Djnnabah; Tatten, Roy --- "Queensland Land Rights -- an Illusion Floating on Rhetoric" [1991] AboriginalLawB 51; (1991) 1(52) Aboriginal Law Bulletin 13

• Queensland Land Rights – An Illusion Floating On Rhetoric
• The Aboriginal Land Act 1991
• Conclusion
• References

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Queensland Land Rights – an Illusion Floating on Rhetoric

by Roy Tatten & Djnnbah

When the Goss - led Labor Party was elected to government on their anti-corruption and social reform platform, Queenslanders believed that politics would now have a sense of morality. Here at last was a government committed to social justice. Some Aboriginal people, despite years of oppression, believed the new Labor Government was committed to fulfilling its election promises.

Aboriginal people thought there was a possibility that their rights to land could be recognised and formalised by the new government. Land rights were part of the Labor Party's election platform but Aborigines expected that such a process would take time and so put little pressure on the government. However, the Cultural Heritage branch of the Division of Aboriginal and Islander Affairs, Department of Family Services and Aboriginal and Islander Affairs, for the Premier's Department, had developed a draft paper on land rights by late 1990.

On 19 February 1991, the Premier announced at the Commission of Inquiry's Dispute Resolution Conference, that his Government was considering a land rights policy. It has been suggested that Goss's announcement at this conference was to circumscribe the findings of the Commission of Inquiry into the Management, Use and Conservation of Fraser Island and the Great Sandy Region. Commissioner Tony Fitzgerald had received submissions concerning Aboriginal land ownership. The Commission's final report states that the issue of Aboriginal land tenure in the Great Sandy Region was not addressed because the government had announced it was developing a new policy. The Commission did not wish to create any inconsistencies.

Goss's announcement was seen as a positive step by many Aboriginal people. The Federation of Aboriginal Land Councils (ALC's) wrote immediately to ask the Premier for a meeting to discuss the issue. This was the first of repeated calls made between February and June 1991 for consultation on land rights. The Federation of ALCs did not receive any written response during this period from the Premier or the special Aboriginal land unit set up in his department. Why the Premier's Department dealt with this issue and not the division of Aboriginal Affairs within the Department of Family Services and Aboriginal and Islander Affairs is unclear. Two of the unit's Aboriginal consultants met with the Federation in Brisbane to ask members to clear their names over the leaking of the Government's parameters paper on land rights. This paper set out the Government's land rights position and was not given to Aborigines for their consideration. It was made available to a number of non-Aboriginal interest groups.

Both of the Aboriginal consultants later became disillusioned with the land rights policy. One of them, Mr Noel Pearson, resigned in May before the draft Aboriginal Land Bill was tabled in Parliament thereby disassociating himself from it. Three months later Ms Marcia Langton resigned from her position as Assistant Divisional Head, Rights and Culture Branch, Department of Family Services and Aboriginal and Islander Affairs over the degree of racism practised in Queensland and her dissatisfaction with the Aboriginal Land Act 1991 (Qld).

In the months prior to the Land Bills being introduced into Parliament, the Federation of ALCs, the Aboriginal Coordinating Council (ACC), the Foundation for Aboriginal and Islander Research Action (F.A.I.R.A) and other organisations sought consultation with the Premier and his adviser, Mr Kevin Rudd, to no avail. The Government's consultation strategy involved the Aboriginal consultants and non-Aboriginal staff from the Premier's land unit attempting to meet with Aboriginal people. They attended a three-day workshop in Cairns held by various Aboriginal groups and one-day meetings were held with ATSIC Regional Councils. Aboriginal people have said that the meetings were not about what they wanted in the new legislation. Instead they were public relations exercises to explain what the government had decided was going to be in the legislation. Despite their concerns about these meetings, Aboriginal people asked for a statutory land acquisition fund and a role for land councils. They were told that land councils were not warranted and that the land acquisition issue could be resolved by Aboriginal people utilising ATSIC's land acquisition fund. The premier's view of land councils, as described by Mr Rudd's office, was that they are 'neo-paternalistic' institutions.

Late in April, the Premier's land unit operationalised the second part of the government's consultation strategy; submissions on land rights were called from Aboriginal communities and these were to be delivered in two weeks to the land unit. The Federation of ALCs, the ACC and other Aboriginal organisations delivered their submissions by the 13th of May. The Aboriginal Land Bill and the Torres Strait Islander Land Bill were tabled in parliament on May 23rd and enacted two days later. Given the restricted time frame it is not a coincidence that the Aboriginal Land Act does not reflect the substance of the submissions.

