Aboriginal Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Aboriginal Law Bulletin |
|
by Andrew Chalk
1989 was a year of siege and success for a small Aboriginal community living in north eastern New South Wales. The Fingal Community spent the year in the shadow of a tidal wave of concrete, that threatened to swallow their seaside lands with tourist developments and river works, whose estimated cost would have run to the billions. Leading this onslaught was a group of big spending Queensland property developers actively supported by National Party heavies, both harbouring a yen to see the Community shifted from their idyllic surroundings in a gamble for the tourist dollar.
However, twelve months after proposals were first announced and in the wake of a major corruption inquiry, the tide had more than turned. Both developers and the State Government are beating a very public and embarrassing retreat. For the Community it had been an extraordinary year. Together with conservationists and the predominantly white resident groups, they had put aside differences and crafted a remarkable three way alliance to tackle the threat. It was a rare example of racial co-operation and understanding. While the threat of development has not entirely passed, it seems an appropriate time to reflect on the fortunes of Fingal.
Separating the Tweed River from the Pacific Ocean, Fingal is a narrow peninsula several kilometres long. It ends at the mouth of the river and on the opposite bank lies Queensland. Its facilities total two shops, a boat shed, post office and caravan park. Fingal village nestles around the headland about half way along the peninsula. The peninsula north of the village is known as Letitia Spit, a sand spit that has been slowly accreting due mainly to the construction of the river's southern training wall. Along the Spit lives most of the Aboriginal Community, both past and present.
The Community's history is a rich and well documented one. Since well before the turn of the century they have been permanently settled at Fingal. Aboriginal associations with the area, however, stretch well back into the dreamtime with anthropologists claiming that the area supported one of the most dense nomadic populations to be found anywhere in the world. Skeletal remains of people estimated to have been around seven feet tall have been found on the Peninsula. There are records from the early nineteenth century averring to massacres at Fingal carried out by a garrison posted there to recapture Moreton Bay escapees.
Environmental vandalism is nothing new to Fingal. Just before the turn of the century, the Department of Public Works blasted and quarried the massive bassalt caves of Fingal Head. In the process they desecrated a site of major traditional importance to the community. During the 1950's and 60's sand miners cleared and destroyed not only most of the littoral rainforest which blanketed Letitia Spit but also numerous burial sites, including at least one of the former massacre sites.
The late 1960's saw the first attempt to push the Community off their land in the interests of tourist development. Until then, the people had only held the land on which they had built their houses as permissive occupants. As the Govemment was preparing to force them off, a Lands officer was quoted as saying "Fingal Head was no place for poor people to live and that high rates would eventually force them out". A major land rights struggle ensued and the State Government eventually granted members of the Community freehold title to their land.
Throughout the seventies the community continued to make land claims over Letitia Spit despite the fact that they had no legislative basis on which to rely. None of these claims were successful although they may have helped dissuade interested developers from pursuing matters. After the introduction of the Land Rights Act in 1983, the community linked together with other local groups to form the Tweed Byron Local Aboriginal Land Council and immediately lodged new claims over the Spit as well as other pieces of Crown land at Fingal. In 1986, the Community and the Department of Lands negotiated a deal in respect of the Spit. The community agreed to withdraw all but a small portion of their original claim in return for the Department instituting a Plan of Management over the remainder, aimed at ensuring the land's protection for future public use. The Local Land Council went to some expense in preparing its submission on the Plan of Management. However, once the claim was withdrawn the Department refused to proceed. Since the recent dispute started, fresh land claims have been made.
Developers, Ocean Blue Club Resorts Pty. Ltd., posed the first big threat to the community. They planned to build an international hotel on an important dreaming site and remanent littoral rainforest, a luxury marina on a protected wetland area, and a 400 townhouse /condominium complex in place of the existing village. Both the hotel and marina site were Crown Land and zoned as either public open space or for environmental protection. At the same time, the Public Works Department commenced a feasibility study into the possibility of cutting a new entrance to the Tweed River through Letitia Spit. If approved, the Department intended to pay for the construction work by selling the remainder of the Spit to private developers. One firm, Adco Constructions Pty Ltd expressed interest in acquiring the land and put forward proposals for around one billion dollars worth of tourist and residential developments. Such intensive development was considered necessary to absorb the sixty million dollar cost of river works.
