Aboriginal Law Bulletin
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by Barbara Miller
"The Government has given us back the same piece of meat, but this time we have to fight for it." -Eric Deeral
After a period of undeclared war against Aboriginal people, with their land falling into the hands of pastoralists, there were concerns that Aborigines were a dying race, leading to efforts to Christianise and protect them. The Aboriginals Protection and Restriction of the Sale of Opium Act 1897 set up a system of reserves to which Aborigines were forcibly removed and permits were required to leave or visit them. This scheme underwent changes over the years, and culminated in the infamous discriminatory Aborigines Act 1971 (Qld) (see Malezer, Foley and Richards, 1979 and Miller, 1986 for details).
In 1974, the Mapoon people moved back to the land they had been forcibly removed from in 1963 with the help of the author (then Barbara Russell), the North Queensland Land Rights Committee and the Aborigines and Torres Strait Islander Legal Service in Cairns. Aurukun people set up outstations. (See Roberts, Russell and Parsons, 1975).
The North Queensland Land Council (NQLC) was established in January 1976 with reserve and urban representation. As it was not recognised or funded by state or commonwealth governments, its main role was lobbying the government and public education. As there was little likelihood of recognition of Aboriginal land rights under the Bjelke-Petersen Government, the NQLC put pressure on the Qld and Australian Governments by a speaking tour of England and Europe in 1980. They met with Billiton which had mining interests on Aurukun and Urangesellschaft which had mining interests near Doomadgee. Billiton agreed not to mine at Aurukun - an important victory. Rio Tinto Zinc (RTZ) refused to meet the NQLC delegation but after much publicity RTZ flew two Comalco representatives over from Australia for the meeting. The only concession RTZ would make was to double its welfare funding to Weipa Aborigines.
Pressure was also mounting from organisations such as FAIRA, white support groups and the Aboriginal Advisory Committee. This led to the Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982, which meant that reserves were transferred from Crown land to inalienable freehold title by a deed of grant in trust (DOGIT)) to the Aboriginal Community residing on it, with elected Aboriginal Councils as trustees. While there were a lot of problems with this legislation, (See Miller, 1986) it was as far as the National party government could be pushed.
The Community Services Act 1984 gave Aboriginal communities on trust areas a measure of self or local government (see Miller, 1986 for its deficiencies) and established the Aboriginal Co-ordinating Council (ACC) to advise the government on the well-being of Aboriginal people living on communities. The ACC consists of the Chairman and a Councillor from the elected local government councils on each community.
Half way through 1990, the ACC Executive met the Premier, Mr Wayne Goss, to request that land rights legislation be enacted in Qld. In particular they asked for a land acquisition fund, similar to that under the Aboriginal Land Rights Act 1983 (NSW). The Premier said he would Consider written proposals from the ACC, but was not in favour of a percentage of land tax being set aside for acquisitions. When asked how Aboriginal people could buy land, he said an acquisition fund could be set up using consolidated revenue - this was not to happen. Later requests from the ACC for finance to undertake community consultations fell on deaf ears.
In August 1990, the Cape York Land Council was formed. Aurukun was in favour of this because Aurukun and Mornington Island were given 50 year leases in 1978. They missed out on deed of grants under the 1982 Act and their leases were running out. Their company, Aurukun Community Incorporated, gave $20 000 to the formation of the Cape York Land Council. ACC also contributed towards the costs as it supported the concept of land councils.
Pressure to introduce land rights legislation was also coming from within the Department of Family Services and Aboriginal and Islander Affairs who prepared a policy paper on Aboriginal land rights. A departmental submission to the Fraser Island Inquiry on Aboriginal land rights also caused a stir.
The Premier's announcement that the Government would deliver land rights came suddenly. He hastily convened a meeting with Aborigines attending a Conference held in conjunction with the Fraser Island Inquiry in Brisbane in February 1991. Work on the legislation was the responsibility of the Premier's Department where a special unit was set up. An Aboriginal working for that unit said there was no need for the Government to consult with Aborigines as they should know what they want by now.
The ACC was told unofficially that the legislation was rushed through to pre-empt a campaign by the Australian Mining Industry Council against land rights (as had happened in Western Australia). However, many Aboriginal people felt it was to pre-empt the Fraser Island Inquiry, the Mabo case and proper Aboriginal consultation. Deals were struck in secret with mining companies, pastoralists and conservationists. Aborigines were never shown a discussion paper on the parameters of the negotiations. ATSIC Regional Councils were given one week to meet with the Premier's Department representatives, consult their constituents and put in written submissions.
In a Government ploy to divide Aborigines, the Premier and his adviser, Mr Kevin Rudd refused to meet with the Queensland Federation of Land Councils, FAIRA, and the ACC but met a number of times with the Cape York Land Council. These elders were then sold down the drain as they did not get what they asked for. There were elements within the Government that wanted the ACC to stay out of land rights issues so the Cape York Land Council was consulted and ACC rebuffed. The excuse was that the ACC represented historical and traditional interests in land whereas Cape York Land Council represented traditional interests only and these were paramount.
