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MAboriginalLBon, Justin --- "Torres Strait Conference on Land and Sea Claims" [1996] AboriginalLawB 6; (1996) 3(79) Aboriginal Law Bulletin 16

Torres Strait Conference on Land and Sea Claims

by Justin Malbon

A conference held at Thursday Island on 16-17 November 1995 provided the first opportunity since Mabo [No. 2] (Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1) for Torres Strait Islanders to gain comprehensive advice on land and sea claims. The Torres Strait Regional Authority (`the TSRA') initiated the conference after requests by its members for an explanation of the law. The conference was opened by the Chairperson of the TSRA, Mr Getano Lui Jnr, and was chaired by Professor Garth Nettheim. The conference examined three major issues:

(a) the historical context and the implications of the Mabo [No. 1] (Mabo v Queensland [No. 1] (1988) 166 CLR 186) and Mabo [No. 2] decisions - explained by Professor Nettheim;

(b) the new legislative schemes for claiming title - Mr Graham Fletcher (Program Director for Aboriginal and Torres Strait Land Interests Program, Queensland Department of Lands), Mr Graeme Neate (Chairperson, Torres Strait Islander Land Tribunal, Queensland) and Mr Hal Wootten QC (Presidential member of the National Native Title Tribunal); and

(c) the process for achieving outcomes by negotiation and mediation - Mr Noel Pearson (Chairperson, Cape York Land Council and Indigenous Land Corporation), Mr Hal Wootten and Mr Justin Malbon (Senior Lecturer, Griffith University Law School).

Purpose of the conference

Mr Lui explained in his opening address that the range of legislative options that had developed in the last four years for land and sea claims were complex and confusing. The conference was organised to inform members of the TSRA whether the present Deed of Grant in Trust (`DOGIT') form of land tenure held by most Islander communities remains viable, and how claims can be made under new legislation. Mr Lui stated that the relationship between the Torres Strait Islander Land Act 1991 (Qld) (`the TSILA'), the Native Title Act 1993 (Cth) (`the NTA') and the Native Title (Queensland) Act 1993 (Qld) is far from clear. He stressed that the conference was designed to provide information rather than a forum for political debate.

Historical context

1982 was an important year in the Torres Strait Islander struggle for recognition of customary rights to land and sea. Legislation was introduced in Queensland enabling Island communities to hold freehold title to their land, and the Mabo case began on 25 May. Before then Queensland had probably the most paternalistic and repressive laws over Indigenous people in the country. Professor Nettheim detailed the nature and impact of the breaches of human rights perpetrated by those laws in his 1973 book Out Lawed: Queensland's Aborigines and Islanders and the Rule of Law (Australia and New Zealand Book Company, Sydney, 1973). This assisted the wider political debate about Australia's failure to comply with the International Convention on the Elimination of All Forms of Racial Discrimination, to which it was a party. The debate led to the enactment by the Federal Government of the Racial Discrimination Act 1975 (Cth) (`the RDA'). The Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth) was also passed the same year to deal more specifically with Queensland's racially discriminatory legislation. This Act disallowed, amongst other things, Queensland legislation that established a permit system for, and permitted the payment of discriminatory wages to, Indigenous people.

By the mid-1970s Indigenous people had no rights of management or control over the 150 Aboriginal reserves in Queensland. In 1978, the Bjelke-Petersen Government tried to take over the Aurukun and Mornington Island reserves from the Uniting Church because of proposed bauxite mining operations. The Government terminated their reserve status and, under pressure from the Federal Government, passed the Local Government (Aboriginal Lands) Act 1978 (Qld) which constituted Aurukun and Mornington Island as shire councils. These developments prompted the introduction of DOGIT titles for the residents of Aboriginal and Torres Strait Islander communities in 1982, and establishment of community councils under the Community Services (Aborigines) Act 1984 (Qld) and Community Services (Torres Strait) Act 1984 (Qld).

In 1989, the Goss Government established a Legislation Review Committee comprising solely of Aboriginal and Torres Strait Islander people to review the two pieces of Community Services legislation. The Committee recommended new legislation to provide a flexible mechanism for Indigenous communities to decide the most appropriate form of government for their respective communities. The Federal and State Governments have responded by funding programs to enable communities to develop community planning strategies, which may result in proposals for changes in the powers and governing structures of communities.