Of all the proposals, those of Ocean Blue were the most advanced. The combined impact of their three projects - hotel, marina and townhouses - would have irreversibly changed the character of Fingal. The Community feared that their sleepy holiday village would become a playground for the wealthy where they would be viewed as a black ghetto on its northern fringe. With the consequent rise in land values and local government rates, it is highly likely that they would be gradually forced to sell up and disperse.
Each of the projects would also have had numerous and specific adverse impacts on the community. The hotel, for instance, would have desecrated a traditional dreaming site. For the community the site is the dreaming home of a giant black dog whose story is linked to the creation of the McPherson Range. Songs in Bundjalung, the traditional language, record the links of the dog to Fingal. Hotel visitors tramping through the adjacent vegetation would also have disturbed archeological relics including a stone workshop and the area's echidna population, the community's traditional totem. Moreover, the area leased to Ocean Blue for it's hotel, incorporated the world's last viable stand of an ancient flowering rainforest tree, the Cryptocarya foetida. Aside from predating the first eucalypts in Australia by some sixty million years, this species was used traditionally as an analgesic during initiation ceremonies.
Ocean Blue intended to acquire the bulk of the freehold property in Fingal. Most, if not all the existing residents would have been forced out From the Aboriginal Community's perspective, this would have been disastrous. It became clear from early discussions with the developers, that if the Community was not going to shift, they would be marketed as a cultural curiosity. The sense of equality and mutual respect which has long marked blackwhite relations at Fingal would have been lost.
The marina also catered to values not previously associated with Fingal. Designed to accommodate ocean going pleasure boats, it was likely to have attracted visitors who would share little empathy with the Aboriginal Community living opposite. Apart from the general ecological damage it was expected to cause the Tweed Estuary, the marina would have destroyed much of the wetland which is still used by the community for gathering food.
Each of Ocean Blue's proposals threatened to fundamentally alter the quiet, low key character of Fingal. But perhaps the greatest danger to the community - in a region where property development is a religion - would be the precedent and justification such a project would set, for the complete opening up of the Spit to intensive tourist development.
A new river entrance would have had the most direct impact of all the proposals. In 1989 the Deputy Premier and Minister for Public Works, Wal Murray best explained this impact when asked at a meeting whether its construction would mean shifting the community. He replied "Not if they can swim". In preparation for the new entrance, Murray ordered the cessation of work on houses being built for the community, by the Housing Commission, on Aboriginal owned land. One of the houses was located beside the the site for Ocean Blue's hotel on a block that the developer had made desperate bids to acquire.
By the end of 1989 it was apparent that a new river mouth was not feasible and a decision was made to focus further studies on improving the existing mouth. This decision effectively spelt an end to Adco's proposals.
The Fingal dispute provided a useful opportunity to assess the legislative protection specifically available to Aboriginal communities in New South Wales when confronted with land use and heritage problems. Almost every conceivable problem relevant to a community was faced at one point or another; the issues ranged from their forced dispersal to the desecration of unmodified sacred sites and pollution of traditional food gathering areas. Limited space prevents a detailed or comprehensive discussion of the law.
Most environmental laws typically set out a decision making scheme placing discretionary power in a Minister, regulatory authority or local government body. Guidelines for how discretions should be exercised are often omnifarious, recognising that land use decisions regularly involve a competition between totally diverse interests. Such an approach, for better or worse, is essentially political in nature. At local government level they will often be surrounded by a society with a prevalent racist and frontier settler mentality. Even decision makers committed to giving Aboriginal interests a fair hearing cannot be relied upon to appreciate the significance of a sacred place. For non-Aboriginals, the genocidal impact of resuming a community's land and forcing their dispersal is not easily apparent; and even less so when the decision maker is guided by a rhetoric of progress and development coming from those who have the power to control that individual's career prospects.
