Editors --- "Recent Cases In The Queensland Land Tribunal - Case Summary" [1996] AUIndigLawRpr 52; (1996) 1(2) Australian Indigenous Law Reporter 265

Recent Cases In The Queensland Land Tribunal

Introduction

The High Court of Australia, in Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1, held that the common law of Australia recognises the pre-existing land rights of Aboriginal and Torres Strait Islanders, and that such rights may survive today provided that they have not been extinguished as a result of government action.

Prior to the Mabo decision, the assumption had been that specific "land rights" legislation was needed in order to recognise indigenous Australians' interests in relation to land. The benchmark was set by the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.). It employed two basic methodologies:

(1) it provided for direct vesting of specified lands (mostly former Aboriginal reserves) in Land Trusts for the benefit of those with traditional interests in the land; and

(2) it established a "claims" process in respect of "unalienated Crown land" whereby, in effect, if people could persuade an Aboriginal Land Commissioner that the land was theirs under traditional law, the Commissioner could recommend a grant of inalienable freehold title under Australian law.

The pattern of land rights legislation varied from one jurisdiction to another. New South Wales was (until 1991) the only State to adopt a claims process, one which was more tightly circumscribed than that for the Northern Territory. On the other hand claimants under the Aboriginal Land Rights Act 1983 (NSW) did not need to demonstrate that they were the traditional owners, nor did they need to establish any other ground for claiming "claimable Crown land".

Queensland provided for a form of land rights by a series of amendments during the 1980s to the Land Act 1962 (Qld). Deeds of Grant in Trust (DOGITs) were offered to Councils of the larger Aboriginal and Torres Strait Islander reserves. But no claims process was established.

After the election of the Goss ALP Government, the Queensland Parliament enacted the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld). The Acts were substantially similar. Both made provision for a new form of freehold title to be issued in respect of DOGIT trust areas and also to the lands in Aurukun and Mornington Island shires and to non-DOGIT reserves. The Acts also established a claims process.

The lands which may be claimed are even more tightly circumscribed than under the NT and NSW Acts -- the State Government first needs to gazette particular lands as available for claim. Unlike the NSW scheme, claimants need to establish grounds for a claim but, in contrast to the NT scheme, claims are not confined to traditional owners: claims may be based on traditional affiliation, or historical association, or economic or cultural viability (needs). Claims based on traditional affiliation have priority over claims on the other grounds. Claims based on historical association have priority over claims based on economic or cultural viability. Successful claims based on traditional affiliation or historical association will result in grant of freehold title; successful claims based on economic or cultural viability will result in grants of leasehold title. Land in a National Park may not be claimed on the ground of economic or cultural viability. Land in a National Park which is successfully claimed on the basis of traditional affiliation or historical association must be leased back to the Crown in perpetuity for National Park purposes. (See generally, F. Brennan SJ., Land Rights Queensland Style, UQP, 1992); The Laws of Australia, 1. Aborigines and Torres Strait Islanders, 1. 3 chapter 8; Halsbury's Laws of Australia, 5. Aborigines and Torres Strait Islanders II(6). Both Acts have been amended since 1991 and have also been renumbered.)

Claims under the 1991 Queensland Acts are considered by the Land Tribunal. The Land Tribunal has published reports to the Minister for Lands on four claims, and a series of annual reports on its operations under both Acts. (It has also published Practice Directions (June 1992) under the Aboriginal Land Act 1991 and these are set out at p. 316 of this issue.)

As at the date of the most recent annual reports of the Land Tribunal (30 June 1995) there had been no claims under the Torres Strait Islander Land Act 1991 for the reason that no land had been declared to be available for claim under the Act. By contrast, as at the same date, 52 areas of land had been made available for claim under the Aboriginal Land Act 1991 (15 for National Parks, 3 for tidal land within National Parks and 34 for Vacant Crown land); 30 claims had been lodged (9 for National Parks, 2 for tidal land within National Parks, and 19 for Vacant Crown Land) comprising, overall, about 2,292,829 hectares or 1.33% of the area of Queensland.

CAPE MELVILLE NATIONAL PARK, FLINDERS GROUP NATIONAL PARK,
CLACK ISLAND NATIONAL PARK AND NEARBY ISLANDS.

