Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Frank Brennan S.J.
On 19 February 1991, the Queensland Premier, Mr Wayne Goss, announced his intention to legislate for Aboriginal land rights in Queensland. On February 20, he met with Aboriginal leaders from around Queensland and told them:
"It's going to be a long road. It will be a long course of consultation. We have to balance the other claims. We have to accept interests of miners, the environment, tourism, grazing ... all the rest of those things".
"You have to go back and talk among yourselves and work out what you want. Tell us how it will work in practice. Don't come here and ask me, a white man, to draw it up because you will turn around and accuse me of imposing a white man's solution. I'm not going to do that".
On 3 April 1991, Mr Goss met with Aboriginal leaders at Aurukun in Cape York and told them he had come to listen and that the legislation would be passed some time this year.
On 12 April 1991, Mr Les Malezer, the Head of the Aboriginal and Islander Affairs Division of the Department of Family Services and Aboriginal and Islander Affairs, addressed the Aboriginal Co-ordinating Council (ACC) who had just finalised a policy document on land rights after a series of workshops. He informed them that a group of persons in the Premier's Department were preparing draft legislation but that he was unable to provide information as he was not party to the deliberations. The ACC then published its policy document on 12 April 1991.
The Queensland Aboriginal Federation of Land Councils voiced their concern about the proposed consultation process to the Premier. Aboriginal groups were then informed that consultation would have to be completed before 10 May 1991 when all final submissions would be received. The Government did not publish any discussion paper or document setting out the parameters for negotiation and discussion.
On April 30, the Minister of the Department of Family Services and Aboriginal and Islander Affairs, Mrs Anne Warner, told the the Cape York Land Council:
"It's not a matter of what you want - we know that. It's what you'll accept".
The following day, the Cape York Land Council issued its communique stating:
"The time period which has been set by the State Government for consultation with Aboriginal groups is not enough to allow our people to properly understand the proposals and to have meaningful input into the legislation".
The Aboriginal Land Bill was introduced to the Queensland Parliament on Thursday, May 23. The Bill was debated on Thursday, May 30 and enacted at 2am the following morning.
The existing deed of grant in trust lands (DOGIT), all Aboriginal Reserve lands, and the Aurukun and Mornington Island Shire leases become 'Transferable Lands' under the Act. As such, they are to be dealt with by the Minister. The Act does not specify which minister, but presumably it will be the Minister for Aboriginal and Islander Affairs. As soon as practicable, the Minister is to appoint grantees as trustees of these lands for the benefit of Aboriginal people. These trustees need not necessarily be the existing elected Community Councils on DOGIT land. The trustees are to be issued with a new deed whereupon the land becomes transferred land and is thereby made claimable land. Once land is claimable, Aborigines can go to the Tribunal which has the power to make a recommendation to the Minister after a hearing about the grant of land title and the identity of trustees.
This double process is contrary to the submission put by the ACC who submitted that:
"The Trustees of DOGIT lands should not be changed unless the change is sought by the residents of the community who vote in a referendum proposed by the Community Council. If such a change is sought, the government should consult with the community and ensure that the new trustees are representative of all major traditional land holding groups in the area. The final structure of the trusteeship should be approved by the Community Council before the Minister presents it to the Governor-in-Council for certification. "Even if there be a change to the trusteeship of DOGIT lands, the community residential and administration areas should remain vested in the Community Council."
It may be less disruptive to Aboriginal communities if the Minister as a matter of course were to renew the existing Community Councils as trustees of the land unless there is a request for variation from the overwhelming majority of residents in a community. After all, once the land becomes transferred land, those with traditional or historical associations who think that they ought to be grantees, rather than the elected Community Council, can raise the matter with the Tribunal.
The following defects in title of the old deeds of grant in trust have been set right by this Act. Lands previously excised for Crown occupation and use will now be included in the deeds. Land subject to leases under the Land Holding Act will now be included in a deed of grant in trust. There will be no hovering clause which permits the Crown to resume land for public purposes. Crown authorities will be able to enjoy use of Crown buildings for the provision of services to communities without payment of any rent. As with DOGITs, the trustees will be granted an estate in fee simple which can be revoked only by an Act of Parliament.
The existing provisions of the Mineral Resources Act which give trustees the power to withhold their consent to mining activity will be retained, subject to the proviso that the Governor-in-Council can override this withholding of consent. This is not a veto in the Northern Territory sense. It is a re-enactment of the provisions enacted by the National Party when in Government.