The first tactic, then, in approaching an environmental problem affecting Aboriginal people is to look for ways to minimise the opportunity for discretion in decision making processes. From a legal perspective, this involves either placing primary reliance on legislation that itself restricts discretion or that, alternatively, gives the discretion to an independent body, preferably a court In this regard, a community will sometimes have a choice as to the legislation on which it can rely.
If a dispute involves Crown land, as it does at Fingal, the Land Rights Act offers amongst the most effective remedies since it gives a presumptive entitlement to claim vacant Crown land. In theory at least, the Minister does not have a discretion in deciding whether to grant the claim. While a claim can be refused on the grounds that the land is needed or is likely to be needed for either an essential public purpose or residential use, it becomes difficult to maintain the appearance of good faith where there is strong evidence to the contrary, such as an attempt by the Minister to dispose of the land to private developers. Appeal rights to the Land and Environment Court conferred under the Act strengthen the Aboriginal position.
Sometimes the claim itself can be adjusted to reduce the temptation for capricious decision making. Where only part of a claimed area is needed for an essential public purpose, the Minister still has the discretion to refuse the whole of the claim. This can be avoided by dividing vulnerable claims into smaller units so that the Minister must justify the refusal of each smaller claim separately. On Letitia Spit, for instance, there were seven claims lodged to take account of the possibility of a new river entrance.
The sites proposed for Ocean Blue's resort hotel and marina are both subject to land claims although the Minister, Mr Causley, is refusing to grant them and has issued certificates stating that the land is needed for an essential public purpose. Both claims are currently being litigated and it is likely that for the first time since the Act was introduced the Court will be required to indicate what "essential public purpose" might encompass.
The best form of protection for traditional lands or sites will always be ownership. Land held by an Aboriginal Land Council cannot be resumed except by an Act of Parliament. Furthermore, such land is protected from forfeiture and sale through failure to pay rates. Nevertheless, rates must still be paid and unless ways are found to reduce this burden, the Act will eventually fall short of achieving its aims.
Two comments should be made about the present National Parks and Wildlife Act. Firstly, it does not allow leased land to be dedicated as National Parks, Nature Reserves or State Recreation Areas. While the justifications for this are sound in respect of normal freehold title, they are not applicable to inalienable Aboriginal land. The result is that the 'lease back' models of Uluru and Katherine Gorge cannot presently be applied in New South Wales. In practical terms this means that rate exemptions which are afforded to National Parks cannot be passed on to Aboriginal owned land even where that land is maintained for conservation purposes. Leaving aside the option of conservation agreements and conditions on granted title, the provision for lease back arrangements would resolve the conflict that can arise where Land Councils and the National Parks and Wild Life Service compete for the same land.
Secondly, the National Parks & Wildlife Act together with the Commonwealth's Aboriginal and Torre s Strait Islander Heritage Protection Act 1984, makes specific provision for the protection of places of Aboriginal significance. Unfortunately, if both schemes were to be judged on their record to date, they could only be regarded as failures. Under the Heritage Protection Act, for instance, there has not been a single declaration granting permanent protection. This is despite numerous applications, many involving the preparation of extensive and expensive reports. The weakness of both, is the total discretion they place in white bureaucracies and politicians to determine the fate of places which have special significance only to Aboriginal people. They give no protection as of right. In the case of the National Parks & Wildlife Act there is the further limitation that only Crown land can be nominated for gazettal as an Aboriginal Place.
If Governments are serious about providing an ancient culture with the recognition and protection it deserves, there must be a scheme that gives a prima facie right to protection once an area's significance has been established. In the case of the Heritage Protection Act, communities should also have the right to let the Courts second guess a decision. Otherwise, Ministers will continue to make decisions under both Acts on the basis of political expediency. As happpened last year, the Federal Minister for Aboriginal Affairs argued in the Wamba Wamba case that he had a discretion in making declarations while telling the public, in relation to Coronation Hill, that he was bound once significance was established.