The Land Tribunal's first report, dated May 1994, is 224 pages in length with additional material in Appendices. The Tribunal comprised Graeme J. Neate, Chairperson; Neville T. Bonner, AO, Member; and Ronald G. Wright PSM, Member.

The Claims

The Claims were to three national parks and six islands or rocks which were vacant Crown land. The total area claimed was about 39,000 hectares. As matters of statutory interpretation, the Tribunal held that tidal lands within the boundaries of Cape Melville National Park were not included within the claimable land. (Subsequently the tidal lands were gazetted as claimable): paras 56-74. The Tribunal held that the bed or banks of a watercourse or lake within the boundaries of land claimed is claimable land: paragraphs 77-82.

Native Title

Each land claim was expressed to be made without prejudice to any native title rights that the claimants may have. The Tribunal noted that it had no jurisdiction to deal with native title issues. (A land tenure history seemed to indicate the absence of extinguishing action in respect of most of the islands, but that there had been dealings in respect of some island areas and the mainland before the creation of the national parks: paragraphs 23-55.) The Tribunal also drew attention to the Native Title (Queensland) Act 1993 (Qld) which would amend the Aboriginal Land Act 1991 (Qld) to provide that native title interests would continue notwithstanding any grant of fee simple title under the Aboriginal Land Act 1991 (Qld): paragraphs 85-101. Section 71 was subsequently amended to that effect.

Claimants and Grounds for Claims

The claims were based on traditional affiliation -- an alternative claim based on historical association was withdrawn: paragraphs 118-124. The claimants were eight named persons on behalf of themselves and seven clan groups. Aboriginality became an issue as most of the claimants had some non-Aboriginal ancestry, but the Tribunal held firmly that this, of itself, was not a disqualifying factor: paragraphs 106-115.

Claimed Lands and Traditional Country

There were originally nine separate claims lodged to the nine areas of claimable land within what the claimants said is their traditional country. The Tribunal report stated (citing in support two High Court decisions under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth):

117. ... Rather than focus on one parcel (or a number of parcels) of land in isolation, it seems more appropriate to determine how (if at all) a parcel fits into a larger area of land with which a group of people have traditional affiliations. In other words, the claims can be looked at as one claim to those parts of the traditional land of the claimants which are available for claim. An artificial distinction between land that is claimable and land which is not claimable should not compel the Tribunal to concentrate on each area of claimable land to the exclusion of other areas if those other areas may give a more comprehensive and accurate picture of any traditional affiliations to the land claimed, particularly as all the areas are claimed by the same Aboriginal people on the same basis. It must be remembered, however, that the claimants as a group must establish their claim to all the land, not just part of it, if all the claims are to succeed.

Parties

Other parties to the hearings were Cook Shire Council (for all claims) and, for the three National Park claims, the Queensland Commercial Fishermen's Organisation and the Director, National Parks and Wildlife. Two unsuccessful applicants to be joined as parties were allowed to provide written submissions.

Procedure

The Act gives the Land Tribunal considerable procedural flexibility. In the course of this hearing a number of procedural steps were taken which are discussed in paragraphs 132-169, and summarised in paragraph 769.

In the course of the hearing, the Land Tribunal:

(a) decided the locations at which evidence would be given and oral submissions would be made -- Cooktown and Hopevale;

(b) decided that a solicitor would not be permitted to represent the claimants at the hearing in line with the general policy of the Act -- no other parties were legally represented, and the Tribunal took the view that the claimants would be competently represented by the Director of the Cape York Land Council, Mr. Pearson;

(c) permitted evidence to be given by claimants in small groups of up to three:

140. The taking of evidence from groups of Aboriginal people is an unusual feature of land claim hearings when compared with conventional court proceedings ... The application for group evidence to be given in the present land claims was made on the grounds that some of the claimants (particularly younger people) would be more willing to give evidence to the Tribunal and would be more comfortable in doing so if they were in the company of other relatives, and that there may be local protocols to be observed in determining who within a group had authority to speak in relation to certain matters. In particular, it was submitted that young people may feel some sense of reticence or even shame when asserting their rights to land in the presence of older people who had the traditional authority to speak about such things. The basis for that submission was that there is, among the members of the claimant group, a hierarchy of knowledge and of rights in relation to land which people giving evidence would wish to respect.