A deed of grant of transferred land will also include qualified forest and quarry rights. These rights were promised by the previous National Party government. The Crown will retain the power to say that forest or quarry material is of vital State interest and therefore to be retained under Crown control. If this occurs, the grantees of the land will be entitled to be paid reasonable compensation for the reservation or acquisition of their forest and quarry materials.
Existing leases on DOGIT areas under the Land Act and the Land Holding Act will continue. New leases will be grantable by the grantees to Aborigines who are particularly concerned with the land or to the Crown in right of the State or the Commonwealth. Leases or licences may also be granted to other persons but only for a period of less than ten years unless the prior written consent of the Minister is obtained. Before granting any interest in land the grantees must first explain the proposal to the Aboriginal people particularly concerned with the land and give them an adequate opportunity to express their views. No interest is to be granted and no agreement made unless those people are generally in agreement with the proposal. However, if the grantees fail to gain this appropriate consent, any interest or agreement finalised is still valid. The only legal protection afforded is that interested Aborigines, who are aware of a proposal, may be able to obtain an injunction before any interest or agreement is finalised. Once the ink is dry, Aborigines who should have been consulted will have no recourse. The legislation should have provided particularly concerned Aboriginal people with a reasonable chance to respond, after formal notification has been given. As the Act stands, the law will give no real protection to those Aborigines whose interests may not be sufficiently represented by the grantees. This protection is all the more necessary given the absence of statutory land councils.
Present Aboriginal lands represent 1.8% of the State (3.4m. hectares). Under the Act, there may be up to an additional 2m. hectares of vacant crown land (1.16% of the State) available for claim. However, no such land will be claimable until it has first been gazetted by the Governor-in-Council as claimable land. Such gazettal may stipulate particular plots of land or may speak generally of vacant crown land in geographical regions. However, vacant Crown land is unclaimable if it is situated inside the boundaries of a city or town or if it has been gazetted for future urban purposes. Crown land which is reserved and set apart for public purposes is unclaimable; as are State forests and timber reserves.
The Cherbourg community which resides on a 3000 ha. DOGIT adjacent to a 9000 ha. timber reserve would need to have that reserve degazetted so that it could be vacant Crown land available for claim.
The Weipa land subject to special bauxite mining leases is not avail able for claim either, though it is vacant Crown land.
In some cases, the Government may permit a claim to land in between high and low tidal water marks. This should be the case at Aurukun. The bed and banks of watercourses or lakes will be claimable only if these water bodies pass through land which is claimable. Even lands which are only subject to an occupation licence or permit are unclaimable. With the implementation of the Wolfe Report, it may be that some such permits and licence are cancelled, making the land claimable.
Claimable land once granted will not carry with it timber and forestry rights. In this regard, the title will be less than that of existing freehold. However, the special provisions of the Mineral Resources Act providing for Aboriginal consent to mining will apply if the land has been granted as an estate in fee simple.
Claimable land may be claimed on the basis of traditional or historical association. If such a claim succeeds, the grantees will obtain an estate in fee simple. Land claimed on the basis of need will not be subject to a freehold or inalienable title. The grantees will obtain a lease which maybe subject to conditions. Failure to comply with the conditions could result in the forfeiture of the lease.
National Parks may also be gazetted as being available for claim. Potentially this could make a further 3.84m. hectares (2.2% of the State) available for claim. National Parks will be claimable only on the basis of traditional or historical association. No grant will be made unless the grantees have already agreed to lease back the National Park in perpetuity, subject to such conditions as the Governor-in-Council determines. The Premier has indicated that "any rental for National Park land paid to Aboriginal people will be on a peppercorn basis only". Aboriginal people having a special relationship with National Park land will be represented on the board of management but they will have no guarantee of being a majority on the board.
An as yet undetermined percentage of mining royalties will be paid to the benefit of Aborigines. The partial royalty equivalents will be split by a formula not yet determined between the grantees of the affected land and the Chief Executive of the government who will administer those funds for the benefit of Aboriginal people generally in Queensland. The Government has no intention of amending the Mineral Resources Act to provide compensation for disruption to social and spiritual relationships which are based on the land. It is doubtful whether under existing provisions compensation would be payable for disruption to the Aboriginal social and religious relationships with the land.
The Tribunal will be chaired by a lawyer who on some occasions could sit alone but generally would sit with two other members, one of whom "has suitable knowledge of Aboriginal people or Aboriginal tradition" and the other of whom must have experience in industry, commerce, public administration, industrial relations, the practice of a profession or the service of a government or an authority of a government.