Although the Government did not hold any meaningful consultation with Aboriginal people on the land rights issue this was not the case with interest groups from mining, pastoral and conservation sectors. All of these groups were consulted on the issue and the interests of the pastoral and mining sectors are protected in both Acts. It is also interesting that while the Federation of ALCs and the ACC could not meet with the Premier or Kevin Rudd, doors were opened for Father Frank Brennan. It is acknowledged that Fr. Brennan's participation was important as he provided information to Aboriginal people about the Government's intentions, however, Aboriginal people are quite capable of articulating their views - they do not need interpreters.

The consultation process raises the question as to why so many non-Aboriginal people were consulted while the views of those whose lives are directly affected by the legislation were ignored. The Government's need to appease the conservation, mining and pastoral industries was at the expense of Aboriginal people. The Government's handling of the consultation process was an exercise in political and racial 'terrorism'

Goss has stated that the Aboriginal Land Act is modest, balanced and responsible. Many Aboriginal people are concerned that it maintains the security of existing non-Aboriginal interests in land. The Government and interest groups perceived these interests as being threatened by Aboriginal ownership of land. Could this perceived threat be one of the reasons why so many nonAboriginal interest groups were consulted on the land rights issue? Goss been threatened by Aboriginal ownership of land? Goss's rhetoric hides his Government's political and economic agenda. The social and economic costs of the Aboriginal Land Act are to be paid for by Aboriginal people.

Since 1770 the British legal and political system has been the instrument used to oppress and suppress Aboriginal people. The Aboriginal Land Act is a product of this system. It violates Aboriginal law and is regarded by some Aboriginal people as contrived to destroy Aboriginal culture. The Government's lack of meaningful consultation with Aboriginal people is reminiscent of the style of dictation and coercion practised by former governments. It has refused to recognise the legitimate rights of Aboriginal people to their land. These rights existed prior to colonisation and have never been relinquished by Aboriginal people. The Government continues to practise racial injustice while promoting an agenda of social reform.

The Human Rights and Equal Opportunity Commission's Report on Racist Violence and the findings of the Royal Commission into Aboriginal Deaths in Custody reveal the depth of the legacy of land dispossession. Poor health, limited education, alcoholism, unemployment, poverty, racist violence and family violence are all indicators of the marginal position of Aborigines in Australian society. Aboriginal people cannot combat these social conditions and establish a viable economic base without control over land, resources and cultural heritage.

The Aboriginal Land Act 1991

The Aboriginal Land Act does not give Aboriginal people the automatic right to claim vacant crown land or national parks as provided for in similar legislation in other states. Vacant crown land and national parks must first be gazetted by the Governor in Council as being available for claim. Some of this vacant crown land may be identified for other uses such as national parks. Goss agreed to increase the national park estate to 7 million hectares as part of his Government's electoral promise. Sources have suggested that some national parks will not be gazetted for claim because of the fragile nature of their ecology. Former Deed of Grant in Trust (DOGIT) land is already Aboriginal land and will be claimable after it becomes transferred land. Over 95% of the Qld Aboriginal population will be unable to claim their traditional lands because they are occupied by towns or cities, or are held under a range of titles exempted from claim. Significant and sacred sites are not protected under the Act. The Qld Government can reclaim Aboriginal land through an Act of Parliament at any time.

The Act does not allow Aborigines to exercise control over the use and management of their land according to Aboriginal tradition. The mechanism within the Act that allows for some control and management is the 'trust'. This legal entity has its roots in Roman property law, not Aboriginal tradition. Members of the trust - the trustees - are appointed by the Minister.

The trustees may not necessarily be the current community council members on DOGIT communities or the traditional owners. However, the Minister must consult with the Aborigines concerned with the land before making the appointments. Fundamental control and management of Aboriginal land remains with the Minister. Aboriginal law cannot be practised under the Act nor is there provision for community justice systems to be established.

The Act does not recognise Aboriginal people's right to economic independence from government welfare. Hunting and gathering rights are limited to traditional owners of national park areas. Nor does the Act provide any compensation for loss of resources and heritage. Only some Aboriginal owners will receive perpetuated this fear by continually referring to the Northern Territory land rights legislation. He stated more than once that this land rights model would not be implemented in Qld and inferred that it facilitated economic underdevelopment in the N.T. Reports from the Central and Northern Land Councils show that Aboriginal-owned land in the NT produces two-thirds of the NT's mineral wealth. Over $875 million of minerals were extracted in 1989 from Aboriginal-owned land and in January 1991 over 35 000 square Ions had been approved for mineral exploration. Where is the evidence to show that the economic viability of interest groups has compensation for loss of timber and quarry rights. All minerals and petroleum resources belong to the crown as do timber and quarry resources on land that was formerly vacant crown land.