The Tribunal also:

(d) permitted certain nominated persons to act as interpreters as required;

(e) permitted the filming of part of the proceedings by a crew on behalf of the Cape York Land Council;

(f) considered what steps should be taken to minimise or avoid causing offence by using the names of deceased persons only when necessary;

(g) admitted a video tape as evidence;

(h) by order, directed that certain restrictions apply to the copying and use of certain documents and a video tape which were marked as exhibits;

(i) held a private meeting with elders and other claimants to discuss who should be grantees of title if the claims are successful;

(j) considered submissions about financial and other assistance to parties, one outcome of which was an arrangement for the future that each party will receive one complete copy of the transcript free of charge.

Land Tribunal's Functions

The key provisions of the Aboriginal Land Act 1991 are very similar to ss. 50 and 11 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), and High Court interpretations of that scheme were said to be relevant to the functions of the Land Tribunal.

The 1991 Act provides that if a claim by a group of Aboriginal people for an area of claimable land is established on the ground of traditional affiliation, the Land Tribunal must recommend to the Minister that the land be granted in fee simple to the group. The Tribunal must also make recommendations to the Minister as to the persons who should be appointed to be grantees of the land as trustees for the benefit of the group of Aboriginal people concerned.

In addition, when making a recommendation that land be granted, the Tribunal must advise the Minister, in writing, in relation to each of the following matters:

(a) the number of Aborigines who will be advantaged by a grant of the land and the nature and extent of the advantage that will accrue to them;

(b) the responsibilities in relation to the land that the group of Aboriginal people concerned agree to assume if the land is granted because of the claim, and how those responsibilities should be expressed in any deed of grant or lease granted in relation to the land;

(c) the detriment to persons or communities (including other Aboriginal groups and Torres Strait Islanders) that might result from a grant of the land;

(d) the effect (if any) that a grant of the land is likely to have on the existing and proposed patterns of land usage in the region of the land (s. 60(5)).

The Land Tribunal commented that

The matters on which advice must be given are not matters to be taken into account by the Tribunal in deciding whether to recommend the grant of the land. They are matters which the Minister must take into account in deciding in the exercise of the discretion granted by the Act, whether part or all of the land should be granted to the relevant group of Aboriginal people.

Traditional Affiliation

In Chapter Two of the report the Land Tribunal gave careful consideration to the terms of the Act for a claim based on traditional affiliation. The individual criteria are (paragraph 190):

(a) the claim must be made by a "group of Aboriginal people",

(b) the claim must be for "an area of claimable land";

(c) the members of the group must have "a common connection with the land";

(d) the common connection must be "based on spiritual and other associations with, rights in relation to and responsibilities for" the land; and

(e) the associations, rights and responsibilities must arise under "Aboriginal tradition", that is, "the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular group of Aboriginal people," including any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships.

The Tribunal offered its interpretations of the meaning of the several phrases while indicating that its comments "should be read as indicative, and not necessarily formally determinative, of the meaning and scope of those criteria". Once again, assistance was obtained from interpretation of such terms in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

The Tribunal's comments on the phrase "Aboriginal tradition" are particularly interesting in rejecting the "frozen tradition" approach (footnote references have been omitted):

226. ... [F]or the purpose of determining land claim applications, the Aboriginal tradition is the tradition as it currently exists. While that tradition will ordinarily be, or be derived from, what has been handed down from ancestors to posterity, especially orally or by practice, the content of the tradition need not be immutable from generation to generation. Various historical, social, cultural and physical factors may influence the content of the Aboriginal tradition of a particular group. It may be true to say, in this context, that tradition results from a conscious and deliberate acceptance of something from the past, and presupposes the reality of what endures.

227. It seems to be generally accepted that no Aboriginal community or group retains complete and unchanged the body of traditions, observances, customs and beliefs held by their ancestors at the time of first contact with European colonisers. ...