Agroup of Aboriginal people may make their claim for an area of claimable land. If there is only one remaining descendant of a group, that person alone may make a claim. Claims on the basis of traditional affiliation have priority. Claims on the basis of historical association would override a claim made only on the basis of economic or cultural viability. DOGIT land and the land at Aurukun and Mornington Island cannot be claimed on the basis of economic or cultural viability. Any person whose interests could be affected by the grant of land as Aboriginal land may apply to the Tribunal to be made a party to the proceedings. Generally, lawyers will not be permitted to represent parties to proceedings. If two or more groups make out their claim, the land eventually will be granted to all successful claimant groups. Appeals and questions of law are determined by the Land Appeal Court. The Tribunal makes its recommendation to the Minister who has a discretion whether or not to grant the land.
Original claimants will not be liable for any survey costs or stamp duty. However, rates will still be chargeable by Local Government Authorities. These rates may be more than service charges for services actually delivered to Aboriginal land. However, Aboriginal land, except for leasehold land held for economic or cultural viability, cannot be sold for non-payment of rates except by an Act of Parliament that expressly provides for resumption of the land and the payment of just compensation for the land.
To date, New South Wales is the only State to provide a statutory acquisition fund for Aboriginal land. No such fund is provided in the Queensland Act. The Act envisages that some land will be acquired by or on behalf of Aboriginal people. Such land, e.g. a pastoral lease, could be purchased by an Aboriginal group, surrendered to the Crown, gazetted as being available for claim, and then claimed by its owners before the Tribunal. If successfully claimed on the basis of traditional or historical association, an inalienable freehold title could then be granted to the land. However, it would not attract timber or quarry rights. For mining purposes, it would be treated as ordinary freehold. The owners of such land would run a slight risk that other Aborigines who have a higher claim to the land could succeed before the tribunal.
The contents of the Aboriginal Land Act are much as rumoured during the truncated consultation process. There is little for the urban Aborigines as they will have no access to a guaranteed statutory acquisition fund. They will have no statutory recognition or resourcing of Lands Councils and will be unable to claim any land in town and city areas. For them, the only gain is the possibility of claiming land outside towns and cities on the basis of economic and cultural viability.
The Act is not the last word on Aboriginal land claims and entitlements inQueensland. Neither does it purport to be. The Premier himself has described it as a foundation or platform for the future recognition of the just entitlements of dispossessed Aborigines to land. Urban Aborigines who form their own Land Councils will deserve sympathetic support from Government in the provision of resources. They will continue to require access to funds for land purchases. There is no compelling reason why vacant Crown land within town and city boundaries ought not be available for claim by urban Aborigines. Many clauses in the Act commence with the words "to allay any doubt". This novel drafting technique is a translation of the Government's policy which is to "allay any fears" of non-Aboriginal citizens. Having allayed those fears, the Government ought to be able in the near future to permit claims to vacant Crown land within towns and cities when such areas have been gazetted as being available for claim because they are not needed nor are they likely to be needed for future public purposes.
The complex dual procedure which permits changes to trustees o fDOGIT areas, first by the Minister and then later by the Tribunal is of concern, especially in view of the specific submission put to Government by the ACC which represents the elected councillors of the major Aboriginal communities.
Given the haste with which the Government enacted the legislation, there is a need for the Government to indicate immediately the areas or types of Crown Land which are to be gazetted for claim in the immediate future. Lands which are subject only to occupation licences ought to be available for claim. The claims procedure and the style of landholding bodies are satisfactory. It is unfortunate that timber and quarry rights cannot be extended to newly claimed Aboriginal land. It is also regrettable that claims on the basis of need can result only in leasehold title being granted.
The Act does not actually create rights to land. It does, however, set up a statutory framework for a claims procedure to lands which become increasingly available for claim as the Government exercises its discretion for gazettal. Those who agitate for outright rejection of the Act have no guarantee that any other legislation will be enacted by any government at State or Federal level now or in the future to provide a statutory framework for the adjudication of claims and the granting of Aboriginal title to additional land.
The caucus debate and the media presentation of the conflicting arguments reveal that Aborigines have little chance of gaining more by way of legislative concessions at this time. Aborigines outside urban areas could be markedly better off than they are presently with the passage of this legislation. Aborigines living in urban areas will be no worse affected by dispossession than they are now by the passage of this legislation.
The Act is a step forward. The legislation now has to be complemented by the generous exercise of Government discretions and the provision of funds and resources necessary for Aborigines to represent their own interests with independence and professionalism. Then, and only then, might the laudable sentiments of the Act's preamble be seen to be a legislative expression of the will of Queenslanders to accommodate, recognise and uphold the legitimate aspirations of Aborigines to land.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1991/32.html