Allegations of mismanagement of Kakadu National Park have seen traditional owners warn they will close areas of the Park to the public, including key tourist attractions such as the famous lookout and rock art of Ubirr, if the issues are not resolved.[1] In order to understand the powers and obligations of the parties involved, we must look at the underlying legal framework.
The area of the National Park, which is a World Heritage site, is owned by the Bininj/Mungguy first nations peoples. The area has been home to first nations people for over 65,000 years, including the 300 Indigenous people from around 19 different clans that currently call the area home.[2] This ownership was formally recognised by Australian law during the late 1970s/early 1980s, following a long process of Commissions of Inquiry and submissions as to native title and pastoral land claims.[3] ‘Title to Aboriginal land in the park is held by the Kakadu Aboriginal Land Trust, the Jabiluka Aboriginal Land Trust and the Gunlom Aboriginal Land Trust’[4] and has been leased to the federal Director of National Parks for management by the Kakadu National Park Board of Management.[5] The Board operates jointly with the federal government agency, Parks Australia, to manage the precious natural environment of Kakadu National Park.[6]
These federal bodies (office of the Director of National Parks, and the Kakadu National Park Board of Management) are governed by the Environment Protection and Biodiversity Conservation Act 1999. [7] This legislation mandates that a majority of the Board of Management must be comprised of Indigenous representatives. [8]
The Board of Management is intended to be a collaboration between Kakadu National Park staff, government, and the traditional owners.[9] This joint management aims to ‘protect the park’s values and shar it with the public, brining together traditional knowledge and modern science’, as well as creating opportunities for local Indigenous people to ‘be involved in park management at all levels, establish business and preserve their culture for future generations.’[10] The Board also seeks to achieve best practice in regards to maintenance of the Park, including ‘weed management, buffalo eradication, fire regimes, management of art sites, interpretation of Aboriginal culture and planning’. [11]
Several issues have led to the deterioration of the relationship between Parks Australia and the Board. ABC’s Four Corners reports that, ‘In one stunning example of how the relationship has been damaged, Parks Australia built a walking track near Gunlom Falls that exposed a sensitive part of a sacred site, against the wishes of traditional owners.’[12] Amongst other grievances are the alleged lack of, or reduction in, jobs for local Indigenous people, in addition to site maintenance issues, and fires that caused damage to homes and equipment.[13]
These issues have not avoided international scrutiny. The World Heritage Organisation’s International Union for Conservation of Nature (IUCN) has marked the conservation outlook of Kakadu National Park as ‘significant concern’.[14] In particular, the IUCN has reported that:
Although there is dedicated and sustained management, resulting in effective control of some threats (such as the invasive Mimosa pigra), many threats remain ubiquitous and largely uncontrolled.[15]
Significantly, the biodiversity of the Park is continuing to decline, in terms of both flora and fauna.[16] To allow this to continue would be a travesty.
Members of the Board of Management and traditional owners have raised these issues with Parks Australia,[17] but unfortunately these issues remain unresolved.
Senior traditional owner, Mick Markham, states plainly ‘We’ve had a gutful.’ Meanwhile, Mandy Muir, senior cultural tour guide and Murrumburr woman, says ‘The unhappiness has come to a point that if we don’t sit at the table very soon, things will be taken into our own hands.’[18] In particular, traditional owners have told the media they will close areas of the Park to the public, if these issues are not resolved. [19]
The process to achieve such a “take-back” of powers to manage the Park, including the ability to close down particular areas, may not be that straightforward. The lease between the traditional owners and the Director of National Parks sets out the responsibilities and rights of both parties, including covenants to protect Indigenous interests, employment, and customs. According to Dr David Lawrence, writing in 1996, a breach of any covenant would ‘constitute a breach of the lease and full control of the land would then, by law, pass to traditional owners.’[20] However, it is not clear that the same under the terms of the current lease.
Currently the lease (not due to expire until 2078)[21] specifies two main options for termination. The first is Clause 15, containing the option of a mutually agreed termination of the agreement.[22] The second is Clause 12, which sets out that any law (Act or regulation) which is inconsistent with the lease and is substantially detrimental to Indigenous interests, will be a breach of the agreement and the parties must meet within 30 days to discuss the matter.[23] Clause 17 of the lease also allows for arbitration to occur between the parties, if a dispute arises.[24] If the Parks’ alleged failures to comply with its obligations under the breach amount to a breach of the fundamental lease terms, this may – as a matter of general principle – allow for a third option for traditional owners to terminate the lease. However, the legislation applicable to this question of law is so complex that, without becoming an expert in Native Title and Land law, it may be impossible to answer.