228. In these land claim proceedings, for example, it was apparent that the dispersal of the ancestors of the claimants from the claim areas led to the breakdown and possible disappearance of important aspects of the traditional ceremonial life of the group, such as initiation ceremonies. That is a matter of profound regret to those who remain. The claimants submitted, however, that such things as the retention of languages which have, or have almost, disappeared, and the detailed knowledge of clan names and place names are not the only traditional elements in the culture of how the body of claimants relates to the claimed land. Indeed, it was submitted, those elements should be described as "classical" in preference to "traditional".

"Current tradition among the claimants is made up of elements of the classical culture that have come down to the present more or less unchanged (eg. many claimants operate within an Aboriginal kinship system), together with many elements of contemporary culture. The traditional is not that which was practised in the past but that which is transmitted as part of Aboriginal culture -- it has continuity, but may have been transformed through time so that it is no longer exactly the same in outward form as its predecessor."

229. The transmission of Aboriginal tradition may take a number of forms, themselves subject to change. For example, the practice of orally passing the culture of the group (including traditional stories about places and spiritual ancestral beings) from generation to generation has been augmented by the means of recording those stories and family histories, in writing and on film and videotape as, in the past, it was recorded in cave paintings and paintings on wood. There is no legal bar to the recognition of such forms of recording and transmitting the body of traditions, customs, observances and beliefs of a particular group of Aboriginal people, including any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships.

...

232. Different issues arise with respect to material collated or written by persons who are not members of the group of Aboriginal people particularly concerned with the land. It was clear in these land claim proceedings that much of the detailed information about the mythology of the region, the local Aboriginal language names of places, and aspects of the traditional local clan estate system would have been lost to the current members of the claimant group had it not been for the research and writings of archaeologists, linguists and anthropologists. Those researchers visited the region and recorded the knowledge of Aboriginal people, most of whom are now deceased, who had grown up in that region, spoke a number of its languages, and had a detailed knowledge of its religious and other cultural traditions. ...

The Tribunal was able to call in aid writings of anthropologists, Aboriginal Land Commissioners for the Northern Territory, the High Court of Australia in Mabo v Queensland (No.2) and Canadian court decisions in support of the proposition that "aspects of Aboriginal tradition can change over time and in response to a range of influences" (paragraph 264).

Evidence and Conclusions

The Tribunal then proceeded to consider the evidence in the light of the statutory criteria.

357. It is apparent that, although the claimants can trace historical and family connections to places within the areas claimed, the claimants have spent most or all of their lives away from those areas. Few have visited the claimed areas. The issue is whether the Land Tribunal can be satisfied that, despite their physical absence from the claim area, members of the group have a common connection with the areas claimed based on spiritual and other associations with, rights in relation to, and responsibilities for, the land under Aboriginal tradition.

(e) Spiritual associations with the land

358. Numerous instances of spiritual associations with the land were identified in the claimants' evidence. Those instances can be broadly described in terms of:

(a) belief in, or acknowledgment of, the presence of the spirits of named and unnamed ancestors at places on the land;

(b) a knowledge of stories relating to the ancestral creative beings which travelled through the region and created or inhabit certain named places; and

(c) an acknowledgment that certain places are dangerous and should be approached only by certain people and should be avoided by others.

...

379. The evidence demonstrates a shared or common view of spirituality which is, in effect, that spirituality is connected with ancestors and with land, particularly as the claimants' ancestors lived on the land claimed and many may have died on or near to those areas, and some are known to have been buried there. Even where the bodies of ancestors have been buried away from the claim area at places such as Hopevale, the claimants believe that those ancestors' spirits pervade other places and beings on the claimed land and elsewhere.

(f) Traditional rights in relation to the land

...

387. In summary, the evidence demonstrated that the claimants share an association with the land based on a recognised reciprocity of rights to enter and remain on the land comprising the former small clan estates of the region and to exploit the food resources of that region, which rights are derived from the traditional Aboriginal rights of access and use recognised and exercised by their forebears. Other traditional rights include the rights of some people to enter danger places, and the rights of certain groups to take over the estates of other groups which have died out.

(g) Traditional responsibilities for the land

...

399. In summary, the evidence demonstrates that to speak for the land, protect the land and its species from destruction and pollution, and to protect important cultural sites from desecration, are the responsibilities of people with traditional affiliations to the land. The claimants submitted that, provided they can obtain reasonable access to the land and an economic basis for their presence there, the claimants intend to exercise their traditional responsibilities for the land.

