primary Industries and Fisheries (Qld) EPBC Act...Environment Protection and Biodiversity Conservation Act (Cth) FRM Act...Fish Resources Management Act (WA) GBRMPA...Great Barrier Reef Marine Park Authority (Cth) HSI...Humane Society International IAC...Indigenous Advisory Committee (Cth) ICC...Indigenous Coordination Centres (Cth) ILUA...Indigenous Land Use Agreement (Cth) IPA...Indigenous Protected Area (Cth) IUCN...International Union for the Conservation of Nature JCU...James Cook University KLC...Kimberley Land Council MCCN...Marine and Coastal Community Network MPA...Marine Protected Area (Cth) NAILSMA...North Australian Indigenous Land and Sea Management Alliance NCA...Nature Conservation Act (Qld) NHT...National Heritage Trust (Cth) NRETA...Department of Natural Resources, Environment and The Arts (NT) NRS...National Reserve System (Cth) NTG...Northern Territory Government OIPC...Office of Indigenous Policy Coordination (Cth) PZJA...Protected Zone Joint Authority (Cth) QPWS...Queensland Parks and Wildlife Service (Qld) RAC...Reef Advisory Committee (Cth) SRA...Shared Responsibility Agreement (Cth) TSRA...Torres Strait Regional Authority (Cth) TUMRA...Traditional Use of Marine Resource Agreement WCP...Wildlife Conservation Plan (Cth)

3 Contents Executive Summary...2 Purpose and Background...2 Key findings...2 Core Recommendations of High Priority Introduction...4 Methodology...5 Purpose of this report International recognition of customary rights in natural resources Legislative Framework for Marine turtle and Dugong Management...9 Native Title and Land Rights Commonwealth Overview Governance Biodiversity conservation Heritage Northern Territory Overview Governance Biodiversity conservation Heritage Fisheries Western Australia Overview Governance Biodiversity conservation Heritage Fisheries Queensland Overview Governance Biodiversity conservation Heritage Fisheries Torres Strait Overview Governance Biodiversity conservation Heritage Fisheries Great Barrier Reef Marine Park Overview Biodiversity conservation Animal Welfare Institutional arrangements Policy drivers Recommendations Conclusion...72 Appendix 1: Consultation feedback...73 Appendix 2: Status of marine turtles and dugong across the northern jurisdictions...75 References...76 A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 1

4 Executive Summary Purpose and Background The NAILSMA Dugong and Marine Turtle Project aims to support and facilitate Indigenous management and sustainable use of dugong and marine turtles across northern Australia. As part of this project, NAILSMA commissioned the current study of the legal and policy settings relevant to Indigenous management of marine turtles, dugong and their habitats with the aim of identifying impediments as well as opportunities. The current study is based on an assumption that Indigenous engagement in the management of marine turtles and dugong is critical to the sustainability of these species for the following reasons: Indigenous people are significant landholders of northern Australia s coastal estate including most of the coastal habitats of these species; Indigenous people make up the majority of the population in areas of northern Australia where turtle and dugong are abundant and there are very few, if any, non-indigenous managers located where management of these species is necessary, and Indigenous people have important long-held cultural connections with, and responsibilities for, dugong and marine turtles, extensive Traditional Knowledge of these species and their habitats, and significant interests in their long-term sustainability. Indigenous people believe that effective management of dugong and marine turtles requires collaboration with a range of stakeholders and governments. The current study is aimed at providing information for NAILSMA Dugong and Marine Turtle project partners to support an informed and constructive partnership with government managers of these species. The report will also be of interest to government, non-government, industry and other stakeholders seeking a better understanding of and an informed dialogue about opportunities and impediments to Indigenous management of dugong and marine turtles. The current study focuses on the legal regimes of Western Australia, the Northern Territory, Queensland and the Commonwealth, and makes specific recommendations on opportunities and approaches for resolving inconsistencies and hurdles. Key findings The current legal and policy framework for the management of marine turtles and dugong in Australia is very complex. Direct statutory responsibility for protection and management of dugong and marine turtles is shared across several federal and state/nt government portfolios, agencies and programs, and is governed by a range of policies at different scales. Coordination between these arrangements is often limited by inconsistencies in their intent and purpose, political differences across governments and portfolios. In addition, there are a number of laws, policies and programs, such as arrangements applicable to Indigenous health and wellbeing, which are not directly targeted at the management of dugong and marine turtles but have significant influence on the capacity of Indigenous communities to manage these species effectively. This complexity creates considerable challenges for Indigenous people in ensuring the sustainability of dugong and marine turtles. Where Indigenous people have attempted to build partnerships with Governments, they have often been confounded by an array of (often very different) requirements and demands in the delivery of and reporting on programs, divergent policy positions across Government agencies, and an apparent expectation amongst Government agencies that Indigenous communities can and should resolve inconsistencies within the legal and policy framework. There is often an absence of clear information for Indigenous people on jurisdictional responsibilities across Governments, or how these responsibilities mesh with the legal and customary rights and responsibilities of Indigenous people. Also, the comprehensive, long-term, and communitybased focus of Indigenous approaches to dugong and marine turtle management are often at odds with shorter-term, output-driven requirements of government programs. While there have been some important advances in recognizing customary ownership, rights and knowledge of Traditional Owners in natural resource management, these customary rights are interpreted and limited in different ways by various laws and policy. Indigenous people aspire for greater control and management over sea country, including greater involvement in directing the management of marine turtles and dugong. While there are considerable impediments to this, there are also a number of significant opportunities. Opportunities for Indigenous people to improve engagement in marine turtle and dugong may be categorised in three broad areas: Managing hunting - legal take and illegal take (in breach of cultural authority and/or applicable legislation); Managing other impacting activities - commercial fishing, tourism, marine debris etc; and Managing habitat - nesting and inter-nesting habitat, foraging habitat (including sea grass protection) and migration routes. There are also a number of existing programs that would benefit from strengthening and improvements in government coordination would have significant benefits for the management of dugong and marine turtle generally as well as Indigenous engagement in the management of these species specifically. 2 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

5 A comprehensive program to empower Indigenous people to direct dugong and marine turtle management and to implement long-term sea country conservation and management is a critical foundation for the survival of these species into the future. Core Recommendations of High Priority Recommendations i. The recommendations of this report are considered and direction provided on which will be implemented, either collectively or individually. Responsible driver NAILSMA Marine Turtle and Dugong Project Partner organisations ii. iii. iv. Significantly increase, coordinate and streamline, funding and support arrangements for existing initiatives to expand support for long term investment in sea country management including rangers and land and sea centres/organisations. Relevant initiatives include the IPA Programme, Working on Country Programme, Marine Species Recovery and Protection Grant Programme, National Partnership Approach for Sustainable Indigenous Management of Dugong and Marine Turtle, NHT NRM projects. A whole of government audit of Federal agencies with the overall aim of achieving policy functionality and coherency with respect to sea country management for, among other things, marine turtle and dugong management. It would involve: evaluating the coordination and communication mechanisms within the department and between departments to develop and implement recommendations for improvements; collating and assessing policies and programs relevant to marine turtle and dugong management and sea country management to identify alignment, conflicts and gaps; develop a strategy to increase policy alignment, deal with conflicts and seek to fill gaps identified; identifying key links with State and Territory agencies with relevant responsibilities. The WA, NT and Qld governments to separately undertake a whole of government audit with the overall aim of achieving policy functionality and coherency with respect to sea country management for, among other things, marine turtle and dugong management. It would involve: evaluating the coordination and communication mechanisms within the relevant department and between departments to develop and implement recommendations for improvements; collating and assessing policies and programs relevant to marine turtle and dugong management and sea country management to identify alignment, conflicts and gaps; develop a strategy to increase policy alignment, deal with conflicts and seek to fill gaps identified; identifying key links with Australian government agencies and NT, WA and Qld government agencies with relevant responsibilities. DEW Australian Government: DEW, DAFF, AFMA, OIPC (ICCs), GBRMPA Qld Government: NT Government: WA Government v. Establish a Working Group with representatives from the NT, WA, Qld and Australian governments to discuss the outcomes of the policy audits and to develop a plan for implementation. Australian Government to lead Qld Government NT Government WA Government A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 3

6 1. Introduction The NAILSMA Dugong and Marine Turtle Project aims to support and facilitate Indigenous management and sustainable use of dugong and marine turtles across northern Australia. The purpose of the current study is to provide the NAILSMA Dugong and Marine Turtle project partners with information on opportunities and impediments to improved Indigenous management of marine turtle and dugong. The report will also be of interest to government, non-government, industry and other stakeholders seeking a better understanding of and an informed dialogue about opportunities and impediments to Indigenous management of dugong and marine turtles The current study is based on an assumption that Indigenous engagement in the management of marine turtles and dugong is critical to the sustainability of these species for the following reasons: Indigenous people are significant landholders of northern Australia s coastal estate including most of the coastal habitats of these species; Indigenous people make up the majority of the population in areas of northern Australia where turtle and dugong are abundant and there are very few, if any, non-indigenous managers located where management of these species is necessary, and Indigenous people have important cultural connections with dugong and marine turtles, extensive Traditional Knowledge of these species and their habitats, and have significant interests in their long-term sustainability. Indigenous people believe that effective management of dugong and marine turtles requires collaboration with a range of stakeholders and governments. The current study is aimed at improving information for NAILSMA Dugong and Marine Turtle project partners to support an informed and constructive partnership with government managers of these species. The current study is focused on opportunities for and hurdles to improving Indigenous management of marine turtle and dugong. For the purposes of this study, the term Indigenous management includes both protection and use of natural resources and is embedded in broader notions of sea country management. There are significant limitations of Western law to Indigenous management of dugong and marine turtles. Western law is shaped by a culture and societal expectations very different to those of Indigenous society. The relationship between Western law and policy is not straightforward (Diagram Two). Laws and policies are derived from a fragmented, sector-specific architecture of government. Indigenous interests are not easily categorized in any one sector and as such, laws and policies relevant to Indigenous responsibilities for and engagement in land and sea management span multiple agencies and sectors. Also, Western law tends not to be able to respond to changes in societal expectations and demands quickly. More often policy can respond to and reflect contemporary expectations. Diagram One: Relationship between government agencies driving policy and programme development, which embodies or influences legislation. Legislation directs the manner in which decisions can be made on particular things, such as prescribing matters for the Minister or other decision maker to consider before making a decision, prescribing processes, such as developing management plans for protected areas, public submission periods etc). Policies and programmes derive their legitimacy from legislation as well as operational areas of the Department; assist the delivery of legislative obligations directly or through delegated authority and may lead to the development of legislation to provide certainty and enforceability to activities and decisions in a particular area. Legislation Policies and programmes Institutions: government departments and agencies Direction of influence 4 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

7 The current study focuses on the legal regimes of Western Australia, the Northern Territory, Queensland and the Commonwealth. Opportunities have been identified and recommendations are made on methods for overcoming inconsistencies and impediments. The study is not intended to: advocate any one specific recommendation over another; provide legal advice; or comment on the political context of the management of these dugong and marine turtle unless specifically relevant to the legal and policy framework under analysis. Methodology The study has been conducted by: 1. reviewing relevant legislation encompassing over thirty Acts and associated subordinate legislation (Table One); 2. consulting with over 40 public servants, land council staff, researchers and academics, land and sea centre staff and others; and 3. analysing papers and government reports, policies and programs. Information from the consultations is referred to in the relevant sections of the report. Appendix 1 contains more detail on the consultations including feedback directly relevant to NAILSMA and the broader marine turtle and dugong project. Purpose of this report The purpose of this report is to provide information and advice to the NAILSMA Dugong and Marine Turtle project partners in relation to the legal opportunities and impediments to increased Indigenous management of marine turtle and dugong. Exploration of the policy and institutional context within which these species are managed has been undertaken to clarify the nature of existing opportunities and impediments. This report is a starting point providing information on policy and legislative opportunities to promote greater Indigenous engagement in the management of marine turtle and dugong. Hopefully future actions by communities and organisations can be usefully informed by this report increasing understanding of the drivers of policy and legislative changes, where future actions may include pursuit of specific opportunities, advocating for changes to overcome existing impediments or focusing on the political context within which management occurs and will occur. This report is not: advocating for any specific course of action over another; providing legal advice; or, commenting on the political context of the management of these species unless specifically relevant to the legal mechanisms being explored. Diagram Two: Three broad areas of opportunity for Indigenous management of marine turtle and dugong. Managing hunting Other Areas Managing habitat A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 5

8 Related report Legal review for Torres Strait The intersection of state, national and international law and management structures within the Torres Strait adds significant challenges and complexity to the sustainable management of dugong and marine turtle. Accordingly, the Land and Sea Unit of the Torres Strait Regional Authority (as a partner in the NAILSMA Dugong and Marine Turtle Project) have commissioned a parallel study to the current one reviewing the legal arrangements in the Torres Strait with particular regard to establishing community-based management structures. The TorresStrait legal review looks at the current laws and policies relating to dugong and marine turtle fisheries in Torres Strait and identifies opportunities and obstacles to supporting community-based management of these fisheries. The review was conducted by the James Cook University School of Law, with input from internationally acclaimed experts in dugong and marine turtle research, members from the Torres Strait Regional Authority Land and Sea Management Unit and others. This report Current legislation and policy conducive to sustainable community management of dugong and turtle traditional fisheries in the Torres Strait (Havemann, P, Smith, R 2007, School of Law, James Cook University) can be obtained from TSRA or NAILSMA. Significant changes to Indigenous Affairs in 2007 Significant changes have been made to the Community Development Employment Scheme (CDEP) and the permit system for Aboriginal communities in the Northern Territory. CDEP is being phased out which will have implications for land and sea rangers throughout northern Australia. Further, permit requirements for non-residents visiting Aboriginal communities in the Northern Territory have been abolished in some areas which has implications, among other things, for managing access to visitor numbers in significant and sensitive areas. Other changes include the ability to lease particular remote townships and significant alteration to community governance structures. Following the change of Australian government in late 2007 it is likely that there will be further changes to the permit system. Refer also to the Commonwealth Governance section for further information. 6 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

9 2. International recognition of customary rights in natural resources Legislative frameworks for Indigenous peoples access, management and use of country and resources vary from jurisdiction to jurisdiction. This variation is predominantly due to the different ways the legal systems have recognised continuing customary rights from the preexisting sovereignty of Indigenous people. In Australia there has been a narrow interpretation of the customary rights that are continuing, for example the recognition of usufructory 1 native title rights to hunt, fish and gather food resources for subsistence (s.211 Native Title Act 1993 (Cth)). To explore the management regimes for sea country and/or for specific species under different jurisdictions it is critical to understand the manner in which the native title of Indigenous people has been recognised and the extent and content of recognition of native title rights (as a subset of customary rights). In Canada, Aboriginal title was first recognised as a weak permissive right to occupancy and personal usufructory rights (Myers, 2002). Indian occupancy prior to the arrival of settlers was confirmed as the source of Aboriginal title in Calder-v- Attorney General of British Columbia (34 DLR (3d) 145 (1973)). The Canadian Constitution was amended in 1982 to affirm and recognise existing Aboriginal and treaty rights and to clarify that these rights are protected from Provincial (i.e. State) regulation (s.35(1) Constitution Act 1982). A 1990 case concerned with the impact of commercial fishing on Aboriginal fishing rights determined that section 35(1) limits the capacity to extinguish or impair Aboriginal rights to those instances where such regulation is for a compelling purpose (e.g. resource conservation), where regulation is nondiscriminatory and where such regulation minimises the impact on the exercise of Aboriginal rights (Myers, 2002, R-v-Sparrow 70 DLR (4th) 385, (1990)). This position resonates with the recommendations of the Australian Law Reform Commission Report on the Recognition of Aboriginal Customary Laws (ALRC, 1986) explored in the Native Title section below. In New Zealand the Treaty of Waitangi 1840 reserved the pre-existing rights of the Māori, it did not provide the source of Māori rights (Myers, 2002). The 1975 Treaty of Waitangi Act resulted in a greater focus on understanding and implementing the Treaty in contemporary circumstances. The Waitangi Tribunal was established by the Act as a permanent commission of inquiry charged with making recommendations on claims brought by Māori relating to actions or omissions of the Crown that breach the promises made in the Treaty of Waitangi (www. waitangi-tribunal.govt.nz/ ). 1. Usufruct is the legal right to use and derive profit from property that belongs to another person, as long as the property is not damaged. usufruct: [Roman law] The right of using and taking the fruits of something belonging to another. It is understood to be given for the life of the received (the usufructuary ) unless a shorter period was expressed, and then it was to be restored to the owner in as good condition as when it was given except for ordinary wear and tear. [Osbourne s Concise Legal Dictionary, 8th ed, Street & Maxwell - p.339] The New Zealand Maori Council-v-Attorney-General case explored the relationship between the Crown and the Māori as a result of the Treaty and the court held that the Treaty relationship gives rise to responsibilities analogous to fiduciary 2 duties which include active protection by the Crown of the Maori in the use of their land and water to the fullest extent possible (Myers, 2002; New Zealand Maori Council-v-Attorney-General ([1987] 3 NZLR 641at 644). This case raises the issue of the actions required to be undertaken by the Crown to protect Māori customary rights. A subsequent case noted that protection of Māori rights would require active measures, not merely consulting on activities that may affect those rights (Ngai Tahu Maori Trust Board-v-Director General of Conservation [1995] 3 NZLR 553 at 560). Refer to the New Zealand example below for a brief exploration of issues surrounding customary use of a protected species. The United States Constitution (Article 1s 8 cl.3) provides that Congress may regulate commerce with foreign nations and among the several States and with the Indian Tribes. This provision does not empower Indian Tribes with substantive rights but provides the federal government with exclusive powers to regulate Indian affairs (Myers, 2002). Through case law the Indian Trust Doctrine developed which required the protection of Indian tribal interests by the federal government (Cherokee Nation-v-Georgia 30 US (5 Pet) 1, (1831)).US Tribal Governments have the same powers and authority as a state government including complete authority to regulate all activities on reservations such as allocation of water rights, fishing and taking wildlife by tribal members and the ability to licence non-members for hunting or fishing on tribal lands (Myers, 2002). The different legal systems and the manner and extent to which pre-existing sovereignty and customary rights have been recognised affect the foundations for management and use regimes of resources by Indigenous people. 2. The fiduciary duty is a legal relationship between two or more parties, most commonly a fiduciary or trustee and a principal or beneficiary, that in English common law is arguably the most important concept within the portion of the legal system known as equity. A fiduciary duty is the highest standard of care imposed at either equity or law. A fiduciary is expected to be extremely loyal to the person they owe the duty (the principal ): they must not put their personal interests before the duty, and must not profit from their position as a fiduciary, unless the principal consents. The fiduciary relationship is highlighted by good faith, loyalty and trust, and the word itself originally comes from the Latin fides, meaning faith, and fiducia. ( en.wikipedia.org/wiki/fiduciary 3/8/06). A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 7

10 Threatened Species Management example Kereru, New Zealand In New Zealand disputes over the management and Indigenous take of a protected species has some similarities to the marine turtle and dugong debate. The Kereru is the only native pigeon in New Zealand, it is slow breeding and subject to numerous threats including loss of habitat, predation and hunting. Local extinctions have occurred. Hunting of Kereru by Māori and non-māori New Zealanders has been extensive with a hunting season declared in 1864 to manage the decline in populations. Kereru have been completely protected since 1922 with a ban on any hunting. Poaching, however, is still occurring although there have been some voluntary moratoriums (Gibbs, 2003). Scientists cannot agree as to the level of decline in the populations exacerbating management initiatives and there is a clear divide between preservationist approaches to management and sustainable use aspirations expressed by the Māori (Gibbs, 2003). Despite the Treaty of Waitangi 1975 there are limited avenues for Māori empowerment and management of kereru through existing Department of Conservation management processes and legislation (Conservation Act 1987 and Wildlife Act 1953). Whilst it has been acknowledged that meaningful involvement of Māori in management could reduce poaching, current Māori involvement has been confined to a consultative role with some seats on Conservation Boards (Gibbs, 2003). A claim regarding treaty rights to flora and fauna was lodged with the Waitangi Tribunal in 1991 with closing submissions heard in June Kereru are listed as Taonga Species in Schedule One of the claim s statement of issues (Waitangi Tribunal, 2007). Taonga means treasured thing with the Kereru having particular cultural and spiritual significance to the Māori particularly for eating by elder Māori. Despite a unitary government and treaty with Māori as sovereigns, as opposed to the Australian system of federated states and the prior acceptance of the terra nullius position, there are still disputes over the rights of Māori to manage and use a protected species (Gibbs, 2003). Recommendation 1. Exploration of community based management approaches to sea country and/or use and management of native species in different jurisdictions to identify whether these approaches could apply to the Australian context. Responsible agency/organisation DEW 8 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

11 3. Legislative Framework for Marine turtle and Dugong Management The relevant legislative and policy regimes for Indigenous management of marine turtle and dugong across have been grouped into six broad areas encompassing: Native Title and land rights; cultural heritage; fisheries; biodiversity conservation, and governance (Diagram 3). Within these five areas there are opportunities for utilization by communities to strengthen Indigenous management of marine turtle and dugong as well as barriers to be overcome. Diagram Three: Six broad groups of legislation with mechanisms that improve or constrain Indigenous management of marine turtle and dugong. Animal welfare Heritage Governance arrangements Key areas relevant to Indigenous management of turtle and dugong Fisheries Native Title and land rights Biodiversity conservation A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 9

12 Table One: Legislation reviewed Type of legislation WA NT Qld Cwth Native title and land rights Native Title (State Provisions) Act 1999 Aboriginal Land Act 1980 Native Title (Qld) Act 1993 Native Title Act 1993 Aboriginal Land Rights (Northern Territory) Act 1976 Governance Aboriginal Communities Act 1979 Land Administration Act 1997 Aboriginal Affairs Planning Authority Act 1992 Local Government Act 1988 Local Government (Aboriginal Lands) Act 1978 Local Government (Community Government Areas) Act 2004 Community Services (Torres Strait) Act 1984 Local Government Act 1993 Aboriginal Land Act 1991 Torres Strait Islander Land Act 1991 Aboriginal Communities (Justice and Land Matters) Act 1984 Corporations (Aboriginal and Torres Strait Islander) Act 2006 Aboriginal and Torres Strait Islander Act 2005 Torres Strait Treaty 1978 Aboriginal and Torres Strait Islander Act 2005 Biodiversity conservation Wildlife Conservation Act 1950 Conservation and Land Management Act 1984 Territory Parks and Wildlife Conservation Act 1991 Parks and Reserves (Framework for the Future) Act 2003 Coburg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1981 Nature Conservation Act 1992 Marine Parks Act 1982 Environment Protection and Biodiversity Conservation Act 1999 Great Barrier Reef Marine Park Act 1975 Heritage Aboriginal Heritage Act 1972 NT Aboriginal Sacred Sites Act 1978 Heritage Conservation Act 1991 Aboriginal Cultural Heritage Act 2003 Torres Strait Islander Heritage Act 2003 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 Environment Protection and Biodiversity Conservation Act 1999 Fisheries Fish Resources Management Act 1994 Fisheries Act 1988 Fisheries Act 1994 Torres Strait Fisheries Act 1984 Torres Strait Fisheries Act 1984 Animal Welfare Animal Welfare Act 2002 Animal Welfare Act 1999 Animal Care and Protection Act 2001 n/a 10 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

13 Native Title and Land Rights Native title is a subset of customary rights that are legally recognised at common law and in the Native Title Act 1993 (Cth) and mirror legislation in the States and Territories. Common law determinations relating to native title over sea country have identified a nonexclusive right by claimants to have free access to the sea and the seabed for travel, non-commercial fishing and hunting, visiting and protecting places of cultural and spiritual importance and safeguarding cultural and spiritual knowledge [Commonwealth-v-Yamirr ( ) 208 CLR 1]. These native title rights are subject to the group s traditional laws and the laws of the State, Territory and Commonwealth. The court has further found that exclusive native title rights were inconsistent with the common law public rights to navigate and to fish and the international right of innocent passage. This approach affirms the Australian Law Reform Commission (ALRC) position on the legitimate limitations on customary rights of Indigenous people to fish and hunt which include the interests of safety, rights of innocent passage, shelter and safety at sea (ALRC, 1986). Non-exclusive native title rights to sea country have been reaffirmed in subsequent cases, for example in the Kimberley [Western Australia-v-Ward (2002) 191 ALR 1] and in the Gulf of Carpentaria, Queensland [The Lardil Peoples-v-State of Queensland [2004] FCA 298]. The current interpretation of native title rights in the sea as nonexclusive will continue to be challenged. The Blue Mud Bay Case where the grant of freehold as Aboriginal land under the ALRA was held to include the right to exclude commercial fishing from tidal waters, was not determined on native title grounds but indicates a move towards recognition of exclusive possession of tidal waters (Gummana & Ors v- Northern Territory of Australia 7 Ors [2007] FCAFC 23). It is a critical case in being the first to override the public right to fish in the recognition of exclusive right of possession. The Federal Court held that the licensing system under the Fisheries Act 1988 (NT) does not apply to commercial fishing in tidal waters overlying Aboriginal land (i.e. freehold). The power to grant fishing licences over tidal waters overlaying Aboriginal land, is vested in the relevant Land Trust by virtue of the ALRA (Levy, 2007). An interim permit system has been established between the Northern Land Council and the Northern Territory Government (NTG) to allow commercial fishing to continue while the matter is on appeal to the High Court ( The appeal is not going to be heard until March The continuing development of the common law around native title in and through statutory grants of title in Australia may expand legal recognition of these rights aligning them more with existing extensive customary rights. The ALRC report on Customary Rights also noted conservation interests as a further legitimate limitation on customary rights to hunt and fish, however it recommended several steps to be taken before restricting any of these rights. Specifically, the status of the species needs to be determined; the threat to these species posed by traditional hunting and fishing must be ascertained, and an assessment of other threats to the species, such as from commercial and recreational fishing, must be undertaken (ALRC, 1986). The ALRC report suggested the following hierarchy of priorities to clarify the position of customary rights to hunt and fish: (a) conservation and other identifiable overriding interests, (b) traditional hunting and fishing, (b) commercial and recreational hunting and fishing. It is interesting that commercial and recreational fishing are a lower priority activity than traditional hunting and fishing, although it could be argued that some commercial and fishing rights qualify as an overriding interest. The report also recommends that fishing and hunting not be restricted to the taking of food for sustenance but to adopt a broader definition of subsistence to ensure exchange and barter elements within clan groups and the community are included. The definitions used in legislation to describe Indigenous rights to hunt and fish vary significantly and are noted in relevant sections below. This report is not concerned with the issue of customary marine rights to commercially utilise resources in sea country. Native Title Act 1993 (Cth) Native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia (s.223). A native title holder, means a prescribed body corporate holding the native title rights and interests on trust; or the person or persons who hold the native title (s.224). Of critical importance to marine turtle and dugong hunting and Indigenous management is s.211 which preserves native title rights to hunt, fish, gather or undertake other cultural or spiritual activities where these activities would normally be restricted by Commonwealth, State or Territory legislation (s.211(1)+ (3)). However these activities must be undertaken for the purpose of satisfying personal, domestic or non-commercial communal needs; and be in exercise or enjoyment of their native title rights and interests (s.211(2)(a)+(b)). A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 11