It seems the main concern of the Aboriginal Land Act was to assure the miners, pastoralists and developers that they had nothing to fear and to set Aborigines and conservationists against one another. The conservation movement has been split between those who support Aboriginal land rights and those who do not. A workshop will be held at Yarrabah in November to encourage cooperation between Aborigines and conservationists.
The Aboriginal Land Act 1991 falls so far short of the ALP's pre-election Aboriginal affairs policy, that they changed the policy at the last ALP State Conference to fit the Act that had just been passed - a cynical exercise in expediency.
Traditional Aboriginal owners all over Qld whose land has been urbanised are further dispossessed by this legislation, as are Aborigines who do not live on communities. There is no statutory recognition of land councils and no statutory acquisition fund. Vacant Crown land in towns is not available for claim and sacred sites are not mentioned. No compensation is available for lands taken away and no resources are provided to put in land claims over vacant Crown land or national parks which have to be gazetted first as claimable anyway. Cultural and economic viability claims can be made on vacant Crown land but not national parks.
Claims made on the basis of tradition will have first priority, historical claims second, and needs claims third priority. Claims granted on the basis of need will only be leasehold with conditions that the land must be used for the purpose stated otherwise the group can lose the land. Mining, timber and quarry rights do not come with those leases.
Deeds of Grant in Trust, Aboriginal reserves and Aurukun and Mornington Island become transferable land. This is good news for Aurukun and Mornington Island which only had 30 year leases. However, they did not get the original boundaries of the communities ACC had asked for, but only the whittled-down boundaries that presently exist. Present DOGITs are now revoked and new deeds are issued. The Minister appoints grantees as trustees who may not be the elected Councils who are presently trustees. Land is then transferable and becomes claimable through the Land Tribunal.
The ACC believes that trustees should not change without a referendum proposed by Council. ACC policy also states that if there is a change of trustees, community residential and administration areas should remain vested in Councils. It would be less disruptive if the Minister reappointed Councils as Trustees as they have important land management functions including town planning, housing, infrastructure decisions and say over rights of entry. This will not interfere with the land claim process.
Chairman of the Legislation Review Committee Inquiry into legislation relating to the management of Aboriginal and Torres Strait Islander communities in Qld, Mr Eric Deeral, at a meeting of the Committee said that: "The Government has given us back the same piece of meat, but this time we have to fight for it." This is the fear that a lot of Aborigines living on communities have at the moment.
While the ACC agrees generally that traditional rights need first consideration, the specific case of each community must be taken into account. For example, Palm Island has a community of nearly 3000 people with historical ties to the land and barely a handful of traditional owners. A new group of dispossessed Aborigines could be created by this legislation - a group of second rate citizens whose ancestors were moved to reserves by police or government officials.
Even in a community like Aurukun, with a large number of clan groups with traditional ties to the land, there is concern about difficulty of managing the community under the Aboriginal Land Act.
There are some improvements to the situation under DOGITs. Land previously excised for Crown use - eg., schools, hospitals and police stations - will be in the new deeds. However Crown authorities will not have to pay rent. The Crown will own improvements on the land. The ALP has delivered similar provisions to the National Party. Mining provisions are the same as under the National Party. Trustees can withhold consent from mining but the Governor-in-Council can override this. Because of the previous National Party Government's cabinet decision, forest and quarry rights have been delivered in this Act for transferred land. However, the Crown can revoke these rights if products are of vital state interest. Compensation will be paid for the reservation or acquisition of forest and quarry materials. Any existing quarry and timber interest will continue. The trustees have to consult the community regarding mining, quarry or forestry deals but if the trustees do not gain consent the agreement is still legal. This is a major problem.
Another worry is that with Ministerial consent transferred land can be mortgaged by the grantees. It is of concern that there is so much ministerial discretion in the Act, yet no criteria stated by which the Minister is to make decisions and no appeal process.
Rights to land are not created by this Act. It only sets up a framework for a claims procedure. Vacant Crown land, except in cities and towns, is claimable. However, Crown lands reserved for public purposes, state forest and timber reserves are not claimable, nor are lands subject to an occupation license. There is only about 2m hectares (1.16% of the state) that is vacant Crown land. Crown land subject to a mining lease is available for claim but not land leased to graziers or farmers, licensed roads, seas and seabeds or freehold land.
The NSW Act provides for land Councils to be notified of any changes in the status of land which would make it claimable. The Qld Government does not have this obligation under the Aboriginal Land Act. Aboriginal organisations need to lobby for licences and permits to be revoked and timber reserves to be de-gazetted so claims can be made.
It is very frustrating that no vacant Crown land can be claimed unless the Government gazettes it first It is important for Aboriginal organisations, despite their lack of resources, to identify vacant Crown land and lobby to have it gazetted. So far the government has not gazetted any land as claimable.
