The Australian Institute of Aboriginal and Torres Strait Islander Studies

1. The Australian Institute of Aboriginal and Torres Strait Islander Studies The Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Conference, 2011 Brisbane Joint or co- management as governance in a national community of effective practice Toni Bauman 2nd June 2011

2. Protected Areas Framework • International Framework: • UN Convention on Biological Diversity • International Union for the Conservation of Nature (IUCN) guidelines (7 categories of lands) • Declaration of the Rights of Indigenous Peoples • IUCN 2008 Definition of a protected area: • A clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve long-term conservation of nature with associated ecosystem services and cultural values eg. National Parks, Conservation Reserves, etc etc • An Indigenous Protected Area is an area of Indigenous-owned land or sea where TOs have entered into an agreement with Australian Government to promote diversity and cultural resource conservation (DEHWA 2007) • Australian National Reserve System: aim to increase areas protected by 25% to 125m hectares by 2013 • Issues of tenure, nt determinations without exclusive possession and marine areas

3. Joint, co-, collaborative, co-operative and sole management co-management, internationally generic usually involving some kind of sharing of power, responsibility and decision-making with institutionalised arrangements; ‘joint management’ originated in Australia’ and wide currency eg. Victoria and Northern Territory Useful terminology or jargon and buzz words? ‘joint management’ politically loaded; ‘co’ often described as somehow better than ‘joint’ but what’s happening on the ground is NB (participation, relationships, power sharing) flexibility in definitions mean different things to different people Eg co-operative management used where government not prepared to enter into equal relationship sole management at Dhimurru but say joint management (range of partnerships) allows for range of dimensions of power-sharing, changing of arrangements over time as capacity builds and locally derived meanings but also difficulties in comparison and analysis and use of ill defined terms to disguise inequitable practices Joint or co-management terminology

4. Joint/co- management and native title outcomes • Numerous ways of achieving co-management outcomes not necessarily restricted to native title: • Existing State and Territory joint management • Eg. NSW National Parks and Wildlife Act 1974 model for joint management that involves both Aboriginal owners and Land Councils • Nature Conservation Act 1992 (Qld) • State/territory legislation triggered by and interacting with the NTA, eg: • Victorian Settlement Framework Act with major joint management outcomes • Northern Territory Framework Act • Cape York Heritage Act 2007 • ILUAs under NTA following consent determinations to be accompaneid by Management Plans • Range of other MOU type arrangements

5. Benefits and constraints of native title • Benefits of native title • legal rights and processes in NTA provide Aboriginal communities with a negotiating position • can trigger specific legislation • provides a formal opportunity for applicants to negotiate which may not otherwise exist • Benefits or otherwise in arrangements based on NTA only (e.g. co-existing native title over national parks) and those based primarily on legislated arrangements (such as in the NT and Cape York), supplemented by ILUAs? • Constraints of native title • can exclude those other than native title holders who may have significant interests • possibility of IPAs on national parks and pastoral leases? Non-exclusive possession areas? • lack of institutional support for Prescribed Bodies Corporate as partners • successful implementation of ILUAs dependent on quality of Management Plans and their negotiation • complexity and social impact of the claims process if seeking a determination and of future act processes • general inflexibility of the NT Act and difficulty in authorising and registering ILUAs with possibility of appeal • to amend ILUA have to go through registration process again including objection process, even if whole claim group has authorised changes whereas in comparison leases are reviewed by the parties every 5 years • in NSW the registration of the Saltwater ILUA for Saltwater NP was successfully appealed in Federal Court, ILUA not able to be registered and now an MOU

6. Framework/Structure: Tenure (eg lease- back arrangements) Decision-making powers (eg Majority on Board and Indigenous Chair) Commercial arrangements Resources and support (long term fiscal arrangements in budgets) Governance as institutions involved and nature of ‘partnership’ Engagement and Participation Processes: How the partnership was established Expectations, responsibilities and accountabilities of the partners Contributions of each to the partnership How information is conveyed How decisions are made, by whom and about what How disputes are managed General participation in activities Relationship: Multi-directional on the ground Trust, respect Joint management as structure, process, relationship and partnership

7. Despite inequities and unevenness across and within States and Territories in ‘formal’ structural agreements: Apparently excellent framework/structural/legislative agreements are not necessarily successful Apparently poor framework/structural/legislative arrangements are not necessarily failures on the ground Structural frameworks and processes of engagement, participation and communication are interdependent in optimal joint management arrangements Need for a national community of effective practice framework A question of governance?

8. Joint management as intercultural governance • Governance (Hunt et al 2008): • Politics, ideology, institutions and engagement processes of multi agents • …as much about people, power and relationships as it is about formal structures, management and corporate technicalities….relational aspects of governance are often critical factors in effective performance…not culture neutral • Relationships between and among Australian indigenous governments and groups, and as contestation and negotiation over the appropriateness and application of policy, institutional and funding frameworks within Indigenous affairs p.4 • …evolving processes, relationships, institutions and structures by which a group of people, community or society organise themselves collectively to achieve things that matter to them • Contestation also highlights relationships between sets of individuals, as well as systems…vary from local, familiar and seemingly benign, to distant, alien and antagonistic.

9. Joint management governance • The partners and cultures of intercultural governance: • Governments (local, regional, state and Federal), Land Councils, native title corporations, industry etc • Traditional owners and native title claimants • nested in webs of systems and structures and relationships • Top Down must meet Bottom Up • The business of engagement, communication and relationships: ‘How you get there’ has a direct bearing on outcomes and sustainability including establishing the partnership • Range of power differentials (state mandated based and bureaucratic authority, access to information, privileging individuals through governance decisions, TO rights and entitlements, personal power etc) • Non stereotypical approaches to the meaning of culture

10. Contact Details Native Title Research Unit Australian Institute of Aboriginal and Torres Strait Islander Studies Acton Peninsula, next to the National Museum. PO Box 553,Canberra ACT, 2601. Tel +61 2 6246 1195; Fax +61 26249 7714 e-mail: Toni.Bauman@aiatsis.gov.au web: www.aiatsis.gov.au (Native Title Research Unit: Indigenous Facilitation and Mediation Project)