14 Yanner-v-Eaton ((1999) 201 CLR 351) was the first case concerned with the application of s.211 native title rights to the taking of a species protected by State legislation (the Fauna Conservation Act 1974 (Qld)). The High Court found that [t]he Fauna Act did not extinguish the rights and interests upon which the appellant relied. Accordingly, by the operation of s 211(2) of the Native Title Act and s 109 of the Constitution, the Fauna Act did not prohibit or restrict the appellant, as a native title holder, from hunting or fishing for the crocodiles he took for the purpose of satisfying personal, domestic or non-commercial communal needs (at 23, joint judgment of Chief Justice Gleeson + Justices Gaudron, Kirby and Hayne; [1999] HCA 53). Section 211 has been relied on in other hunting cases, for example Stevenson-v- Yasso ([2006] QCA 40). The Australian government retains the power however to override these native title rights and interests by passing a law that, for example, states that the hunting of marine turtle and dugong can only occur under an authority (e.g. a licence) which will only be issued for research, environmental protection, public health or on grounds of public safety (s.211(1)(ba)). The enforcement of any regulations made under this subsection would be highly problematic, polarise the issue of balancing customary rights to hunt with conservation and is likely to fail. In recognition of these issues, and the need to support sustainable Indigenous management of resources, some government agencies are taking more of a partnership, approach for example through the Great Barrier Reef Marine Park Authority s Traditional Use of Marine Resource Agreements (TUMRA) and Memorandums of Understanding between Traditional Owners and the Qld Parks and Wildlife Service (Havermann et al, 2005),. However, s.211(1)(ba) remains available to the Australian government and it would appear that State and Territory governments could amend their legislation to similar effect supported by this subsection. Statements in legislation such as section 8 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) stating that nothing in the Act will affect the operation of s.211 of the Native Title Act 1993 (Cth) does not mean that s.211(1)(ba) could not be utilised at some future date. Indigenous Land Use Agreements (Area Agreements) (ILUAs) could be a useful tool for some communities wanting to exert control over sea country, they are however highly legalistic and strong advocacy and negotiation would be required to ensure an appropriate and effective management regime was established (whether through co, joint or sole management). ILUAs can extinguish (in whole or in part) native title rights (s.24cb(e)) including rights to hunt marine turtle and dugong under s.211 and therefore should be approached with caution. Significant benefits could accrue from an ILUA with several government agencies as parties providing training, support and employment opportunities for Indigenous management of sea country. Sparkes (2001) suggested a range of ways in which native title holders could manage their traditional clan estates: 1. Indigenous control of areas or particular resources through sea closures, traditional hunting and fishing zones; 2. joint management of areas in conjunction with relevant government agencies or bodies; 3. co management arrangements where decision making is by a relevant government agency in a close working relationship with the relevant Indigenous group; 4. other special status consultative processes; 5. normal consultative processes. As you can see these options are ranked from the highest level of empowerment and control including recognition of Indigenous Knowledge, to options where Indigenous people are viewed as normal stakeholders in a process. Mechanisms explored in this report generally fit into one of these categories along a spectrum of empowerment. Northern Territory Land Rights The pre-native title land rights legislative framework has enabled significant areas of land in the Northern Territory to be granted back to Aboriginal people. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) The Act established a traditional land claims process for granting freehold land in the Northern Territory into Aboriginal Land Trusts for the benefit of Aboriginal people. The Act established Land Councils to assist traditional Aboriginal owners with traditional land claims which are claims by or on behalf of the traditional Aboriginal owners of the land arising out of their traditional ownership (ss ). Under the Act traditional Aboriginal owners are defined as a local descent group of Aboriginals who: (a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and (b) are entitled by Aboriginal tradition to forage as of right over that land (s.3). Although not explicitly stated in the Act, the seaward extent of Crown Land which could be granted to a Land Trust through the traditional land claims process is the low water mark (see Schedule 1, descriptions of Crown Land to be held by a Land Trust, Arnhem Land description). Two areas of the Act relevant for marine turtle and dugong management and broader sea country management are that: (a) significant areas of the coast are under Aboriginal control as Aboriginal land by virtue of the traditional land claims process (ss. 4 20A); and, (b) the traditional rights to use and occupy Aboriginal land by Aboriginal people in accordance with tradition governing that use and occupation is enshrined (s.71). 12 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

15 The Act also identifies key areas for reciprocal legislation to cover: 1. protection of sacred sites - which shall provide for the right of Aboriginals to access these sites in accordance with Aboriginal tradition; 2. access to Aboriginal land - which shall provide for the right of Aboriginals to enter land in accordance with Aboriginal tradition; 3. protection and conservation of wildlife - especially laws for wildlife management on Aboriginal that are to be formulated with Aboriginals using the land to which the wildlife management scheme applies and any laws shall provide for the right of Aboriginals to utilise wildlife resources; and, 4. regulating or prohibiting people and activities in the sea adjoining and within 2km of Aboriginal land - which shall provide for the right of Aboriginals to enter and use the resources of those waters in accordance with Aboriginal tradition (s.73(1)(a) (d)). Where a sacred site means a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition (s.3). The Act defines Aboriginal tradition as the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs (s.3) and Aboriginal tradition determines the rights available under the Act to seek a grant of land, to gain entry and use of areas and so on. In response to s.73(1) the Northern Territory government passed: the Aboriginal Sacred Sites Act 1978 to protect sacred sites; the Aboriginal Land Act 1978 governing, among other things, access to Aboriginal land and sea closures adjacent to Aboriginal land; and the (now) Territory Parks and Wildlife Conservation Act 1991 regarding wildlife management. Aboriginal Land Act 1980 (NT) The Northern Territory Administrator may declare sea closures on seas adjoining and within 2km of Aboriginal land, restricting entry to only those Aboriginal people entitled by Aboriginal tradition to enter and use the seas in accordance with Aboriginal tradition (s.12). Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances and customs (s.3). Commercial fishers with existing licences for the area the subject of a sea closure are still permitted to enter and fish these areas, however they must notify the relevant Land Council before they enter the closed seas. The commercial fishing licence to fish in the closed waters cannot be transferred or sold (s.18). It is an offence to enter a closed sea, with a penalty of up to $1,000 (s.14) however vessels are allowed to transit the area (s.20). Sea closures therefore may be of use to communities where recreational fishing is a key threat to sea country integrity including marine turtle and dugong hunting. However the transit provision allowing for the movement of recreational fishers, commercial fisheries and ships through the closed area could make enforcement problematic and may reduce the effectiveness of the sea closure as a management tool for sea country. Further, since 1978 nine application for sea closures have been made with only two granted, therefore delivery of this mechanism for sea country protection and management has a very low chance of success. There are also no provisions providing for empowering traditional Aboriginal owners for management of the area, controlling access and enforcing the closure or for any resourcing to support these activities. Sea closures would therefore appear to protect the continuation of traditional use and access to sea country but not support traditional management of the area to mitigate impacts and assert traditional authority. There are some mechanisms under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) to facilitate greater Indigenous management of sea country generally or marine turtle and dugong specifically, most notably s.73(1)(c). Further under particular Northern Territory legislation other mechanisms are available (refer to Section 4.3 Northern Territory for details). Significant amendments to the Act have abolished the need for permits to access Aboriginal land, enabled lease arrangements to be granted over Aboriginal land, including the issuing of head leases over townships (s.19a) and altered the constitution and operation of Land Councils providing for avenues to establish and operate new land councils (ss.21 39). A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 13

16 Recommendations 2. Encourage government to undertake a proper assessment of the threats to marine turtle and dugong from other activities (including quantifying the impacts where possible) and to develop plans to address these threats, including through existing mechanisms such as recovery plans. 3. Encourage governments to take partnership approaches with appropriate resourcing and support. 4. Analyse any ILUA s over sea country to clearly ascertain potential benefits and problems with a view to making broad recommendations on effectiveness as mechanism for sea country management in northern Australia. Responsible agency/organization NAILSMA Project partners NAILSMA Project partners DEW, ICC (FACSIA) Commonwealth Overview Legislation Key activities mechanisms Administering agency Corporations (Aboriginal and Torres Strait Islander) Act 2006 Environment Protection and Biodiversity Conservation Act 1999 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 None specifically relevant for the management of marine turtle and dugong. Listing protected species and offence to take actions that will or are likely to have a significant impact on the threatened species without approval under the EPBC Act (ss.18, 18A, E threatened species, E migratory species, E marine species) Survey threatened, marine and migratory species in Commonwealth marine areas by 2009 (s.173). Marine Bioregional Planning (s.176) Advisory Committees: Threatened Species Advisory Committee; Indigenous Advisory Committee; Biological Diversity Advisory Committee (ss B). Plans: Threat Abatement Plans and Recovery Plans (ss ), and Wildlife Conservation Plans (ss ). Enforcement and compliance: appointment of authorised officers (wardens, rangers, inspectors) and their powers (ss , 396, ). Conservation Agreements over marine areas (ss ). Declaration over significant Aboriginal area (ss.3,10,13, ). DFACSIA DEW DFACSIA DEW 14 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

17 Governance Corporations (Aboriginal and Torres Strait Islander) Act 2006 This Act repealed the Aboriginal Councils and Associations Act 1976 (Cth) to provide improved governance and capacity in the Indigenous corporate sector. The Corporations (Aboriginal and Torres Strait Islander) Act aims to provide a comprehensive, stand alone regime that is aligned with much of the Corporations Act It does this by providing for incorporation and regulation of Aboriginal and Torres Strait Islander corporations, establishing a Registrar and office of the Registrar of Aboriginal and Torres Strait Islander corporations (cl 6 1). The Act came into force on 1 st July 2007 with a two year transition period for organisations to move into the new framework. The relevance of this Act in relation to Indigenous management of marine turtle and dugong is that it is now the key governance regime for organisations that were previously established under the Aboriginal Councils and Associations Act 1976 to receive CDEP including land and sea management centres and other organisations with land and sea management capacity or aspirations. This Act prescribes detailed registration processes for establishing Aboriginal and Torres Strait Islander corporations, the manner in which they are to be operated, the responsibilities of the corporations officers and so on. There have been concerns with the time and cost of transitional arrangements, the compatibility of the Bill to the obligations already faced by Native Title bodies and whether the regime will just add to the over-regulation that Aboriginal and Torres Strait Islander bodies already face (Davidson et al, 2006). Future analysis of whether the Act has struck the right balance between simplicity and good corporate governance would be of value. 3 3 There is significant supporting information and materials on the Office of the Registrar of Aboriginal and Torres Strait Islander Corporations Recommendation Responsible agency/organization 5. Assess the implications of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 specifically on organisations with land and sea management responsibilities, to identify areas for further reform. FACSIA Biodiversity conservation Environment Protection and Biodiversity Conservation Act 1999 (Cth) The Department of Environment and Water Resources advises that the EPBC Act was amended in 2007 resulting in some changes to some listing processes and other measures. Please refer to DEWR for advice on current arrangements under the EPBC Act. The object of the Act, among other things, is to: promote a cooperative approach to protection and management of the environment involving governments, the community, land-holders and Indigenous peoples; recognise the role of Indigenous people in the conservation and ecologically sustainable use of Australia s biodiversity; to promote the use of Indigenous people s knowledge of biodiversity with the involvement of and in cooperation with the owners of the knowledge (s.3(1)(d),(f)+(g)). Section 3 further provides for the ways in which the object of the Act is to be achieved including the use of partnership approaches for environmental protection and biodiversity conservation through: (a) conservation agreements with landholders; (b) recognizing and promoting Indigenous peoples role in and knowledge of, the conservation and ecologically sustainable use of biodiversity; (c) the involvement of the community in management planning (s.3(2)(g)(ii) (iv)). Whether the intent of the objects of the Act has been achieved requires further research and analysis of the provisions of the EPBC Act and the manner in which they have been implemented. The Act expressly acknowledges that native title rights, including s.211, are not affected by the Act. A survey of threatened, marine and migratory species and cetaceans in Commonwealth marine areas may be prepared by the Minister, however no timeframe is applicable for these surveys (s.173). This provision was amended at the end of 2006 where previously the survey was required to be completed by There is still a role for Indigenous Knowledge to contribute to and inform this survey when/if it happens. A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 15

18 Threatened, Migratory and Marine Species Species that are listed as threatened are categorised as extinct, extinct in the wild, critically endangered, endangered, vulnerable or conservation dependent (ss ). 4 Species may also be listed as migratory (s.209) and marine (s.248). The dugong (Dugong dugong) is listed as a marine and migratory species. The Green turtle (Chelonia mydas), Hawksbill Turtle (Eretmochelys imbricatai), Flatback turtle (Nator depressus) and Leatherback turtle (Dermochelys coriacea) are all listed as vulnerable threatened species. The Olive ridley/ Pacific ridley turtle (Lepidochelys olivacea) and Loggerhead turtle (Caretta caretta) are listed as endangered threatened species. Appendix 2 provides an overview of the conservation status of the six species of marine turtle and the dugong in relevant Australian jurisdictions. When the Minister is considering whether a species should be listed as threatened or a marine species the advice of the Threatened Species Scientific Committee must be considered (ss ).There is a process for listing threatened species (s.178), threatened ecological communities (s.181) and key threatening processes (s.183) providing two opportunities for public comment. The Minister may determine a conservation theme whether focusing on a particular group of species, one species itself or a particular geographic region in Australia (s.194d(2)(a) (c)). The Minister then invites the public to nominate items, within the conservation theme if one is determined, which are then provided to the Scientific Committee (ss.194 E + F). The Scientific Committee prepares a proposed priority assessment list which the Minister finalises (ss.194g 194L). There is a further round of public consultation on the final list (s.194m) with the Scientific Committee assessing the finalised list, undertaking an assessment of the items on the final list and providing the assessment to the Minister (ss.194n 194P). The Minister then decides whether any of the items assessed should be included on the threatened species, threatened ecological communities or key threatening processes lists. There are a range of offences for killing, injuring, taking or trading listed threatened, migratory or marine species (ss E, E and E). Permits may be obtained from the Minister (ss.200, ) to undertake actions without committing an offence. However the Minister must not issue a permit unless she/ he is satisfied that the action is of particular significance to Indigenous tradition and will not adversely affect the survival or recovery in nature of the listed threatened species or ecological community (ss.201(3)(c), 216(3)(c) + 258(3)(c)). 4 A species is eligible as conservation dependent as per the old Act or if it meets the following four criteria: the species is a fish; the species is the focus of a plan of management that provides for the management actions necessary to stop the decline of and support the recovery of the species; the plan of management is in force under a law of the Commonwealth or State or Territory; cessation of the plan of management would adversely affect the conservation status of the species (s.179). The definition of Indigenous tradition means the body of tradition, observances, customs and beliefs of Indigenous persons generally or of a particular group of Indigenous people (ss.201(4)). These definitions allow for the issuing of permits to historically affiliated Indigenous people in relation to significant Indigenous tradition where the survival of the species is not at risk. However, please note that any such requirement for a permit to take listed species would only be required for traditionally affiliated Indigenous people without s.211 native title rights to hunt, fish and gather marine resources. Further, any activities on the Great Barrier Reef Marine Park may be authorised through the permit system under the Great Barrier Reef Marine Park Act 1975 (Cth), for example through a permit issued by authority of a Traditional Use of Marine Resources Agreement (TUMRA, refer to Section 5.7 Great Barrier Reef). Recovery and Threat Abatement Plans National recovery plans set out the research and management actions necessary to stop the decline of, and support the recovery of, listed threatened species. Recovery plans list actions that must be done to protect and restore important populations of threatened species and habitat, as well as how to manage and reduce threatening processes ( coasts/publications/species-funding-priority.html). There is an obligation on the Commonwealth to implement a recovery plan or threat abatement plan to the extent to which it applies to Commonwealth areas (s.269). The Minister need ensure that a recovery plan is in force for a listed threatened species or ecological community only if the Minister decides to have a recovery plan. The Minister must decide whether to have a recovery plan for the species or community within 90 days after it becomes listed, but the Minister may, at any other time, decide whether to have such a plan (s.269aa(1)). The Minister must have regard to the recommendations of the Scientific Committee in deciding whether to have a recovery plan or not and must publish the actual decision and provide the reasons for making it (s.269aa(3)+(4)). The Minister need ensure a threat abatement plan is in force for a key threatening process only if the Minister decides that a plan is a feasible, effective and efficient way of abating the process. The Minister must consult before making such a decision. A recovery plan or threat abatement plan can be made by the Minister alone or jointly with relevant States and Territories, or the Minister can adopt a State or Territory plan. There must be public consultation and advice from the Scientific Committee about the plan, regardless of how it is made or adopted. The Minister is to ensure that there is approved conservation advice for each listed threatened species and listed ecological community (s.266b(1)). Approved conservation advice contains a statement of the grounds on which the species or community is eligible to be 16 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

19 included in the category in which it is listed, and the main factors that are the cause of it being so eligible (s.266b(2)). Threat abatement plans are to address key threatening processes where the Minister decides that a plan is a feasible, effective and efficient way of abating the process (s.270a(2)). Before making a decision on whether to develop a recovery or threat abatement plan and when drafting the plans, the Minister is to seek the advice of relevant State and Territory Ministers and the Threatened Species Scientific Committee but there is no requirement to seek the views of Traditional Owners (ss.269a(5), 270A(3)+ 270B(5)). The Minister may decide at any time to develop a threat abatement plan for a listed key threatening process, but must do so within 90 days of the process being listed under s.183 and within five years of a previous decision on whether to develop a threat abatement plan, if the previous decision was not to (s.270a(1)). The content of recovery plans is prescribed in the Act but does not require consideration of cultural values and uses of species nor the role of Indigenous Knowledge (s.270(2)), although regard must be has to the role and interests of Indigenous people in the conservation of biodiversity (s.270(3)(e)). What this means in a practical sense requires further exploration. There is also a requirement to have regard to the role and interests of Indigenous people in the conservation of biodiversity when developing the content of a threat abatement plan (s.271(3)(e)). The Australian government can provide financial or other assistance for the implementation of a plan to a person, government or agency (s.281). The Threatened Species Scientific Committee is to advise the Minister on the provision of this assistance (s.282). Plans may cover more than one species (s.283). Marine Turtle Recovery Plan A recovery plan for all six of the threatened marine turtle species has been developed. A review process is currently underway with comments from the public consultations being considered. The revised plan is expected to be released in A National Turtle Recovery Group operates to: provide advice on the implementation of the recovery plan; report on activities that they have been undertaking that address actions within the recovery plan; set priorities for funding; and, provide advice on a range of related issues. Membership of the group includes representatives from the Qld, NT and WA governments, researchers, industry and an Indigenous Advisory Committee member as well as a specific Indigenous representative. Indigenous participation and input on the draft recovery plan is important to ensuring it acknowledges the critical role of Indigenous knowledge and management and supports activities identified by Aboriginal and Torres Strait Islander peoples as those that need to be undertaken to protect and sustainably manage marine turtle species. Marine Species Recovery and Protection Grant Programme The NHT funded Marine Species Recovery and Protection Grant Programme provides support for key activities to implement recovery plans or address priority conservation and management areas ( au/coasts/species/funding.html). One of the projects funded through the 2006/07 grant round was for Girrigun Traditional Owners to undertake Indigenous management of marine turtles in conjunction with their accredited Traditional Use of Marine Resources Agreement (TUMRA) with the Great Barrier Reef Marine Park Authority (GBRMPA). The 2007/08 grant round recently closed with projects funded over a one year. Priority Recovery Actions relating to marine turtles include: support for Indigenous communities to develop information about the population trends and status of marine turtles in their sea country identify and/or collate existing information on the level of mortality of marine turtles in Indigenous communities sea country, including the levels of take. Other recovery actions from the Recovery Plan for Marine Turtles. ( pubs/species-funding-priority.pdf) There are opportunities for communities to access funding for activities that fall within the Priority Recovery Actions, however this funding is only for one year so projects need to be highly targeted. Wildlife Conservation Plans Wildlife Conservation Plans can be made for the protection, conservation and management of listed marine and migratory species or cetaceans (s.285). The process for development of a Wildlife Conservation Plan (WCP) is similar to those of a recovery or threat abatement plan. Regard must be had to the roles and interests of Indigenous people when developing the WCP, the advice of the Threatened Species Scientific Committee is to be considered as are public submissions that are made on the draft (ss.287(3)(e), 289, ). A WCP may cover more than one species (s.297). A WCP could be developed for dugong by a community and Federal government assistance could be provided for its implementation (s.296). A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 17

20 Conservation Agreements Conservation Agreements aim to enhance conservation of biodiversity and/or heritage values and may be developed for public or private land or for marine areas (s.304). A Conservation Agreement cannot be made over an existing Commonwealth Reserve (s.305(4)). The Minister must be satisfied that the agreement will result in a net benefit to the conservation of biodiversity and is consistent with any recovery or threat abatement plan (s.305(3)). A Conservation Agreement can be made with an Indigenous person, a body corporate wholly owned by Indigenous persons or established under an Act for the purposes of purposes of holding for the benefit of indigenous persons land vested in it by or under that Act, or the trustee of a trust that holds land for the benefit of Indigenous persons (s.305(5)). Conservation Agreements are legally binding (s.307). The content of a Conservation Agreement may include: Activities promoting protection and conservation of biodiversity; Controlling or prohibiting actions or processes that might adversely affect species and habitats; That the Australian government is to provide financial, technical or other assistance to a person bound by the agreement (s.306(1)). There is an opportunity therefore for a community to develop a Conservation Agreement to support their aspirations for sea country management with support from the Commonwealth to deliver it, as long as it complies with the Act and achieves the protection and conservation of biodiversity objectives. One of the recommendations of the Gillian s evaluation of the Indigenous Protected Area Programme was to explore recognition of Indigenous Protected Areas (IPAs) as Conservation Agreements, along with other options for a graduated system of Indigenous land management (Gilligan, 2006). Bioregional marine planning Marine bioregional plans are being developed for Commonwealth waters for different regions around Australia. Marine science and socio-economic information will provide a picture of each of these marine regions, describing habitats, plants and animals; natural processes; human uses and benefits; and threats to the long-term ecological sustainability of the region. Bioregional plans will also describe the range of government conservation measures already in place (such as recovery plans for threatened species), and establish new conservation measures where necessary including a system of marine protected areas (MPAs) in Commonwealth waters. The bioregional marine planning process proceeds in three stages: 1. Regional profile describing ecological, conservation and socio-economic values of the region; 2. Strategic regional assessment to identify conservation values and current and emerging pressures as well as to identify potential MPAs; 3. Draft marine bioregional plan stating conservation values; identifying proprieties for protection of those values; proposing a network of MPAs and sustainability indicators. Collaboration with stakeholders, including Indigenous people, the fishing industry, recreational fishers and others are an important part of the development of marine bioregional plans. It is important that Indigenous people are engaged in marine bioregional planning. The number of marine protected areas in Commonwealth waters will increase. Government policy is that they must be multipleuse which means that a range of activities may continue to occur in them as long as they are consistent with biodiversity conservation. No matter what management arrangements for MPAs and marine biodiversity conservation are established, all actions undertaken under the EPBC Act (including marine bioregional planning) will be undertaken in collaboration with stakeholders and must recognise Indigenous rights, including Native Title in the oceans. ( The North Bioregional Marine Planning process has an advanced regional profile with the draft marine bioregional plan anticipated within twelve months after the release of the profile. The North West Bioregional Marine Planning process is anticipating the release of the regional profile in 2008 with the draft marine bioregional plan to follow in Involvement of Indigenous people in the bioregional marine planning process will be important to ensure the plans and network of MPAs address Indigenous concerns such as recognition of traditional knowledge, protect cultural values and provide avenues for management of MPAs. Sea Country Planning Sea Country Plans assist Indigenous communities to describe their objectives for the use, management and conservation of sea country and how they want to work with others to achieve them. The plans provide a basis for negotiating with other marine users and managers to work together to common objectives and to ensure Indigenous peoples rights, interests and responsibilities in sea country are respected and supported. Five pilot Sea Country Plans were developed as part of the Regional Marine Planning Programme (now the Bioregional Marine Planning Programme), with three in northern Australia: Yolnuwu Monuk gapu Wana Sea Country Plan, Dhimurru Land Management Aboriginal Corporation Thuwathu/Bujimulla Sea Country Plan, Carpentaria Land Council Aboriginal Corporation Barni-Wardimantha Awara Yanyuwa Sea Country Plan, Yanyuwa Li-anthawirriyarra. 18 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

21 With the whole of government arrangements for Indigenous Affairs, there is a wider scope for Sea Country Plans now with to cover social, economic and employment opportunities and aspirations. Dhimurru Land Management Aboriginal Corporation has negotiated a Shared Responsibility Agreement (SRA) with the Office of Indigenous Policy Coordination and the National Oceans Office (now Marine Division of DEW) for support to develop and implement their Sea Country plan. Sea Country Plans provide a beneficial platform for Indigenous peoples to negotiate with government and other marine users to reach agreements on how sea country should be managed and to leverage funding to support Indigenous peoples management of these areas. There may be opportunities to leverage funding and other resources through Indigenous Coordinating Centres (OIPC), relevant State/Territory agencies, NHT funded Natural Resource Management bodies and NHT funded initiatives such as Envirofund. Commonwealth Reserves A Commonwealth reserve may be declared over a Commonwealth marine area (s.344). A Commonwealth reserve is assigned an IUCN category guiding its management principles (ss ). Indigenous people are not prevented from continuing the traditional use of an area in a Commonwealth reserve for hunting and food gathering (except for sale) or ceremonial and religious purposes (s.359a(1)). However regulations may be made that do affect an Indigenous person s traditional use of the area if they are made for the purpose of conserving biodiversity in the area and are expressed to affect traditional use of the area by Indigenous people (s.359a(2)). Again any regulations to this effect would not affect s.211 native title rights but could restrict the traditional use of the area by historically affiliated Indigenous people. Where a Commonwealth reserve is established on Aboriginal land the reserve is jointly managed by a Board with a majority of Indigenous members as selected by the Traditional Owners (ss.377(4)). The Board, with the Director of Parks, is to develop a management plan for the reserve as soon as practicable (s.366(3)). The content of the management plan is prescribed by the Act (s.367) as is the process for its development (s.368). The process includes a public submission period on the draft plan (s.368(5)). In preparing the plan the Board and the Director are to consider the views of the Traditional Owners of any Indigenous people s land in the reserve; and any other Indigenous persons interested in the reserve (s.368(3)(c) (ii)+(iii)). The Director cannot give a management plan to the Minister for approval without the authorization of the Board except where the Director and the Board fail to reach agreement, however the Director may seek the intervention of the Minister when there is a failure to reach agreement with the Board (s.370(1)). Indigenous Protected Areas The Indigenous Protected Area (IPA) Programme seeks to provide a planning and land management framework for Indigenous owned lands to be managed as part of the National Reserve System (NRS). The Programme developed in recognition of Aboriginal peoples interests in national park management; increasing interest and initiatives by Aboriginal and Torres Strait Islander landholders to re-establish their land management traditions; and their willingness to cooperate with government conservation agencies to address contemporary environmental issues. (Gillian, 2006, p.2). An Indigenous Protected Area (IPA) is created when traditional Aboriginal owners have entered into a voluntary agreement with the Australian Government for the purposes of promoting biodiversity and cultural resource conservation. Once an IPA is declared over Indigenous owned land it is considered part of the NRS. Many significant landscapes and ecosystems that are absent or poorly represented in the NRS only occur on Indigenous owned lands. The objective of an IPA is to achieve biodiversity conservation objectives for the NRS and to meet Indigenous landowners aspirations in relation to managing country. There is some funding available from the Australian Government to support: (a) consideration of possible IPA declaration including seeking advice and engagement within the community; (b) developing a draft management plan for the area : this plan identifies the on ground management activities and the decision making structure to govern management decisions; and (c) declaration of an IPA. There is however, a significant need for support for implementation of management plans, beyond the seed funding currently available, specifically for long term employment of Indigenous land managers delivering natural and cultural resource management services on behalf of the wider community (Gilligan, 2006). Key benefits of the IPA Programme include not only an effective contribution to biodiversity outcomes under the NRS but also broader socio-cultural outcomes for communities who manage IPAs including facilitating transfer of Indigenous Knowledge to younger members of the community; improving social cohesion stemming from a sense of worth from gainful employment and making a positive contribution to the reduction of substance abuse (Gilligan, 2006). A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 19

22 Gilligan s evaluation recommended three key areas to strengthen the success of the Programme, specifically: improving collaboration to reduce administrative complexity streamlining grant arrangements between Australian Government agencies; improved funding arrangements increasing the budget and providing for a three or five year funding cycle (subject to annual monitoring and reporting); and improving links to other government programmes. Although the IPA Programme budget has increased from $3.1M 06/07 to $6M 07/08, as recommended by Gilligan, there is still room for further bolstering to reach the $20M - $30M per annum by that Gilligan is further suggesting. A key component to expanding the IPA Programme is the need for effective tripartite agreements between the Australian Government, Indigenous land holders and the relevant State/Territory Government; ensuring the pace of expansion meets local Indigenous decision making needs and land (and sea) management capability. IPAs are a highly useful tool for Indigenous people to undertake land management activities, limitations to funding notwithstanding. However there is a lack of clarity around the scope of IPAs in relation to sea country which needs to be sorted. Currently only a small area of sea country has been included in an existing IPA which results from an interest granted under other legislation. The Dhimurru Land Management Aboriginal Corporation exercises control over a range of cultural heritage sites (sacred sites) in their seacountry with these sites registered under the Northern Territory Aboriginal Sacred Sites Act 1978 (NT). Advisory Committees There is no requirement for Indigenous representation and participation on the Threatened Species Scientific Committee (s.502). There is however a requirement for an Indigenous member of the Biological Diversity Advisory Committee (s.504(4)(ea)). The Indigenous Advisory Committee advises the Minister on the operation of the Act, taking into account the significance of Indigenous peoples knowledge of the management of land and the conservation and sustainable use of biodiversity (ss.505a + 505B). The role of the IAC is critical to ensuring the activities of DEW meet the objects of the EPBC Act specifically in relation to: recogniz[ing] the role of Indigenous people in the conservation and ecologically sustainable use of Australia s biodiversity;[and] promot[ing] the use of Indigenous people s knowledge of biodiversity with the involvement of and in cooperation with the owners of the knowledge (s.3(1) (f)+(g)). Greater support for the IAC to increase its level of activity and advisory role could be a key mechanism to improving the achievement of these objects generally and more specifically, to improving marine turtle and dugong management specifically, in the broader context of improved Indigenous land and sea management. Compliance and Enforcement Where there are arrangements with the Federal Minister and the relevant State or Territory Minister, the Federal Minister for Environment and Water may appoint an employee of a State or Territory agency as a warden or ranger under the Act (s.392). For Community Rangers to be appointed as wardens or rangers to enforce the offence provisions of the Act and any relevant plans, they would first need to be employed by the relevant State or Territory agency then there would then have to be an agreement between the Federal government and the State/Territory government. The Minister does however have the power to appoint a person as an Inspector (s.396(1)). An authorised officer includes a warden or an inspector (s.528). There are a range of functions and powers of an inspector under the Act including powers of arrest and the power to frisk (ss A). Seeking appointment of Community Rangers as Inspectors under the Act will empower communities to protect marine turtle and dugong and to manage them through implementation of relevant plans and agreements, however the obstacle to first be overcome is that Community Rangers need to first be employed by state/territory agencies. The Indigenous Advisory Committee The Indigenous Advisory Committee (IAC) was first established in 2000 with an expertise based membership of ten Indigenous people. The purpose of the IAC is to advise the Minister on the operation of the EPBC Act, to take into account the significance of Indigenous peoples knowledge of land and sea management, and conservation and sustainable use of biodiversity (s.505b). 20 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