(h) Other traditional associations with the land

...

416. The oral and written evidence presented in these proceedings established that the claimants together, as a group, have a body of traditions, observances, customs and beliefs relating to the claimed areas. Although no one person knows the entire body of that tradition, the corpus of knowledge is retained by different individuals in various forms.

(i) Traditional affiliations to each area of claimed land?

...

462. Whatever the strict rights to specific areas may have been, it seems that there was a good deal of movement of people in the Cape Bowen, Cape Melville and Barrow Point area with members of the various groups travelling freely in the region and using the natural resources.

...

486. We have concluded that, although there was evidence which pointed to some families having stronger affiliations to certain focal areas than to other areas, there was sufficient evidence to support the claimants' joint claim of traditional affiliation to all the areas.

487. We make three observations about that conclusion. First, the fact that people chose to claim together did not, of itself, determine the conclusion which we have reached. If the evidence had clearly linked smaller clan or family groups to specific areas within the total area claimed to the exclusion of other groups we would have considered recommending that separate grants of title be made to those groups of those areas of land. Second, because the evidence did not clearly demonstrate extant links of separate clans to smaller clan estates, we resolved the matter consistently with what we understand to be the purpose of the legislation and with the current view of links to that area in accordance with Aboriginal tradition. Third, we are satisfied that the claimants generally recognise the authority of certain senior claimants to make decisions or give guidance to other claimants about particular areas and what should happen in those areas. Consequently, we are satisfied that, when decisions have to be made about land management and other matters, the persons who have the main traditional rights and responsibilities for those areas will be acknowledged in the decision making process. Thus, even though we recommend that all the land be granted for the benefit of a broad group, it is likely that more localised rights and responsibilities will be recognised by members of that group. Those rights and responsibilities will be given statutory support by the provisions of the Act which require that the "Aboriginal people particularly concerned with land" be consulted about and agree with any proposed grant, consent or agreement concerning the land.

488. The real issue is who constitutes the "group" for the purpose of recommending the grant of land and making the grant. During the hearing we invited the claimants' representatives to provide a comprehensive description of the group for this purpose. They declined to do so. Instead the claimants' final submission states, among other things, that:

(a) the beneficiaries of a grant of title would include the claimants whose names are listed in that submission and their extended families;

(b) the claimant status of some individuals did not emerge with sufficient clarity for them to be listed at this stage, but they may later be included in a formal list of people on whose behalf the trust holds the lands;

(c) the claimants whose names are listed in the final submission are people whose traditional affiliation to the land and membership of the group can be traced back one or more generations (usually by one-step parental filiation) to persons who were members of the landed group;

(d) the links in all cases are made through people who are "relevant socially recognised parents", but in some cases, particularly among the upper generations, a socially recognised parent may not have been the recognised biological parent. In many of these instances, the socially recognised parent from whom land ownership is traced was the Aboriginal husband of a woman who conceived a child by someone else. In those instances, the woman's Aboriginal husband took on the role of the child's father and imparted to the child the traditional affiliations to the land. Some claimants trace pathways back to more than one ancestor in the landed group.

Consequently, it falls to the Tribunal to provide an adequate description of the group to whom we recommend the land should be granted. That description should be in a form which clearly describes now and into the foreseeable future the people on whose behalf the land, if granted, will be held.

489. It is apparent that the Act does not require that we list each and every person on whose behalf we think the land should be held. There would be a number of difficulties in attempting such a list. First, the list might be incomplete or inaccurate at the date of the report. The oral and written evidence demonstrates that it is not possible at this stage to list with certainty the name of each person who satisfies, or may eventually satisfy, the statutory criteria. Some of the listed claimants are very young children. Others may have links to a number of areas but have yet to determine which area they assert to be theirs. On a related point, the claimants' submission stated that, while genealogical connections or cross linkages between members of the claimant group make it possible for those people to recognise their connections and unity, the linkages "do not necessarily provide end-points for defining the group, as its members are also cross-linked to people elsewhere." Earlier, the submission stated that the network of family connections extends beyond the claimant families, "but some kind of boundedness is recognised in relation to country", for example, in relation to the Lamalama people to the west. We agree that the inclusion of a person in the group for these claim areas does not mean that the person may not also have traditional rights and responsibilities for another area.