Nevertheless, at this stage, it seems traditional owners and the Board are claiming they will simply close areas of the Park (there is no indication yet that they seek to terminate the lease). If that is the case, Clause 25 of the lease clearly sets out that the Land Council, representing the traditional owners, can ask the lessee to restrict access to areas of the Park, and that the lessee must ‘accede to any reasonable request’.[25] Considering the alleged failures of Parks Australia to properly maintain areas of the Park, it seems likely that such a request would be considered reasonable.
At the very least, if the relationship issues become impassable and the traditional owners declare the Director of National Parks has breached the lease, there will likely be a lengthy legal process – whether arbitration or litigation – before the powers to manage the Park are bestowed on a particular group/s. Ideally, the issues will be resolved by the parties through dialogue – for the sake of their interests and the protection of the environment. Whatever the outcome of the Kakadu National Park debate, we may see its ramifications in the management plan for the NT town of Jabiru, due to be implemented once the expiry of lease for the nearby Ranger Uranium Mine, later this year.[26] Keep watching this space as the events unfold.
References
[1] Adam Harvey and Ali Russell, ‘Kakadu in crisis’, Four Corners (Investigative report, 22 February 2021) < https://www.abc.net.au/news/2021-02-22/traditional-owners-threaten-to-close-kakadu-national-park/13125884>. [2] Ibid. For more information about the difference between ‘mobs’, ‘clans’ and other groups, please see: https://www.deadlystory.com/page/tools/aboriginal-cultural-support-planning/cultural-planning---frequently-asked-questions/what-is-the-difference-between-mob-clan-tribe-language-group [3]https://www.environment.gov.au/system/files/pages/3f3a19ff-9007-4ce6-8d4f-cd8ade380804/files/chap02.pdf [4]Kakadu National Park Management Plan 2016-2026 (Cth) (‘The Plan’), approved pursuant to the Environmental Protection and Biodiversity Conversation Act 1999 (Cth), available at: <https://www.legislation.gov.au/Details/F2016L00002/Download>. See page 208. [5]The Plan (n 4), 2. [6]Harvey and Russell (n 1). [7] Australian Government Directory, ‘Kakadu National Park Board of Management’, Australian Government Directory (Webpage, 7 December 2020) <https://www.directory.gov.au/portfolios/agriculture-water-and-environment/director-national-parks/kakadu-national-park-board-management>. [8] Australian Government, ‘Chapter Two: Kakadu National Park – The Place and its People’, in Australia’s Kakadu: Protecting World Heritage, (Report, April 1999) 13, available at: <https://www.environment.gov.au/system/files/pages/3f3a19ff-9007-4ce6-8d4f-cd8ade380804/files/chap02.pdf>, 24. [9] Ibid. [10]The Plan (n 4), 16. [11] Australian Government (n 8). [12]Harvey and Russell (n 1). [13]Ibid. [14]IUCN, ‘Kakadu National Park’, World Heritage Outlook (Webpage 8 December 2020) <https://worldheritageoutlook.iucn.org/explore-sites/wdpaid/2572>. [15]Ibid. [16]Ibid. [17]Harvey and Russell (n 1). [18]Ibid. [19]Ibid. [20] David Lawrence, ‘Managing Parks/Managing 'Country': Joint Management of Aboriginal Owned Protected Areas in Australia’, Parliament of Australia (Research Paper 2 of 1996-1997, 1997) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp2#KAKADU>. See also: The Plan (n 4), 220. [21]The Plan (n 4), 222. [22]Ibid, 230. [23]Ibid, 228. [24] Ibid, 231. [25]Ibid, 234. [26] Emily JB Smith, ‘Kakadu National Park's Jabiru set for revival, draft plans from traditional owners reveal’, ABC News (News report, 14 March 2018) <https://www.abc.net.au/news/2018-03-14/kakadu-national-parks-jabiru-set-for-revival-traditional-owners/9507466>.