23 Other policy and planning initiatives National Partnership Approach: The Marine and Coastal Committee of the Natural Resource Management Ministerial Council established a Taskforce on Dugong and Turtle populations in 2004 to develop a national approach to the sustainable management of Indigenous harvest of marine turtles and dugong. The final report of the Taskforce, Sustainable Harvest of Marine Turtles and Dugongs in Australia A National Partnership Approach, released in late 2005 recognised that there is already significant work being undertaken by Traditional Owner groups, Indigenous community rangers, Native Title Representative bodies and other Indigenous organisations to sustainable manage marine turtles and dugong. The National Partnership Approach (the Partnership ) involves Indigenous representatives from coastal northern, eastern and western Australia, two representatives from the IAC, one representative each from the Torres Strait Regional Authority and GBRMPA and one representative from each of the relevant jurisdictions (Qld, NT, WA and Australian governments). The key goals of the approach are to: (a) improve the information base available to Indigenous communities for managing the sustainable harvest of turtles and dugongs; (b) respect Indigenous and non-indigenous knowledge and management; (c) improve education and awareness; (d) identify the economic, social and cultural factors that may contribute to unsustainable harvest levels and identify and implement measures to address them; (e) protect sea country resources. The Partnership acknowledges that long term commitment from both Indigenous communities and government agencies is required to sustainably manage turtle and dugong populations. The aim of the Partnership is to reach a common understanding of turtle and dugong issues across Australia and to identify the best approaches for sustainable management. The Partnership provides a forum to share and learn from their turtle and dugong management experiences and to use this information to inform discussions between Indigenous communities and government agencies (DEW, 2007). There is also acknowledgement that customary authority of Traditional Owners is crucial for management and needs to be supported, encouraged and strengthened. To date there have been two meetings of the full Partnership. At the November 2006 meeting five key management themes for marine turtle and dugong were identified covering: Strong Partnerships Better Relationships; Holistic Approach; Timeframes; Other impacts; and, Learning and Sharing. The Partnership is focused on developing a toolbox of options to achieve sustainable management of turtle and dugong. These tools will be refined through future meetings to identify what support communities need from governments to manage their land and sea country. The National Partnership Approach and the draft Turtle Recovery Plan provide the overarching policy framework with the Partnership progressing policy on Indigenous take and management, and the Turtle Recovery Plan providing broader management policy for marine turtles. NAILSMA participates in the Partnership and is also on the Turtle Recovery Group with the outcomes of the NAILSMA Dugong and Marine Turtle Project being fed into the NPA and the Turtle Recovery Plan. ( Working on Country: The Working on Country programme was announced in the May 2007 Federal Budget as part of a whole of government initiative A better future for Indigenous Australians which aims to build an Indigenous workforce and create jobs in government service delivery. The programme builds on existing caring for country activities by contracting Indigenous people to provide environmental services to help maintain, restore, protect and manage Australia s environment. The focus of work is on Indigenous-held land not national parks and conservation reserves, with funding covering wages and associated costs but partnerships to leverage further funding to cover complete project costs, such as capital investment, are encouraged. A total of $47.6M is to be invested over the following four years. Ten projects have already been supported through the first round of the programme providing $14.6M over three years. A further round is due to close mid- October. Four of the ten projects currently funded directly support management of marine turtle and dugong management through employment of 44 Indigenous rangers in total, covering the Kirralka Ranger Land and Sea Management Group (Laynhapuy Indigenous Protected Area Management Plan); Anindilyakwa Rangers (Groote Eylandt); Ii-Anthawirriyarra Sea Ranger Unit (Yanuwa country, southwest Gulf of Carpentaria and Sir Edward Pellew Islands); Dhimurru Land Management Aboriginal Corporation (NE Arnhem Land), and the Kimberley Land Council (Kimberley region). Activities to be undertaken by Indigenous rangers include sea grass bed mapping; participating in marine turtle rescue, recovery and collaborative research; removing marine debris; protecting turtle nesting areas, and monitoring and generally managing turtle and dugong populations. This initiative provides a critical opportunity to bolster Indigenous ranger work to undertake a range of caring for country activities, including specifically managing marine turtle and dugong populations ( gov.au/indigenous/workingoncountry/) A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 21

24 Recommendations 6. Undertake a review of how well the objects of the EPBC Act in relation to Indigenous conservation, management and knowledge have been achieved through DEW efforts. 7. Amend sections 189 and 251 of the EPBC Act to require consideration of Indigenous Knowledge, cultural values and use of species as matters to be considered by the Threatened Species Scientific Committee when assessing species for listing. 8. Amend section 502 to require appropriate Indigenous representation and participation on the Threatened Species Scientific Committee 9. Amend sections 269A(5), 270A(3) + 270B(5) requiring Indigenous Knowledge, cultural values and use of species as matters to be addresses/considered in the development of recovery and threat abatement plans. 10. Expand the IPA Programme to sea country and provide appropriate resourcing and support for communities to access this programme. 11. Strengthen government support for Indigenous Sea Country Plans, including allocation of funding to support their development and implementation and to enable implementation of plans already created. 12. Guarantee appropriate funding and other resources to implement management actions identified under recovery and threat abatement plans with a priority placed on Indigenous management to achieve the objectives of these plans. 13. Continue support for Indigenous engagement in the Partnership approach and Recovery Plan development and implementation, including resourcing to implement key activities identified through the National Partnership Approach. 14. Significantly increase, coordinate and streamline, funding and support arrangements for existing initiatives to expand support long term investment in sea country management including rangers and land and sea centres/organisations. Relevant initiatives include the IPA Programme, Working on Country Programme, Marine Species Recovery and Protection Grant Programme, National Partnership Approach for Sustainable Indigenous Management of Dugong and Marine Turtle, NHT NRM projects. 15. Commit to resource, support and facilitate appropriate Indigenous representation and participation in groups charges with developing Threat Abatement Plans, Recovery Plans or Wildlife Conservation Plans. 16. Explore the possibly use of a Wildlife Conservation Plans, Conservation Agreements or the declaration of Commonwealth Reserves over marine areas - to achieve community sea country management objectives. Responsible agency/ organisation DEW DEW DEW DEW DEW DEW DEW DEW DEW to coordinate DEW DEW Priority: Low 22 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

25 Heritage Legislative protection for cultural heritage in sea country could be a useful mechanism for gaining some level of management authority and resources to increase Indigenous management of seacountry, and marine turtle and dugong. Any management authority can then be used to leverage greater levels of support for expanded management responsibilities in sea country, for example accessing the Indigenous Protected Areas program or developing an Indigenous Marine Protected Area. (g) (h) (i) the place has outstanding heritage value to the nation because of the place s strong or special association with a particular community or cultural group for social, cultural or spiritual reasons; the place has outstanding heritage value to the nation because of the place s special association with the life or works of a person, or group of persons, of importance in Australia s natural or cultural history; the place has outstanding heritage value to the nation because of the place s importance as part of Indigenous tradition. Areas to be clarified to determine the potential usefulness of heritage legislation for sea country protection and management include whether heritage provisions can apply to sea country sites, the level of protection provided, management requirements, options for devolution of management authority and enforcement/ compliance powers to Traditional Owners, opportunities for accessing funding to support management and/or compliance activities and importantly whether heritage listing could decrease Indigenous authority over that area with a corresponding increase in government management authority. Environment Protection and Biodiversity Conservation Act 1999 (Cth) The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) provides protection for national heritage which meets one of the listed National Heritage criteria demonstrating its National Heritage value(s) (s.324d). There is scope for a range of cultural heritage values of a sea country area to qualify as National Heritage according to the following criteria, of which only one must be met: (a) the place has outstanding heritage value to the nation because of the place s importance in the course, or pattern, of Australia s natural or cultural history; (b) the place has outstanding heritage value to the nation because of the place s possession of uncommon, rare or endangered aspects of Australia s natural or cultural history; (c) the place has outstanding heritage value to the nation because of the place s potential to yield information that will contribute to an understanding of Australia s natural or cultural history; (d) the place has outstanding heritage value to the nation because of the place s importance in demonstrating the principal characteristics of: i. a class of Australia s natural or cultural places; or ii. a class of Australia s natural or cultural environments; (e) the place has outstanding heritage value to the nation because of the place s importance in exhibiting particular aesthetic characteristics valued by a community or cultural group; (f) the place has outstanding heritage value to the nation because of the place s importance in demonstrating a high degree of creative or technical achievement at a particular period; (3) For sub regulation (2), the cultural aspect of a criterion means the indigenous cultural aspect, the non-indigenous cultural aspect, or both. (Regulation 10.01A(2), EPBC Regulations 2000 (Cth) emphasis added) The Indigenous heritage value of a place is defined as a heritage value of the place that is of significance to Indigenous persons in accordance with their practices, observances, customs, traditions, beliefs or history (s.528). Indigenous traditions means the body of traditions, observances, customs and beliefs of Indigenous persons generally or of a particular group of Indigenous persons (s.201(4)). The process for nominating a site for listing as National Heritage is laid out in the regulations (EPBC Regulations 2000 (Cth) ss A 10.01E + Schedule 5A). The Minister may determine heritage themes (this step is optional) and then invites people to nominate places for inclusion in the National Heritage List, and gives the nominations to the Australian Heritage Council (ss 324H, 324J and 324JA). The Australian Heritage Council prepares, and gives to the Minister, a list of that it thinks should be assessed (ss. 324JB, 324JC and 324JD). The Minister then finalises the list of places that are to be assessed (ss. 324JE and 324JF). The Australian Heritage Council then invites people to make comments about the places in the finalised list (s.324jh). There is a specific requirement to identify Indigenous people with rights or interests in all or part of the proposed National Heritage area, provide them with information on the nomination and invite them to make comment within 20 days (s. 324JG (5)). The Australian Heritage Council then assesses the final list and provides that assessment to the Minister (ss. 324JG JI). The Minister decides whether a place that has been assessed should be included in the National Heritage List (s. 324JJ). Certain information within the nomination may be kept confidential, thus providing some level of protection for culturally sensitive information that may be included in a nomination or provided in submissions (s.324q). The Australian government is obligated to prepare a management plan for National Heritage places in Commonwealth areas (s.324s). Commonwealth areas include any existing Commonwealth reserve, coastal waters, (excluding the territorial sea of a State or Territory), the continental shelf and waters, and the A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 23

26 waters of Australia s Exclusive Economic Zone (s.525(1) (d) (g) + (2)). Therefore listing of National Heritage areas in Commonwealth waters would obligate the Australian government to prepare a management plan for the protection and management of the National Heritage values, unless an existing management plan for a Commonwealth reserve was in place (ss.324s + 324T). Where a National Heritage place covers State or Territory coastal waters the Commonwealth must use its best endeavours to cooperatively develop a management plan consistent with the management principles with the State or Territory government (s.324x). This could provide a useful mechanism for developing consistent management of sea country over coastal and Commonwealth waters. Once an area is listed as National Heritage, Australian government agencies must comply with the management plan and if there is no management plan they must comply with the management principles of the area (s.324u and Schedules 5A and 5B). One benefit of obtaining National Heritage listing for Indigenous heritage sea country sites is that the Australian government has the discretion to provide financial or other assistance to any other person such as an Prescribed Body Corporate, Land Council, Traditional Owner group or Land and Sea country Management organization for management and protection of the area (s.324zb(2)(d)). Therefore funding and support could be provided directly to traditional custodians rather than providing funding to the State or Territory agency responsible for heritage management and protection. Once an area is listed as a National Heritage area it is protected from actions that could have a significant impact on the area. It is an offence to undertake an action that will or is likely to have a significant impact on the National Heritage values of the area without an approval from the Minister (ss.15b + 15C), including Indigenous heritage values of a National Heritage place (s.15b(4)). Therefore any such actions must be assessed and approved under the relevant provisions of the EPBC Act (ss.15b(8) + 15C(16)). This is a useful level of protection for sea country sites depending on the nature of the values protected. How Traditional Owners could effectively negotiate with the Australian government and other relevant State/ Territory governments to ensure the management plan is meeting their needs and aspirations is dependent on capacity to lobby and is likely to be subject to political forces, thereby making effective use of these heritage provisions a challenge. Any support that could be provided is totally within the discretion of the Minister. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) Protection and management could also be sought for sea country areas under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act). The ATSIHP Act allows the Minister for Indigenous Affairs to make a declaration in relation to a significant Aboriginal area under threat of injury or desecration. A significant Aboriginal area is defined as (a) an area of land in Australia or in or beneath Australian waters; (b) (c) an area of water in Australia; or an area of Australian waters; being an area of particular significance to Aboriginals in accordance with Aboriginal tradition (s.3). An area is under threat of injury or desecration where it is used or treated in a manner inconsistent with Aboriginal tradition; any activity in or near the area adversely affects the use or significance of the area in accordance with Aboriginal tradition or entry to or passage over the area by any person occurs in a manner inconsistent with Aboriginal tradition (s.3(2) + (3)). These provisions provide the trigger for obtaining a declaration over an area, however it is the content of a declaration that is crucial to the level of protection that can be provided to this area. It is an offence to contravene a provision of a declaration relating to a significant Aboriginal area (s.22(1)(b)). Applications may be made to the Minister orally or in writing (ss.9(1) + 10(1)). The Minister must be satisfied that the area is a significant Aboriginal area and is under threat of injury or desecration (s.10(1)(b)). Before the Minister makes a declaration a report from the applicants must be provided (s.10(1)). This report must include information on: (a) the particular significance of the area to Aboriginals; (b) the nature and extent of the threat of injury to, or desecration of, the area; (c) the extent of the area that should be protected; (d) the prohibitions and restrictions to be made with respect to the area; (e) the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1)(a); (f) (g) the duration of any declaration; the extent to which the area is or may be protected by or under a law of a State or Territory, and the effectiveness of any remedies available under any such law; (s.10(4)). The applicants must also publish a notice of the application for a declaration and invite submissions which are to be considered when drafting the report and must also attach to the report to be provided to the Minister (s.10(3)). If there are options for effective protection for the area under existing State or Territory laws then the Minister must not make the declaration (s.13(2)). Declarations are published and the Minister is to make reasonable effort to inform people likely to be substantially affected by the decision (s.14 (1)+(2)). 24 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

27 There are neither provisions for compliance and enforcement of the contents of a declaration nor any obligations for resourcing management actions. However the Minister may delegate some of their powers to the community as detailed in the declaration (s.31). Management responsibilities and resourcing to support appropriate protection and management of the area the subject of the declaration could be negotiated with the Minister and be appropriately detailed in the declaration. The declaration option appears somewhat limited as there is a considerable process to go through to obtain the declaration; the level of protection and management actions are subject to the content of any declaration as are the responsibilities and authority that may be granted to a community to protect and manage such an area. Further it is likely that existing State or Territory legislation could be applied in most instances to afford protection of the area preventing the Minister from pursing options under this Act. Recommendation Responsible agency/organisation 17. Where appropriate, encourage communities to explore options for listing significant sea country areas as National Heritage areas with a key focus on obtaining co or sole management responsibilities (with appropriate resourcing). NAILSMA Project partners with DEW Priority: Low A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 25

28 Northern Territory Overview Legislation Key activities mechanisms Administering agency Local Government Act 1988 Territory Parks and Wildlife Conservation Act 1991 Parks and Reserves (Framework for the Future) Act 2003 Develop by-laws to regulate land based activities such as the taking of marine turtle eggs, the butchering and transporting of marine turtle and dugong (ss.115, 210, 182, ). Could also create similar regulatory offences (s ). Council to appoint Authorised Officers to enforce the by-laws and offence provisions. (s ). Requesting the consent of the Minister to extend Council powers into the marine environment (s.124). Enter into agreements with the NT government to take on functions or powers under other legislation in the NT (s.123). For example, fisheries enforcement functions and powers under the Fisheries Act Entering into an agreements with, individual Ministers to take responsibility for administering regulations under other legislation such as the Territory Parks and Wildlife Conservation Act 1991 (s.203). Joint management of parks and reserves (ss.12, 25AA 25AR). Wildlife Management Programs (ss ) Cooperative Management Agreement (ss ) Essential habitat declarations and management (ss.37,38, 42(1) and 123(2) (b)). Offences protected wildlife (s.66) and areas of essential habitat (ss.67c(1)+(2)) Agreements regarding wildlife on land occupied by Aboriginal people (s.73). Honorary Conservation Officers to enforce by-laws and offence provisions (ss.92, 93A, 96 98). Establishes a negotiating framework for the NT Government and traditional Aboriginal owners of certain parks and reserves for the establishment, maintenance and management of a comprehensive system of parks and reserves (s.3). Grants park freehold title over a park/reserve in certain circumstances; execute a lease to the NTG for specified parks and reserves; execute joint management agreements and/or Indigenous Land Use Agreements (s.8) Department of Local Government, Housing and Sport Parks and Wildlife, Department of Natural Resources, Environment and the Arts Chief Minister, responsible minister for administering the Act. Parks and Wildlife, Department of Natural Resources, Environment and the Arts Sets out principles for lease arrangements for parks/reserves (Sch. 4). Coburg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1981 Example of specific land and sea sanctuary combining national park with use, occupation and management by Traditional Owners management (ss.3, 7, and s. 12 Territory Parks and Wildlife Conservation Act). 26 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

29 Northern Territory Overview continued. Legislation Key activities mechanisms Administering agency Northern Territory Aboriginal Sacred Sites Act 1978) Heritage Conservation Act 1991 Fisheries Act 1988 Register sacred site (ss.27 29). Enforce offence provisions (can t enter, damage desecrate etc) (s.22). Declaration of heritage place (ss.5, 24 26). Binding agreement for the protection and conservation of heritage places on private land (ss ). Minister may recommend by-laws to protect and conserve a heritage place where the land is vested in or is under the care, control or management of a statutory authority (s.38(1)(b)). Provision of financial support to those with an interest or estate in the heritage place financial support to ensure protection and conservation of the place (s.38(1)(a)). Arrangements between the Minister and a community government council, for council employees to exercise powers or functions of the Act (s.40). Where there is such an arrangement, the Director can appoint community government employees as Heritage Officers (s.41). Prohibition on the take of aquatic species protected under the Territory Parks and Wildlife Conservation Act). (s.10, Fisheries Regulations 1992) Appointment of Fisheries Officers (s.7) and powers (s.30 33). Development of management plans for particular area (ss.21 23, 27). Powers of Minister to make declarations (s.28). Aboriginal Areas Protection Authority Heritage Conservation Services, Department of Natural Resources, Environment and the Arts Department of Primary Industries, Fisheries and Mines A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 27

30 Governance The tenure of the land and the manner in which it was granted determines the governance arrangements which may be effectively utilised for Indigenous management of marine turtle and dugong. Local Government Act 1988 Community Government Areas can be declared on any non-municipal land in the Northern Territory such as Aboriginal freehold. Community Government Councils have the powers to do all things necessary or convenient to be done for, in connection with or incidental to the purpose of performing its functions (s.115(1)(a)). Where the core function of Councils is the peace, order and good governance of its council area (s.210). The seaward boundaries of Council areas would seem to stop at the low water mark (Yugul Mangi Community Government Scheme 1988, Schedule 2, Arnhem Land Portion). However controls could still be exercised by the Council through by-laws that could regulate land based activities such as the taking of marine turtle eggs, the butchering and transporting of marine turtle and dugong. By-laws could be made to prohibit particular activities and to allow for enforcement, regulatory offences could also be created (ss.182, ). A Council could therefore pass a by-law if it so desired, prohibiting the take of marine turtle eggs, butchering or transport of any marine turtle and dugong by certain people, such as Aboriginal people who are not Traditional Owners or require specific permission to be obtained by Aboriginal people who are not Traditional Owners from specified people, such as Elders, before undertaking such activities. There are options for extending Council control into the marine environment through: (a) requesting the consent of the Minister to extend Council powers into the marine environment (s.124), thereby allowing by-laws to more fully control the take of marine turtle and dugong; or, (b) entering into an agreement with the Northern Territory Government to take on functions or powers under other legislation in the NT (s.123). For example, fisheries enforcement functions and powers under the Fisheries Act; and/or, (c) entering into an agreement with, for example, the Minister for Environment and Heritage for the Council to administer regulations under the Territory Parks and Wildlife Conservation Act 1991 (s.203). Under option a) the Council would have control over the nature and extent of any by-laws it developed to apply to the marine environment which is an advantage over options b) and c) which are reliant on utilizing existing Acts and regulations. However option b) could enable a suite of new functions and powers to be granted to the Council providing for more effective control over not only marine turtle and dugong take but habitat protection and management of third party uses of the marine environment to provide for greater protection of marine turtle and dugong and sea country. Option c) is reliant on the efficacy of existing regulations under relevant Acts and would require agreements with a range of different Ministers to provide the more comprehensive approach available under option b), however a key benefit of option c) is that it could allow the Council to slowly expand its powers and responsibilities in line with community capacity and interest. The Council has the power to appoint Authorised Persons (s.204) who have the power to require names and addresses, and proof of identification of people potentially breaching a by law. Authorised persons can also call on the police to assist in enforcing by-laws. Enforcing by-laws could include the arrest or removal of a person offending the by-law (s.191) which could be a highly useful power for communities to protect their sea country and marine turtle and dugong. It should be remembered that bylaws cannot be inconsistent with existing regulations or another Act (s.182(1)). Councils may not be the most appropriate structure to exercise traditional authority over a particular area for management purposes. Biodiversity conservation Territory Parks and Wildlife Conservation Act 1991 Joint Management of Parks or Reserves A process for establishing joint management of parks or reserves between Traditional Aboriginal Owners and the Northern Territory Government is provided for by the Act (Part III ss. 25AA 25AR). The objective of joint management is to establish an equitable partnership to manage and maintain the park or reserve as part of a comprehensive and representative system of parks and reserves in the Territory for the purposes of: (a) benefiting both the traditional Aboriginal owners of the park or reserve and the wider community; (b) (c) protecting biological diversity; serving visitor and community needs for education and enjoyment (s.25ab). Joint management is based on a range of principles including recognising, valuing and incorporating Aboriginal culture, knowledge and decision making processes (s.25ac(a)). Joint management plans are to be prepared by the joint management partners (s.25ad). Plans must meet the specified requirements as to content (s.25ae) and with a public submission period on the draft (s.25ad). Interestingly section 25AJ expressly provides for the limitation of the right of Aboriginal people to use the park or reserve for hunting, food gathering or ceremonial or religious purposes in a joint management plan. This limitation must only be applied to the extent necessary and reasonable for environmental or safety reasons. 28 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

31 The ability of section 25AJ to limit traditional hunting of marine turtle and dugong is restricted to circumstances where: 1. there is a jointly managed parks or reserves; 2. the joint management plan limits hunting or food gathering for environmental or safety reasons; and 3. hunting is undertaken by non Native Title holding Aboriginal people who would not be covered by s.211 of the Native Title Act 1993(Cth). The circumstances under which these conditions would be met are likely to be very rare. Given that the s.211 native title right to hunt, fish and gather food is likely to apply negating the effect of s.25aj, one wonders why it has been adopted. It is interesting to note that similar provisions in the Nature Conservation Act 1992 (Qld) remain uncommenced even though there are greater numbers of historically affiliated Indigenous people in Queensland not covered by s.211 who would be affected by such a provision limiting hunting and food gathering rights. Otherwise the Act provides no further limitations on the continuation of traditional use of land and water of an area for hunting, food gathering, ceremonial or religious purposes in accordance with Aboriginal tradition (s.122(1)). Traditional use does not include food gathering or hunting for the purpose of sale (s.122(1)). The Act also acknowledges the operation and effect of the Native Title Act 1993 (Cth). In jointly managed parks or reserves by-laws can be made to give effect to the functions and powers of the joint management partners and to matters in the joint management plan to be prescribed as by-laws (s.25aq(1) (a)+(b)). The by-laws may provide that their breach constitutes a regulatory offence (s.25aq(3a)) and no prosecution may commence without the written authority of the joint management partners (s.25aq(4)). Conservation of wildlife The Minister must decide the conservation status of wildlife species in the Territory and public submissions are invited on the public notice of the classification of the species (s.29(1)+(2)). The Minister must identify threatened wildlife by notice in the Gazette (s.30). Wildlife must be managed to: promote its survival in its natural habitat; to conserve biodiversity in the NT; to control or prohibit acts that adversely affect or are likely to adversely affect the capacity of wildlife to sustain its natural processes; and for its ecologically sustainable use (s.30(1)). Wildlife Management Programs may be developed for the protection, conservation, sustainable use, control and management of wildlife (s.32(1)(a). Management Programs may be developed cooperatively with the Australian government or another State or Territory (s.32(1)). There is no requirement to consider Aboriginal values, uses or perspectives on wildlife species in the development of Wildlife Management Programs. There are also no directions to provide for (or consider) Indigenous wildlife management as part of the Management Programs. However Cooperative Management Agreements may be entered into between the Parks and Wildlife Commission and an Aboriginal organization for the implementation of a Wildlife Management Program (s.35). An agreement may include financial support from the Northern Territory Government to achieve the objectives of the agreement (s.36). There is no direction as to whom agreements can be made with. Wildlife Management Programs may also refer to areas of essential habitat and agreements regarding wildlife on land occupied by Aboriginal people (s.73). Essential habitat Land that is habitat essential for the survival in that area or those areas of wildlife generally or a species of wildlife may be declared as essential habitat (s.37(1)). The definition of land includes the sea (s.9(1)), therefore areas of habitat essential to the survival of marine turtle and dugong may be declared as essential habitat to improve their protection through management of critical threats, for example trawling. A declaration of essential habitat must include details of the area to be covered; the wildlife reliant on the habitat; reasons for the declaration (such as critical threats); the proposed management for the area (including Cooperative Management Programs, by-laws etc) and that the use and enjoyment of the area must be consistent with the objectives of the declaration (s.37(5)). A public submission period of 28 days is provided for on draft declarations of essential habitat and the Minister must consider all submissions before making the decision to declare or not (s.38). Conservation Officers are empowered to undertake management activities in the essential habitat area to achieve the management objectives of the area (s.42(1)). Freehold land is not available to be declared as essential habitat unless it is Aboriginal (communal) freehold (s.37(4) (a)). The focus here is on the potential use of essential habitat provisions of the Act for intertidal and marine areas. The Administrator may make regulations on a range of matters including the establishment of a local management committee for an area of essential habitat, prescribing the functions and powers of such a committee (s.123(2)(b)) Protected Wildlife All wildlife that is in a park, reserve, essential habitat or is a native vertebrate of Australia is protected wildlife (s.43(1)). Regulations may also prescribe species of wildlife as protected wildlife (s.43(2)). It is an offence to take or interfere with protected wildlife without an authority to do so (s.66(1)). It is also an offence for a person to either directly or indirectly, alter, damage or destroy an area or A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 29