The Land Tribunal will be chaired by a lawyer and will sit with two other members: a person knowledgeable about Aborigines and a person with experience in industry, public administration or a profession. ACC lobbied unsuccessfully that the Act state an Aboriginal person be a member though this is still possible administratively. Anyone who would be affected by a grant of land may request to be a party to the proceedings. Claims go first to the Land Claims Registrar who decides if they are properly prepared and then to the Land Tribunal. Claims must specify the name and a description of the group, describe the land including a map, the basis for the claim and the purpose for which land will be used in cultural and economic claims. No Aboriginal group in Queensland has the resources to prepare a claim!
Even when the Land Tribunal recommends granting land, the Minister can decide to grant all or part of the deed or lease. Appeals may go to the Land Court.
The Tribunal must take into account the number of Aborigines advantaged by a grant and the detriment that might result to other Aborigines. They must also take into account the responsibilities the claimants agree to assume regarding the land, and the effect that a grant is likely to have on existing and proposed patterns of land usage in the region.
Aboriginal community control of dispute resolution over conflicting claims has been removed by this Act. The ACC submitted to Government that rather than have land claims within Aboriginal communities heard by the Land Tribunal, they should be settled within the community by using a council of elders, community councils and JP's. If there was a dispute, local Aboriginal mediators, with the assistance of outside mediators if the disputants chose, could help settle the dispute. This process could be called a Community Land Tribunal.
The Land Tribunal with its industry representative is appropriate if there are disputes between a community and a developer but not for determining intra-community disputes except as a last resort. The Land Tribunal itself should be using mediators as part of its ability to hold preliminary conferences without the need for formal hearings.
The Government will not change the Mineral Resources Act 1989 to give compensation to Aborigines for social disruption caused by mining affecting their spiritual relationships with the land. Partial royalty equivalent will be split in a formula yet to be decided between the Aboriginal community and the Department of Family Services and Aboriginal and Islander Affairs.
National parks may be gazetted by the Government as available for claim. However no grant will be made unless the grantees have already agreed to lease the land back in perpetuity. The Minister for Environment, Mr Pat Comben, has indicated verbally to the ACC that Archer River and the McIlraith Range are likely to be the first gazetted plus one southern Qld park
ACC asked for Aboriginal use of natural resources, control of public access to living areas in national parks, rights to use Aboriginal land management practices and hold ceremonies and recognition of Aboriginal rangers but these issues were not addressed. Public rights of access to national parks will not decrease.
There is concern that the imminent declaration of the Great Barrier Reef Marine Park north of Cooktown will pre-empt the opportunity for Aborigines to claim inter-tidal lands.
ACC asked for ownership by Aborigines of Aboriginal or ATSIC owned pastoral leases but this was ignored. Requests for excisions of living areas for Murris on pastoral properties were denied. Also ACC asked for hunting, fishing and gathering rights anywhere in Qld with the consent of appropriate landholders. This was not recognised although hunting and fishing can take place on Aboriginal land as before. Despite requests, DOGIT communities are unable to close their rivers to commercial fishermen. Sea rights to a 5km radius and air rights were not granted. Land on which departmental houses are built was not granted to Aborigines in urban and rural areas despite ACC requests. Lands for burial purposes and bush tucker royalties were not granted. It is alarming that there is nothing in this Act to stop another group getting an interest in transferable land or claimable land if the interest is a mining interest or in the case of any other interest, the Minister consents.
Aboriginal people in Queensland feel both angry and deeply disappointed with the Goss Government's cruel attempt at satisfying Aboriginal land rights demands in Queensland. As Mick Miller, Chairman of the North Queensland Land Council, said; "It's Clayton's land rights - the kind you have when you don't have land rights."
The Aboriginal Land Act 1991 is indeed 'Clayton's land rights.' It further marginalises and dispossesses Aboriginal people. It cannot be called a step forward (Brennan, 1991) as it further entrenches the coloniser's interests in land. It is a real kick in the head to Aboriginal people by the Goss Government. But Aborigines refuse to let the issue of land rights in Qld be buried so easily.
Aboriginal Co-ordinating Council (1991) Land Rights Policy 1991. Cairns: ACC.
Brennan, F., (1991) "The Queensland Aboriginal Land Act 1991", Aboriginal Law Bulletin, [1991] AboriginalLB 32; 2(50)pg10, June 1991.
Legislation Review Committee inquiring into legislation relating to management of Aboriginal and Torres Strait Islander communities in Queensland (1991) Towards Self-Government , A Discussion Paper, Cairns, Legislation Review Committee, August 1991. Malezer, L, Foley, M, and Richards, P., (1979) Beyond the Act, Brisbane FAIRA.
Miller, B. J., (1986) The Aspirations of Aborigines Living at Yarrabah in Relation to Local Management and Human Rights. Canberra: The Human Rights Commission, Discussion Paper No .7.
Roberts, J.P., Russell, B.J., and Parsons, M, (1975) (ed). The Mapoon Story by the Mapoon People. Vol.1 Fitzroy, Vic. International Development Action.
Roberts, J.P., Parsons, M., and Russell, B.J., (1975). The Mapoon Story According to the Invaders. Vol.2 Fitzroy, Vic International Development Action.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1991/50.html