The Commonwealth and Northern Territory Governments announced last week, during the celebration of Reconciliation week, a major expansion of the Dhimurru Sea Country Indigenous Protected Area (northern tip of the Gulf of Carpentaria). Sea Country Indigenous Protected Areas are essentially agreements between Indigenous communities and various Government parties guided by Sea Country plans, which are prepared by the relevant Indigenous communities. These plans set out the aspirations of the communities as well as Indigenous laws and worldviews relating to Sea Country.
The expansion of the Dhimurru Sea Country Indigenous Protected Area is a fantastic step forward which all should celebrate, and a major achievement for the community after a long campaign and much hard work and determination. But the broader fight is not yet over as the Commonwealth Government’s website indicates that Sea Country Indigenous Protected Areas have “no legal implications”.
“Legal implications” are certainly not a fix-all, and sometimes non-legal mechanisms can be just as or more effective, but law can provide a vital backbone to ensure a basic framework for much needed community involvement in sea country governance.
In February of this year, the High Court of Australia heard the largest native title claim to Sea Country in Australia’s history. We now await the High Court’s decision. This claim, known as the Torres Strait Sea Claim, was lodged in 2001 and has now been through two Federal Court decisions before its appeal to the High Court.
The Torres Strait Sea Claim area is approximately 44,000 square kilometres of Sea Country seaward of the high water mark around the islands of the Torres Strait in far north Queensland (and included beaches, reclaimed areas and intertidal zones). Broadly, the claim relates to rights to enter, remain, use and enjoy the area and rights to access and take resources. These were claimed on a non-exclusive basis, meaning that the claimants (the Sea Claim Group) did not seek to control access or conduct of others in the area. It is important to note that the original claim did seek exclusive control, but that was abandoned due to a High Court case in 2001 called Commonwealth v Yarmirr. Yarmirr was the first native title claim to Sea Country and it was held that native title over the sea could not be exclusive because it was inconsistent with public rights to navigate and fish.
In 2010, the Torres Strait Sea Claim went before the Federal Court for the first time. The Judge held that the Sea Claim Group did enjoy non-exclusive native title rights to access, remain in and use their maritime areas and to access and take resources for any purposes. The phrase ‘for any purposes’ included commercial purposes. This finding, amongst others, was appealed to a full bench of the Federal Court. Two of the Judges overturned the decision in relation to commercial rights, whilst the third Judge upheld this aspect of the original decision. This commercial aspect has now been appealed to the High Court.
While the commercial issue is incredibly important in this case, and has been the aspect that has attracted the most attention, in other respects it is a small part of the claim. Much of the large claim that was awarded in 2010 has not been appealed. In many ways, the hard-fought victory of the Torres Strait Sea Claim is already won – a huge credit to the Torres Strait community. The more important aspect to take away from this case is that due to the limitations on native title, whichever way the High Court decides, native title is not the answer to achieving broader Indigenous governance of marine areas. Communities are recognising this and seeking other ways to be actively involved in caring for Sea Country, such as Sea Country Indigenous Protected Areas mentioned above.
The on-going reconciliation of Aboriginal and Torres Strait Islander aspirations to be involved in the stewardship of Sea Country is part of a broader convergence of views between Indigenous and non-Indigenous Australians. Two hundred years after the European colonization of Australia, Western Science has come to converge with Aboriginal and Torres Strait Islander culture and values to acknowledge that caring for country brings value to society.
Whereas generalisations on Aboriginal and Torres Strait Islander culture risks oversimplifying its impressive diversity, we contend that it is reasonably safe to assume that the statement that caring for country brings value to society represent, with different formulations, a unifying element across most cultural groups.
The translation of this concept to Western Science came over a decade ago through the concept of ecosystem services, that refer to the benefits people obtain from ecosystems, including provision of resources, regulation of processes, cultural services and the support of processes fundamental to life. This concept is now a fundamental underpinning of ecosystem assessments, such as the Millennium Assessment of the UN.
Yet, recognizing the important benefits that ecosystems services bring to society is insufficient in western systems, as the term “value” must often be explicitly attached to a dollar figure if it is to be taken seriously. Hence, the second development in Western Science that has rendered this reconciliation of views possible is progress in the valuation of non-market goods and its application in resource economics, allowing to assign a $ tag to ecosystem services.
The first assessment of the global value of ecosystem services by Costanza and co-workers (1997) came to a value of 33 trillion $ (1997 $) for the global value of ecosystem services, or twice the global GDP. This implies, not surprisingly, that there is no GDP in the world to replace by artificial processes the services nature provides for free. The corollary is that proper stewardship of ecosystems – caring for country – is economically cost-effective, as it is much more expensive to replace the necessary services of damaged ecosystems by artificial processes.
Indigenous groups see caring for country as part of their laws and have fought hard to see their rights recognized. In their wiser understanding of country, Aboriginal and Torres Strait Islanders do not consider that country ends at the water’s edge or the low water mark. This is sensible, as seagrass, salt-marshes and mangrove forests are, in the assessment by Costanza et al. (1997), the most valuable ecosystems on earth. For instance, these ecosystems protect the coastline from sea level rise and surges, providing high value to Australia (Bell and Lovelock 2013), and are important carbon sinks. The value of the carbon sinks and associated stocks of Australian seagrass meadows could represent in the order of 43 billion dollars. Hence, it is only natural that country must include Sea Country.
So now, Western science and Indigenous communities must explore legal and governance mechanisms to achieve this reconciliation. Participatory mechanisms to empower communities to manage common goods, such as air and the ocean, are important as a way to break through the so-called tragedy of the commons. The key to solve this problem is to empower people, not necessarily government, to govern shared resources (e.g. Ostrom 1990). Indeed Elinor Ostrom was presented with the 2009 Nobel Award in economics for her contribution to proposing participatory mechanisms to govern shared resources. Drawing on Ostrom’s ideas, the development of community-based management of fisheries resources has been successfully introduced in laws across the world, starting in Chile, and have proven very effective.
As we leave Reconciliation Week to enter Environment Day, it is appropriate to ponder how Australia can enshrine recognition of Indigenous stewardship rights over Sea Country thereby bringing value to society by empowering Indigenous communities and breaking through the environmental tragedy of the commons.
This piece was co-authored by:
Lauren Butterly Faculty of Law, The University of Western Australia
Carlos M. Duarte The UWA Oceans Institute and School of Plant Biology, The University of Western Australia
Blaze Kwaymullina Terra Rosa Cultural Resource Management Inc.
Bell, J., & Lovelock, C. E. (2013). Insuring Mangrove Forests for Their Role in Mitigating Coastal Erosion and Storm-Surge: An Australian Case Study. Wetlands, 1-11.
Costanza, R., d'Arge, R., De Groot, R., Farber, S., Grasso, M., Hannon, et al. (1997). The value of the world’s ecosystem services and natural capital. Nature, 387: 253-260.
Ostrom, E. (1990). Governing the commons: The evolution of institutions for collective action. Cambridge university press.