490. Second, even if a comprehensive list could be drawn up at a particular date and there were sufficient resources to prepare it, the list would soon be out of date as people died, others were born and others were incorporated into the group in accordance with Aboriginal tradition.

491. In our opinion, the requirements of the Act are met and the interests and responsibilities of the people with clearly established affiliations to the areas of land claimed are best recognised by a description of the group as comprising certain named persons (either senior claimants or the now deceased forebears of those senior claimants) and their descendants. A description of that nature will avoid the problems of attempting a complete list of names and will enable the descendants of the named persons (including descendants in accordance with Aboriginal tradition) to benefit from the grant. It may also provide a degree of flexibility which a complete listing of names would not. It should avoid immediate controversy about the erroneous inclusion or exclusion of particular individuals, especially young people, and would not constrain those who have yet to choose whether they wish to assert or activate interests and responsibilities with respect to the claimed areas.

The Tribunal was satisfied that the claims by a group of Aboriginal people to areas of claimable land had been established on the ground of traditional affiliation and recommended that the claimed land be granted in fee simple to the "group of Aboriginal people having traditional affiliations with the land being those of the following persons who are now living and the descendants, including descendants under Aboriginal tradition, of" (thirteen named people). The Tribunal recommended that fifteen named people be appointed to be the grantees of the land as trustees for the benefit of the group of Aboriginal people concerned.

Matters for Advice

As required by the Act, the Land Tribunal, in Chapter Three of the Report tendered its advice on the specific matters to the Minister.

(a) Advantage

The Tribunal reported that approximately 200 Aboriginal people would be primarily advantaged by the grant together with an unknown number of people who would derive indirect advantage, being related by marriage to the first group.

526. The nature of advantage to Aborigines flowing from the grant of the land can be summarised as follows.

(a) There will be a strengthening of traditional affiliations with land, maintenance of Aboriginal culture and enjoyment of the land by the successful claimants and by others with links to the group and to the group's land. Those advantages will be evident from such things as the exercise of responsibilities and obligations which the people have under their traditions in relation to site protection, religious duties, and more generally caring for the country. In the case of National Park lands, which comprise most of the land claimed, the exercise of those responsibilities will be formally recognised within the management of the National Parks. The claimants would be particularly advantaged by being able to look after rock art in the region and human remains buried on the land, as well as playing a central role in the management of other cultural and ecological aspects of the lands.

(b) Economic advantages may include such things as employment, education and training in connection with National Park management, as well as involvement in cultural and eco-tourism and other enterprises. Hunting, gathering and fishing in accordance with the principles of ecological sustainability would supplement the diet of store bought food and the incomes of Aboriginal people, as well as being an important indication of their traditional rights and cultural identity.

(c) Social and psychological advantages would flow from the legal recognition of the claimants' ownership of the land and their rights to be involved in the management of it. Those benefits would be supplemented for the people who will be able to live on the land. Those advantages, together with an associated sense of pride and community spirit, are real if somewhat unquantifiable advantages and should be recognised as being of real consequence to the Aboriginal people particularly concerned with the land.

(d) There is potential for improved relations between the relevant Aboriginal people and the wider community, particularly if the management and presentation of the land involves the education of members of the public about matters of cultural significance to those Aboriginal people.

(b) Responsibilities

Responsibilities in relation to the land were described by the claimants as follows:

531. ...

(a) protecting sites, such as sacred places, cave paintings and a monument to people killed in the 1899 cyclone;

(b) looking after the area by, for example, keeping the area clean and preventing further degradation of certain areas, such as those areas near the birth places of ancestors;

(c) looking after the landscape, trees (including the foxtail palm trees and the wongeye trees) and wildlife;

(d) caring for burial sites, and possibly pressing for the return of human remains taken from the area;

(e) ensuring that people who are permitted to enter and use the National Park land do so properly;

(f) in the case of National Park land, advising National Parks officers in the management of the National Park areas and being involved in that management through such things as their representation on the Board of Management.