Ironically, the Environmental Planning and Assesment Act is potentially one of the most effective sources of protection for Aboriginal interests in New South Wales. This is due largely to its very broad standing provisions under which anyone can bring an action in the Land and Environment Court to restrain breaches of the Act. When aligned with Environmental Plans which recognise Aboriginal interests, the Act can afford versatile protection. At Fingal this has been the case. A Regional Plan covering the North Coast deals specifically with Aboriginal sites and relics. It requires that local governments, when zoning areas or considering development applications take full account of Aboriginal values. Its wording is in strict terms. For instance, Clause 36 reads:
Before granting consent to development on land to which clause 35 applies, or land within the vicinity of any such land, the council shall -
(a) consider the potential impact of the development on the land and any item of environmental heritage and shall ensure that the heritage value and appearance of the land and any such item is enhanced rather than adversely affected; and
(b) consult with the Heritage Council and the Director of National Parks and Wildlife.
Amongst other things, clause 35 applies to land "which the council is satisfied contains an Aboriginal site or a relic of significance to Aborigines". Moreover, an inconsistency clause gives the Regional Plan precedence over all other planning instruments - excluding State Environmental Planning Policies (SEPPs). If a council fails to observe the plan, it is open for anyone to challenge the decision in Court.
With a sympathetic government, the EP& A Act could easily be harnessed to provide proper and fair protection for Aboriginal interests across the State without the need to enact special legislation. Using National Parks records and in consultation with the various Aboriginal Land Councils, sites would be mapped out and registered irrespective of the tenure of the land on which they are situated. Anyone wishing to develop the site would be required to follow a particular procedure which, if categorised as designated development, would include the preparation of an environmental impact statement. More importantly, it would give objectors the opportunity to challenge any development approval in Court in a full rehearing of the issues. If necessary, the Court could allow evidence to be given in camera to protect sacred material from abuse. Such a system would make the cumbersome Heritage Protection Act virtually defunct and give developers fair notice of the obstacles to development at the earliest stages of their planning.
Over the past twelve months Fingal became the focal point for the growing national debate over coastal development. Politicians and developers responded. Ocean Blue began evicting white tenants from their houses before sending in the bulldozers. The Deputy Premier took care of the blacks ordering a stop to work on Government funded houses at Fingal. He also publically attacked the racial origins of the Aboriginal Community; a matter which is now the subject of defamation proceedings. During a visit to the normally pro-development Tweed Shire Council, Wal Murray threatened to remove Council's planning powers, which in relation to Ocean Blue, he considered to have been "grossly misused .... to delay the project". He had reached such a conclusion solely on the basis of a fax from the developer. And as each side dug in and traded shots, it was the Shire Council that was caught in the crossfire. Not only were they being pressured from both sides but, as fate would have it, they were drawn for the title role in the Independent Commission Against Corruption's first big production.
The Commission has yet to release its report and has so far made no findings, but the evidence presented to it has graced the front pages of the metropolitan newspapers for months. Evidence before ICAC revealed that Ocean Blue had paid large secret donations to both the Labor and National parties at times when, as the respective Governments of the day, they were considering Ocean Blue's application for Crown land at Fingal. The Administrator of the Tweed Byron Local Aboriginal Land Council alleged that an officer of Ocean Blue had attempted to bribe him into furthering the company's interests. Lawyers from the Department of Lands claimed that they were misled in leasing the quarry site to the wrong company and both Wal Murray and Ian Causley declared that, had they known what they do now about Ocean Blue, they would have refused to deal with them. Whether or not the Ministers were in fact aware of the donation is an issue on which the ICAC has still to make a finding.
As always there is a good deal more to the story. The best parts - the intrigue and manouvering, the anguish and joy, and above all the people - are most wisely kept for late nights around a fire on Dreamtime Beach, where, well out of earshot of the defamation lawyers, a group will be sitting waiting for the snapper to bite. They will be remembering and they will be laughing, because in 1989 they all did something which they didn't really think was possible. In Fingal is the great Australian novel waiting to be written.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1990/6.html