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8.2 Accessing Country

8.2.1 Overview

Aboriginal people need to be able to access lands and waters to continue their traditions. These traditional practices include: fishing, hunting, gathering food, camping, gathering firewood, visiting places with cultural significance, caring for country, caring for burial and other sites, and practising culture.

Aboriginal people may always attempt to negotiate access, but the landowner may not always agree. The legal rights of Aboriginal people to access land and water depend on the legal status of the land or waterway.

Further information about land dealings may be obtained from a series of Fact Sheets available from the NSW Aboriginal Land Council .

8.2.2 Access to particular types of land

8.2.2.1 General

A Local Aboriginal Land Council (LALC) may negotiate an agreement with any land owner or occupier or person in control of land to permit an Aboriginal group or individual ‘to have access to the land for the purpose of hunting, fishing or gathering on the land'.1 If an agreement cannot be reached, the LALC may request that the Land and Environment Court issue a permit to access the land, or a right of way across the land, for the purpose of hunting, or fishing, or gathering traditional foods for domestic purposes.2

The Native Title Act 1993 allows for access agreements to be negotiated. However, this may be a long, complicated and expensive process and may not apply to most land in NSW because native title has been extinguished by past land grants.

Contact NSW Native Title Services (NTSCorp) for assistance with gaining native title access.

8.2.2.2 Private Land (Freehold)

LALCs may be entitled to obtain access to privately-owned land in accordance with rights given to them under the Aboriginal Land Rights Act 1983. 3

Hunting may take place on private land with the permission of the owner provided the hunter holds a NSW Game Hunting General Licence (G-Licence).4 An Aboriginal person is exempt from holding a G-Licence when hunting a game animal pursuant to a native title right or interest. The right or interest must be the subject of an approved determination5 of native title or of a registered native title claim. 

8.2.2.3 National Parks

Areas within parks may be designated as ‘Aboriginal places'. The National Parks and Wildlife Service (NPWS) is responsible for the identification, conservation and protection of, and prevention of damage to, Aboriginal objects and Aboriginal places.6 Plans of Management must be prepared for all parks.7 Public submissions can be made during the development or review of the Plan of Management. This is an opportunity to point out the importance of access to Aboriginal sites and places for the Aboriginal community.8 Plans of Management may be changed so it is possible to ask the NPWS to include access to Aboriginal places, areas or sites even if the plan is already operational.9

Any group use of a park, including tours or education groups, must be consistent with the Plan of Management.10 Aboriginal groups should contact NPWS staff to arrange access and support for Aboriginal education activities or education groups. A licence or permit is required to run a commercial activity including tours in a park.11

An Aboriginal area is to be managed to allow the use of the 'area by Aboriginal people for cultural purposes'.12 There are 17 Aboriginal areas in NSW. Most Aboriginal areas have unrestricted access, although some sites have been fenced.13 Contact your local NPWS Office if access to a fenced Aboriginal area is required.

Usually, animals and plants within a park are protected. Aboriginal people and their dependents (whether Aboriginal or not) may hunt and gather otherwise protected plants and animals for domestic purposes in parks, but may not hunt in national parks without a licence14 or conduct any kind of gathering in a nature reserve15 or karst conservation area.16

There are general restrictions on the carrying, licence and use of firearms and these apply to Aboriginal people when hunting.17 However, Aboriginal people are exempt from the penalties attached to carrying an animal, firearm, net, trap or hunting device when they are for domestic purposes.18

Gathering protected native plants for domestic use must not interfere unreasonably with the plant's ability to reproduce.

8.2.2.4 Aboriginal owned parks

Any park may become owned by Aboriginal people through a LALC. These parks must be leased back to the NSW Government.19

The key difference in Aboriginal owned parks is that there must be a Board of Management with a majority of Aboriginal owners.20 The Board is responsible for the care, control and management of the park and the preparation of plans of management.21 The Board considers proposals for the carrying out of cultural activities (including hunting and gathering) by Aboriginal people within the park.22 The Board is subject to the direction and control of the NSW Minister for the Environment.23

8.2.2.5 NSW State Forests

Forests NSW, along with NPWS, are responsible for the management of Aboriginal places and sites occurring in State forests. There are very few restrictions on accessing an Aboriginal place or site in a State forest, although access roads can be closed when there is a logging operation in progress.24

Forests NSW has produced Ecologically Sustainable Forest Management Plans (ESFM Plans) that outline the management strategies for access to Aboriginal places and sites in State forests.25

All ESFM Plans commit to fostering Aboriginal-run commercial tours to Aboriginal sites and places in NSW State forests. State forests that are subject to an existing agreement with a LALC or local Aboriginal community may already have a commercial tour operating.