32 part of an area of essential habitat unless authorised to do so (s.67c(1)). Further the taking, interfering with or removal of wildlife from an area of essential habitat is also an offence, unless the person is authorised to do so (s.67c(b)). Agreements regarding wildlife on land occupied by Aboriginal people The Commission can enter into agreements with Land Councils or organizations that control or manage the land in question for the management of the land to protect and conserve wildlife on the land and protect the natural features of the land (s.73(1)). The agreement may be in relation to land that is occupied or used by Aboriginal people and from where wildlife is taken (s.73(1)). Agreements appear to be able to be made over sea country ( land ) and financial assistance can be provided for management (s.73(1a)). The agreement can provide for the establishment of a permit granting process in accordance with Aboriginal tradition(s.73(1b)). This could allow for a community permitting system for marine turtle and dugong hunting where desired and necessary. It is unclear however whether the object of the agreement to protect and conserve wildlife would necessarily match Indigenous aspirations for sustainable use. It is also unclear whether agreements would provide for a positive management regime, empowering and resourcing Aboriginal people to implement it. However, there is one current conservation agreement over Aboriginal land covering 1,000km2 of the Dhimurru Indigenous Protected Area (NRETA, 2005). Indicating positive benefits can flow from such an arrangement. A review of the effectiveness of the agreement to meet the needs and aspirations of Traditional owners would be beneficial. Enforcement and Compliance The Minister may appoint a person as an Honorary Conservation Officer, subject to terms and conditions as they think fit (s.92(3)). The primary function of an Honorary Conservation Officer to assist the Director with the management of parks, reserves, sanctuaries and areas of essential habitat and with the conservation of wildlife (s.93a). The Director determines the powers of an Honorary Conservation Officer and any conditions on the exercise of those powers (s.93b). Powers could include those of search (premises and persons), inspecting permits, and confiscation and forfeiture (ss ). Community Rangers therefore could be trained and appointed as Honorary Conservation Officers with a sliding scale of powers and responsibilities as they undertake further training and/or gain relevant experience. Draft Northern Territory Parks and Conservation Masterplan 2005 The Northern Territory Government (NTG) developed a Parks Masterplan and released it for public comment in September The public comment period closed in November As a draft plan the document does not reflect NTG policy nor does it commit the NTG to the policies expressed or any future action. It is unclear how far NTG policy and commitment has changed since the original 2005 draft document was released. There has been no revised version addressing the issues raised in public submissions and the document is yet to be finalised. The Masterplan is part of an integrated package for the parks and conservation agenda in the Territory which aims to: Provide for the full engagement of Indigenous people in all aspects of parks and conservation management Resolve a number of land claim and native title issues Significantly advance cooperative park planning and management Improve the comprehensiveness of the Territory s park system Achieve enhanced biodiversity protection in all other land and marine tenures Establish and build up on the Territory s marine biodiversity capacity to better conserve the marine and coastal environment Present the public with a wider range of recreational/ tourism opportunities both within parks and reserves and beyond (NRETA, 2005, p.iii). Identification of terrestrial areas for the conservation of biodiversity is the core objective of the Masterplan. The document notes the limited information available about the marine and coastal environment whilst recommending, amongst other things, that species management plans and/or conservation plans for marine and coastal species of conservation significance need to be developed. The Masterplan is seeking to expand the parks system, improve tourism infrastructure and develop partnerships to achieve conservation outcomes across Aboriginal, pastoral and urban freehold land as well as the marine environment. The general principle of the Masterplan around which all recommendations are framed, is that effective biodiversity conservation and management comes from supporting and working with landholders, with a particular emphasis on working with Indigenous ranger groups. 30 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

33 Both dugong and marine turtles feature as major biodiversity values of the Territory (Table 9, p.34). Useful recommendations in the document include working with Traditional Owners and others to investigate and negotiate the establishment of new parks, Indigenous protected areas or other forms of protected areas for a range of identified terrestrial and marine areas, noting that some of these identified areas have now been declared as IPAs, such as the Laynhapuy Homelands. Part of the plan deals with biodiversity conservation on Aboriginal lands with the objective to Enhance biodiversity conservation and management capability on Aboriginal land (NRETA, 2005, p.62). The need for more secure and long term funding independent of welfare based programs such as CDEP is recognised as being crucial to ensuring ranger programs are more effective in delivering biodiversity outcomes and regional development through the creation of real employment opportunities. Recommended actions include seeking whole of government support for further establishment and expansion of Aboriginal community land and sea ranger groups; providing encouragement, financial support and training for Aboriginal ranger groups using land management facilitators; implementing, through negotiation with Traditional Owners and representative bodies, guidelines for the conduct of conservation management activities on Aboriginal land and providing support for initiatives to retain traditional knowledge and expertise (NRETA, 2005, p.62). The document provides an indication of NTG direction in relation to conservation biodiversity with a range of opportunities for increased support for caring for country activities including land and sea centres and rangers as well as a greater role in the planning and management of protected areas. The extent of these initiatives to support specific projects for the management of dugong and marine turtle is unknown and the Marine Protected Areas Strategy and the NT Marine and Coastal Biodiversity Management Strategy are likely to provide the relevant policy framework for this work. ( publications/draftplan.html) Marine Protected Areas Strategy and NT Marine and Coastal Biodiversity Management Strategy The Northern Territory Government Marine Biodiversity Group is tasked with developing strategies for Marine Protected Areas and NT Marine and Coastal Biodiversity management. The purpose of the Marine Protected Areas Strategy is to recognise: The unique and relatively pristine habitats of NT marine ecosystems; The strong socio-cultural associations and prevalence of coastal Indigenous ownership and legal rights; The significant social, ecological, fisheries and economic benefits of establishing Marine Protected Areas (MPAs); The need for a science-based and participatory approach to MPA identification and selection involving all stakeholders. Partnerships and consultation with Indigenous organizations and people are a key priority due to the prevalence of coastal Indigenous ownership, traditional systems of saltwater management and legal rights. This collaboration intends to recognise and facilitate the application of local sea country knowledge of Traditional Owners and local Indigenous communities to result in better marine protection and management for the benefit of all Territorians. The Marine Biodiversity Group are responsible for determining the appropriate administrative and legislative framework to deliver the MPA strategy as well as ensuring sufficient resources and funding through relevant programs to implement a system of MPAs. An initial draft of the MPA strategy has been prepared and considered by the Advisory Group. The NT Marine and Coastal Biodiversity Management Strategy aims to address the deficit of information and knowledge of the marine and coastal biodiversity of the NT to achieve improved management outcomes. The strategy process will involve reviewing existing strategy, policy and technical documents relating to coastal and marine ecosystems, habitats and species; undertaking a conservation and threat analysis to enable prioritization conservation management issues and recommending actions. Stakeholders will be engaged to assist with assessing and prioritizing management actions. Although no specific Indigenous engagement or partnerships are noted in relation to the NT Marine and Coastal Biodiversity Management Strategy, this process along with the MPA Strategy process appear to provide a useful opportunity for the involvement and empowerment of Aboriginal people with jointly managed MPAs as a possible key outcome of these processes, as well as the recognition of Indigenous Knowledge of seacountry. A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 31

34 Parks and Reserves (Framework for the Future) Act 2003 This Act provided a process for granting a range of parks and reserves to traditional Aboriginal inhabitants as park freehold title. A 99 year lease to be then granted to the NTG and joint management arrangements entered into for the management of the park or reserve (ss.8, 10, 12, , Schedules 1 5). A Park Land Trust is established for the purpose of holding park freehold title in trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land over which the title is granted. The Act specifies the powers and responsibilities of the Parks Land Trust (s.10 (4) (7)) and the Parks and Reserves (Framework for the Future) Regulations 2005 detail the membership and procedures of the Parks Land Trust (s.10(8), Regs 4 7). The principles for the lease of parks or reserves to the NTG include the lessee giving preference to the participation of traditional Aboriginal owners of the park or reserve in any commercial activities conducted under the lease (Sch. 4, cl. 6). The lease must permit the traditional Aboriginal owners of the park or reserve to use the land in accordance with the joint management agreement for the park or reserve (Sch. 4, Cl. 7). The Act also requires that the joint management agreements must specify that visitors are permitted to enter the park or reserve without payment of an entry fee (s. 10 (2)). This provision limits the ability of traditional Aboriginal owners to leverage funding to support management activities for the park or reserve. The Chief Minister may excise an area from a park or reserve for the purpose of an Aboriginal community living area only with the agreement of the relevant Land Council (s.14(1)(a) + (2)). The Chief Minister may also include in a park or reserve an area of land granted as an Aboriginal community living area (s.14(1)(b)). Commercial activities may occur within the park freehold land without a consent authority from the Planning Minister if it is consistent with the use as a park or reserve (s.15(1) (3)). This Act provides a framework for joint management of parks and reserves in the Territory with limited scope for sea country joint management arrangements unless marine reserves and/or marine protected areas are established and listed under Schedule 3 as other parks and reserves for which joint management arrangements are to be entered into. The restriction on requiring an entry fee is a matter that may need further consideration. In September 2005 there were already seven parks owned and jointly managed by Aboriginal people with a further twenty seven parks to be jointly managed under this Act; thirteen being offered title under the Aboriginal Land Rights (Northern Territory) Act 1976 and a further four with a special form of parks freehold title. Coburg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1981 The Act establishes the Coburg Peninsula Sanctuary Land Trust (s.7) with the further declaration of the sanctuary as a national park in perpetuity (s.12). The Coburg Marine Park is declared under s.12 of the Territory Parks and Wildlife Conservation Act However the sanctuary and the marine park are to be managed in accordance with the Coburg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1981 or with the applicable Plan of Management (s.12(2)). The sanctuary and the marine park are able to be used and occupied by the group (s.11). Where the group means all the Traditional Aboriginal Owners and Aboriginal people who are entitled to use or occupy the sanctuary and/or marine park (s.3). Traditional Aboriginal Owners are defined in the Act as a local descent group of Aboriginals who (a) have common spiritual affiliations to a site on the sanctuary and/or marine park, being affiliations that place the group under a primary spiritual responsibility for that site and for the land on which, or water in which, it is situated; and (b) are entitled by Aboriginal tradition, as of right, to forage over land, or fish in water, referred to in paragraph (a). (s.3). The use and occupation by other Aboriginal people who are entitled to do so is based on either spiritual affiliation to the land or for other reasons that may be recognised by Aboriginal tradition (s.3). Aboriginal tradition is defined in the Act as the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships (s.3). Where the group is defined as all the traditional Aboriginal owners and the Aboriginals entitled to use or occupy the sanctuary and/or marine park (s.3). A Board, with half its members nominated by the Northern Land Council, is responsible for preparing a plan of management (POM) for the area; protecting and enforcing the rights of the group to use and occupy the sanctuary and/ or marine park; and to determine (in line with the POM) the rights of access to parts of the sanctuary and/or marine park by people who are not members of the group (ss.24 31). The Coburg Peninsula Sanctuary/Marine Park approach provides an example of recognizing and safeguarding traditional Aboriginal use of the marine environment and providing protection elements through the national park and marine park designation which allow for greater Aboriginal control, use and management of the area, closing some areas off from commercial activities, designating specific hunting zones and so on. No assessment or evaluation of its effectiveness as a mechanism for empowering and facilitating Indigenous management and achieving conservation outcomes has been undertaken. Marine parks however, provide only limited protection to marine environments from impacting activities occurring outside of its boundaries for example land based sources of pollution and run off. 32 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

35 Recommendations 18. Amend s.32(2) of the Territory Parks and Wildlife Conservation Act 1991 to include specific requirement to address the cultural values of wildlife the subject of a Wildlife Management Program including Indigenous Knowledge, Traditional Owner rights and obligations. 19. Develop a Co-managed Wildlife Management Program template for ensuring Aboriginal values, concerns and aspirations are incorporated through an equitable partnership providing for Indigenous management of wildlife. A strategy for the uptake of the Wildlife Management Program template for co-management will need to demonstrate how to develop the framework (or how it was developed), why it is needed, why it would be successful. 20. Promote Co-Operative Management Agreements favourable to supporting Indigenous wildlife management through Co-managed Wildlife Management Program or through existing Wildlife Management Programs. With an appropriate co-managed Wildlife Management Program for dugong and marine turtle these agreements could provide the basis for strong Indigenous management of species with broader sea country management benefits. 21. Explore opportunities for declaring marine turtle and/or dugong habitat declared as essential habitat (s.37) with a Co-operative Management Agreement to support Traditional Owner management. 22. Explore opportunities for declaring marine turtle and/or dugong habitat declared as essential habitat (s.37) with a Co-operative Management Agreement to support Traditional Owner management. 23. Explore options for appointing Aboriginal people, particularly Community Rangers, as Honorary Conservation Officers with appropriate support and training to enforce offence provisions of the Act and particularly enforce breaches of any by-laws of a jointly managed park or reserve or offences relating to areas of essential habitat. 24. Evaluate effectiveness of Conservation Agreements as appropriate mechanisms for providing support to Indigenous land and sea management activities. Responsible agency/organisation NRETA NRETA NRETA NRETA with NAILSMA Project partners NRETA with NAILSMA Project partners NRETA with NAILSMA Project partners NRETA in partnership with Indigenous organisations and representative bodies. A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 33

36 Heritage Legislative protection for cultural heritage in sea country could be a useful mechanism for gaining some level of management authority and resources to increase Indigenous management of seacountry, and marine turtle and dugong. Any management authority can then be used to leverage greater levels of support for expanded management responsibilities in sea country, for example accessing the Indigenous Protected Areas program or developing an Indigenous Marine Protected Area. Areas to be clarified to determine the potential usefulness of heritage legislation for sea country protection and management include whether heritage provisions can apply to sea country sites, the level of protection provided, management requirements, options for devolution of management authority and enforcement/ compliance powers to Traditional Owners, opportunities for accessing funding to support management and/or compliance activities and importantly whether heritage listing could decrease Indigenous authority over that area with a corresponding increase in government management authority. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) This Act provides blanket protection for all sacred sites in the Northern Territory making it an offence to enter or remain on land that is a sacred site (s.69). As previously noted, the Act required the Northern Territory to pass legislation for the protection of sacred sites which provide for the right of Aboriginals to access these sites in accordance with Aboriginal tradition (s.73(1)(a)). Northern Territory Aboriginal Sacred Sites Act 1978 (NT) Custodians of sacred sites can apply to the Aboriginal Areas Protection Authority (AAPA) to have the site registered (ss.27 29). A custodian of a sacred site is an Aboriginal person who, by Aboriginal tradition, has responsibility for that site (s.3). A sacred site is a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition (s.3). It is an offence to enter a sacred site, whether registered or not, unless a certificate has been issued by the AAPA to allow such entry (s.33). It is also an offence to desecrate or undertake work on a sacred site (ss ). Neither desecrate or work is defined under the Act. Therefore depending on the nature and values of the sacred site in sea country, certain activities, such as commercial fishing, could constitute an offence under the Act for unlawful entry, desecration of the site, and/or work, unless they have an Authority Certificate for entry (s.43) or work (s.34(2)). These provisions could provide a high level of protection allowing for traditional authority and management of the area to protect the sacred site and provide for broader management of sea country. Aboriginal people have access rights to sacred sites in accordance with Aboriginal tradition and this access is not an offence under the Act (s.46). Landowners have the right to use the sacred site land consistent with its protection (s.44). There do not appear to be any provisions authorising AAPA staff (or others) to enforce the Act, although any prosecutions for offences under the Act are to be brought by the AAPA (s.39). There also are no provisions requiring management of sites unless under s.41(1)(e) measures for protection are stated and funding provided to the land holder to effect such protection. It would be crucial for Traditional Owners to negotiate for such protection measures and resourcing under s.41(1)(e) if they applied to register a sacred site. The registration of a sacred site does not increase its level of protection as all sacred sites in the NT are protected, however it does allow for better enforcement of offence provisions (entry, desecration and works ss.33 35) and provides an opportunity for management. Further it may provide effective leverage for application of other management measures. For example Dhimurru have a registered sea country sacred site which has demonstrated traditional authority and obligations in sea country facilitating the extension of their Indigenous Protected Area including sea country (Bruce Rose, DEW, pers.comm, June 2006). Heritage Conservation Act 1991 (NT) The Heritage Conservation Act 1991 (HCA) provides for identification, assessment, recording, conservation and protection of heritage places and objects (s.3). Heritage places can include landscapes, coastlines and plant and animal communities or ecosystems of the Territory (s.3). Any person may apply to the Heritage Advisory Council to have a place or object to be declared as a heritage place or object (s.21). The Heritage Advisory Council is to assess the application against the relevant heritage assessment criteria provided in section 5 of the Heritage Conservation Regulations Most of the criteria are focused on natural and biological values, there is some scope for listing sites for cultural significance under section 5(p) where a site is highly valued by a community for religious, spiritual, symbolic, cultural, educational or social associations it can be listed. Submissions from the land holder (if applicable) and the public are to be considered before a recommendation is made to the Minister (ss ). The Heritage Advisory Council provides a recommendation to the Minister who then has 90 days within which a decision must be made (ss ). Protection of listed heritage places includes offences for alteration or desecration (s.33). The Heritage Advisory 34 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

37 Council may develop a conservation management plan for a listed place however it is under no obligation to do so (s.30). The purpose of the plan is essentially to describe the type of work that can be undertaken in the heritage place and any conditions on such work (s.30(2)). Plans must take into account the perspective of the owner or occupier of the land and the general public, however there are no particular requirements to consult with and take advice from Traditional Owners (s.30(1)). Further the Heritage Advisory Council has the power to amend the conservation management plan at any time (s.32). Agreements can be made providing for the protection and conservation of heritage places on private land (s.36). These agreements are binding on the landholder (s.37). The Minister may provide financial support to those with an interest or estate in the heritage place to ensure protection and conservation of the place (s.38(1)(a)). Further, the Minister may recommend the making of bylaws to effect protection and conservation of the heritage place where the land is vested in or is under the care, control or management of a statutory authority (s.38(1) (b)). Recommendation The Minister may make arrangements, for example, with a community government council regarding the performance of functions or exercise of powers under the Act by employees of the community government council (s.40). Where there is such an arrangement, the Director of AAPA could then appoint community government employees as Heritage Officers (s.41). This legislation may provide protection, for example, where a community wishes to protect sea grass habitat or a cultural heritage seascape. Negotiations between the government and community will need to ensure at a minimum genuine co-management of the area, that the conservation management plan is developed by Traditional Owners and the community and that support under s.38 is provided. The potential appropriateness and usefulness of community government council employees appointed as Heritage Officers and whether a conservation agreement would be of benefit to the community also need to be explored. Overall opportunities under this legislation to increase management and protection for habitat for marine turtle and dugong are limited. Responsible agency/organisation 25. Share information with interested communities about options under the Northern Territory Aboriginal Sacred Sites Act 1978 to protect and manage sea country heritage sites through registration (ss.27 29) and exploring ways to enforce the offence provisions against damage, desecration or entry to sites (s.33). NRETA Fisheries Fisheries Act 1988 Some of the relevant objects of the Act are to: (b) to maintain a stewardship of aquatic resources that promotes fairness, equity and access to aquatic resources by all stakeholder groups, including (i) indigenous people; (ii) commercial operators and aquaculture farmers; (iii) amateur fishers; and (iv) others with an interest in the aquatic resources of the Territory; and (c) by means of a flexible approach to the management of aquatic resources and their habitats, to promote the optimum utilisation of aquatic resources to the benefit of the community (s.2a). The Act defines aquatic life as any species of plant or animal life (except birds) which at any time of the life history of a species must inhabit water (s.4). Fishing is defined as the taking of aquatic life thereby including hunting of marine turtle and dugong (s.4). Marine turtle and dugong are subject to the operation of the Act, cf. the WA and Qld fisheries legislation. However there is a Memorandum of Understanding between NRETA and the Department of Primary Industries, Fisheries and Mines providing that these species are to be managed under the Territory Parks and Wildlife Conservation Act. A general prohibition on the taking of fish or aquatic life does not apply to taking for subsistence or personal use in compliance with any limits, such as size (s.10(2)). The Act also provides that the right of Aboriginals who have traditionally used the resources of an area of land or water in a traditional manner can continue to do so and that nothing in the Act shall limit this right, unless a provision expressly states that is to restrict this right and clarifies the extent to which this restriction will apply and is in line with the operation of other laws in the Territory (s.53). Any restrictions imposed under the Act on traditional rights to fish and hunt would be subject to the operation of section 211 of the Native Title Act 1993 (Cth). The Fisheries Regulations 1992 prohibit the take, as by catch or otherwise, of fish or aquatic life which is a protected species under the Territory Parks and Wildlife Act 1991 (s.10, Fisheries Regulations 1992). As this provision does not expressly state its application to Aboriginal traditional take, s.53 provides for the continued exercise of traditional resource use in a traditional manner. A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 35

38 If s.10 did operate to restrict Aboriginal take section 211 of the Native Title Act 1993 (Cth) would again come into operation exempting native title holders from the operation of the prohibition. Management plans can be developed to ensure that habitat of fish or aquatic life and the general environment is not detrimentally affected (s.21(d)). Therefore management plans specifically to protect and manage the habitat of marine turtle and dugong can be developed. The Minister could declare an area as a management area to be managed and then develop a management plan (ss ). A management plan can prohibit certain fishing activity; restrict activity by prescribing how it is to occur (e.g. gear and vessel restriction or specific method); and prescribe who may undertake the activity (for example, only Traditional Owners) (item 2, Schedule 2). Management Plans are enforceable as regulations (s.27). The Minister may establish a Fisheries Management Advisory Committees to assist the Director in preparing proposed plans and giving advice in relation to operative plans (s.24). Membership of the committee may include a range of specific users and experts, however Traditional Owners are not mentioned as a specific category of participants to be sought out and involved and have an ongoing management role (as they desire) (s.24(2)). Communities that seek to have a management plan over part of their sea country to manage habitat and will need to ensure that any Fish Management Advisory Committee that is established has at a minimum majority Traditional Owner membership and that decision making on the committee reflects traditional authority decision making as much as possible. It may be more appropriate to negotiate a totally different arrangement with the Minister with respect to advice and guidance in development and implementing the management plan, an arrangement that is more firmly based in traditional authority and management structures to provide genuine empowerment of Traditional Owners in this process. There are however seven Aboriginal Fisheries Consultative Committees currently operating with some successful resolution of particular issues such as trespass and incidental take of dugong by commercial fishers. However with the exception of the Manbuynga ga Rulyapa Committee, [these committees] have not met since ,when the Northern Land Council suspended support on the grounds that despite participation over a long period, little action had been taken to address the key issues and concerns raised by Traditional Owners, and that the meetings had become mostly vehicles for one-way information dissemination from fisheries managers and scientists. (Scott, 2003). A review of the effectiveness of these committees in meeting Aboriginal peoples needs, interests and aspirations would be beneficial to inform their future operation including the level of decision making and advisory powers of the committees. The management planning provisions therefore provide some scope for communities to protect and manage marine turtle and dugong and their habitat however there are no options for devolution of management responsibilities in the Act and the process for developing any management plans only provides for a broad based advisory committee. Pursuit of this option will require significant work negotiating with the Fisheries Minister to develop new and culturally appropriate processes for developing management plans, devolving management authority to Traditional Owners and adequately resourcing these efforts. Amendment of the Act to entrench these approaches could be of benefit but is clearly a long term initiative. The Fisheries Minister can appoint whomever she/he thinks fit as a Fisheries Officer (s.7(1)). Appointment of community rangers or other Indigenous people could therefore enable effective enforcement of management plans and other relevant provisions of the Act. A Fisheries Officers has powers to question and examine and of search and seizure (ss.30, 31 and 33). There are limited options for empowering traditional authority and management over sea country under the Act. Communities could pursue having community rangers appointed as Fisheries Officers for enforcement and compliance of the Act, including ensuring no take of marine turtle and dugong (s.10, Regulations). It may be preferably for communities to pursue specific management arrangements through requesting the Minister to make regulations rather than embarking on the management plan process. The Fisheries Act was the subject of a review in 2006, however the outcome of the review is unknown and no amendments have yet been made to the Act. Indigenous Community Marine Ranger Program There are fourteen Indigenous marine and sea ranger groups participating in surveillance, monitoring, resource management and cultural activities across the NT coastline. The Northern Territory Government (NTG) sponsors six of the fourteen groups through its Indigenous Community Marine Ranger Program. These six groups are: 1. Tiwi Marine Rangers Melville and Bathurst Islands 2. Lianthawirriyarra Sea Rangers Borroloola 3. Gumurr Marthakal Rangers Galiwin ku (Elcho Island) 4. Bawianga Djelk Rangers Maningrida 5. Thamarrurr Rangers Wadeye (Port Keats) 6. Mardbalk Sea Rangers Warruwi (Gouldbourn Island). Annual support of $60,000 per annum is provided by the Department of Primary Industry, Fisheries and Mines as well as confiscated fishing vessels and two 4WDs. The program was initiated in 2001 with formal agreements signed in 2006 with each ranger group committing to carry out patrols, education and communication activities with government agencies also providing monthly 36 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

39 reports to the NTG. Some marine turtle and dugong management and monitoring activities are undertaken by the sea rangers, such as the Lianthawirriarra rangers in the Borrolola area and the Tiwi Marine Rangers working in partnership with WWF. The Gumurr Marthakal Rangers of Galiwin ku have identified completing training to enable rangers to have enforcement powers as one of their key goals. There has been no review or assessment of the Indigenous Community Marine Ranger program to identify whether it is meeting its objectives or could be improved to provide more effective support for Indigenous community marine ranger activities. ( Indigenous_Marine_Rangers_Handbook.pdf) Recommendations Responsible agency/ organisation 26. Amend s.24(2) of the Fisheries Act 1988 (NT) to require specific Indigenous membership of the Fishery Management Advisory Committees to ensure that Indigenous Knowledge, values, rights and interest in the fishery subject to the development of a management plan are incorporated as appropriate. 27. Review the effectiveness of the existing Aboriginal Fisheries Consultative Committees in providing an effective and appropriate mechanism for Indigenous people to raise issues and for their successful resolution. 28. Review the effectiveness of the Indigenous Community Marine Ranger Program to identify areas for improvement, including enhanced funding arrangements. DPIFM DPIFM DPIFM A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 37

40 Western Australia Overview Legislation Key mechanisms Administering agency Land Administration Act 1997 Aboriginal Affairs Planning Authority Act 1972 Wildlife Conservation Act 1950 Conservation and Land Management Act 1984 Aboriginal Heritage Act 1972 Fisheries Resource Management Act 1994 Care, control and management of reserves by management body, possibly through management plan (ss.41, ). The AAPA Act establishes the Aboriginal Lands Trust whose functions include the acquisition and holding of land, and its use and management for the benefit of Aboriginal people (ss (b)). All fauna protected, offence to take without authorization (ss ). Establishment and management of marine reserves (ss A- 26F). Appointment of Honorary officers by the Executive Director (ss ). Development of proposed management plan for any land (including conservation parks, national parks, nature reserves, marine nature reserves, marine parks and marine managed areas) (ss.53 60A). Controlling body prepares proposed management plan (Conservation Commission or Marine Authority) (ss ). Minister approves proposed management plan noting requirements to consider Fisheries Minister and/or Mining Minister comments (s.60). Delegation of Minister s powers in relation to protection of an Aboriginal site (s.9). Minister declares protected area over outstanding Aboriginal site (s.19). Enforce offence provisions (s.17). Orders prohibiting fishing (s.43). Fish Habitat Management Areas (ss ). Honorary Fisheries Officers (s.179). Department of Indigenous Affairs Department of Indigenous Affairs Department of Environment and Conservation Heritage and Culture Branch, Department of Indigenous Affairs Department of Fisheries Governance The nature of the grant or lease of land to Aboriginal people will determine the powers available to the community for management and control of that land and activities on it. Land Administration Act 1997 The Minister may, by order, reserve Crown Land for one or more public purposes (ss ). The definition of Crown Land includes land below the high water mark unless it is inundated (s.4(2)). Therefore reserves may include the tidal area that is land below the high water mark when it is not inundated. The Minister may place the care, control and management of the reserve with one or more people, the management body (s.46). A management body may provide the Minister with a plan for the management, development and use of the reserve, for approval (s.49). Significant reserves of Crown Land in the Kimberley are held by Indigenous organizations (management bodies). 5 A management body is responsible for the care, control and management of the reserve. For reserves abutting 5 Aboriginal Lands Trust Estate accessed 5 July 2005 For example, La Grange leased to Bidyadanga Aboriginal Corporation, One Arm Point leased to Bardi Ardyaloon Inc. and so on. Leases for pastoral properties are also covered by the Land Administration Act 1997 provisions. 38 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

