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Weeds and Native Title:
Law and Assumption
Jessica Weir
Senior Research Fellow, University of Western Sydney, [email protected]
Visiting Fellow, Fenner, ANU
Nicholas Duff
Lawyer, Goldfields Land and Sea Council
CAEPR Seminar, ANU, 13 May 2015
Research Scope
• the legal question of who is responsible for weeds on
native title lands in State, Territory and Commonwealth
legislation; and,
• the practice of how weeds management is undertaken
on native title lands, through a case study on the
Kimberley.
Karajarri native title determinations map
Bauman, T, Strelein, LM, and JK Weir. 2014, Living with native title: the experiences of
registered native title corporations, AIATSIS Research Publication
Prescribed Bodies Corporate (PBCs)
Weeds activities in Australian law
• identification and classification of ‘weeds’ species in need of
management;
• actions by government to prevent weeds from entering the
country;
• legal obligations on the general public to prevent the spread of
weeds;
• legal obligations on land holders or land managers (including
public authorities and private individuals and companies) to
control weeds on their own land;
• government provision of funding and in-kind support for private,
public or community weeds control activities; and
• government-led public information campaigns.
Weeds legal regime and native title
• Occupation, occupy
• Ownership, owners
Weeds legal regime and native title
• Occupation, occupy
• Ownership, owners
Effective
presence
Exclusive native title
rights
physical No effective physical
presence
Very likely to be
considered
‘occupier’
Non-exclusive native title Less likely
rights
Quite likely
Unlikely to be
considered
‘occupier’
Jurisdiction
Main obligations attach to:
Includes exclusive
possession native
title holders?
Includes native title
holders with lesser
rights and interests?
ACT
Occupier
Probably
Unlikely
NSW
Occupier
Very probably
Potentially, depending on
nature of legal rights and
interests, and physical
relationship to land
NT
Owner
Very probably
Unlikely
Occupier (allocation of
Very probably
responsibility between owner
and occupier unclear)
Unlikely
Qld
Owner
No
No
SA
Owner
Yes
Yes (though potentially
shared with other
parties)
(Occupier has supplementary
obligations)
Yes
Yes (though potentially
shared with other
parties)
Tas
Owner
Very probably
Unlikely
Vic
Land owner
Very probably
Arguably
WA
Owner
Arguably – unclear
Unclear
WA
Occupier
Probably – unclear
Arguably - depends on
extent of practical, not
just legal, activities on
land
Kimberley native title map: Kimberley Land Council
Kimberley ranger network map: Kimberley Land Council
Noogoora Burr
Photos: Gabriel Crowley, www.landmanager.org.au
Photo: www.agric.wa.gov.au
2011 Kimberley ‘Weeds and Native Title’ workshop
Workshop participants
Aboriginal native title holders and organisations:
• Bardi Jawi Rangers; Bardi Jawi Women Rangers; Kimberley Land Council;
Karajarri Rangers; Karajarri Traditional Lands Association RNTBC; Kurungal
(a pastoral property); Wunggurr (Wilinggin) Rangers; Yawuru Native Title
Holders Aboriginal Corporation;
Government, non-government, and research groups and organisations
• Aboriginal Land Trust; AIATSIS; AQIS; Batchelor Institute; Department of
Sustainability, Environment, Water, Population and Communities (Cth);
Department of Agriculture and Food (WA); Department of Environment
and Conservation (WA); Main Roads (WA); Environs Kimberley; Greening
Australia; Kimberley Shire; Landcare; Nulungu Centre for Indigenous
Studies; Rangelands NRM Western Australia.
Kimberley native title holder perspectives on implications of
native title for weeds management
• a basis for negotiating funding, e.g. ILUAs
• recognises responsibility and leadership role of TOs
• an opportunity for more appropriate processes: governance,
knowledge, country, culture
• Exclusive possession – powerful rights to help stop new weeds, but
responsibilities to manage existing weeds
• Non-exclusive possession – less rights, more partnership
opportunities
• Uncertainties around weeds responsibilities
• PBCs/RNTBCs provide a crucial access point
• an opportunity and structure for more formal engagement in local
planning and regulation
Shortfalls and challenges of weeds funding programs and
policies
•
•
•
•
determination of priorities, and the effect on funding;
PBC resourcing and capacity;
short-term funding and species-specific projects; and
the need for coordination.
Shifts in the nature of land tenure:
•
•
•
•
•
•
•
•
who the landholders are;
their legal status (from companies, individuals and
government agencies; to now include communal
landholding groups represented by special statutory
corporate bodies);
their land-use activities;
their priorities, values and world views, including their
motivations for being involved in land management;
their available resources – including
funding, skills, knowledge,
organisational capacity
(noting that these changes
are not all diminutions); and
very significantly, the legal rights
(and obligations) they have in
respect of the land.
Underlying assumptions
a)
b)
c)
d)
e)
Weeds are a ‘public good’ issue that requires a coordinated effort;
The bulk of non-government land is held by agriculturalists and pastoralists;
Primary producers derive market profits from land use, and weed control
costs can be incorporated as a business ‘overhead’. Thus, private
landholders are generally capable of supporting the cost of weeds
management on their land (and where they are not, the legislation may
make provision for assistance);
The traditional focus of ‘declared weeds’ lists has been primary production.
That focus has broadened in most jurisdictions to include environmental
considerations, and so the ‘public good’ referred to in assumption (a) has
also broadened; and
The categories of non-government land tenure within a given State or
Territory are limited in number (eg freehold, pastoral lease, agricultural
lease, mining lease, etc), and landholdings falling under a given category are
basically similar in terms of the legal rights held by the landholder and the
types of activities. Accordingly, weeds management obligations can be
clearly and appropriately allocated by State or Territory legislation according
to tenure type.
Effect for native title holders:
• funding is only available for a small (and, seemingly
arbitrary) portion of the total weeds work of native title
holders;
• native title holders’ weeds control efforts are pressured
towards the fulfilment of their legal obligations as
landholders; and
• the task of controlling the non-listed weeds on native
title lands is made more difficult because neighbouring
landholders have neither funding nor legal obligations to
control the weeds on their own properties.
Priorities for weeds collaborations on native title lands
•
•
•
•
Identifying the stakeholders: identify all the people who have a stake
in weeds management at the beginning.
Determining priorities and weed threats: weeds priorities should be
decided with consideration of economic, ecological and cultural
values, ideally with Indigenous people leading the process
Engagement: meetings of all stakeholders should be held, with
Indigenous people in the centre, to share information, expertise, and
concerns. This includes technical aspects, opportunities to involve
communities, potential funding and in-kind sources, and a clear
understanding of local cultural protocols and priorities.
Planning and decision-making: decisions about where, how and which
weeds are to be managed, are to be made with native title holders on
an equal basis. A formal agreement describing the decisions reached
about weeds management can be a useful basis for weeds
management work, ensuring that all parties understand their roles and
how the process will proceed.
Reports available online:
1. Weeds and Native Title: Law and Assumption – RIRDC research report,
by Nick Duff and Jessica Weir
2. Managing weeds on native title lands – AIATSIS workshop report,
Broome, WA, 26–27 October 2011, by Nick Duff
Both available on the AIATSIS website www.aiatsis.gov.au
Research report only available at www.rirdc.gov.au
Thanks also to Claire Stacey, Kara Youngentob, Rob Powrie, Lisa Strelein, Bruce
Gorring, and all the Kimberley workshop participants.