Whilst no permission is needed to conduct education groups in a State forest, the use and care of the site must be consistent with the objectives of the relevant ESFM Plan and/or Regional Forest Agreement.

It is an offence to harm or damage an Aboriginal site or place in a State forest.26 Large groups staying in or using a State forest area must talk with the local Forests NSW office about camping and access arrangements.27

Aboriginal people and dependents (whether Aboriginal or not) may hunt and gather otherwise protected plants and animals for domestic purposes in State forests.

8.2.2.6 Commonwealth Reserves

Commonwealth reserves located in NSW include Booderee National Park and Solitary Islands Marine Reserve. Access to Commonwealth reserves under Commonwealth legislation28 is subject to management principles that state that the needs and aspirations of Indigenous people should be taken into account.29

If there is no management plan in place then it is illegal to:

• kill, injure, or take native species;

• damage heritage;

• undertake activities without a permit, including scientific research, littering, taking animals, plants or firearms into reserves, camping, fishing or using vehicles.

If the reserve is classified as a wilderness area, additional restrictions apply, such as restrictions on development generally, creation of tracks, extraction of water and extraction of minerals.

If a management plan is in place then a much wider range of activities may be undertaken if provided for in the management plan.

See Fact Sheet 6.3 for more information on Commonwealth reserves.

8.2.2.7 World Heritage Areas

In NSW, world heritage areas include the Greater Blue Mountains Area, Gondwana Rainforests and the Willandra Lakes Region.

Aboriginal access to sites in world heritage areas is controlled by the management plan together with the existing access regulations of the land, which will generally be NPWS access policies.

See Fact Sheet 6.3 for more information on world heritage areas.

8.2.2.8 Crown Land

Crown land is controlled by the NSW Land and Property Management Authority30 and includes nearly half of all land in NSW.31

LALCs can claim unoccupied Crown land for conversion to freehold managed by the LALC on behalf of its members.32 Unoccupied Crown land that is subject to a native title claim cannot be claimed by a LALC.

Aboriginal people and dependents (whether Aboriginal or not) may hunt and gather otherwise protected plants and animals for their own domestic purposes on unoccupied Crown land.

8.2.2.8.1 Crown reserves

Crown reserves include regional reserves, State parks, town parks, caravan parks, campgrounds, walking trails, travelling stock reserves and land reserved for conservation. Crown reserves can also include land that was leased for Aboriginal missions and Aboriginal settlements.

A Reserve Trust is responsible for the management, care and control of a Crown Reserve33 and can make decisions on access, permitted activities (including cultural activities and hunting and gathering), entry fees, opening hours, vehicle entry and moorings.34

The NPWS is responsible for the management and protection of Aboriginal sites and places on Crown reserves.35 The Reserve Trust may be liable if any of their, or a reserve visitor's, actions or omissions cause damage to Aboriginal places or sites.36

8.2.2.8.2 Travelling Stock Reserves

Travelling Stock Reserves (TSRs) are parcels of Crown land that are managed by a Livestock Health and Pest Authority (LHPA).37 TSRs are managed for recreation, agistment, grazing and refuge in drought or flood, and conservation, in addition to stock movement. Function Management Plans require management principles to conserve wildlife but make no mention of management of Aboriginal heritage.38

Generally, access to an Aboriginal place or site on a TSR will be unrestricted during the day. Permission from the local LHPA is needed for overnight camping and other recreational activities, seed collecting, firewood collecting and taking water. Hunting is generally banned but dogs are allowed.

TSRs may be claimed as Aboriginal land39 but must be leased back to the Crown for continued use as a TSR. Rent is paid to the LALC for continued public use of the TSR.

The NPWS is responsible for the care and management of Aboriginal places and sites on TSRs. Permission may be required to use an Aboriginal place or site to avoid incurring a penalty for moving or damaging an Aboriginal place or object.40

8.2.2.8.3 Leased Crown Lands

Leases may be granted for exclusive possession over Crown land. Rent is charged on the lease.