41 the coast some management arrangements regarding marine turtle and dugong, such as turtle egg collecting, the butchering and transport of marine turtle and dugong within the reserve, could be developed. These arrangements could be contained in a management plan approved by the Minister or perhaps as part of the conditions of the lease as the exact nature of the powers of the management body to apply the content of the management plan is unclear. There are no specific provisions stating that management bodies may develop by-laws for the care, control and management of their reserves. Aboriginal Affairs Planning Authority Act 1972 The AAPA Act establishes the Aboriginal Lands Trust whose functions include the acquisition and holding of land, and its use and management for the benefit of Aboriginal people (ss (b)). Any reserves granted under Part III of the AAPA Act can be placed under the control and management of the Aboriginal Lands Trust (s.24). The Governor has the power to declare reserves over Crown Land for the benefit of Aboriginal people (s.25(a)). The Governor may also declare that all or part of an area declared as a reserve under Part III be reserved for the exclusive use and benefit of Aboriginal people who are or have normally been residents in the area and for their descendents (s.32). The interaction between the AAPA Act and the Land Administration Act is unclear, however it would appear that the Aboriginal Lands Trust could play some role in developing management arrangements for particular reserves regarding land based activities of marine turtle and dugong hunting (nest management/protection, egg collection, butchering and transport). Further research, analysis and advice in this area is required to clarify potential opportunities for communities living and managing reserves. Other legislation that may provide further sources of authority for community control and management of land based marine turtle and dugong activities include the Local Government Act 1995 and the Aboriginal Communities Act 1979 which specifically applies to the Bidyadanga Aboriginal Community La Grange Inc and the Bardi Aboriginal Association Inc (s.4). Recommendations Responsible agency/ organisation 29. Clarify the interaction between the AAPA Act and the Land Administration Act to identify the authority of Management Bodies and the Aboriginal Lands Trust in relation to management of reserves, whether through by-laws, conditions in the lease of the reserve or other mechanisms. 30. Explore the Local Government Act 1995 and the Aboriginal Communities Act 1979 to clarify potential opportunities for communities living on and managing reserves. DIA with the KLC Priority: Low DIA with the KLC Priority: Low Biodiversity conservation Wildlife Conservation Act 1950 All fauna in Western Australia is wholly protected through the entire State at all times, unless otherwise declared by the Minister in a notice in the Government Gazette (s.14(1)). It is an offence to take protected fauna without an authorization (s.16). The Act provides an exemption for people of Aboriginal descent taking fauna or flora from Crown Land, with the consent of the occupier where occupied, for themselves and their family (not for sale) (s.23(1)). This exemption does not apply to nature reserves or wildlife sanctuaries. The provision further states that the Governor may, by regulation, suspend or restrict this exemption where he/ she is satisfied that the provision is being abused or that any species of fauna or flora which is being taken under the authority of this section is likely to become unduly depleted (s.23(1)). Again if the taking of marine turtle and dugong were to be restricted in this manner the s.211 native title right to hunt and fish for Aboriginal native title holders would override it, however these provisions would affect the ability of historically affiliated Indigenous people to hunt. There are no direct mechanisms under the Act to empower Indigenous people for management of sea country and protected species such as marine turtles and dugong. However the appointment of Community Rangers and other Indigenous people as Conservation Officers with the enforcement and compliance powers under the Act could be useful. Refer to the following section for further information. There are no requirements for conservation or recovery plans to be prepared for listed flora and fauna. There is no specific legislation in Western Australia that deals specifically with threatened ecological communities, proposals are referred to the EPBC Act process ( ) A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 39

42 Wildlife Management Programs The Department of Conservation has statutory responsibilities for the conservation of flora and fauna through the Wildlife Conservation Act 1950 and the Conservation and Land Management Act The preparation and implementation of wildlife management programs for wildlife throughout the State is a broad strategy within the Department s Strategic Plan. The Department will prepare Recovery Plans for threatened taxa, groups of threatened taxa and for threatened ecological communities according to priorities laid down by the Corporate Executive in consultation with relevant consultative committees and the National Parks and Nature Conservation Authority (DEC, 1992). The Department s Policy Statement No. 44 Wildlife Management Programs lays down procedures for the development and implementation of Recovery Plans and Interim Recovery Plans (IRPs). The Policy also covers the setting up and operation of Recovery Teams who are involved in the preparation of Recovery Plans. Recovery Teams are also set up to coordinate the preparation and implementation of Regional or District Threatened Flora Management Programs ( content/view/842/1212/). Recovery plans are defined as a Wildlife Management Program produced by CALM [now DEC] with the overall objective of the recovery from current threat of extinction of a threatened taxon, of groups of taxa or of a threatened ecological community (DEC, 1992, p.1). A Wildlife Management Program means a document produced by CALM [now DEC] providing and assessment of the current status of and detailed information and guidance of the management and protection of any taxa and their habitats, groups of taxa and their habitats, or a threatened ecological community. (DEC, 1992, p.1). Three committees have been established to aid the public consultation process, particularly in relation to the development of lists of declared taxa and in the development of priorities for research and management. These committees are the Threatened Flora Scientific Advisory Committee, the Threatened Flora Scientific Advisory Committee and the Endangered Species Consultative Committee. It is not know whether there are any Indigenous members of these committees or whether the role of Indigenous people in managing species and the critical role of Traditional Knowledge of species needs to be addressed in the development of Recovery Plans or the Wildlife Management Program. WA Dugong Management Plan The Dugong Management Plan is in an draft stage with public release and a comment period some time off. There is a WA Marine Turtle Coordinator based in Karratha. Conservation and Land Management Act 1984 The CALM Act aims to provide for the use, protection and management of certain public lands and waters and the flora and fauna thereof. The key potential mechanism for increasing Indigenous management over sea country and therefore marine turtle and dugong are through marine reserves. Options for community rangers or other appropriate community people to have enforcement powers under the Act may also be of use. Any reference to the term marine reserve includes marine nature reserves, marine parks and marine management areas (s.3). The Governor can reserve any part of WA waters as a marine nature reserve, a marine park or a marine management area (s.13(1)). The Governor is to make reservations by order to be tabled in Parliament subject to a disallowance motion (s.13(1), (5) + (6)). There is an opportunity for public submissions on a proposal to declare once the Minister has received a report on the proposal from the Marine Authority and the Minister for Fisheries and Minister for Mines have approved the notification (s.14(1) + (1a)). There is a minimum three month time frame for public submissions (s.14(4)). Further, an indicative management plan for the proposed reserve must be prepared and issued (s.14(2c)). The Minister then provides a submission to the Governor with any modifications to the proposal, after she/he has received a report on the public submissions received from the Marine Authority (s.14(5) + (6)(a)). The Minister for Fisheries and Minister for Mines must also concur with the submission provided to the Governor (s.14(6)(b)). To provide a greater role for Indigenous people in this process a new subsection similar to s.13(3a) could be inserted in the Act as s.13(3b) requiring the Minister to consult and/or obtain the consent of Traditional Owners before any waters within their traditional estate is reserved under section 13. The three different types of marine reserves are declared for different purposes and have different management arrangements. Marine nature reserves are reserved for (a) the conservation and restoration of the natural environment; (b) the protection, care and study of indigenous flora and fauna; and (c) the preservation of any feature of archaeological, historic or scientific interest (s.13a(1)). No commercial or recreational fishing, aquaculture or pearling activity can occur within a marine nature reserve (s.13b(2)). Marine nature reserves have the highest levels of protection of the three types of marine reserves. Marine parks are established for the purpose of allowing only that level of recreational and commercial activity which is consistent with the proper conservation and restoration of the natural environment, the protection of indigenous flora and fauna and the preservation of any feature of archaeological, historic or scientific interest 40 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

43 (s.13b(1)). A range of areas within the marine park are to be designated providing for different levels of activities, for example sanctuary areas where commercial fishing, recreational fishing and aquaculture are completely prohibited (s. 13B(2),(5) (7)). Managed marine areas are established for the purpose of protecting the marine environment so that it may be used for conservation, recreational, scientific and commercial purposes (s.13c(1)). There may be circumstances under which aspirations of Traditional Owners for sea country management (including protection and management of marine turtle and dugong) might match one of the three marine reserves that can be declared over WA waters. Consideration would need to be given to the impact on non-native title holding i.e. traditionally affiliated Indigenous people of any marine reserve where fishing and hunting activities could be restricted as s.211 rights are not available to them. Opportunities should be explored for effective and genuine co-management of any marine reserves between Traditional Owners and DEC. The Act also establishes a Marine Parks and Reserves Authority (the Authority) as well as a Marine Parks and Reserves Scientific Advisory Committee (ss.26a + 26F). The Authority has the responsibility for developing management plans for marine reserves and advising the Minister in relation to proposals to declare marine reserves (s.26b(1(d)+(e)). Seven people with knowledge and experience of matters relating to the functions of the Authority, namely marine are appointed by the Minister as members of the Authority (s.26d(1)). There is no requirement for any of these people to be Indigenous people, to have knowledge, understanding or expertise in traditional use of marine resources or Indigenous knowledge of sea country as there is no specific function of the Authority relating to traditional use of marine resources or Indigenous knowledge and related matters. Where a marine reserve is to be declared, at a minimum, the Authority should provide the revised management plan with a summary of the public submissions to the relevant Indigenous organization/body (s.59) to increase the level of involvement in the development of the management plan. Management Plans Proposed management plan for any land, which includes conservation parks, national parks, nature reserves, marine nature reserves, marine parks and marine managed areas, are to be developed by the controlling body (ss ). The controlling body is either the Conservation Commission (ss.18 26AC) or the Marine Authority (discussed above). The proposed management plan must contain a statement of policies or guidelines and a summary of operations to be undertaken within a defined time period, which must not be longer than 10 years (s There are different objectives depending on the type of park/ reserve the management plan is being prepared for. (ss A(1), 13b(1), 13C(1)). For example a marine park management plan must meet the objects set out in s.13b. There is a public notification and submission period which must not be less than two months (ss ). After receiving the public submissions the controlling body must provide the proposed management plan to the relevant local government, to an associated body if the nature reserve is jointly vested or to any other body they think relevant (s.59). Noting that the Marine Authority must submit the proposed management plan for a marine park or marine managed area to the Minister for Fisheries and the Minister for Mines (s.59(5)). The Minister approves the proposed management plan with modifications as she thinks fit, however she must be satisfied that the proposed management plan gives effect to matters raised in the submission from the Fisheries Minister (on aquaculture, commercial and recreational fishing and pearling) and from the Mines Minister (on mining or petroleum related exploration or production activities) (s.60). Enforcement The powers of Conservation Officers (appointed under s.45(1)(a)) are extensive including the ability to possess and control weapons thought to be used in the commission of an offence under the Act. In relation to options for community enforcement and compliance, the Executive Director may appoint any person to be an Honorary Wildlife Officer, Honorary Ranger or an Honorary Conservation and Land Management Officer (s.46(1)). Honorary Officers may have powers over the whole state or for a particular area, therefore community rangers or other appropriate community people can be appointed as Honorary Officers for a specific marine reserve. A certificate is issued for each Honorary Officer prescribing the general nature of their duties and to which area of the State they can exercise their functions (s.48). A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 41

44 Recommendations 31. Insert a new subsection in section 13 of the CALM Act, subsection 13(3b) requiring the Minister to consult and/or obtain the consent of Traditional Owners before any waters within their traditional estate is reserved under section Amend section 26D of the CALM Act to provide for Indigenous representation and participation on the Marine Parks and Reserves Authority. 33. Require Indigenous membership of the Threatened Fauna Scientific Advisory Committee and the Endangered Species Consultative Committee to insure Indigenous values and perspectives on particular species and management approaches, as well as Indigenous Knowledge informs the development of Recovery Plans or the Wildlife Management Program 34. Explore opportunities for establishing effective co- management arrangements for Marine Protected Areas. 35. Explore options for the appointment of Honorary Officers from the community to enforce the CALM Act, the specific marine reserve management plan and/or specific offences. Also to exercise the functions and powers of a Conservation Officer to enforce relevant provisions of the Wildlife Conservation Act (1950). 36. Share information and explore options with interested communities about benefits and costs of establishing and managing marine reserves over sea country (including strategies for ensuring co-management and resourcing, support and capacity building for management where desired). Responsible agency/ organisation DEC DEC DEC DEC with KLC DEC DEC with KLC Priority: Low Heritage Legislative protection for cultural heritage in sea country could be a useful mechanism for gaining some level of management authority and resources to increase Indigenous management of seacountry, and marine turtle and dugong. Any management authority can then be used to leverage greater levels of support for expanded management responsibilities in sea country, for example accessing the Indigenous Protected Areas program or developing an Indigenous Marine Protected Area. Areas to be clarified to determine the potential usefulness of heritage legislation for sea country protection and management include whether heritage provisions can apply to sea country sites, the level of protection provided, management requirements, options for devolution of management authority and enforcement/ compliance powers to Traditional Owners; opportunities for accessing funding to support management and/or compliance activities and importantly whether heritage listing could decrease Indigenous authority over that area with a corresponding increase in government management authority. Aboriginal Heritage Act 1972 The object of the Act is to provide for the preservation on behalf of the community of places and objects customarily used by or traditional to the original inhabitants of Australia or their descendants, or associated therewith, and for other related purposes. The Act applies to the following places which are then Aboriginal sites for the purposes of the Act: (a) any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present; (b) any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent; (c) any place which, in the opinion of the Committee, is or was associated with the Aboriginal people and which is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State; (d) any place where objects to which this Act applies are traditionally stored, or to which, under the provisions of this Act, such objects have been taken or removed (s.5). There is therefore some scope for application of the Act to culturally significant sea country. 42 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

45 Once it is established that the Act applies to a particular place and there is a representative body of Aboriginal people who have an interest in a place that is of traditional and current importance, the Minister may decide to authorise people nominated by the representative body to exercise powers delegated by the Minister in relation to that place (s.9). The extent of these powers is to be set out in a notice (s.9). This provision is potentially useful for providing for devolved management and enforcement authority over an area by Traditional Owners (specifically undertaken by those as nominated by the representative body). To ensure availability of sites for traditional use, where the Minister has custody or control of an Aboriginal site and there is a representative body with an interest in the place that is of traditional and current importance to it, the Minister will make the place available to the representative body whenever required for Aboriginal traditional purposes relevant to that place (s.8). The Minister must also record places of cultural heritage to assist in determining the relative importance of recorded places to prioritise resource allocation to ensure coordinated and effective protection (s.10(1)). No other provisions mention funding for management or protection purposes, so this would have to be strongly pursued by communities seeking to utilise this Act to achieve ongoing management and protection outcomes. It is an offence to excavate, destroy, damage, conceal or in any way alter any Aboriginal site; or to deal with the site in a manner not sanctioned by relevant custom, unless an authority from the Registrar or the Minister s consent to undertake such an activity has been obtained (ss.16, 17 and 18). The Act enables the Minister to declare an Aboriginal site as a protected area where it is of outstanding importance (s.19). Where such a protected area has been declared the Governor may make regulations prohibiting or imposing conditions or restrictions upon access, use of tools, working the land and so on, where contravention of a regulation constitutes an offence (s.26). It could be possible for communities to request the declaration of a protected area and to negotiate to ensure regulations regarding management of the area are appropriate that they clarify the management role of the community according to its aspirations in this respect. The Minister may appoint any person as an Honorary Warden with powers as prescribed in the regulations (ss.50(1) + 68).The terms of appointment are also to be specified, including length of appointment and area of operation (the whole state, a particular area or areas) (s.50(1)). These powers may include the powers of inspection, to examine an Aboriginal site, place or object, and to examine, make inquiries and undertake tests (s.51). Further Honorary Wardens may have the power to represent the Minister if so delegated this power (s.52). Fisheries Fish Resource Management Act 1994 The object of the Act is to conserve, develop and share the fish resources of the State for the benefit of present and future generations. The definition of fish does not include aquatic reptiles or mammals therefore marine turtle and dugongs are not covered by provisions of the Act (s.4). The focus on options under the Act is therefore on habitat protection, for example sea grass. Where an Aboriginal person takes fish from any waters in accordance with continuing Aboriginal tradition and if the fish are for the person s use or their family s use and not for a commercial purpose, then no recreational fishing licence is required (s.6). As marine turtle and dugong are not included in the definition of fish this provision has no application to traditional hunting of these species. The Minister may make an order prohibiting fishing activity however the provision does not state under what circumstances such an order can be made (s.43). This might be of use in extreme cases of commercial or other fishing activity impacting on marine turtle and dugong and/or their habitat. As management plans are developed for a fishery and marine turtle and dugong do not come within this definition, management plans will only provide incidental protection of habitat (s.54). It might be possible to obtain access restrictions and gear conditions, however considerable effort would be required to obtain these small gains in habitat protection. The costs would appear to outweigh the benefits of such involvement for Indigenous people. Entry, the taking of fish and other activities in a designated fishing zone may be prohibited or regulated under the Fish Resource Management Regulations 1995 (WA) (s.113, FRM Act). There do not appear to be any positive management requirements within a designated fishing zone however Fisheries Officers have powers to direct people to leave the zone, cease their activity and/ or remove anything from the zone (s.112). These powers could be delegated to community rangers or other appropriate Indigenous people. The Executive Director can appoint any person as an Honorary Fisheries Officer whose extent of power is stated in the instrument of appointment (s.179). The powers of Fisheries Officers are extensive including powers to enter land, stop and search vehicles, require the provision of information and so on (ss ). However the purpose for which these powers would be exercised is limited to the management of activities in a designated fishing zone, so unless a fishery or other activities were impacting on marine turtle and dugong, these enforcement and compliance options provide little benefit to improving Indigenous management of marine turtle and dugong. A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 43

46 The Minister can set aside an area as a fish habitat protection area for: (a) the conservation and protection of fish, fish breeding areas, fish fossils or the aquatic eco-system; (b) the culture and propagation of fish and experimental purposes related to that culture and propagation; or (c) the management of fish and activities relating to the appreciation or observation of fish.(s.115) A fish habitat protection area for the conservation and protection of the aquatic ecosystem is the most likely category to provide for management and protection of marine turtle and dugong. A draft plan for the management of the area must be approved by the Minister before the proposal to declare a fish habitat protection area is made (s.117). There is a public submission process to provide input on the proposal and draft plan (s.118). A community that is seeking to have a fish habitat protection area declared over part or all of their sea country needs to be in a position to negotiate with the Minister regarding the draft plan and details of the proposed declaration to ensure, at a minimum, a sufficient level of management control is vested in the community with accompanying support and resources for effective implementation. The control and management of a fish habitat protection area can be vested in a body corporate providing an opportunity for Indigenous control and management over this part of their sea country possibly through prescribed body corporates (s.119). Early negotiation with the Minister would again be crucial to ensure this control was appropriately vested. Regulations regarding the management or protection of a fish habitat management area can be made, providing a broad opportunity to address matters not covered in the plan or for management arrangements where there is no appropriate body corporate for control and management to be vested in (s.120). The regulations can deal with fishing, access, ecotourism or any other activities that might impact on the area (s.120(2)). The development of fish habitat protection areas appears to be a very promising mechanism under the Act for increasing Indigenous management and control over sea country as it provides for extensive control over activities, has mechanisms for vesting control and management in Indigenous organizations and can provide leverage for accessing funding and support as well as providing a strong platform for the appointment of Indigenous people as Honorary Fisheries Officers to ensure compliance. Recommendations Responsible agency/ organization 37. Amend sections 115 and 117 of the FRM Act to include customary marine resource use, cultural values and Traditional Owner aspirations as matters to be addressed through the declaration process for a fish habitat protection area and the subsequent development of a plan for management. Dept of Fisheries 38. Explore the potential of having community rangers or other appropriate Indigenous people appointed as Honorary Fisheries Officers (whether in conjunction with efforts to establish a fish habitat management area or not). 39. Develop a brief exploring options for negotiating with the Minister for Fisheries to establish a fish habitat management area where control is vested in an appropriate body corporate, the draft plan is developed in partnership (or by the community itself) and resourcing is provided to assist the delivery of management and compliance responsibilities. The use of regulations to effect management of the area should also be explored. Dept of Fisheries with KLC Dept of Fisheries with KLC Priority: Low 44 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

47 Queensland Overview Legislation Key activities mechanisms Administering agency Local Government (Community Government Areas) Act 2004 Local Government Act 1993 Aboriginal Communities (Justice and Land Matters) Act 1984 Community Services (Torres Strait) Act 1984 Nature Conservation Act 1992 Marine Park Act 1982 No specific mechanisms for increased empowerment for management of marine turtle and dugong. Aboriginal Councils are local governments with all the powers and authority of local governments under the Local Government Act 1993 (ss.11, 70, Schedule 3). Community Governments are the local government for community government areas (Schedule 4). Develop local laws for the regulation of land based marine turtle and dugong activities (ss ). Exercise powers over tidal waters in small harbours, jetties, breakwaters and boat ramps (s.934). Seek control of the foreshore through the Governor in Council (s.936). Appoint community rangers or other appropriate Indigenous people as Authorised Officers to enforce any by-laws or local laws that are made (s.1084). Appoint community rangers or other appropriate Indigenous people as Authorised Officers to enforce any by-laws or local laws that are made (ss ). Some level of protection for the Aboriginal right to take marine resources or fauna, by traditional means, for consumption by the community (s.61). Develop by-laws for the regulation of land based marine turtle and dugong activities (s.115). Listing protected species offence to take protected species (s.88). Protected Areas and management plans (ss ). Conservation Agreements to establish protected areas (ss.45 51). Enforcement and compliance powers (ss ). Conservation plans for listed species (ss ). Declaration of marine park (ss.11 16). Development of zoning plans (s.17). Offence provisions (ss (3)). Enforcement and compliance powers exercised by Inspectors (ss , Marine Parks Regulations 1990). Delegation of authority by Chief Executive of a local government or department employee to undertake any functions that are required or authorised under the Act (s.23(1)). Department of Local Government and Infrastructure Environmental Protection Agency + Queensland Parks and Wildlife Service Queensland Overview continued page 46 A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 45

48 Queensland Overview continued Legislation Key activities mechanisms Administering agency Fisheries Act 1994 Aboriginal Cultural Heritage Act 2003 As a prescribed entity an organization or local government, can enter into agreements on the management, use, development and protection of fisheries with the Chief Executive (s.20a(g)). As a prescribed entity the Chief Executive can delegate authority for management or for specific functions to the organization (s.21(a)). Management plans sea closures and other regulation of activities can apply specifically to marine turtle and dugong (ss.32,36 38A). Regulations sea closure and other regulation of activities can apply specifically to marine turtle and dugong (ss.42, 43, 45A). Enforcement powers - appoint community rangers or other community Indigenous people as Fishery Inspectors (s.140 of the Act and s.95(a)+(b) the Regulations). Offence provisions general cultural heritage duty of care and unlawful harm: ss.23 and 24 Cultural heritage management plan triggered by development proposals ss Department of Primary Industries and Fisheries Environmental Protection Agency Governance Local Government (Community Government Areas) Act 2004 The purpose of this Act is to declare particular parts of Queensland to be local government areas under the Local Government Act 1993, and to establish new local governments for these areas. New local government areas and new local governments have been declared over existing Aboriginal Council areas (s.7 + 8, Schedule 2). Aboriginal Councils have been declared as local governments with all the powers and authority of local governments under the Local Government Act 1993 (ss.11, 70, Schedule 3). Community Governments are the local government for community government areas (Schedule 4). Therefore all Community Governments listed in Schedule 2 of the Act have the authority and responsibility of local governments as per the Local Government Act Local Government Act 1993 Only parts of the Act are to apply to Torres Strait Island local governments (ss.13 14). The roles of a local government include making and enforcing local laws (s.20). Local governments have the jurisdiction to make local laws for the good rule and governance of the local government area (s.25). Local governments may regulate and manage the use of harbours for small vessels, jetties, breakwaters and ramps in and over tidal waters (s.934(1)). Therefore local governments can exercise management authority through local laws over boats and activities in tidal waters and at boat ramps. This could increase the capacity of a local government to implement local laws to protect and manage marine turtle and dugong through regulating rubbish and marine debris; making rules around the landing, transporting and butchering of animals; and providing for the protection of nesting areas and managing the collection of eggs. Local governments may appoint employees or other people prescribed by regulation as Authorised Persons under Part 5 Enforcement of Local Government Act (s.1084(1)). Such people must have the necessary expertise or experience, or have completed appropriate training before being appointed (s.1084(2)). Authorised Persons have a range of duties and powers to enforce local government acts (ss ) however these powers may be limited in the person s instrument of appointment (s.1085). Local Government (Aboriginal Land) Act 1978 The Act provided the authority of a grant of land to establish the Shire of Aurukun and the Shire of Mornington who are trustees of this land (ss.3 + 5). These areas have been declared as local government areas and the Shire Councils as local governments within the meaning of the Local Government Act 1993 (ss.6 + 7). The lease of the land is for a term of 50 years and the boundary ends at the High Water Mark (at the mean spring tide) (Schedule 1). 46 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

49 Unlike the local governments declared under the Local Government (Community Government Areas) Act 2004, the Aurukun and Mornington Shires have some restrictions on their power over shire land (s.29) however the Shires are still able to exercise the authority and responsibilities provided under the Local Government Act 1993, as explored above. The Act further provides for some level of preservation of hunting and gathering rights for traditionally affiliated Indigenous people through section 26, where an Aboriginal person residing in Aurukun or Mornington Shires may hunt and consume any native animal for sustenance of themselves, their family or their households (s.26(1)(a)). Gathering of material, such as plant matter, is also allowed for domestic use (s.26(2)(b)). Entries onto land to hunt or to gather must only occur where that person is entitled to enter the land in accordance with Aboriginal tradition (s.26(2)). Aboriginal Communities (Justice and Land Matters) Act 1984 This Act applies to community government areas which includes lands granted under the Land Act 1994, reserves for Aboriginal purposes under the Land Act, any land that has become Aboriginal land and areas declared as local government areas under Schedule 2 of the Local Government (Community Government Areas) (s.48). The Act protects Aboriginal rights to certain natural resources by allowing the taking of marine products or fauna by traditional means for consumption by a member of a community of Aborigines resident in a community government area (s.61(1)). Any marine product or fauna taken by traditional means cannot be sold or disposed of for gain (s.61(2)). The Act also regulates entry to community government areas and residency status (ss.48 55) in a similar way to the Local Government (Aboriginal Land) Act The Act provides that Authorised Officers can be appointed by a community government to protect the natural and cultural resources of the area. (s.16(1)). Local laws, which may have regard to Aboriginal customs, traditions and beliefs, prescribe the functions, duties and powers which an Authorised Officer may exercise in a community government area (s.16(2)). Authorised Officers also have a range of powers outside of local laws or requirements of the Act (s.17). There is scope therefore for community rangers or other community people to be appointed as Authorised Officers by the community government to ensure compliance with local laws. Local laws could be developed to regulate land based activities relating to marine turtle and dugong hunting such as marine turtle egg protection and collection, transport and butchering within the community government area. Regulating other matters such as littering and rubbish collection could also reduce pressures on marine turtle and dugong with decreased plastics entering the marine environment. Development of any local laws for these management and protection purposes and appointment of Authorised Officers is at the behest of the community government. Community government may not be the most culturally appropriate structure for the management of marine turtle and dugong. Community Services (Torres Strait) Act 1984 The Act provides for the declaration of council areas and the establishment of an Island Council for each area declared (ss ). An Island council has and may discharge the functions of local government of its council area and is hereby charged with the good rule and government in accordance with the customs and practices of the Islanders concerned and for that purpose may make by-laws and enforce them. An Island council therefore has the capacity to develop by-laws regarding marine turtle and dugong management (specifically land based activities) that are in harmony with Island custom and practice. On commencement by-laws have the force of law (s.134). Island Councils may make by-laws in their role as trustee of a council area and as the council authority charged with functions of a local government (s.4). Aboriginal Land Act 1991 and Torres Strait Islander Land Act 1991 The Aboriginal Land Act provides for the granting of land, as well as the claiming and granting of land as Aboriginal land. Available Crown Land can be claimed to be granted as Aboriginal land, however the waters of the sea and the seabed are not Crown Land that is available to be claimed (s.25). Tidal land however may by regulation be declared as available Crown Land which can then be claimed (s.21). Land that can be granted without a claim being made is transferable land and includes existing Deed of Grant in Trust (DOGIT) land, Aboriginal reserves and the Aurukun and Mornington Shire lease lands (ss.11 16). Native Title interests are defined under the Act to mean the communal, group or individual rights and interests of Aboriginal people in land or waters if (a) the rights and interests are possessed under Aboriginal tradition; and (b) the Aboriginal people, by Aboriginal tradition, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. Where rights and interests include hunting, gathering or fishing rights and interests (s.5). This Act clarifies the type of land that can be granted and claimed as Aboriginal land not the manner in which it is to be governed. The Torres Strait Islander Land Act 1991 is identical in operation to the Aboriginal Land Act 1980 however it A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 47