Professor Nettheim also outlined the history of the Mabo case. He explained it began with a conference held at James Cook University in 1981. Eddie Mabo gave a paper expressing outrage at the way the law excluded him from his home at Mer (Murray Island). He was also outraged because the law refused to recognise customary title to land. During one of the conference breaks Eddie Mabo, Greg McIntyre, Barbara Hocking, Nuggett Coombs, Judith Wright and others held an informal meeting. It was then that Mabo instructed McIntyre to take the case. Professor Nettheim detailed the history of the Mabo case which led to the High Court decisions of Mabo [No.1] in December 1988 and Mabo [No. 2] in June 1992. In the first decision the High Court found that Queensland's attempt to derail the case by enacting the Queensland Coast Islands Declaratory Act 1985 (Qld) was invalid because it was inconsistent with the RDA. In the second decision the Court found that the common law could recognise native title, and that State laws purporting to allow the extinguishment of the title in a racially discriminatory way are ineffective because they breach the RDA.

Impact of the new legislation and the Mabo [No. 2] case

Legislation was introduced in 1982 which amended the Land Act 1910 (Qld) enabling Aboriginal or Torres Strait Islander trustees to hold freehold title for the members of their community. Sixteen Torres Strait Island communities continue to hold title in this way. Only Mer (Murray Island) refused the grant of DOGIT title. The Saibai Island community has recently sought legal advice on lodging claims for native title for the Island. The other communities are considering their options.

The Mabo [No. 2] case raises doubts about the validity of some DOGITs. Doubts arise in part because of the categorisation of Indigenous Islanders as traditional owners and non- traditional owners. The latter category is referred to in the Torres Strait Islander Land Act as those with an historical association with the land. Noel Pearson raised a general concern about how the TSILA, and the similarly-worded Aboriginal Land Act 1991 (Qld), had introduced traditional and historical association into the lexicon. He believes that they create a demarcation that is sharper than exists in reality. For example, many Aboriginal children who were shifted from their own lands at the turn of the century were taken in by the families of the original occupants of the land in a kind of informal adoption. Marriages took place between groups, which further undermines the neat traditional/historical dichotomy. Despite that, everyone in a community knew who the original people were and respected their position in the community.

Graham Fletcher had obtained legal advice for the Queensland Department of Lands about the impact of Mabo [No. 2] on the validity of the DOGITs. According to his advice, if the residents of an Island community are traditional owners only, the validity of a DOGIT is not in doubt because it confirms rather than extinguishes native title. But if a DOGIT is held for residents including those with an historical association with the land, the DOGIT is probably inconsistent with some native title interests and therefore extinguishes them. The DOGITs were granted after the commencement of the RDA, and consequently, under the Mabo [No. 2] principles, are an invalid grant to the extent that they extinguish native title without adequate compensation. The NTA was introduced by the Federal Government partly to resolve doubts raised by the Mabo [No. 2] case about the validity of statutory titles granted after the commencement of the RDA.

Further advice obtained by Mr Fletcher states that the NTA effectively categorises the DOGITs that partly or wholly extinguished native title as `category D past acts'. This means that the native title continues in existence subject to the DOGIT. However, if the DOGIT is terminated, the underlying native title revives and can only be extinguished in the future by using NTA processes. The entitlements of those with an historical association when a DOGIT is terminated is not clear. On one view, they are at least entitled to compensation on a non-discriminatory basis. Compensation for what would effectively be a compulsory acquisition of their interest would probably not be a satisfactory recompense for third or fourth generation families on community lands. The inherent complexity of the issue raises the fundamental question as to who should resolve it. It could be resolved by courts and tribunals or by the communities themselves. Courts and tribunals are mostly constituted by non-Indigenous people who are unlikely to ever thoroughly appreciate the complex needs, history and culture of a community, and are therefore likely to compel a result which will leave some parties deeply dissatisfied. Alternatively, a community might register a general native title interest over land, leaving it to the community's internal processes to resolve more specific claims and disputes over land and sea interests. Customary law may be sufficiently flexible in this context to accommodate historical interests.

In any event, the Queensland Government is not forcing Torres Strait Island communities into quickly resolving these issues. According to Mr Fletcher, the Queensland Department of Lands, which is responsible for administering the Land Act 1910 (Qld) and the TSILA, does not propose pressuring communities into terminating their DOGITs so as to have titles created under the new State and Federal legislation. Despite that, according to Noel Pearson, the DOGITs do not provide a long term solution. Because an Island community council is required to hold the land on trust for all residents of the Island, it often does not take sufficient account of the special interests of traditional owners, nor the specific interests of other members of the community. Additionally, the council may not be considered by the community to be the most appropriate body to deal with these issues.

