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"The questions I pose in the title to this paper sits somewhat ill at ease with conventional conceptions of indigenous relationships to natural resources. Customary indigenous law is usually characterized as not prescribing ownership rights, but rather rights and responsibilities to use and sustain natural resources such as wild animals. In Australia, these 'soft' conceptions of property rights are now pitted against two different forces. On the one hand is a trend to sustainable use of wildlife through commercial use, which is beginning to lead, for the first time, to the allocation of private property rights in native animals. On the other hand are the practical difficulties that indigenous people have in realising native title rights to hunt native animals. The question of 'who owns the animals' is increasingly pertinent.
"Australia's native animals, particularly its mammals, are icons of the continent's status as one of the planet's regions of biodiversity. Indigenous peoples have close cultural and economic relationships with this fauna and their land management practices are commonly held to be responsible for sustaining it over thousands of years. While commercial exploitation of virtually all of Australia's other natural resources is well established, with little provision for benefit to return to indigenous peoples, commercialsation of this fauna (and of native plants) is at an early stage. The animals represent something of a last frontier in natural resource development in Australia. Indigenous rights to this fauna, including 'ownership' of real and/or intellectual property in it and customary rights to use it, may potentially provide some bargaining power for indigenous people to share equitable in the benefits of sustainable management, such as through negotiated co-management regimes.
"The question of who owns this fauna is not one for which I can confidently present any answers--either on the basis of exhaustive legal analysis or from extensive empirical research into indigenous viewpoints. In both cases there is little relevant research to draw on. However, some analysis of both sources of information is provided here together with an exploration of current issues in wildlife management that makes the question relevant. From this basis, the paper addresses what might be done in Australian policy to reconcile different answers to this question in a way that promotes social justice for indigenous people.
"This paper first looks at some indigenous viewpoints on 'who own the animals'. It then examines government frameworks for wildlife ownership and the implications of the recognition of native title for these. Moves to privatise wildlife resources are examined through the case of the commercial kangaroo industry in South Australia. The paper concludes by outlining some measures that would promote indigenous equity in commercial wildlife industries."
(Author's Conclusion)
"Indigenous people have significant rights and interests in Australian wildlife. Some characterise these rights as 'ownership' although they may not readily fit non-indigenous conceptions of property. At present recognition of indigenous peoples' native title rights to subsistence harvest of wildlife is problematic and the prospects of indigenous people being recognised as having native title rights to commercial harvest seem remote. In pursuing their strong interest in development of commercial wildlife industries, indigenous people will be subject to the same rules as apply to non-indigenous operators. They are likely to play, at best, a marginal role in industry development due to lack of capital and of experience and skills in commercial enterprise. In addition, opportunities for direct economic benefit from commercial use of wildlife will be inevitably distributed between indigenous groups in an inequitable way, because of the spatial imbalance between indigenous populations and harvestable wildlife resources.
"Recent moves to allocate private property rights in the wildlife 'commons' to landowners have not taken account of indigenous rights and interests. There are opportunities for promoting sustainable use of wildlife in a way that also enhances social and economic aspects of sustainability, through the development of co-management structures at various local, regional and national scales. However there is currently a lack of awareness of these opportunities, related to a lack of previous research into indigenous relationships with wildlife and of investigation into native title rights to animals. This adds to the obstacles for negotiating co-management that are presented by the current climate of antagonism from governments and rural industry towards the recognition of indigenous rights in Australia." |
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