50 applies to Torres Strait Islanders, defines Torres Strait Island custom (rather than Aboriginal tradition) and has the same definition of native title with reference to Torres Strait Islanders and Island custom (ss.4 + 5). Governance Options There is potential for Community Government and Island Councils to develop by-laws or local laws for the regulation of land based marine turtle and dugong activities (ss , Local Government Act 1993 and also for Island Councils s.115, Community Services (Torres Strait) Act 1984). There are options for community rangers or other appropriate Indigenous people to be appointed as Authorised Officers to enforce any by-laws or local laws that are made (ss , Aboriginal Communities (Justice and Land Matters) Act 1984). There is also some level of protection for the Aboriginal right to take marine resources or fauna, by traditional means, for consumption by the community (s.61, Aboriginal Communities (Justice and Land Matters) Act 1984). This provision applies to a member of a community of Aborigines resident in a community government area, thus including historically associated Indigenous people who would not be covered by s.211 rights to hunt under the Native Title Act The taking of marine resources or fauna by traditional means, is however, prohibited in protected areas (s.62, Nature Conservation Act 1992). However Native Title holders cannot be restricted by such a prohibition due to the operation of s.211, whereas historically associated Indigenous people would be prevented from hunting and taking resources in a protected area. Note also the reference to traditional means in section 61 which could be narrowly interpreted in relation to the particular hunting methods used for marine turtle and dugong hunting. Biodiversity conservation In Queensland the key legislation for protection and management of marine turtle and dugong is the Nature Conservation Act 1994 (Qld). Within the Great Barrier Reef Marine Park however the Great Barrier Reef Marine Park Act 1975 (Cth) operates with collaborative approaches to managing marine turtle and dugong between the Great Barrier Reef Marine Park Authority (GBRMPA) and the Queensland Parks and Wildlife Service (QPWS). Prior to the passage of Native Title a permit system for hunting was in partial operation with the Great Barrier Reef Marine Park, however subsequent to decisions around the nature of the Native Title right to hunt alternative approaches to managing marine turtle and dugong and the traditional take of these species has been adopted. (Refer to Section 5.7 GBRMP). Nature Conservation Act 1992 The object of the Nature Conservation Act 1992 (NCA) is the conservation of nature (s.4). The object is to be achieved in a manner of ways including through the recognition of the interest of Aboriginal and Torres Strait Islander peoples in nature and their cooperative involvement in its conservation (s.5(f)) and through the ecologically sustainable use of protected wildlife and protected areas (s.5(e)). Community participation in the administration of the Act is also noted with specific emphasis on consulting with and having regard to Aboriginal and Torres Strait Islander peoples (s.6). Conservation is defined as the protection and maintenance of nature while allowing for its ecologically sustainable use (s.9). Ecologically sustainable use means that the taking or use of the wildlife is within the capacity to sustain natural processes and, among other things, provides for intergenerational equity (the current use will not diminish the potential to meet the needs and aspirations of future generations s.11). The Act provides for the establishment of a range of protected areas (ss H), conservation agreements over private land for conservation purposes (ss.45 51), the development of conservation plans for listed species (ss ) and a general prohibition on the take of listed species (with some exceptions) (s.88). Species status and management intent Loggerhead, Leatherback and Olive ridley turtles are listed as endangered (Schedule 2, Nature Conservation (Wildlife) Regulation 1994 (Qld)). A species may be listed as endangered if survival in the wild is unlikely, if threatening processes continue or its population is declining or likely to decline to an extent that the wildlife may be in danger of extinction (s.77(d) + (c)). Dugongs, Green turtles, Hawksbill turtles and Flatback turtles are all listed as vulnerable (Schedule 3, Nature Conservation (Wildlife) Regulation 1994 (Qld)). A species may be listed as vulnerable where the population size has been seriously depleted and the protection of the wildlife is not secured (s.78(1)(b)). Endangered and vulnerable wildlife are deemed as protected wildlife (s.71(a)(ii) and (iii)). Ensuring that any use of protected wildlife for Aboriginal tradition or Torres Strait Islander custom is ecologically sustainable is one of the management principles for protected wildlife (s.73(b)(iii)).however the proposed management intent for endangered and vulnerable wildlife does not mention the need to work cooperatively with Indigenous communities for effective management and protection of these species (Schedule 2 and 3, Nature Conservation (Wildlife) Regulation 1994 (Qld)). Application of the NCA to marine environment and interaction with marine parks legislation A reference to land under the Act includes waters and land that is at any time covered by waters (Schedule). Therefore protected areas may be proclaimed over tidal and marine areas, but more effective protection may be provided by declaration of a marine park under the Marine Parks Act It is unclear which of the options 48 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

51 to establish a protected area under the Act or a marine park would better suit community aspirations for greater control and management of sea country resources including marine turtle and dugong. Protected area options The NCA provides for a range of classes of protected areas offering different levels of protection and management: 1. National Park (Aboriginal or Torres Strait Islander land) (ss ); 2. Wilderness Area (s.24); 3. Resource Reserve (s. 21); 4. Conservation Park (s. 20); 5. Nature Refuge (s.22); 6. Coordinated Conservation Area (s.23); 7. National Park (s.17). Whether a class of protected area suits a particular community depends on their desires for management of land and sea country (including marine turtle and dugong), their capacity for management and control and other activities, such as economic development that they may wish to pursue. Conservation and management plans Management plans meeting the management principles prescribed for the class of protected area are prepared for protected areas. Conservation plans can be developed for native wildlife, a class of wildlife, native wildlife habitat or an area of major interest. (s.112) A Nature Conservation (Dugong) Conservation Plan was adopted as subordinate legislation in A recovery plan accompanying the Conservation Plan to detail management prescriptions was in operation from The recovery plan has therefore expired and is due to be reviewed sometime in 2007 (pers. comm., Sara Williams, EPA, June 2006). However the Conservation Plan is still valid and operational until it is revised or replaced. Conservation plans may prescribe offences and can direct particular use or development of land in critical habitat (s.112(5)(2)(a) + (b)). For example, the Dugong Conservation Plan provides for restrictions on the granting of permits, authorities and licences under the NCA within Dugong Protected Areas. Dugong Protected Areas were established as fishery closures under the Fisheries Regulations 1995 (refer to the Fisheries section for further information on closures). There is no conservation or management plan for any of the six protected marine turtle species. It is anticipated that the National Turtle Recovery Plan would be adopted and implemented in Queensland. Developing either conservation plans or management plans is a public process providing two opportunities for input. One at the early stage of notification of the proposal to prepare the plan and later once a draft plan has been developed (s ). The Minister must consider all properly made submissions (ss ). Aboriginal and Torres Strait Islander people are specifically mentioned as targets from whom submissions should be requested (ss.113(2)(c) and 115(2)(d)). Final management plans must be consistent with the management principles for the relevant protected area class and conservation plans must be consistent with the management principles for the class of wildlife for which the plan is drafted (ss.117 and 118). A final conservation plan is subordinate legislation and the Chief Executive of the Department is responsible for its implementation (s.120). Management plans are to be implemented by the trustees in relation to conservation parks and resource reserves, with Boards of Management in relation to Aboriginal or Torres Strait Islander land National Parks and by the Chief Executive in relation to the remaining classes of protected areas (National Parks, Wilderness Area, Coordinated Conservation Area, Nature Refuge) (s.120). It would appear that greater management control may be exerted by a community granted trustee status for a Conservation Park or Resource Reserve. However the only trustees for existing resource reserves are the Chief Executive of the EPA and the Chief Executive of mining. In relation to existing Conservation Parks, only local governments and one land management group are the current trustees for the listed parks (Nature Conservation (Protected Areas) Regulations 1994). Conservation plans usefully prevail over planning schemes and local government decisions must be consistent with them (ss.122 and 123). Conservation Agreements Conservation Agreements provide a mechanism for establishing a protected area through land holder agreement with the Minister (s.45(1)). Funding and other assistance may be provided by the State government for management of the protected area established under a Conservation Agreement (s.45(5)). Conservation Agreements are binding on title (s.51(1)). Where Traditional Owners hold title to the land they may consider entering into a Conservation Agreement if such an agreement would be compatible with aspirations. Consideration of the management responsibilities and arrangements, level of support and other crucial matters need to be considered. The terms of the agreement determine management arrangements which can direct the State and/or the landholder to undertake specified management activities. (s.45(5)). Nature Refuges, Wilderness Areas and Coordinated Conservation Areas are the types of protected areas declared under a Conservation Agreement with the most flexibility regarding variation of the agreement and termination options (s.136(5)). A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 49

52 Listing process for protected species The process for listing species as protected is not specified in the NCA. Classes of wildlife may be prescribed by regulation (ss.76 80) and the Governor in Council may make regulations (s.175(1)). Regulations may include enforcement or compliance measures for management or conservation plans or codes of practice (s.175a). Offence to take protected wildlife It is an offence under the NCA to take protected wildlife without an authorization (s.88). Prohibition on the take of wildlife s.93 and Native Title interactions An uncommenced provision, section 93, safeguards the taking, use and keeping of protected wildlife by Aboriginal and Torres Strait Islanders in accordance with Aboriginal tradition or Islander custom, subject to the provisions of any Conservation Plan. Subsection 3 of this provision states that it is an offence for an Aboriginal or Torres Strait Islander to take, use or keep protected wildlife that is expressly prohibited from being taken, used or kept in a conservation plan. Penalties are prescribed. 6 This provision is not currently in force, however if it did commence at some future date its application could not limit the s.211 right of Native Title holders to hunt and use marine resources for non-commercial purposes. However, it could enable the EPA to control the take of marine turtle and dugong by historically affiliated Indigenous people through specific prohibitions in a Conservation Plan. This approach appears highly unlikely given the EPA s emphasis on cooperative, negotiated agreements at a clan level with respect to take of marine turtle and dugong by Traditional Owners rather than taking a state wide approach. There appears to be no intention to commence this provision. Enforcement and compliance to protect wildlife Community members could pursue training to become Conservation Officers with enforcement powers under the NCA. The Minister can appoint any person to be a Conservation Officer (with their consent) where the instrument of appointment specifies the terms and conditions of the appointment (s.127). The full powers of a Conservation Officer include the power to stop and search vehicles and to enter and search premises (s.144). The Minister can also appoint a qualified person to be an Honorary Protector who is authorised to seek the name and address of apparent offenders. An Honorary Protector must be a qualified person who has completed approved training or has the necessary experience or expertise in the opinion of the Minister (s.128). Options There are options therefore regarding community empowerment for enforcement and compliance to 6 Maximum penalty = 3,000 penalty units or two years imprisonment. protect marine turtle and dugong under the NCA. Communities could request the Minister to appoint qualified persons as Honorary Protectors and/or request appointment of Conservation Officers with the full range or a subset of the powers provided for in the NCA. Such a request would necessarily include a request for management funding as well as training, capacity building and other required support to ensure appointed officers have the appropriate training and support to discharge their duties. This initiative could also provide a huge bolster to traditional authority in improving the capacity of groups to regulate and manage their sea country, albeit within the confines of the NCA. The key offence to be regulated in this instance is the illegal take of protected species such as marine turtle and dugong and enforcement capacity residing with communities could provide an effective mechanism for preventing hunting by non-traditional Owners. There are of course a range of other issues to be considered within this context. Further issues include the capacity and commitment of existing enforcement and compliance activities by relevant agencies. Communities have been disappointed with the lack of response to breaches of the NCA that they have reported. Under some circumstances Traditional Owners and communities may prefer the QPWS and other enforcement agencies to fulfil the compliance role. Other communities may desire enforcement capacity themselves (pers. comm. Dr Helene Marsh, JCU, Melissa Nursey-Bray, AMC, Shaun Skerrit, GRBMPA + Darryn Storch, QPWS, May 2006). Marine Parks Act 1982 Note: Queensland Marine Parks legislation was amended and a new act came into effect in 2004 (Marine Parks Act 2004). This report examined only the 1982 Act. The Chief Executive makes recommendations to the Minister on areas that should be declared as marine parks, prepares zoning plans for declared marine parks and undertakes, or arranges the undertaking of management of marine parks (s.11(1)(a),(b),(d) +(e)). The process for declaring a marine park involves: 1. the Chief Executive identifying an area of interest and calling for public submission on this area (s.12); 2. consideration of submissions on the area of interest by the Chief Executive (s.13); 3. preparation of a proposal for the marine park including its name, a map of the boundaries and the reasons for the proposal (s.14). In preparing the proposal the Chief Executive must have regard to the needs of conservation, research and reasonable use and enjoyment of the area. No mention is made of the need to consider traditional use and cultural values or Traditional Owner aspirations and interests in relation to marine park declarations and management. 4. a regulation declaring the marine park is made by the Governor-in-Council (s.16). 50 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

53 Zoning plans are to describe the purpose for which each zone may be entered and/or used (s.17(1)(d)). Zoning plans are subordinate legislation and non compliance with zoning plan provisions is an offence (s.17(4)+(3)). There is also a general offence provision in the Act stating that contravention or failure to comply with any its provisions constitutes an offence (s.26(1)). The Chief Executive may make arrangements for a local government or department employee to undertake any functions that are required or authorised under the Act (s.23(1)(b)). This could provide an opportunity for delegation of management activities to community organizations, such as Land and Sea Centres. Regulations may provide for the appointment of inspectors and their functions and powers (s.30(2) (d)). The Marine Park Regulations 1990 provide that a local government or state government employee can be appointed as a Marine Parks Inspector by the Chief Executive (s.36(1)(a)), The powers of an Inspector are wide ranging including directing people to leave the marine park, stopping and searching vehicles (s.38, Marine Park Regulations 1990). There is therefore some scope for Community Rangers or other employees of Community Local Governments to be appointed as Inspectors with enforcement and compliance powers. Non legislative options for management of marine turtle and dugong Recent development of Memorandum of Understanding between QPWS and communities at the Clan level has provided a base from which discussions about resourcing, capacity building and other support can occur to allow for management of these species through traditional institutions. These agreements are non-statutory and do not provide resources to communities for management as this stage. It is unclear how these agreements will operate at a regional and more appropriate ecological scale for the management of marine turtle and dugong. Recommendations Responsible agency/ organization 40. Amend section 14 of the Marine Park Act to ensure that the Chief Executive considers cultural values, traditional customary use and Traditional Owner aspirations during the preparation of a proposal for the declaration of a marine park. An appropriate consultation process is the critical mechanism to inform the Chief Executive on these matters. 41. Encourage dialogue and relationships between enforcement agencies (QPWS) and communities to clarify the boundaries of what matters communities wish to enforce themselves and where agencies need to step in. Where appropriate, advocate for full utilization of existing agency capacity to enforce offences under the NCA, namely the illegal take of marine turtle and dugong. 42. Explore the potential for management responsibility for marine parks to be devolved to community local governments or other community organizations, such as Land and Sea Centres under s.23(1)(b) Marine Parks Act Explore enforcement and compliance options under the Nature Conservation Act 1992 with interested communities including: requesting the Minister to appoint qualified persons as Honorary Protectors and/or request appointment of Conservation Officers with the full range or a subset of the powers provided for in the Act; and, lobbying for management funding including training, capacity building and other required support to ensure any appointed officers have the appropriate training and support to discharge their duties. 44. Advocate for resources for Indigenous communities to manage (a) marine turtle and dugong habitat as part of a broader conservation strategy for the species; and, (b) protected areas. 45. Clarify QPWS position on the right of traditionally affiliated Indigenous people to hunt marine turtle and dugong. EPA EPA and NAILSMA Project partners EPA with NAILSMA Project partners EPA with NAILSMA Project partners NAILSMA Project partners EPA Priority: Low A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 51

54 Heritage Legislative protection for cultural heritage in sea country could be a useful mechanism for gaining some level of management authority and resources to increase Indigenous management of seacountry, and marine turtle and dugong. Any management authority can then be used to leverage greater levels of support for expanded management responsibilities in sea country, for example accessing the Indigenous Protected Areas program or developing an Indigenous Marine Protected Area. Areas to be clarified to determine the potential usefulness of heritage legislation for sea country protection and management include whether heritage provisions can apply to sea country sites, the level of protection provided, management requirements, options for devolution of management authority and enforcement/compliance powers to Traditional Owners, opportunities for accessing funding to support management and/or compliance activities and importantly whether heritage listing could decrease Indigenous authority over that area with a corresponding increase in government management authority. Aboriginal Cultural Heritage Act 2003 The main purpose of this Act is to provide effective recognition, protection and conservation of Aboriginal cultural heritage (s.4). Aboriginal cultural heritage includes anything that is a significant Aboriginal area in Queensland (s.8), where a significant Aboriginal area is an area of particular significance to Aboriginal people because of Aboriginal tradition and/or the history, including contemporary history, of any Aboriginal party for the area (s.9). There is a general duty of care to take all reasonable and practicable measures to ensure that the activity does no harm to Aboriginal cultural heritage with penalties for breach of this duty (s.23). Offences include unlawful harm, and excavation, relocation and/or removal and unlawful possession of Aboriginal cultural heritage (ss.24-26). A cultural heritage management plan is required when a development proposal needs an environmental impact statement or other environmental authority (ss.87 89). There are no provisions allowing for community initiated management of cultural heritage which may include developing a cultural heritage management plan. The purpose of the plans is to protect Aboriginal cultural heritage from development activities not to provide for the ongoing management and protection of that heritage whether there are development proposals for the area or not. The only opportunities for protecting and managing sea country (and thus marine turtle and dugong) under this Act are through the offence provisions making sure breaches are followed up and prosecuted and through input on cultural heritage management plan when triggered by development proposals. These limited options do not warrant further consideration. 52 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

55 Fisheries Fisheries Act 1994 The Act provides for the management, use, development and protection of fisheries resources and fish habitats and the management of aquaculture activities, and for related purposes. The purpose of the Act is to be sought through the application and balance of the principles of ecologically sustainable development (ESD) and through the promotion of ESD (s.3(1)). The Chief Executive is to be empowered to achieve the purpose of the Act by, among other things, managing and protecting fish habitat, and managing commercial, recreational and Indigenous fishing (s.3a(a) + (b)(i)+(ii)). The Act does not apply to protected animals including marine turtles and dugong under the Nature Conservation Act 1992 (s.5(3)(a)+(b)). The Act does, however, provide for the development of management plans and the making of declarations to protect things that are not fish, i.e. marine turtle and dugong (ss.38a +45A). Therefore opportunities for Indigenous management of marine turtle and dugong under this Act need to focus on these options. Other options for management through protecting and managing fish habitat also need to be considered. Fish habitat is broadly defined in the Act and includes land, waters and plants associated with the life cycle of fish, and includes land and waters not presently occupied by fisheries resources (Schedule). The Act recognises the traditional right to fisheries resources of Aboriginal and Torres Strait Islander peoples taken in accordance with Aboriginal tradition or Island custom (s.14). Where Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships (s.36, Acts Interpretation Act 1954 (Qld)). However this traditional right to fisheries resources can be impinged upon where a regulation or a management plan expressly applies to acts done under Aboriginal tradition or Island custom (s.14(2)). Such regulation or management plan must be developed in cooperation with Aboriginal or Torres Strait Islander people in seeking to reach agreement about the proposed regulation or management plan. As the Act does not apply to the hunting of marine turtle and dugong this provision is not of concern. The management, use, development and protection of aquaculture, marine plants, fish habitats and coral limestone and fisheries resources generally is a core function of the Chief Executive (s.20(1)(a)). The powers of the Chief Executive include the ability to enter into agreements with the Australian Government, other State governments or entities (prescribed by regulation) for the management, use, development or protection of fisheries resources (s.20a(g)). Further the Chief Executive may delegate his powers to a local government or an entity prescribed by regulation (s.21). Management Plans can be made for fish habitat, providing direction on how the area can be managed or restored, declaring closed seasons or closed waters and regulating activities (ss.32, 36, 37). Management plans can also be made for protecting things that are not fish, such as dugong and marine turtle (s.38a). Anything that can be declared in a management plan can be declared by a regulation (s.42). For example the Chief Executive may make declarations in the regulations for closed waters, closed seasons and to protect things that are not fish (ss A). Dugong Protected Areas are closed waters with particular restrictions on commercial fishing, declared under s.45a of the Act and described in Schedule 2 of the Fisheries Regulations 1995 (Qld). In relation to enforcement powers under the Act, the Chief Executive may appoint a local government employee or a person with relevant knowledge of fisheries resources or a fish habitat in a particular area as a Fishery Inspector (s.95(a)+(b) the Regulations and s.140(1)(d) the Act). However the Chief Executive must be satisfied that the person has the necessary expertise and knowledge, or has completed appropriate training before being appointed (s.140(2)(a)+(b)). Fishery Inspectors powers are expansive including powers of entry into places, searching vehicles including boats and seizing fisheries resources (ss.145, 146, 153). The powers of an Inspector may be limited through the regulations or by a condition of appointment (s.141). There is a general protection for marine plants including sea grass making it an offence to injure, remove or damage any marine plants without an authority issued under the Act (s.123). Fisheries (Gulf of Carpentaria Inshore Fin Fish) Management Plan 1999 The objects of the plan and their achievement include minimizing the unintended adverse effects of fishing on protected wildlife; and to satisfy the traditional or customary fishing needs of Aborigines and Torres Strait Islanders (cl.4). The plan explicitly states that it does not limit an Aborigine s or Torres Strait Islander s right to take, use or keep finfish under Aboriginal tradition or Torres Strait Islander custom (cl.88). The plan establishes the Wellesley Islands Protected Wildlife Area which is a closed water area with specific gear restrictions on set mesh nets for commercial finfishing (cl.11a). Negotiation between the Wellesley Island Traditional Owners and the Department of Primary Industries and Fisheries (DPIF) about management arrangements for this protected wildlife area could establish management responsibilities and powers for traditional management for the area. Traditional Owners could also consider whether a specific management plan for the protection and management of marine turtle and A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 53

56 dugong would fit with their aspirations for sea country, assuming DPIF would undertake a collaborative approach to developing the management plan including options for empowering the community to fulfil management obligations and responsibilities under the plan and to be appropriately supported, trained and resources to do so. Options Under the Act there are a range of potential opportunities for Indigenous communities to increase management of sea country, benefiting marine turtle and dugong populations. 1. Agreements with the Chief Executive and delegation of authority As all community councils now have local government status in Queensland (refer to Section Governance) the Chief Executive can delegate powers to them (s.21(a)). However local governments still need to become prescribed entities under the regulations to be able to enter into agreements with the Chief Executive (s.20(g)). Land and Sea Management centres could also lobby to become a prescribed entity. Once a prescribed entity, agreements could be developed to encompass, for example, community development of a management plan for marine turtle and dugong (including technical and financial support for its development), or agreement on a community consultative process to determine appropriate regulations that will protect marine turtle and dugong and/or fish habitat and provide for community enforcement (where desired and appropriate). 2. Management Plans A partnership approach between DPIF and interested communities must be adopted in relation to management plan development. Communities can lobby for management plans to be developed for the protection and management of marine turtle and dugong (s.38a). These plans would need to be collaboratively developed, adopt culturally appropriate consultation protocols and seek to empower communities to undertake management and compliance responsibilities under the plan. Appropriate training, technical support and resourcing would also need to be part of the management plan s package. Alternatively existing fishery management plans could be amended to incorporate community management aspirations and specific protection and management measures for marine turtle and dugong. 3. Declarations and Regulations Communities could also seek to obtain declarations in the regulations to effect protection and management measures for marine turtle and dugong, such as closed waters or closed seasons, prohibitions on particular activities etc. These declarations should also address the above mentioned matters of empowering the community for management and compliance with appropriate resourcing. 4. Appointment of Inspectors Where the aspirations of a community include a desire to undertake enforcement and compliance of the provisions of the Act and/or a particular management plan Indigenous organizations and/or local governments can seek to have certain staff appointed as Fishery Inspectors. Training would be required and should be provided by DPIF. The Chief Executive may consider appointing Inspectors in communities with limited powers. Recommendation Responsible agency/ organization 46. Explore options under the Fisheries Act to: delegate powers to Community Rangers; utilise agreements; develop specific management plans for marine turtle and dugong; amend existing fisheries management plans to provide for a greater role for Indigenous people to manage seacountry particularly marine turtle and dugong habitat; use regulations for protection and management of marine turtle and dugong habitat; train and appoint community rangers or others as Fishery Inspectors. DPIF with NAILSMA Project partners 54 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

57 Torres Strait Overview Jurisdiction Legislation Key activities mechanisms Administering agency Cth Aboriginal and Torres Strait Islander Act 2005 Torres Strait Regional Authority function and powers. DFACSIA Cth Environment Protection and Biodiversity Conservation Act 1999 Strategic assessment Torres Strait Marine turtle and Dugong Fishery (ss.146, ). DEW (AFMA) Qld Torres Strait Islander Cultural Heritage Act 2003 Offence provisions general cultural heritage duty of care and unlawful harm (ss.23 and 24). EPA Cultural heritage management plan triggered by development proposals (ss.80-89). Cth Torres Strait Treaty 1978 Actions for protection of species using best endeavours to minimise any restrictive effects of conservation measures on traditional fishing. (Articles ) PZJA, DAFF Cth Torres Strait Fisheries Act 1984 Development of fishery management plan (s.15a) AFMA Qld Torres Strait Fisheries Act 1984 AFMA Governance Some aspects of Torres Strait Islander governance have been dealt with in Section Governance Queensland. The Aboriginal and Torres Strait Islander Act 2005 (Cth) establishing the Torres Strait Regional Authority needs to be considered in detail to discern the potential authority of the TSRA to develop and implement management arrangements dealing with marine turtle and dugong. Biodiversity conservation The Nature Conservation Act 1992 (Qld) applies within the Torres Strait, refer to Section above. See also Section Fisheries below for information on the operation of the Torres Strait Treaty Environment Protection and Biodiversity Conservation Act 1999 (Cth) The Minister may make agreements to assess the impacts of actions under any policy, plan or program on matters of national environmental significance (including threatened species) this is referred to as a strategic assessment (s.146). The assessment of Australian government managed fisheries is covered by sections and provides that an assessment must be completed prior to the development of a management plan for a fishery under the Torres Strait Fisheries Act 1984 (s.148(2)(a)). The recommendations of any assessment must be considered (s.148(2)(b)) and the assessment of all Torres Strait fisheries must be started within five years (s.151). The Draft Torres Strait Turtle and Dugong Fisheries Assessment Report (AFMA, 2006) was released in September Issues around the appropriateness of assessing a customary fishery through this process has been raised including the role of cultural and social values of marine turtle and dugong hunting in the assessment, and community based management proposals for ensuring the continued survival of these species. AFMA prepared a revised report addressing matters raised in submissions received during the public consultation period on the draft report. DEW are currently assessing the report against the relevant environmental criteria (ss EPBC Act). Recommendations for management will be identified through this process which will involve detailed discussion and further consultation with stakeholders. Completion of the process will take at least a further twelve months. The assessment process has provided a link between sections of AFMA and DEW facilitating an exchange of views with the potential for a more aligned working relationship and clarity on responsibilities regarding management of marine turtle and dugong. There will be continuing tensions no doubt regarding the different approaches to marine turtle and dugong management as protected species or a managed fishery. However ongoing communication to facilitate interagency policy alignment is a crucial element for effectively addressing marine turtle and dugong management. A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 55

58 Heritage The Torres Strait Islander Cultural Heritage Act 2003 (Qld) is identical to the Aboriginal Cultural Heritage Act 2003 (Qld), refer to section for information on the operation of the Act. There are limited opportunities for protecting and managing sea country (and thus marine turtle and dugong) under the Torres Strait Islander Cultural Heritage Act 2003, such as through the offence provisions making sure breaches are followed up and prosecuted, and through input on cultural heritage management plans when triggered by development proposals. Fisheries Torres Strait Treaty 1978 The Torres Strait Treaty (the Treaty) provides the basis for the relationship between the Australian and Papua New Guinea governments and their traditional inhabitants, namely Torres Strait Islanders and Papua New Guineans. The Treaty defines traditional inhabitants as people who maintain customary associations with areas in or near the Protected Zone in relation to their subsistence or livelihood or social, cultural or religious activities, whether (c) Torres Strait Islanders living in the Protected Zone or the adjacent coastal area of Australia who are Australian citizens; or (d) Papua New Guineans living in the Protected Zone or the adjacent coastal area of PNG who are who are PNG citizens (Article 1 (m)). The Treaty establishes a Protection Zone to acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement, and also to protect and preserve the marine environment and indigenous fauna and flora in and in the vicinity of the Protected Zone (Article 10, (3)+(4)). Free movement within the Protection Zone and the pursuit of traditional activities by traditional inhabitants is provided for in Article 11 (subject to the other provisions of the Treaty). Hunting of dugong and turtle is explicitly included in the definition of traditional fishing which means the taking, by traditional inhabitants for their own or their dependants consumption or for use in the course of other traditional activities, of the living natural resources of the sea, seabed, estuaries and coastal tidal areas (Article 1 (l)). Where traditional activities means activities performed by the traditional inhabitants in accordance with local tradition, and includes, when so performed (j) activities on land, including gardening, collection of food and hunting; (i) activities on water, including traditional fishing; (iii) religious and secular ceremonies or gatherings for social purposes, for example, marriage celebrations and settlement of disputes; and (iv) barter and market trade. In the application of this definition, except in relation to activities of a commercial nature, traditional shall be interpreted liberally and in the light of prevailing custom (Article 1 (k)). In protecting fauna and flora, Article 14 of the Treaty prescribes actions for protection of species and at paragraph 2 provides that.. except for paragraph 4 of this Article, a Party may implement within its area of jurisdiction measures to protect species of indigenous fauna and flora which are or may become threatened with extinction or which either Party has an obligation to protect under international law. Paragraph 4 provides that in developing any measures for the protection for such species each Party shall use its best endeavours to minimise any restrictive effects on the traditional activities of the traditional inhabitants. Further, in relation to traditional fishing and measures applying to traditional fishing, Parties may adopt a conservation measure.. if necessary for the conservation of a species, [which] may be applied to traditional fishing, provided that that Party shall use its best endeavours to minimise any restrictive effects of that measure on traditional fishing (Article 20.2, emphasis added). Therefore any future Australian Government restrictions or regulation of hunting of marine turtle and dugong (as a traditional activity i.e. traditional fishing) must minimise the impact of such restrictions on traditional fishing. Article 14 further provides direction for cooperation between the parties, at the request of either of them, to harmonise policies relating to the protection of fauna and flora to ensure effective and coordinated implementation of those measures (paragraph 3). Further efforts could perhaps be made by the Australian government to pursue strategic collaboration in the region in relation to the management of marine turtle and dugong but a significant and sustained effort to achieve such collaboration is paramount. The Treaty also provides for each Party to respect and allow the continued exercise of traditional customary rights by the other Party s traditional inhabitants within each others jurisdictions where those traditional customary rights: (a) are in or within the vicinity of the Protected Zone; and, (b) are acknowledged by the traditional inhabitants in those areas to be in accordance with local tradition. The continued exercise of those rights must be treated by the Parties no less favourably than the exercise of traditional customary rights by their own traditional inhabitants (Article 12). Therefore Papua New Guineans may continue to hunt in Australian waters of the Protected Zone and Torres Strait Islanders can continue traditional hunting in PNG waters of and around the Protected Zone. 56 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