Native title holders or registered native title claimants may hold rights to access fish, hunt or gather on leasehold land, or rights of access for other traditional purposes such as ceremonies. Otherwise, access to leasehold land is generally the same as access to private land.

Note: Native title rights were found to be completely extinguished on perpetual grazing leases granted under the Western Lands Act 1901 (NSW). 41

8.2.2.9 Community Land

All public land managed by local government, other than a road or Crown land, must be classified as either ‘community land' or ‘operational land'. Community land is land that should be kept for use by the general public, whereas operational land will likely be closed to the public (e.g. a Council works depot).42

Community land includes areas such as beach foreshores, bushland reserves or sports grounds.43 It can include areas of Aboriginal cultural significance.44 A Plan of Management, including objectives for each category of community, land must be made by each council.45 The public can make submissions on a draft Plan of Management.46 All activities, including rights of access that take place on the land, must be consistent with the Plan of Management.

8.2.3 Access to Waterways

8.2.3.1 Overview

Generally, there is public access to rivers, streams, lakes and beaches for swimming, fishing and boating. Rivers, lakes and streams can be accessed from a boat, by walking along the stream, river or lake bed or via the foreshore from public land. Beaches can be accessed though dedicated paths or beachfront reserves.

There are rights to take and use water without the need for an access licence, water supply work approval or water use approval in the exercise of native title rights.47 However, as yet no native title claims over water have been granted in NSW.

The NSW Government is currently implementing macro water plans. Macro water plans are water sharing plans which apply to a number of water sources across catchments or aquifers.

Macro water sharing plans are important because for the first time there will be water access licences specific to Aboriginal water users.

These will include: Aboriginal cultural licences and Aboriginal commercial licences.

Aboriginal cultural licences cover activities such as manufacturing traditional artefacts, hunting, fishing, gathering, recreation, cultural and ceremonial purposes, in addition to drinking, food preparation, washing, and watering domestic gardens. Cultural licences are capped at up to 10ML per licence per year.

Aboriginal commercial licences may be used for commercial enterprises owned by Aboriginal people and could include irrigated cropping, horticulture, irrigated pasture, aquaculture and manufacturing or crafts. They are generally limited to coastal rivers, and will be capped to protect the environment at a proportion of the river flow not exceeding 500ML per year.

8.2.3.2 Controlled activities

Activities such as collecting firewood along a riverbank or rebuilding fish traps in a river will need an approval if it comes within the definition of ‘controlled activity'. It is an offence to carry out a controlled activity without a permit.48 Interference with the flow of a creek or estuary may also require an approval.49

8.2.3.3 Marine Parks

NSW Marine Parks50 currently include Cape Byron, Jervis Bay, Lord Howe Island and the Solitary Islands. Sanctuary zones, habitat protection zones, general use zones and special purpose zones in the marine park regulate activities and access to the park. In some zones it is an offence to fish or gather aquatic species . Commercial tours or use of the Marine Park may require a licence.

See Fact Sheet 6.3 - Protected Areas for more information on marine parks.

8.2.3.4 Ramsar Wetlands

Ramsar wetlands are listed on the List of Wetlands of International Importance. There are currently 12 listed wetlands in NSW. Access to such wetlands is in accordance with the Plan of Management prepared with the land owner. Any activity, such as gathering bird eggs, that is likely to significantly impact on the ecological character of the site must be assessed and approved by the Federal Environment Minister.51

8.2.3.5 Fishing

Fishing in salt water requires a recreational fishing licence, unless fishing in waters subject to native title or a registered native title claim.52 Aboriginal people fishing in fresh water do not need a recreational fishing licence.53

Bag limits apply to recreational fishers. Where a ceremony or cultural event is to occur, Aboriginal fishers may apply to NSW Fisheries for an event exemption from the bag limit.54 The exemption must be approved before the event, which may be difficult to organise for funerals.55 There are no defences based on Aboriginal cultural heritage or tradition for taking threatened or endangered species declared under the Fisheries Management Act 1994. 56

For more information on fishing activities and the protection of marine species, see Fact Sheet 6.1 - Threatened Species in NSW.