532. The claimants' written final submission suggests that an appropriate statement of responsibilities to be included in a deed (or deeds) of grant might be:

"The trustees and beneficiaries of the Yiithuwarra Aboriginal Land Trust undertake to care for and preserve their traditional homelands as a rich cultural and natural environment, in accordance with their own culture and traditions, and in accordance with appropriate contemporary management practices."

533. ... The statement accords with the requirements of the Act. We make no suggestions to change it for the purposes of any deed of grant issued in relation to the claimed land.

(c) Detriment

On the issue of detriment, the claimants themselves expressed concern about possible detriment to them from a grant of title under the Queensland Act.

535. The claimants submitted that there might be some detriment to them if a grant is made to them of fee simple title to the various areas of land claimed. The alleged detriment would take different forms depending on the status of the land claimed.

...

537. The claimants argued that there might be detriment because the grantees would receive a title which would be "inferior to other fee simple titles and which is in breach of the Racial Discrimination Act 1975 (Cth)" (the "Racial Discrimination Act"). The submission proceeds on the basis that the detriment is "occasioned by operation of law, in this case, by operation of the Commonwealth law which makes the Queensland provisions unlawful." In particular they pointed to section 5.18(2) of the Act which provides that a deed of grant of land of the type claimed in these proceedings must contain a reservation to the Crown of all forest products and all quarry material above, on and below the surface of the land.

538. The claimants also expressed concern about:

(a) section 5.19, which provides that if an area of coast becomes Aboriginal land because of a claim under the Act and a right of access to or across the area existed immediately before the land became claimable land, the right of access continues in force as if the land had not become Aboriginal land; and

(b) section 5.20, which provides that where a claim is made to National Park land the grant of that land is subject to (among other things) the condition that the grantees lease the National Park land in perpetuity to the Crown for the purposes of the management of the National Park land under the legislation governing National Parks.

After lengthy consideration, the Tribunal concluded:

590. ... Our conclusions, however, can be expressed briefly.

(a) The comparison of section 5. 18 with the relevant provisions of the Land Act and the Forestry Act demonstrates that there is little force in the claimants' submission that the incidents of fee simple title granted under the Act are inferior to those of other fee simple titles granted under the general law in Queensland.

(b) The Act is a special measure of the type described in section 8 of the Racial Discrimination Act. Consequently, section 10 of the Racial Discrimination Act does not apply to section 5. 18 of the Act.

(c) The grantees and the group of Aboriginal people for whose benefit the deed of grant is held will not suffer detriment from the grant of the title.

We have also concluded, for the same reasons, that neither section 5. 19 nor 5. 20 is in breach of the Racial Discrimination Act.

There was no evidence of any detriment to other Aboriginal groups from a grant. The Queensland Commercial Fishermen's Organisation was concerned about access to the National Park lands for emergency situations, access for fresh water, and several other matters. However it appeared that its concerns were likely to be addressed by an agreement under negotiation with the Cape York Land Council and the Department of Environment and Heritage.

Cook Shire Council had raised several matters of concern. One of these was whether the land, if granted, would be rateable and this related, particularly, to the possible cost to the Council of infrastructure and services, notably roads. After consideration of the State's Local Government legislation the Tribunal concluded that:

"... at least in the case of the vacant Crown land islands, the Aboriginal land would not be rateable. The position with regard to the National Park land is not so clear. If that land comes within the second of the categories just cited [Aboriginal land under the Act] then it will not be rateable (at least for those parts that are not used for commercial or residential purposes). This will be a matter for those administering that part of the Local Government Act 1993 (paragraph 633).

It was also not clear whether the Council would bear the cost of any roadworks in the National Park lands. No estimate of possible cost was available.

(d) Land Usage

Other suggested detriment factors were also reported on as were possible effects on land usage of a grant, and various "other matters".

Conclusion

The Minister for Lands accepted the Tribunal's recommendation that the claimed land be granted in fee simple. Overall, the first claim under the 1991 Act was successful and the claims process was off to a credible start. Issue of title to the National Parks is dependant on the finalisation of management plans and leaseback arrangements. Title to the areas of vacant Crown land had not issued as at 30 June 1995.