59 Torres Strait Fisheries Act 1984 (Cth) The Torres Strait Fisheries Act 1984 (the Act) is the legal instrument for the domestic application of the Treaty. In the administration of the Act the Minister is to have regard to the rights and obligations conferred on Australia by the Torres Strait Treaty and in particular to the traditional way of life and livelihood of traditional inhabitants, including their rights in relation to traditional fishing (s.8), thus ensuring Article 14.4 and Article 20.2 of the Treaty are adopted. Traditional fishing has the same meaning as in the Treaty with the limitation that the Minister may, by notice published in the Gazette, declare that the taking by traditional inhabitants of fish by a method, or with the use of equipment or a boat, of a kind specified in the notice is not traditional fishing (s.3(2)). Three such notices are currently in force in relation to marine turtle and dugong hunting: Restriction on the type of fishing gear to be used to hunt dugong (use of the traditional wap only) and definition of the area within which dugong can be hunted (Fisheries Management Notice No.41, 14/7/1995); Reaffirmation of the dugong fishery as a traditional fishery and the gear restriction. Defining dugong sanctuary in the Protected Zone and prohibition of transport of dugong on licensed commercial fishing boats (Fisheries Management Notice No.65, 8/12/2003); and, Reaffirmation of the turtle fishery as a traditional fishery and prohibition of transport of turtle on licensed commercial fishing boats (Fisheries Management Notice No.66, 8/12/2003). The effectiveness of the existing Fisheries Management Notices are unknown, therefore their future use as a management tool to benefit Torres Strait Islander management of marine turtle and dugong is unclear. The Minister has powers to make regulations, to make proclamations and to develop management plans in relation to fisheries within the Torres Strait (ss.15, 15A + 16). These powers allow for closure of areas, prohibition of activities including, for example, prohibition of the taking of turtle eggs (s.16(1)(h)). The Minister is still obligated by s.8 to consider the rights and obligations under the Treaty regarding traditional livelihoods of traditional inhabitants including their rights to traditional fishing when exercising any of these powers. the PZJA can require information, make regulations for the fishery, require licences to be obtained for particular fishery activities and issue licences for scientific purposes (ss.12,14, ). Some of the powers of the Federal Minister for Fisheries can be exercised by the PZJA including the power to make regulations (s.16); to declare that using certain equipment or boats is outside the meaning of traditional fishing (Ministerial power used to issue prior Fisheries Management Notices, s.3(2)); to develop management plans (s.15a); to require and issue licences (s.17) and to require certain information to be provided (s.14). The Act provides for the input of traditional inhabitants to be sought by the Minister (s.13) and the PZJA (s.39) through an Advisory Council as per Article 19 of the Treaty. A Torres Strait Fisheries Management Advisory Committee with specific fishery working groups and a scientific advisory committee are the consultation and advice mechanisms between traditional inhabitants, government agencies and the PZJA. There is no specific working group for marine turtle and dugong which may assist greater priority being given to this issue. It would also provide a useful forum for discussion and debate around effective and appropriate management approaches, providing considered advice to the PZJA. Membership of such a working group must have a majority of traditional inhabitants combined from Torres Strait and PNG, including hunters, with appropriate resources to support participation (particularly participation of PNG inhabitants) and be suitably linked up with existing community consultation processes and mechanisms. Scientific expertise on marine turtle and dugong is also required to provide relevant input and advice to the working group. This expertise could be located within the scientific advisory committee, as part of a specific marine turtle and dugong working group or as an independent advisor. This approach may increase the ability of the PZJA to respond to management issues around marine turtle and dugong hunting. The marine turtle and dugong staff at AFMA and DAFF could be responsible for facilitating and supporting this working group in collaboration with the TSRA, DEW and the NAILSMA Dugong & Turtle Project Facilitator. The Torres Strait Protected Zone Joint Authority (PZJA) is established under the Act to manage Torres Strait fisheries with the Federal Fisheries Minister, Queensland Fisheries Minister and the Chair of the Torres Strait Regional Authority as its members (s.30). Its core functions are to consider the condition of the fishery; to formulate policies and plans for the good management of the fishery and exercise its powers, as well as cooperate and consult with other authorities (s.34). In relation to PZJA fisheries, A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 57

60 Torres Strait Fisheries Act 1984 (Qld) The object of the Act is to promote the good order, management, development and welfare of the fishing industry, to provide for the protection, conservation and management of the fisheries resources and to implement the provisions of the Torres Strait Treaty in the Torres Strait area. The Queensland Torres Strait Fisheries Act mirrors many provisions of the Federal Act, for example in the administration of the Act the Minister is to have regard to the rights and obligations conferred on Australia by the Torres Strait Treaty and in particular to the traditional way of life and livelihood of traditional inhabitants, including their rights in relation to traditional fishing (s.7). The same definitions as the Commonwealth Act are also adopted. The bulk of the Act deals with the joint fishery management arrangements between the Australian and Queensland governments for which there are limited/nil opportunities for Torres Strait Islander management of marine turtle and dugong. Recommendations Responsible agency/ organisation 47. Establish a Marine Turtle and Dugong Working Group to provide advice to the Torres Strait Fisheries Management Advisory Committee and the PZJA directly on management of marine turtle and dugong. The working group would have a majority membership of traditional inhabitants from Torres Strait and PNG, include hunters as much as possible; appropriately resource participants to ensure effective engagement, particularly PNG traditional inhabitants; link up with existing community consultative processes dealing with marine turtle and dugong in the Torres Strait; have access to scientific expertise on marine turtle and dugong (whether as members of the working group, independent advisors or as part of the Torres Strait Scientific Advisory Committee); provide advice and information to relevant government agencies such as DEW, AFMA, DAFF. 48. Encourage the Australian government through the PZJA to pursue strategic collaboration with PNG in relation to marine turtle and dugong management including committing sufficient long term funding to achieve this objective. 49. Undertake an evaluation, with community participation, of the effectiveness of Fisheries Management Notices as a management tool for dugong and marine turtle populations. DAFF NAILSMA Project partners PZJA and NAILSMA Project partners 50. Clarify mechanisms for improving interagency communication, between AFMA and DEW for example through key staff and alignment of workplans. 58 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

61 Great Barrier Reef Marine Park Overview Legislation Key activities mechanisms Administering agency Great Barrier Reef Marine Park Act 1975 Traditional Use of Marine Resources Agreements (ss.9-11, 104, 71(1)) Great Barrier Reef Marine Park Regulations 1983). Plans of Management (ss.39za + 39V). Enforcement and compliance (ss.43, 45A - 48AB). Great Barrier Reef Marine Park Authority Biodiversity conservation Great Barrier Reef Marine Park Act 1975 The Act empowers the Authority to undertake a range of functions for the management of the Great Barrier Reef (GBR) including: Making recommendations to the Minister; Preparing zoning plans and plans of management; Undertaking research; Providing educational, advisory and information services; and, Providing information, advice and payments to the Queensland Government for day-to-day management of the GBR Marine Park (s.7). Recent amendments to the GBRMP Act removed the 1995 amendment requiring that the membership of the Authority needed to include an Indigenous person to represent the interests of the Aboriginal communities adjacent to the Marine Park (S.10(1)(b)). The Authority is now to be made up of at least two but no more than four people with a full time Chairperson (s.10(1)). Members of the Authority are appointed by the Governor General with the Queensland Government able to nominate one person (s. 10(2) + (3)). Members are to be people with qualifications or extensive experience in a field related to the functions of the Authority (s.10(6)). Appointments to the Authority can be up to five years (s. 11). The provisions providing for a Consultative Committee have been repealed in the latest amendments with a non statutory advisory board to be established to report directly to the Minister (Spooner, 2007). The composition, responsibilities and role of this non statutory advisory board including how often it will meet, is entirely within the discretion of the Minister. The Bills Digest does provide that the purpose of the new Board will be to provide the Minister with specific advice relating to Marine Park protection and use, and be comprised of member from business, community, Indigenous, environmental and other relevant bodies indicating a continuum of cross sectoral representation as per the Consultative Committee, however this requirement is not enshrined in the legislation (Spooner, 2007, p.7). Internally the Authority is organised around critical issues groups including: water quality and coastal development; tourism; fisheries; and conservation, heritage and Indigenous issues. For each critical issues group there is a Reef Advisory Committee (RAC) with broad membership to provide input and advice. There is Indigenous participation in the fisheries and conservation, heritage and Indigenous issues RACs. An Indigenous Partnership Liaison Unit was established by the Authority in The Act provides for the development of zoning plans for the whole reef and plans of management for particular areas of the GBR Marine Park (ss ss.39v-39zi). The 2003 Representative Areas Program to increase the area of the GBR under full protection from extractive activities, provided an opportunity to ensure consistent treatment of Indigenous hunting and access to sea country resources. Previously each zoning plan had different arrangements and requirements regarding access to and use of marine resources for traditional purposes making it extremely difficult to understand what permits were required for which activities in what areas. Traditional Use of Marine Resource Agreements The Authority has also developed a mechanism for working in partnership with Traditional Owners to address traditional marine resource use, particularly hunting, through Traditional Use of Marine Resource Agreements (TUMRA). TUMRAs are formal agreements developed by Traditional Owner groups and accredited by the Great Barrier Reef Marine Park Authority (GBRMPA) and the Environmental Protection Agency/Queensland Parks and Wildlife Service (EPA/QPWS). TUMRAs describe how Traditional Owner groups work with government to manage traditional use activities in sea country. 7 The intent of TUMRAs is to achieve a formal level of cooperative management agreement within Traditional Owner groups for the sustainable traditional use of marine resources in the first instance, dugongs and green turtles, in accordance with Traditional Owner custom for the sea country areas, and to support those agreements with a negotiated implementation arrangement and a targeted compliance programme (Dobbs, 2007, p.17). 7 partnerships/sustainable_traditional_use_of_marine_resources A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 59

62 TUMRAs are not the appropriate mechanism to deal with commercial activities including tourism, aquaculture and commercial fishing. There is a prescriptive process with detailed requirements as to contents of a TUMRA and the matters the Authority must consider before accrediting a TUMRA in the Great Barrier Reef Marine Park Regulations 1983 (Cth) (ss.9-11). TUMRAs are made with Traditional Owner groups based on the advice of Native Title Representative Bodies as to who the Traditional Owners are. To date two TUMRAs have been accredited. The Girringun Region TUMRA covering sea country from Rollingstone to Mission Beach was developed by six Girrigun sea country groups: the Djiru, Gulnay, Girramay, Bandjin, Warragamay and Nywaigi Traditional Owners and accredited in December The Dharumbal TUMRA Woppaburra Section was the second TUMRA accredited in June of this year developed by the Woppaburra Traditional Owners of the Keppel Islands region. A third TUMRA is being progressed with the Ma:Mu people in the Innisfail region. TUMRAs provide for the issuing of authorities in accordance with the process developed and agreed to by Traditional Owners for hunting to enable that person to lawfully carry on that activity (ss.104, 71(1) Great Barrier Reef Marine Park Regulations 1983). Where a TUMRA has been breached that act amounts to a breach of the Zoning Plan. In essence TUMRAs are intended to assist Traditional Owners in the management of sustainable traditional use of their sea country. [for further information refer to DOBBS] Some of the issues arising from TUMRAs include: 1. The role of historically affiliated Indigenous people how are they involved in the TUMRA process? Can they still be bound by a TUMRA? For example if required to obtain a hunting permit. 2. Addressing other sea country issues there is a focus on TUMRAs as a means for managing marine turtle and dugong hunting, however broader sea country management issues for example concern with and desire to have greater control over tourism activities in a particular area, do not seem to be catered for under the arrangements. How will these broader issues, namely Indigenous aspirations for greater management and economic development opportunities in the GBR be addressed outside of TUMRAs? 3. Permitting system only way to go? - TUMRAs also seem to promote the issuing of permits by Traditional Owners in accordance with the contents of the TUMRA for hunting where there may be other ways of exercising traditional authority over hunting, are there other options available? 4. Balance of power - The Authority also retains the capacity to vary conditions at any time without the consent of the Traditional Owners if the variation is appropriate to the attainment of the Act. It should also be noted that a TUMRA can be terminated by the agreement holders at any time (s.12(1)). 5. Operation of TUMRAs with s.211 native title rights TUMRAs do not affect the operation of Traditional Owners s.211 Native Title Act 1993 right to fish, gather and hunt regardless of the content of a TUMRA. How will this impact on the effectiveness of TUMRAs? 6. Operation of TUMRA over Qld Marine Park although the first two TUMRA s have also been accredited by EPA as operating in the coastal waters of the Qld Marine Park, there may be circumstances in the future where the contents of a TUMRA do not match the EPA s aspirations for the Qld Marine Park and the situation could evolve where a TUMRA is in effect over the GBR Marine Park but not the coastal Qld Marine Park where significant hunting activity is likely to occur. 7. Resourcing to implement content of TUMRAs. Further analysis of the operation of TUMRAs in relation to these issues and the benefits accruing to Traditional Owners would be of useful. Other opportunities There may be opportunities for existing or future community sea country plans to be accredited under the Act as a plan of management and for arrangements to be entered into for a community to implement the plan and manage a particular area of the GBR Marine Park. The Authority may enter into arrangements with a group of people who are representative of a community group that has a special interest in an area of the Marine Park (s.39za(1)). The definition of a community group with a special interest in an area of the marine park includes people who have some form of native title to the area or its resources of have some other special identification with the area or its resources (s.39v(1)). This provides scope for the involvement of traditionally associated Indigenous people through the inclusion of special identification as well as Native Title connections. The arrangements can provide for management of an area by the community group alone or management in conjunction with the Authority (s.39za(2)). Plans can be developed for management of a species, a species in a particular area, an area or an ecological community (s.39x). Communities interested in having an existing plan accredited or developing a plan of management for an area (or species) need to consider whether the objects of the plan align with their own aspirations particularly relating to use (s.39y) as well as considering the desirability of the public comment requirements on the draft of the plan. The process for preparing a plan of management involves public notification of a proposal to prepare a plan inviting submissions (s.39zb). A moratorium on permit applications is in place once a notice to prepare a plan has been issued (s.39zc). The draft management plan is released for public comment (s.39ze). The plan of management can have enforcement provisions to prohibit an activity even if the activity is allowed in the zoning plan or otherwise authorised by the Act (s.39zd(6)). Entry and use of the area subject to a plan of management may also be prohibited or regulated (s.39zd(8)). 60 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

63 Enforcement and compliance The Authority may appoint any person as an Inspector (s.43). Inspectors have a wide range of powers to enforce the Act, zoning plans and plans of management including power to arrest without a warrant (ss.45a 48AB). Community rangers or other Aboriginal people could therefore be appointed as Inspectors to enforce compliance with the Act, with appropriate training and support. Recommendations Responsible agency/ organisation 51. Explore issues relating to TUMRAs to inform debate and identify mechanisms to address. This includes assessing the benefits and disadvantages of TUMRAs and sharing findings with communities. GBRMPA with NAILSMA project partners 52. Identify opportunities for long term funding to implement TUMRAs. GBRMPA 53. Assess the benefits and disadvantages of EPA MoUs and share this information with communities EPA with NAILSMA Project partners 54. Explore the potential of existing community sea country plans (or developing community sea country plans) to be accredited as a plan of management under the GBRMP Act with arrangements for appropriate support, training and empowerment for implementation of the plan. GBRMPA with NAILSMA Project partners 55. Explore the potential for Community Rangers (or other suitable Indigenous people) to be appointed as Inspectors by the Authority. Training and other support would need to be provided and enforcement capacity could be limited to a specific area, to implementing a plan of management and/or general compliance with the Act. GBRMPA with NAILSMA Project partners 4. Animal Welfare Animal welfare is an issue for the ongoing engagement of Indigenous people in dugong and marine turtle management. There are acknowledged differences in cultural attitudes towards animals as well as competing perspectives on animal protection and conservation (Thiriet, 2004). Each State and Territory has their own legislation providing protection to animals from cruelty. At the current time there are limited implications for these laws on Indigenous management of dugong and marine turtle. However there is increasing pressure from special interests groups to explore this issue, specifically in relation to Indigenous harvest. The Queensland Animal Care and Protection Act 2001 is an act to promote the responsible care and use of animals and to protect animals from cruelty. It is an offence to be cruel to an animal (s.18(1)). There is a specific exemption for activities done or omissions made by Aboriginal people under Aboriginal tradition, or by a Torres Strait islander under Torres Strait Island custom (s. 8(1)). Under the Northern Territory Animal Welfare Act 1999 it is an offence to neglect or commit an act of cruelty on an animal (s.6(1)). The Minister can exempt a person or class of persons from complying with the Act or the regulations, however no such exemption has been granted to Indigenous people in undertaking traditional hunting (s.81). The Act applies to cultural, religious or traditional practices which are explicitly excluded as providing a defence to any charge of cruelty (s.79(2)). The Animal Welfare Act 2002 of Western Australia likewise provides that it is an offence to be cruel to animals (s.19) and like the NT Act it does not specifically refer to traditional hunting, meaning that tradition might be a factor to be considered to determine whether an act is justified, reasonable or necessary, the standard defence to a charge of cruelty. A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 61

64 5. Institutional arrangements The core themes emerging from analysis of the institutional arrangements around marine turtle and dugong management are complexity and fragmentation. There is an overwhelming division of responsibility around the broad area of Indigenous sea country management, within which marine turtle and dugong management fits. Evident from the range of legislation administered by a plethora of departments across a range of jurisdictions, it is a difficult task to piece together the framework for management of sea country and for these species. The breaking up of these responsibilities into six main areas for exploration in this report was an attempt to facilitate understanding of the management regime. A symptom of the fragmentation of agency responsibility is the failure to communicate, coordinate and function as an effective institution. This dysfunction is of course compounded by the nature of bureaucracy and the multi-jurisdictional context of this issue. There is policy inconsistency in the approaches from (and within) departments to Indigenous management of these species and management of sea country. There is a critical need for greater policy alignment within and between agencies. This alignment will not begin until functional communication is established and maintained. Organising intra-department functionality is the first challenging step with responsibilities shared and progressed for different objectives. For example, within DEW the marine migratory species section is responsible for the development of recovery plans and other conservation initiatives specifically for marine migratory species including marine turtle and dugong and the Torres Strait Strategic Fisheries Assessment; with the marine parks section responsible for developing marine protected areas through bioregional marine planning, and the Indigenous Land Management section under Parks administering the Indigenous Protected Areas programme. Other problems with the centralization of control in government bureaucracies is again resulting from the fragmented, sector focused approach of each agency and the lack of effective coordination. The ICCs are an attempt to provide this type of coordination, however the level at which they operate prevents them from being able to broker arrangements that may not meet the prescriptive requirements of their different portfolios. Further all ICC agreements, such as Shared Responsibility Agreements and Regional Partnership Agreements, can only be made for a maximum of three years which fails to meet community need for secure long term funding. The Natural Heritage Trust program likewise fails in this area. There are diverse and at times competing frames with respect to management of the species and/or sea country, between and within government departments for example, IPAs for sea country management aspirations and international agreements to improve species management at that level. This diversity influences the types of mechanisms utilised and the manner in which they are implemented, for example the Torres Strait Customary Fishery of marine turtle and dugong s, strategic assessment under the EPBC to ensure sustainability, necessarily involves conflict between conservation of species outcomes, fisheries sustainability and customary management. Shared Responsibility Agreements Shared Responsibility Agreements (SRAs) are voluntary agreements between government and Indigenous communities where Indigenous people and communities decide they want to address specific priorities. The community decides the issues or priorities it wants to address, how it wants to address them and what it will do in return for government investment i.e. specific commitments. SRAs clarify what government, communities, families and other partners will contribute to address the local priorities ( gov.au/sra.html). Dhimurru Land Management Aboriginal Corporation has an SRA with the Office of Indigenous Policy Coordination and the then National Oceans Office (now marine division of DEW) for support to undertake sea country planning and activities ( gov.au/sra/search/srasearch.aspx). SRAs can clearly be useful tools for leveraging support for sea country management activities including marine turtle and dugong management. 62 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

65 Australian Government Approach to Indigenous Affairs Greater efforts to initiate whole of government approaches to Indigenous affairs have been evident over the past few years. With the development of an agreement on Aboriginal and Torres Strait Islander service delivery approved by all State/Territory governments and the Australian Government in December Subsequent to this overarching agreement, bilateral agreements between the Australian Government and State/Territory jurisdictions to clarify the relationship and responsibilities in relation to Indigenous affairs have been progressed. The Overarching Agreement on Indigenous Affairs between the Commonwealth of Australia and the Northern Territory of Australia ( PDF/IndigenousAffairsAgreement.pdf) provides one such example. A schedule to this agreement specifically focuses on measures to support Indigenous engagement in the sustainable management of lands and seas by taking a more focused and coordinated approach to the implementation of existing, and development of new, policies, legislation and programs. ( HealthyCountryHealthyPeopleSchedule). A package of initiatives announced in the Federal Budget in May is aiming to improve housing, provide better educational opportunities, explore new approaches to health and create real economic opportunities by converting CDEP positions into government service delivery jobs. The entire package, A better future for Indigenous Australians, is costed at $748M over four years, not including any savings from compliance measures ( gov.au/budget/ /overview/html/overview_29.htm). However recent moves to pass specific legislation enabling Australian Government intervention in a number of remote Indigenous communities in the NT may affect the ability of these two governments to work productively together. Recommendations Responsible agency/ organisation 56. A whole of government audit of Federal agencies with the overall aim of achieving policy functionality and coherency with respect to sea country management for, among other things, marine turtle and dugong management. It would involve: evaluating the coordination and communication mechanisms within the department and between departments to develop and implement recommendations for improvements; collating and assessing policies and programs relevant to marine turtle and dugong management and sea country management to identify alignment, conflicts and gaps; develop a strategy to increase policy alignment, deal with conflicts and seek to fill gaps identified; identifying key links with State and Territory agencies with relevant responsibilities. 57. The WA, NT and Qld governments to separately undertake a whole of government audit with the overall aim of achieving policy functionality and coherency with respect to sea country management for, among other things, marine turtle and dugong management. It would involve: evaluating the coordination and communication mechanisms within the relevant department and between departments to develop and implement recommendations for improvements; collating and assessing policies and programs relevant to marine turtle and dugong management and sea country management to identify alignment, conflicts and gaps; develop a strategy to increase policy alignment, deal with conflicts and seek to fill gaps identified; identifying key links with Australian government agencies and NT, WA and Qld government agencies with relevant responsibilities. 58. Establish a Working Group with representatives from the NT, WA, Qld and Australian governments to discuss the outcomes of the policy audits and to develop a plan for implementation. Australian Government: DEW, DAFF, AFMA, OIPC (ICCs), GBRMPA Qld Government: NT Government: WA Government Australian Government to lead Qld Government NT Government WA Government A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 63

66 6. Policy drivers Policy can be driven internally for example through ministerial changes and regular reviews of programs. External drivers of policy include economic forces such as market fluctuations, media attention and opinion polls. The influence of research can also be significant on policy direction. With respect to marine turtle and dugong management, changes in technology was believed to enable hunters in some regions to access larger areas and with more efficient tools thereby affecting the level of hunting. A policy response to this change was, for example, a Fisheries Management Notice restricting hunting to use with the traditional wap in the Torres Strait. Media attention has also been a critical driver of policy responses to marine turtle and dugong management with new case law (such as the Yanner case) and international relations also playing key roles. Party political platforms, ministerial ideology and past achievements are further influencers of policy direction. Current policy on marine turtle and dugong management is being influenced by a range of factors including: 1. existing processes, such as the Strategic Assessment of the Torres Strait Turtle and Dugong Fishery, the draft Marine Turtle Recovery Plan (Cth), the review of the Indigenous Protected Areas program, the National Partnership Approach (MACC), the WA draft Marine Turtle Conservation Plan, Cth Bioregional marine planning process and marine protected areas process etc; how these have evolved, the process for their development, how these reflect Departmental ideology, etc 2. fundamental policy changes to programs such as CDEP which is likely to affect the ability of community rangers to keep working on land and sea country and private land ownership by Indigenous people cf.communal freehold 3. Australian Government participation in (and prioritisation of) International fora and influence from the international level filtering back down to the nation; 4. strategic relationships, for example with think tanks (IPA), lobby and advocacy groups (HSI) and individuals (the late Steve Irwin); 5. scientific research; and 6. the media. The drivers of other activities impacting on marine turtle and dugong also need to be considered. For example, decreased water quality as a result of increasing urbanization resulting from demographic shifts to coastal areas and low interest rates encouraging development; continued agricultural activities along the east coast and so on. Two other critical factors that will influence policy in unanticipated ways are: 1. demographic shifts in Indigenous populations with an increasing number of young Indigenous people, which will have broad ranging implications including, for example, a corresponding increase in potential hunters; and 2. natural crises such as floods and cyclones affecting the availability of food for marine turtle and dugong. 64 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

67 7. Recommendations Core Recommendations of High Priority Recommendations i. The recommendations of this report are considered and direction provided on which will be implemented, either collectively or individually. Responsible driver NAILSMA Marine Turtle and Dugong Project Partner organisations ii. iii. iv. Significantly increase, coordinate and streamline, funding and support arrangements for existing initiatives to expand support for long term investment in sea country management including rangers and land and sea centres/organisations. Relevant initiatives include the IPA Programme, Working on Country Programme, Marine Species Recovery and Protection Grant Programme, National Partnership Approach for Sustainable Indigenous Management of Dugong and Marine Turtle, NHT NRM projects. A whole of government audit of Federal agencies with the overall aim of achieving policy functionality and coherency with respect to sea country management for, among other things, marine turtle and dugong management. It would involve: evaluating the coordination and communication mechanisms within the department and between departments to develop and implement recommendations for improvements; collating and assessing policies and programs relevant to marine turtle and dugong management and sea country management to identify alignment, conflicts and gaps; develop a strategy to increase policy alignment, deal with conflicts and seek to fill gaps identified; identifying key links with State and Territory agencies with relevant responsibilities. The WA, NT and Qld governments to separately undertake a whole of government audit with the overall aim of achieving policy functionality and coherency with respect to sea country management for, among other things, marine turtle and dugong management. It would involve: evaluating the coordination and communication mechanisms within the relevant department and between departments to develop and implement recommendations for improvements; collating and assessing policies and programs relevant to marine turtle and dugong management and sea country management to identify alignment, conflicts and gaps; develop a strategy to increase policy alignment, deal with conflicts and seek to fill gaps identified; identifying key links with Australian government agencies and NT, WA and Qld government agencies with relevant responsibilities. DEW Australian Government: DEW, DAFF, AFMA, OIPC (ICCs), GBRMPA Qld Government: NT Government: WA Government v. Establish a Working Group with representatives from the NT, WA, Qld and Australian governments to discuss the outcomes of the policy audits and to develop a plan for implementation. Australian Government to lead Qld Government NT Government WA Government A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 65