The Torres Strait Islander Land Act 1991 (Qld)

The Torres Strait Islander Land Act was introduced by the Queensland Government in 1991, before the Mabo [No. 2] decision was handed down by the High Court. The legislation distinguishes between (a) DOGIT and reserve land, and (b) claimable land.

For DOGIT and reserve land, deeds of grant of freehold title can be granted to trustees specified by the Minister on terms specified in the grant, without the necessity for a land claim. The Minister's role was criticised as being overly obtrusive, despite the fact that he or she must consult the community before arranging for the grant. The Minister is required to intervene every time a change is required in the composition of trustees. Noel Pearson suggested that this problem could be overcome if a corporation is the trustee.

Available Crown land that is gazetted as claimable land can be claimed under the TSILA by an application to the Torres Strait Islander Land Tribunal.

One advantage the TSILA offers over the NTA is a relatively straightforward royalty system for grantees of land where mining operations occur. The legislation provides that grantees are entitled to 50 cents in the dollar of royalties payable to the government up to $100,000.00, after which a sliding scale applies down to a maximum of 5 cents in the dollar for amounts over $1 million. Sea rights cannot be claimed under the TSILA, but can be claimed under the NTA.

Mr Pearson suggested that claims be made under both Acts because advantages can be gained from each of them. Title can be held under both Acts for the same land, but title under the TSILA is subject to any native title interests that exist in relation to the title. Using both Acts allows land to be registered as Torrens title freehold held on trust under the State Act, and as a native title interest appearing on the NTA register. One possible difficulty that Mr Pearson foresees is that the trustees under the TSILA may differ from those who are registered as holding a native title interest under the NTA. He is exploring the possibility of creating land holding corporations as the trustees for land. A corporation's articles could specify eligibility requirements for membership of the corporation, and a trust deed could spell out the obligations of the corporation in relation to the land. The corporation could then be the registered title holder under the TSILA and the NTA. But legal advice given to Mr Pearson suggests that this option may not yet be permitted by the legislation.

Mr Neate explained that the Torres Strait Islander Land Tribunal under the TSILA (of which he is the Chairperson) will be adopting procedures that harmonise with the NTA. If a claim is lodged involving a customary claim, the Tribunal will refer it to the National Native Title Tribunal (`the NNTT'). If an interest registered under the NTA is registerable under the TSILA, it will be so registered. He pointed out that procedural duplication will be minimised because evidence obtained under NTA proceedings can be taken as evidence under TSILA proceedings and vice versa.

The Native Title Act 1993 (Cth)

Unlike the Torres Strait Islander Land Act, the Native Title Act was introduced as a direct response to the Mabo [No. 2] case. The NTA introduces a further level of complexity to, and further opportunities for, the land claims process. The Act itself is often criticised as being overly complex. Indeed Hal Wootten commented that if you are confused by the NTA then you have an appreciation of the legislation and if you are not confused by it you probably haven't appreciated its complexity.

Essentially the NTA provides a system for registering native title so that third parties can be made aware of its existence. The policy objective is to reduce the potential for disputes about entitlements to land. The actual nature of rights contained within the title are determined by traditional laws and customs and not by the legislation. Mr Wootten explained the procedures for making claims under the NTA. Mr Pearson suggested that an Island community should claim the Island as a whole group under the NTA and TSILA, and leave it to the traditional law to deal with land allocations within the island. He considered that regional agreements under s21 of the NTA were not an appropriate way to deal with issues within communities. Given the complexity of issues relating to sea rights in the Torres Strait, a regional agreement may be the only way of ultimately resolving competing rights and interests.

Mr Wootten noted that there are no legal judgments dealing with sea rights and so the issue literally remains in uncharted waters. He said that there are, however, a number of sea claims being mediated by the NNTT.

Concerns of Torres Strait Islanders

After hearing the advice about the available pieces of legislation, the conference raised a number of concerns, including the following:

Mediation and negotiation

Noel Pearson emphasised the importance of a community advancing its interests through mediation and negotiation. He explained that a balance was reached under the old reserve and the DOGIT systems in recognising the rights and interests of those with a traditional and an historical association with land. He stressed that a balance should be maintained under the new system so that the rights and interests of traditional people are recognised and respected while the interests of other members of the community are also recognised. The danger exists that individual members of the community will resort to employing lawyers to advance their specific claims. Lawyers are unlikely to appreciate the balance that has been achieved in the community and, in any event, have a propensity to employ an adversarial approach to issues, which will not be helpful to a community.