Trustees are responsible for granting interests in land for periods up to 10 years. If the interest is for a longer period the Minister must approve the contract. Trustees can enter into contracts on behalf of traditional owners without their consent and are effectively only accountable to the Minister. The Minister can also determine and approve interests in land but should first consult with the Aborigines concerned. Where mining occurs on Aboriginal land a percentage of royalties will be given to the trustees, a percentage to the Department of Family Services, Aboriginal and Islander Affairs to administer on behalf of Aborigines and the rest to the Government. Aboriginal owners will not be able to negotiate royalties and will not be compensated for social and cultural disruption caused by mining. There is no statutory land acquisition fund available for the 95% of the Aboriginal population who will not be able to claim their traditional lands or any part of the 1.16% of vacant crown land. They will not be able to purchase land from which they may begin to improve their social and economic status. Aboriginal owners who are successful in claiming national park land have to automatically lease the land back to the Government and will not receive any compensation in the form of rent.

The criteria for making claims to land was not agreed to by Aboriginal people. The Act provides for the establishment of a 'Land Claims Tribunal'. Presiding members of this Tribunal will be lawyers. Non-presiding members should have more than 5 years experience in administration or a profession, or a knowledge and understanding of Aboriginal culture. The Act does not guarantee funds for access to legal resources or historical and cultural records. The onus of proof in relation to the criteria for claims - such as traditional affiliation, historical association and cultural and economic viability - rests with Aboriginal people. All claims are to be sent to a 'Land Claims Registrar' who determines whether it will be forwarded to the Tribunal or rejected. There is no mechanism under the Act for Aboriginal people to appeal should the Registrar reject a claim.

All land claims are to be gazetted. Other interest groups will be given time to prepare and express their interests in the land which is the subject of a claim. All claims are restricted to a 15 year period - we believe this time-frame commences from the date of proclamation of the operative provisions of the Act. This time-frame is inadequate because Aboriginal people do not have control over documentation which would assist in establishing their rights to land. The Tribunal only makes a recommendation to the Minister who ultimately decides who are the successful claimants. Aboriginal people can appeal against the recommendation of the Tribunal to the Land Court; however, we understand that the Minister has the power to override the decision of the Land Court. Land claims based on traditional affiliation/historical association will get priority over claims based on economic or cultural viability.

There is no provision for Land Councils or similar bodies to protect the interests of Aboriginal people. If Aborigines are to be able to exercise their democratic rights an autonomous body is .required to safeguard their interests. Aboriginal owners do not have control over public road access to their lands and have no veto over mining on their land.

Conclusion

The Aboriginal Land Act is not a response to the rights of Aborigines, instead it is non-Aboriginal land rights which are secured and protected. The Act precludes our rights to determine our political status and freely pursue our economic, social and cultural development. The Act ensures that the economic development of other interests is given priority. In particular the development of the mining and pastoral industries in Qld will not be hampered and their continued development will be at the social and economic cost of Aborigines who will continue to be the most disadvantaged and marginalised group in the Qld economy.

Fr. Brennan states that Goss has said the Act is a foundation upon which to build in the future. Could someone please inform us when in the history of Australia has any land rights legislation been strengthened in favour of Aborigines after it has been introduced?

This country's economy operates on a wage-labour system based on the production of commodities for profit. The essential commodity of any economy is land - this is one reason why our land was stolen in the first place and, continues to be denied to us. If this Act will only facilitate circumscribed land ownership to a minority of Aborigines in Qld, how can Fr. Brennan conclude that this is a step forward? It appears that the Goss Government's commitment to social justice for Aborigines is about creating different forms of racial inequality. If this is the way this Government has treated Aborigines then perhaps other disempowered groups should be looking closely at the reforms proposed for them because they too could be illusions floating on rhetoric.

References

Commission of Inquiry into the Conservation, Management and Use of Fraser Island and the Great Sandy Region Report May 1991.

Brennan, F, "Me Queensland Aboriginal Land Act in Aboriginal Law Bulletin, Vol. 2, AboriginalLB No.50, June 1991.

Human Rights and Equal Opportunity Commission, Report of the National Inquiry into Racist Violence in Australia, ALPS, Canberra, 1991.

Commissioner Elliot Johnson QC, Royal Commission into Aboriginal Deaths in Custody, National Report,, AGFS, Canberra, 1991.

Federation of Aboriginal Land Councils submission 1991.