68 Recommendation International recognition of customary rights 1. Exploration of community based management approaches to sea country and/or use and management of native species in different jurisdictions to identify whether these approaches could apply to the Australian context. Responsible agency/ organisation DEW Recommendations Native Title and Land Rights 2. Encourage government to undertake a proper assessment of the threats to marine turtle and dugong from other activities (including quantifying the impacts where possible) and to develop plans to address these threats, including through existing mechanisms such as recovery plans. 3. Encourage governments to take partnership approaches with appropriate resourcing and support. Responsible agency/ organisation NAILSMA Project partners NAILSMA Project partners 4. Analyse any ILUA s over sea country to clearly ascertain potential benefits and problems with a view to making broad recommendations on effectiveness as mechanism for sea country management in northern Australia. Recommendation Governance (Federal) 5. Assess the implications of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 specifically on organisations with land and sea management responsibilities, to identify areas for further reform. Recommendations Conservation (Federal) 6. Undertake a review of how well the objects of the EPBC Act in relation to Indigenous conservation, management and knowledge have been achieved through DEW efforts. 7. Amend sections 189 and 251 of the EPBC Act to require consideration of Indigenous Knowledge, cultural values and use of species as matters to be considered by the Threatened Species Scientific Committee. when assessing species for listing 8. Amend section 502 to require appropriate Indigenous representation and participation on the Threatened Species Scientific Committee 9. Amend sections 269A(5), 270A(3) + 270B(5) requiring Indigenous Knowledge, cultural values and use of species as matters to be addresses/considered in the development of recovery and threat abatement plans. 10. Expand the IPA Programme to sea country and provide appropriate resourcing and support for communities to access this programme. 11. Strengthen government support for Indigenous Sea Country Plans, including allocation of funding to support their development and implementation and to enable implementation of plans already created. 12. Guarantee appropriate funding and other resources to implement management actions identified under recovery and threat abatement plans with a priority placed on Indigenous management to achieve the objectives of these plans. DEW, ICC (FACSIA) Responsible agency/ organisation FACSIA Responsible agency/ organisation DEW DEW DEW DEW DEW DEW DEW 66 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

69 13. Continue support for Indigenous engagement in the Partnership approach and Recovery Plan development and implementation, including resourcing to implement key activities identified through the National Partnership Approach. 14. Significantly increase, coordinate and streamline, funding and support arrangements for existing initiatives to expand support long term investment in sea country management including rangers and land and sea centres/organisations. Relevant initiatives include the IPA Programme, Working on Country Programme, Marine Species Recovery and Protection Grant Programme, NHT NRM projects. 15. Commit to resource, support and facilitate appropriate Indigenous representation and participation in groups charges with developing Threat Abatement Plans, Recovery Plans or Wildlife Conservation Plans. 16. Explore the possibly use of a Wildlife Conservation Plans, Conservation Agreements or the declaration of Commonwealth Reserves over marine areas - to achieve community sea country management objectives. Recommendation Heritage (Federal) 17. Where appropriate, encourage communities to explore options for listing significant sea country areas as National Heritage areas with a key focus on obtaining co or sole management responsibilities (with appropriate resourcing). Recommendations Conservation (NT) 18. Amend s.32(2) of the Territory Parks and Wildlife Conservation Act 1991 to include specific requirement to address the cultural values of wildlife the subject of a Wildlife Management Program including Indigenous Knowledge, Traditional Owner rights and obligations. 19. Develop a Co-managed Wildlife Management Program template for ensuring Aboriginal values, concerns and aspirations are incorporated through an equitable partnership providing for Indigenous management of wildlife. A strategy for the uptake of the Wildlife Management Program template for co-management will need to demonstrate how to develop the framework (or how it was developed), why it is needed, why it would be successful. 20. Promote Co-Operative Management Agreements favourable to supporting Indigenous wildlife management through Co-managed Wildlife Management Program or through existing Wildlife Management Programs. With an appropriate Co-Managed Wildlife Management Program for dugong and marine turtle these agreements could provide the basis for strong Indigenous management of species with broader sea country management benefits. 21. Explore opportunities for declaring marine turtle and/or dugong habitat declared as essential habitat (s.37) with a Co-operative Management Agreement to support Traditional Owner management. 22. Explore opportunities for declaring marine turtle and/or dugong habitat declared as essential habitat (s.37) with a Co-operative Management Agreement to support Traditional Owner management. 23. Explore options for appointing Aboriginal people, particularly Community Rangers, as Honorary Conservation Officers with appropriate support and training to enforce offence provisions of the Act and particularly enforce breaches of any by-laws of a jointly managed park or reserve or offences relating to areas of essential habitat. DEW DEW to coordinate DEW DEW Priority: Low Responsible agency/ organisation NAILSMA Project partners with DEW Priority: Low Responsible agency/ organisation NRETA NRETA NRETA NRETA with NAILSMA Project partners NRETA with NAILSMA Project partners NRETA with NAILSMA Project partners A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 67

70 24. Evaluate effectiveness of Conservation Agreements as appropriate mechanisms for providing support to Indigenous land and sea management activities. NRETA in partnership with Indigenous organisations and representative bodies. Recommendation Heritage (NT) 25. Share information with interested communities about options under the Northern Territory Aboriginal Sacred Sites Act 1978 to protect and manage sea country heritage sites through registration (ss.27 29) and exploring ways to enforce the offence provisions against damage, desecration or entry to sites (s.33). Recommendations Fisheries (NT) 26. Amend s.24(2) of the Fisheries Act 1988 (NT) to require specific Indigenous membership of the Fishery Management Advisory Committees to ensure that Indigenous Knowledge, values, rights and interest in the fishery subject to the development of a management plan are incorporated as appropriate. 27. Review the effectiveness of the existing Aboriginal Fisheries Consultative Committees in providing an effective and appropriate mechanism for Indigenous people to raise issues and for their successful resolution. 28. Review the effectiveness of the Indigenous Community Marine Ranger Program to identify areas for improvement, including enhanced funding arrangements. Recommendations Governance (WA) 29. Clarify the interaction between the AAPA Act and the Land Administration Act to identify the authority of Management Bodies and the Aboriginal Lands Trust in relation to management of reserves, whether through by-laws, conditions in the lease of the reserve or other mechanisms. 30. Explore the Local Government Act 1995 and the Aboriginal Communities Act 1979 to clarify potential opportunities for communities living on and managing reserves. Recommendations Conservation (WA) 31. Insert a new subsection in section 13 of the CALM Act, subsection 13(3b) requiring the Minister to consult and/or obtain the consent of Traditional Owners before any waters within their traditional estate is reserved under section Amend section 26D of the CALM Act to provide for Indigenous representation and participation on the Marine Parks and Reserves Authority. 33. Require Indigenous membership of the Threatened Fauna Scientific Advisory Committee and the Endangered Species Consultative Committee to insure Indigenous values and perspectives on particular species and management approaches, as well as Indigenous Knowledge informs the development of Recovery Plans or the Wildlife Management Program 34. Explore opportunities for establishing effective co management arrangements for Marine Protected Areas. Responsible agency/ organisation NRETA Responsible agency/ organisation DPIFM DPIFM DPIFM Responsible agency/ organisation DIA with the KLC Priority: Low DIA with the KLC Priority: Low Responsible agency/ organisation DEC DEC DEC DEC with KLC 68 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

71 35. Explore options for the appointment of Honorary Officers from the community to enforce the CALM Act, the specific marine reserve management plan and/or specific offences. Also to exercise the functions and powers of a Conservation Officer to enforce relevant provisions of the Wildlife Conservation Act (1950). 36. Share information and explore options with interested communities about benefits and costs of establishing and managing marine reserves over sea country (including strategies for ensuring co-management and resourcing, support and capacity building for management where desired). Recommendations Fisheries (WA) 37. Amend sections 115 and 117 of the FRM Act to include customary marine resource use, cultural values and Traditional Owner aspirations as matters to be addressed through the declaration process for a fish habitat protection area and the subsequent development of a plan for management. 38. Explore the potential of having community rangers or other appropriate Indigenous people appointed as Honorary Fisheries Officers (whether in conjunction with efforts to establish a fish habitat management area or not). 39. Develop a brief exploring options for negotiating with the Minister for Fisheries to establish a fish habitat management area where control is vested in an appropriate body corporate, the draft plan is developed in partnership (or by the community itself) and resourcing is provided to assist the delivery of management and compliance responsibilities. The use of regulations to effect management of the area should also be explored. Recommendations Conservation (Qld) 40. Amend section 14 of the Marine Park Act to ensure that the Chief Executive considers cultural values, traditional customary use and Traditional Owner aspirations during the preparation of a proposal for the declaration of a marine park. An appropriate consultation process is the critical mechanism to inform the Chief Executive on these matters. 41. Encourage dialogue and relationships between enforcement agencies (QPWS) and communities to clarify the boundaries of what matters communities wish to enforce themselves and where agencies need to step in. Where appropriate, advocate for full utilization of existing agency capacity to enforce offences under the NCA, namely the illegal take of marine turtle and dugong. 42. Explore the potential for management responsibility for marine parks to be devolved to community local governments or other community organizations, such as Land and Sea Centres under s.23(1)(b) Marine Parks Act Explore enforcement and compliance options under the Nature Conservation Act 1992 with interested communities including: requesting the Minister to appoint qualified persons as Honorary Protectors and/ or request appointment of Conservation Officers with the full range or a subset of the powers provided for in the Act; and, lobbying for management funding including training, capacity building and other required support to ensure any appointed officers have the appropriate training and support to discharge their duties. 44. Advocate for resources for Indigenous communities to manage marine turtle and dugong habitat as part of a broader conservation strategy for the species; and, protected areas. DEC DEC with KLC Priority: Low Responsible agency/ organisation Dept of Fisheries Dept of Fisheries with KLC Dept of Fisheries with KLC Priority: Low Responsible agency/ organisation EPA EPA and NAILSMA Project partners EPA with NAILSMA Project partners EPA with NAILSMA Project partners NAILSMA Project partners A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 69

72 45. Clarify QPWS position on the right of traditionally affiliated Indigenous people to hunt marine turtle and dugong. Recommendation Fisheries (Qld) 46. Explore options under the Fisheries Act to: delegate powers to Community Rangers; utilise agreements; develop specific management plans for marine turtle and dugong; amend existing fisheries management plans to provide for a greater role for Indigenous people to manage seacountry particularly marine turtle and dugong habitat; use regulations for protection and management of marine turtle and dugong habitat; train and appoint community rangers or others as Fishery Inspectors. Recommendations Torres Strait 47. Establish a Marine Turtle and Dugong Working Group to provide advice to the Torres Strait Fisheries Management Advisory Committee and the PZJA directly on management of marine turtle and dugong. The working group would have a majority membership of traditional inhabitants from Torres Strait and PNG, include hunters as much as possible; appropriately resource participants to ensure effective engagement, particularly PNG traditional inhabitants; link up with existing community consultative processes dealing with marine turtle and dugong in the Torres Strait; have access to scientific expertise on marine turtle and dugong (whether as members of the working group, independent advisors or as part of the Torres Strait Scientific Advisory Committee); provide advice and information to relevant government agencies such as DEW, AFMA, DAFF. 48. Encourage the Australian government through the PZJA to pursue strategic collaboration with PNG in relation to marine turtle and dugong management including committing sufficient long term funding to achieve this objective. 49. Undertake an evaluation, with community participation, of the effectiveness of Fisheries Management Notices as a management tool for dugong and marine turtle populations. EPA Priority: Low Responsible agency/ organisation DPIF with NAILSMA Project partners Responsible agency/ organisation DAFF NAILSMA Project partners PZJA and NAILSMA Project partners 50. Clarify mechanisms for improving interagency communication, between AFMA and DEW for example through key staff and alignment of workplans. Recommendations Great Barrier Reef 51. Explore issues relating to TUMRAs to inform debate and identify mechanisms to address. This includes assessing the benefits and disadvantages of TUMRAs and sharing findings with communities. Responsible agency/ organisation GBRMPA with NAILSMA project partners 70 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

73 52. Identify opportunities for long term funding to implement TUMRAs. GBRMPA 53. Assess the benefits and disadvantages of EPA MoUs and share this information with communities EPA with NAILSMA Project partners 54. Explore the potential of existing community sea country plans (or developing community sea country plans) to be accredited as a plan of management under the GBRMP Act with arrangements for appropriate support, training and empowerment for implementation of the plan. 55. Explore the potential for Community Rangers (or other suitable Indigenous people) to be appointed as Inspectors by the Authority. Training and other support would need to be provided and enforcement capacity could be limited to a specific area, to implementing a plan of management and/or general compliance with the Act. Recommendations institutional arrangements 56. A whole of government audit of Federal agencies with the overall aim of achieving policy functionality and coherency with respect to sea country management for, among other things, marine turtle and dugong management. It would involve: evaluating the coordination and communication mechanisms within the department and between departments to develop and implement recommendations for improvements; collating and assessing policies and programs relevant to marine turtle and dugong management and sea country management to identify alignment, conflicts and gaps; develop a strategy to increase policy alignment, deal with conflicts and seek to fill gaps identified; identifying key links with State and Territory agencies with relevant responsibilities. 57. The WA, NT and Qld governments to separately undertake a whole of government audit with the overall aim of achieving policy functionality and coherency with respect to sea country management for, among other things, marine turtle and dugong management. It would involve: evaluating the coordination and communication mechanisms within the relevant department and between departments to develop and implement recommendations for improvements; collating and assessing policies and programs relevant to marine turtle and dugong management and sea country management to identify alignment, conflicts and gaps; develop a strategy to increase policy alignment, deal with conflicts and seek to fill gaps identified; identifying key links with Australian government agencies and NT, WA and Qld government agencies with relevant responsibilities. 58. Establish a Working Group with representatives from the NT, WA, Qld and Australian governments to discuss the outcomes of the policy audits and to develop a plan for implementation. GBRMPA with NAILSMA Project partners GBRMPA with NAILSMA Project partners Responsible agency/ organisation Australian Government: DEW, DAFF, AFMA, OIPC (ICCs), GBRMPA Qld Government: NT Government: WA Government Australian Government to lead Qld Government NT Government WA Government A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 71

74 8. Conclusion Although there are some positive initiatives to support Indigenous sea country management and/or specific marine turtle and dugong management at federal, state and territory levels, there are relatively limited legal opportunities to increase Indigenous management. Greater opportunities exist through strengthening, streamlining and coordinating existing initiatives to provide long term funding and support for Indigenous sea country management, and specifically marine turtle and dugong management. It is imperative that steps are taken to overcome the significant barriers posed by fragmented policies and programmes being delivered by agencies at federal, state and territory levels. Improving communication and policy alignment and clarifying common programme objectives will improve the coordinated delivery of currently disparate policies to provide genuinely support and resource long term, effective Indigenous sea country management, to ensure healthy marine turtle and dugong populations into the future. It is also important to note that progressing aspirations at the community level will be the foundation from which subsequent changes to the law and policy will flow. Support must be directed to the grassroots to nurture the diversity of approaches to sea country management for the continuation of marine turtle and dugong populations in northern Australia There is still a clear lack of recognition of the full range of customary rights of Traditional Owners to access, control and manage sea country, and therefore marine turtle and dugong. The legal mechanisms available provide limited potential to realise Aboriginal and Torres Strait Islander aspirations for sea country management and may be useful depending upon the desires and capacity of the community in question. However these opportunities are embedded within the fragmented management approach by government agencies and restrict culturally appropriate, holistic management approaches. There are however a range of legislative amendments particularly within the EPBC Act to strengthen the role of Indigenous people in broader threatened species management and protection. Amendments to State and Territory conservation legislation are also required to achieve this outcome across northern Australia. There are Indigenous aspirations for greater control and management over sea country particularly to look after the culturally significant marine turtle species and dugong. Current opportunities for legal mechanisms to support these aspirations are limited but through bolstering existing initiatives and focusing on improving government capacity to deliver coherent policy and coordinated programs, a comprehensive program to empower Indigenous sea country management can be achieved, ensuring the continuation of the marine turtle and dugong. 72 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

75 Appendix 1: Consultation feedback People offered their opinions on a range of issues beyond the legal management of marine turtle and dugong, which was a very small component of discussions. Most attention focused on existing management of marine turtle and dugong and critiques of what was being done and what was not. Perspectives on the broader issues of recognition and acknowledgement of Indigenous customary rights and government approaches to Indigenous affairs were also discussed. Below is a brief summary list of issues raised and ideas suggested for making progress in the current situation. Specific comments on NAILSMA and/or the NAILSMA marine turtle and dugong project have been provided to the Project Coordinator for consideration. Many of the recommendations of this report have picked up on suggestions and ideas from interviewees. Core themes of issues 1. Resourcing 2. Respect and Recognition 3. Enforcement and compliance 4. Government coordination and efficiency 5. Expectation management 6. Scales of appropriate management and regulation 7. Diversity of aspirations and perspectives 8. Marine turtle and dugong resource sharing and allocation 9. Who has the right to hunt: traditional affiliated people, Traditional Owners. 10. Research and monitoring: protocols and sharing of data 11. Representation accessing Indigenous perspectives and supporting Indigenous participation and engagement 12. Capacity building Ideas and Suggested Remedies Some key suggestions related to the need to develop decision making frameworks and principles (informed by science and Indigenous Knowledge and practice) in the absence of data and knowledge and the need to sort governance arrangements to empower Traditional Owners but to still keep them connected with broader issues. Any successful institutional arrangements would need to mediate between western science and Indigenous knowledge to derive benefits from both, with a focus on practical arrangements Core area Idea or suggestions 1. Resourcing In the future land and sea centres as the core to drive marine turtle and dugong management build expertise with long term resourcing and support rangers dedicated to land and sea management 100% (cf.other council work) 2. Respect and recognition 3. Enforcement and compliance 4. Government : coordination and efficiency 5. Research and monitoring Need to be treated as equal partners in the management process need specific provisions in legislation requiring position actions to involve Indigenous people and address Indigenous rights, interests and aspirations cf.tokenistic lip service in the objects of Acts to empower Indigenous people for co-management, partnerships etc. (easier to avoid this challenge) 2% of wrongdoers out there need to find ways to intercept and educate wrongdoers Torres Strait - Need to use the Treaty more effectively systematic problem with no response to actions from Treaty meetings Assess NRM plans for opportunities to support sea country (and marine turtle and dugong) management initiatives in line with community aspirations Marine turtle Conservation Plan under the NCA could be helpful in bringing together all management initiatives for marine turtle conservation, enable identification of gaps and specific management approaches to address the diverse issues relevant for each of the six species. The MACC National Partnerships approach needs genuine incentives to encourage engagement with Indigenous communities. Government has to have the will to make it work Need to convince agencies that their separate program objectives for which there is funding can be met through one bucket of funding need to develop single reporting mechanism to multiple agencies to meet their individual requirements. Hands on monitoring by communities to increase skills, awareness and understanding of the species as a shared resource and the impacts that are occurring A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 73

76 Core area Idea or suggestions 6. Representation increase Indigenous peoples attendance at international conferences to develop contacts and get assistance etc 7. Capacity Building 8. Legislation and rights traineeships with government depts. to build capacity and increase Indigenous staff Need training and formal recognition that Indigenous community rangers are qualified to manage marine turtle and dugong Need to hook up hunters and younger mob up with elders Projects must proceed at the pace and scale that is appropriate for the community in question Employing community rangers by QPWS could ensure greater access to training and support, paid properly could be preferable to community rangers being employed through local governance arrangements, ensure full focus on land and sea management. Convert CDEP to Indigenous Ranger Support (or whatever) to get people into real jobs, out of the welfare zone to do meaningful land and sea management work Youth leadership critical for communities and organisations Need talent spotting and capacity to build and nurture talent spotted Need incentive based approach to salaries e.g. increase in salary when training completed need to strive to attain a balance between rights and responsibilities of Traditional Owners and agencies who makes decisions, over what, when, how, and why Need legal protection of Indigenous rights to use resources Need to have Traditional Owner support to get changes to policy and legislation e.g. GBRMPA Representative Areas Program Need to develop new tools to achieve desired outcomes NOT over-regulate in an attempt to capture the Look for legislative options to support community elements at that scale need bottom up approaches that then link at regional scale An umbrella Act pulling in all the different enforcement and compliance powers relevant to land and sea management found in disparate legislation to make it easier for Community Rangers to meet requirements to acquire and exercise these powers e.g. Indigenous Rangers Act develop co-management templates for species specific management plans under the Territory Parks and Wildlife Conservation Act 1991 need to demonstrate how to do it, why need it, why it would be a success and why low risk to the Minister 9. Communication need to develop support and understanding of hunting issues in southern Aust i.e. the cities 10. Other impacts Need a greater focus on the other activities impacting on marine turtle and dugong populations 74 Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

77 Appendix 2: Status of marine turtles and dugong across the northern jurisdictions Species Cwth Environment Protection and Biodiversity Conservation Act 1999 Great Barrier Reef Marine Park Act 1975 Qld Nature Conservation Act 1992 Marine Park Act 1982 WA Wildlife Protection Act 1950 Wildlife Conservation (Specially Protected Fauna ) Notice 2005 NT Territory Parks and Wildlife Conservation Act 1991 Green turtle Chelonia mydas Vulnerable Protected spp (GBRMPAct) Vulnerable Rare or likely to become extinct Least concern Loggerhead turtle Caretta caretta Endangered Protected spp (GBRMPAct) Endangered Rare or likely to become extinct Endangered Hawksbill turtle Eretmochelys imbricata Vulnerable Protected spp (GBRMPAct) Vulnerable Rare or likely to become extinct Data deficient Flatback turtle Nator depressus Vulnerable Protected spp (GBRMPAct) Vulnerable Rare or likely to become extinct Data deficient Olive ridley/ Pacific ridley turtle Lepidochelys olivacea Endangered Protected spp (GBRMPAct) Endangered Rare or likely to become extinct Data deficient Leatherback turtle Dermochelys coriacea Vulnerable Protected spp (GBRMPAct) Endangered Rare or likely to become extinct Vulnerable Dugong Dugong dugong Migratory Spp Marine Spp Protected spp (GBRMPAct) Vulnerable Specially protected fauna Low risk A Consultancy Report to the North Australian Indigenous Land and Sea Management Alliance by Jann Crase 75

78 References AFMA (2006) Draft Torres Strait Turtle and Dugong Fisheries Assessment Report, au/environment/assessment/comment.htm (accessed 31/7/06) ALRC (1986) The Recognition of Aboriginal Customary Laws - Summary Report. T. L. R. Commission, Australian Government Publishing Service. EPA/QPWS, Nature Conservation (Dugong) Conservation Plan 1999 (Qld) and Recovery Plan for the conservation of Dugong Davidson, J., Gunn, K., Neilsen, M.A., Harris Rimmer, S., Gardiner-Garden, J. (2006) Bills Digest, No , Corporations (Aboriginal and Torres Strait Islander) Bill 2005, Parliamentary of Australia, Canberra, pp.37. Dobbs, K. (2007) A Reef-wide framework for managing traditional use of marine resources in the Great Barrier Reef Marine Park, GBRMPA, Townsville, p.16. DEC (1992) Policy Statement 44 Wildlife Management Programs, view/842/1212/ (accessed 5/9/07) DEW (2007) National Partnership Approach for the Sustainable Harvest of Turtle and Dugong, Maintaining the momentum: Developing a toolbox for sustainability (provided by Abbie Beetson, DEW, August 2007). Gibbs, M. (2003) Indigenous Rights to Natural Resources in Australia and New Zealand: Kereru, Dugong and Pounamu. Australasian Journal of Environmental Management 10: Gilligan, B. (2006) The National Reserve System Programme 2006 Evaluation, Department of the Environment and Heritage, Canberra, p.6, 2, 4, 5. Havermann, P., D. Thiriet, Marsh, H + Jones, C (2005) Traditional use of marine resources agreements and dugong hunting in the Great Barrier Reef World Heritage Area. Environmental and Planning Law Journal 22: Levy, R (2007) Northern Land Council Briefing Paper: Blue Mud Bay Case. (17/09/07). Marsh, H, Penrose, H, Eros, C, + Hughes, J (2002) Dugong: Status Report and Action Plans for Countries and Territories, Early Warning and Assessment Report Series, UNEP Meyers, G. D. (2002). Native Title Rights in Natural Resources: a Comparative Perspective of Common Law Jurisprudence. Environmental and Planning Law Journal 19(4): NAILSMA (2006) Dugong and Marine Turtle Knowledge Handbook: Indigenous and scientific knowledge of dugongs and marine turtles in northern Australia, NAILSMA, Darwin. NRETA (2005) Draft Northern Territory Parks and Conservation Masterplan, Darwin, p.6, iii, v, 62, 60, 75, 80. Nursey-Bray, M. (2006) Conflict to Co-Management: eating our words. Department of Tropical Environment Science and Geography. Townsville, James Cook University. Doctor of Philosophy. Osbourne s Concise Legal Dictionary, 8th ed, Street & Maxwell, p.339. OIPC (2005) NT and Federal Government, Overarching Agreement on Indigenous Affairs healthy country, healthy people : supporting Indigenous engagement in the Sustainable Management of Land and Seas, Schedule 2.5, p. 1. PDF/HealthyCountryHealthyPeopleSchedule.pdf Scott, G. (2003). Fisheries Management: Issues of Concern to Aboriginal Traditional Owners in the Northern Land Council Region Draft report to the Northern Land Council, Darwin, referred to in Living on Saltwater Country. Review of literatures about Aboriginal rights, use, management and interests in northern Australia marine environments, National Oceans Office 2004 p.71. Sparkes, S. (2001) Native Title - all at Sea? Native Title Representative Bodies Legal Conference, National Native Title Tribunal. Spooner, D. (2007) Bills Digest, No.134, , Great Barrier Reef Marine Park Amendment Bill 2007, Parliament of Australia, Canberra, p.7. Thiriet, D. (2004) Tradition and Change: avenues for improving animal welfare in Indigenous hunting, JCU Law Review 8, Waitangi Tribunal, WAI262 The Flora and Fauna and Cultural Intellectual Property Claim: Statement of Issues, ( floraandfaunawai262/default.asp accessed 31/8/07) Case citations HCA/1999/53.txt Gumana & Ors-v- Northern Territory (No 2) [2005] FCA 1142 Yanner-v-Eaton (1999) 201 CLR 351 Stevenson-v-Yasso [2006] QCA 40. Western Australia-v-Ward (2002) 191 ALR 1 The Lardil Peoples-v-State of Queensland [2004] FCA Indigenous Management of Marine Turtle and Dugong: Legal and Policy Opportunities and Impediments

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80 Alliance North Australian Indigenous Land and Sea Management Dugong and Marine Turtle Project The Project The NAILSMA Dugong and Marine Turtle Project (DMTP) is about Indigenous communities across northern Australia working together to protect threatened sea turtles and dugongs and their coastal habitats. Indigenous rangers and community members from the Kimberley, Northern Territory, Gulf of Carpentaria, Cape York and Torres Strait are working with government organisations, scientists, industry and other stakeholders to map and protect sea grass beds; clean beaches and rescue stranded wildlife; tag turtles and monitor turtle nests; record and share traditional knowledge about turtles and dugongs; and educate and raise awareness about the need to look after turtles and dugongs. Building local capacity and sustainable partnerships to support ongoing community activities are essential to the NAILSMA DMTP. A Regional Approach Northern Australia is one of the last great strongholds for dugongs and marine turtles on the planet. With home ranges that cross borders and seas, these migratory species face a diverse range of threats and impacts that, collectively, have decimated populations elsewhere around the world. Maintaining Australia s great herds of dugong and marine turtle requires effective partnerships, networks and collaborations that span northern Australia and indeed the South East Asian region. Indigenous Land and Sea Managers Northern Australia is home to some of the longest running, intact land and sea management regimes in the world. Indigenous communities of northern Australia maintain long-held rights and responsibilities for land and sea management and continue to enjoy dugong and marine turtles as a significant natural and cultural resource. There are numerous examples demonstrating the skill of Indigenous Australians in combining traditional and contemporary skills, knowledge and expertise for better resource management, and for north Australia, Indigenous land and sea managers are the only management presence. Making a Difference The NAILSMA DMTP represents a recognition by government that effective and sustainable management of dugong and marine turtle requires a community-based approach that builds on the strengths, skills and expertise of Indigenous people, and is driven by the concerns and issues identified by Indigenous people. The collective expertise of the Indigenous participants in the project coupled with the networks facilitated through NAILSMA and the partnerships being forged with government and other stakeholders, is making significant contribution to the sustainable management of dugong and marine turtle. To find out more about the Dugong & Marine Turtle Project, contact the project office. Telephone: or marine@cdu.edu.au Fax: Visit NAILSMA online: Photograph courtesy Dhimurru Land Management Aboriginal Corporation