Mr Pearson suggested that the interests of communities will be better served if they avoid the adversarial approach and take a strategic approach to advancing their long term interests. This involves respecting and recognising the rights and interests of traditional owners and providing them appropriate powers to advance those interests. It also means recognising and respecting the accumulated historical interests of others. He sees that the recognition of native title is a good thing, but it is up to communities to find a balance and deal with the new laws in a positive way through negotiation and mediation.

Mr Wootten outlined the difference between mediation and arbitration. He explained that mediation is a relatively informal process aimed at canvassing a relatively wide range of issues to attain agreement between parties. Arbitration, on the other hand, involves a more formal process for achieving a resolution. He used the NNTT's involvement in the Wik case to illustrate the mediation process.

The Wik case

The Wik claim began as a court action (see Wik Peoples v State of Queensland [1994] FCA 967; (1994) 120 ALR 465). A number of issues were later transferred to the NNTT in September 1994. Mr Wootten was given the task of mediating the claims as a Presidential Member of the NNTT. The claim was large and complex and so was broken into 4 parts, namely claims for:

(a) pastoral leases;
(b) mining leases;
(c) DOGITs/Aurukun Shire; and
(d) seas.
The NNTT began dealing with pastoral leases. The lawyers for the pastoralists asserted at the outset that native title had been extinguished by the pastoral leases. Mr Wootten pointed out to the parties that whether or not a court found that native title had been extinguished, they would still have to live together with the outcome. If one of the parties was left feeling aggrieved with the outcome, it would make continuing relations between the parties very difficult. He suggested that the long term interests of all the parties would be better served if an accommodation was reached which met their concerns.

This was agreed. The pastoralists then said that they did not mind if the Wik people hunted or fished on their lands providing that the permission of the pastoralists was first obtained, this being the situation with pig shooters and recreational fishers. Mr Wootten pointed out that this missed the essential concern of traditional owners, that their unique interests in the land were not being recognised and respected. The pastoralists then agreed in principle to give such recognition and asked their lawyers to detail the agreement in writing. Unfortunately, a written agreement has been delayed by the lawyers bickering over its terms.

A similar process occurred in dealing with the mining interests. Senior Comalco mining officials also initially resisted any attempts to accommodate Aboriginal interests. The situation changed after the Comalco head office gave them directions to take a more positive approach to negotiations.

The third issue, relating to the DOGITs and the Aurukun Shire, proved to be the easiest matter upon which to reach agreement. The relevant councils supported the land claims and are co-operating with the process for developing appropriate governing structures for the community. The sea claim negotiations are yet to be dealt with.

Mr Wootten pointed out that some of the more difficult issues relating to miners and pastoralists do not present a problem in the Torres Strait. He did acknowledge, however, that sea rights would prove a complex issue. He suggested that fishing and environmental issues be negotiated through a regional agreement brokered under the NTA.

Mr Malbon observed that the new laws effectively represented a stage in a decolonisation process which has some parallels with the post-second world war international decolonisation processes in Africa and Asia. He saw that the issues of land claims and appropriate community governing structures are closely interlinked. Mr George Mye, the Chairman of the Darnley Island Council, questioned how, assuming a general claim was registered for an island stating that the members of the island hold traditional title to land, specific disputes about land are to be resolved. In the past, many disputes were dealt with by an island's court. It was suggested that a community might wish to link the question of seeking registration of traditional land tenure to the development of appropriate governing structures for an island. Both ATSIC and the Queensland State Government are funding community planning and development programs to enable a community to develop governing structures which they consider are appropriate to their historical, social and traditional needs.

Conclusion

The speakers at the conference attempted to show that, despite the complexity of the new legislation, the new regime provides an opportunity for a community to develop strategies to gain land tenure, and possibly governing structures, which it considers most appropriate to its needs. It was emphasised that if individual claimants seek to register their claims over specific parcels of land, no-one other than the lawyers involved will likely be satisfied with the outcome.

The speakers suggested that communities should decide themselves the most appropriate ways of dealing with title through mediation and processes other than litigation. Communities should not become fixated about fitting into predetermined legal categories. Consequently, the law should fit the people and not the people fit the law.


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