1. Aboriginal Land Rights Act 1983, s. 47.
2. Aboriginal Land Rights Act 1983, s. 48.
3. Aboriginal Land Rights Act 1983, s. 47.
4. Issued by the NSW Game Council.
5. However, the Queensland case Yanner v Eaton B52/1998 (5 May 1999) provides some support for the exercise of native title rights in this way even if they are not the subject of an approved determination.
6. National Parks and Wildlife Act 1974, s. 12(d).
7. National Parks and Wildlife Act 1974, s. 72(1).
8. National Parks and Wildlife Act 1974, s. 73A.
9. National Parks and Wildlife Act 1974, s. 73B. Management plans can be amended by the Minister following the recommendation of the National Parks Advisory Council.
10. In the Brigalow and Nandewar Community Conservation Area group access is in accordance with the Community Conservation Agreement.
11. National Parks and Wildlife Regulation 2009, cl. 21.
12. National Parks and Wildlife Act 1974, s. 30K (2)(c).
13. For example, the scarred tree has been fenced in the Nambucca Aboriginal Area.
14. National Parks and Wildlife Regulation 2009, cll. 74, 75; see National Parks and Wildlife Act 1974, s. 45 re national parks.
15. National Parks and Wildlife Act 1974, ss. 56, 57.
16. National Parks and Wildlife Act 1974, ss. 58Q, 58R.
17. Firearms Act 1996.
18. National Parks and Wildlife Regulation 2009 cl. 74. Note that the exemption does not apply to parrots and raptors.
19. Listed in Schedule 14 of the National Parks and Wildlife Act 1974. Biamanga National Park, Gulaga National Park, Jervis Bay National Park, Mungo National Park, Mootwingee Historic Site, Mootwingee National Park and Coturaundee Nature Reserve, Mount Grenfell Historic Site,Mount Yarrowyck Nature Reserve .
20. National Parks and Wildlife Act 1974, s. 71AN (3)(a).
21. National Parks and Wildlife Act 1974, s. 71AO (1).
22. National Parks and Wildlife Act 1974, s. 71AO (2).
23. National Parks and Wildlife Act 1974, s. 71AO (4).
24. Forestry Act 1916, s. 41 (1)(P5).
25. Made under the Forestry and National Parks Estate Act 1998; Forestry Act 1916, and available at www.forest.nsw.gov.au or at NSW Forests Offices.
26. National Parks and Wildlife Act 1974, s. 86.
27. For more information, see: www.forest.nsw.gov.au
28. Environment Protection and Biodiversity Regulations 2000, Schedule 8.
29. Environment Protection and Biodiversity Regulations 2000, Schedule 8, Part 2, cll. 3.07, 3.08.
30. under the Crown Lands Act 1989.
31. Land and Property Management Authority: http://www.lands.nsw.gov.au/crown_land .
32. Aboriginal Land Rights Act 1983 s 36.
33. Crown Lands Act 1989, ss. 81, 88, 92.
34. Crown Lands (General Reserves) By-Laws 2006, Div 1.
35. National Parks and Wildlife Act 1974, s. 85.
36. National Parks and Wildlife Act 1974, ss. 86, 90.
37. Rural Lands Protection Act 1998, s. 85.
38. Rural Lands Protection Act 1998, s. 45.
39. Aboriginal Land Rights Act 1983, s. 37.
40. National Parks and Wildlife Act 1974, ss. 86, 90.
41. Wilson v Anderson (2002) AILR 44, per Gaudron, Gummow & Hayne JJ at 119.
42. Local Government Act 1993, Chapter 6, Part 2, Division 2.
43. Local Government Act 1993, ss. 25, 26, note at beginning of Ch 6, Pt 2.
44. Local Government Act 1993, ss. 36D, 36DA, 36E.
45. Local Government Act 1993, ss. 36E-N.
46. Local Government Act 1993, s. 38.
47. Water Management Act 2000, s. 55.
48. Water Management Act 2000, s. 91E.
49. Water Management Act 2000, s. 91.
50. Created under the Marine Parks Act 1997.
51. Environment Protection and Biodiversity Conservation Act 1999, s. 16.
52. Fisheries Management Act 1994, s. 34C(f). Note that the Queensland case Yanner v Eaton B52/1998 (5 May 1999) provides some support for the exercise of native title rights in this way even if they are not the subject of an approved determination.
53. Fisheries Management Act 1994, s. 34C(2)(f).
54. Fisheries Management Act 1994, s. 37.
55. More information and forms available on www.fisheries.nsw.gov.au
56. Fisheries Management Act 1994, s. 21.