Indigenous Law Bulletin
by Ron Levy
The Croker Seas native title application was lodged in 1994 by the Mandilarri-Ildugij, Mangalarra, Muran, Gadurra, Minaga, Ngayndjagar and Mayorram peoples. The claim covers the seas which surround Croker and associated islands. These islands are already Aboriginal land under the Aboriginal Land Rights (NT) Act 1976 (Cth), and are not included in the claim. This is the first sea claim lodged under the Native Title Act 1993 (Cth), and was referred to the Federal Court in May 1996.
Croker Island in located 200 kms to the north-east of Darwin, on the north-western edge of Arnhem Land. It is the largest of a group of islands enclosing an area of seas which is sheltered from the rough waters existing to the north. The application asserts substantial native title interests of 'ownership, occupancy, possession, and rights of use' in respect of the sea and seabeds covered by the application. The area claimed is largely Northern Territory ('the NT') waters, though small parts of the claim include Commonwealth waters.
The Federal Court commenced the hearing of traditional evidence on 22 April 1997. The hearing is being conducted outdoors under a shade canopy at Minjilang on Croker Island, and has included site visits by boat to the surrounding seas and islands. The claimants have given evidence of the applicants' close relationship to the sea, including their spiritual association to it, and its importance for sustenance. The claimants have asserted their sea rights for many years, including a letter to the Chief Minister of the NT in 1983 which stated:
'We, Aboriginal people, believe that all human beings go together with the Land and Sea. If we have Land, and no Sea, we will die. If we have Sea and no Land, we will also die. If we have Land and Sea, people will live free.'
The case is the first significant opportunity for the courts to clarify complex legal issues regarding native title and the seas, including whether the common law is capable of recognising Indigenous sea rights, and the relationship between native title and statutory fishing interests. Traditional fishing rights have already been recognised in overseas jurisdictions including Canada, the USA and Aoteoroa/New Zealand.
The case builds on comments by Justice Woodward in 1973, when conducting a Royal Commission into Aboriginal land rights in the NT, who reported that 'Aborigines generally regard estuaries, bays, and waters immediately adjacent to the shoreline as part of their land' (Aboriginal Land Rights Commission, Second Report, April 1974, Justice Woodward, p 80).
Further traditional evidence and cross examination will be conducted in June 1997, with anthropological evidence and legal argument occurring later this year. It is likely that the claim will be the first case determined by the Courts since Mabo [No. 2] in 1992. The President of the National Native Title Tribunal, Justice Robert French, has expressed the view that the case is likely to be finally determined in the High Court (Interview with Phillip Adams, ABC Radio, Late Night Live, 20 May 1996).
by Cathy Carey and Amanda Collinge
The announcement of the Larrakia native title claim over areas in and around the city of Darwin was made in December 1996. Official reaction came fast and furiously. John Howard, the Prime Minister of Australia, made a grim and threatening comment in Parliament, stating that, while he was aware that the Larrakia had gone to pains to point out that their claim would not change public access to beaches or reserve areas (and indeed could not do so under native title legislation), he regarded it as 'an extravagant ambit claim', and one the pursuit of which would serve Aboriginal interests badly. Shane Stone, the Chief Minister of the Northern Territory ('the NT'), demanded a ban on native title claims on capital cities. Mike Reed, the Deputy Chief Minister of the NT, wasted no time in raising fears about threats to backyards and beaches. The Mayor of Darwin, George Brown, continues to regard the claim gloomily, as a threat to investment and a cause of future division in the community.
In contrast, Gerry Wood, the Mayor of the neighbouring Shire of Litchfield, in which some 80% of the land claimed is located, has taken a more positive approach. Concerned at racist backlash against the Larrakia, he has liaised with the Larrakia and the National Native Title Tribunal to organise information sessions to better inform Councillors and the public about the claim. For this approach, the Deputy Chief Minister of the NT, Mike Reed, branded him a traitor to his constituents.
In fact, most of Darwin is held under freehold title, or residential and commercial leasehold, which, under the Native Title Act 1993 (Cth), automatically extinguishes native title, making the land unavailable for claim. As a measure of good will, the Larrakia have relinquished their rights to claim some areas, including the valuable Larrakia Barracks area. They have, however, claimed native title rights to Crown land on the city foreshores and reserves which they regard as traditional hunting and living areas. They have also claimed compensation over three areas of land which have been developed since 1975 after the commencement of the Racial Discrimination Act 1975 (Cth).
Larrakia have attempted to allay public concern from the outset. Contrary to claims of the NT Government, they deny that they are opposed to development, and point to the Mount Todd agreement with the Jawoyn, people as a fruitful collaboration between Aboriginal people and developers. They have insisted that their only aspiration with regard to beaches and reserves is to be involved in their management. They may also be open to relinquishing native title rights in return for compensation, which might take the form of jobs, training or equity in future developments of the land instead of, or as well as, cash. Similar settlements have been negotiated elsewhere.
This is not the first time Larrakia have met such government opposition to their attempts to regain rights to their traditional lands. In 1978, the NT Government similarly obstructed a Larrakia claim under the Aboriginal Land Rights (NT) Act 1976 (Cth) to land in the Cox Peninsula area adjacent to Darwin. This claim, known as the Kenbi Claim, saw the redrawing of the boundaries of the City of Darwin until this city of 80,000 people extended over an area three times larger than that of Greater London. Still unresolved, this is now the country's longest running land rights claim.
Another obstacle to both claims revolves around questions concerning the 'authenticity' of Larrakia identities. Some of those who identify as Larrakia have been accused of denying their Aboriginality. Consideration of the impacts of colonial policies which the Larrakia were forced to accommodate-such as restrictions on civil liberties (including denial of the right to vote) - would show that at least historically, Aboriginality was an unattractive proposition. Past government policies of removing the children of mixed descent from their Aboriginal mothers, which have affected most, if not all, Larrakia families, have also dramatically disrupted Larrakia ties to land and caused some Larrakia to be uncertain of their identities.
Nevertheless, whilst cosmopolitan Darwin has impacted greatly on Larrakia lifestyles, the Larrakia have retained traditional hunting and fishing connections and still gather bush tucker in the reserve areas under claim. These facts will be used to prove ongoing association with their land.
The exigencies of establishing identity in the long drawn out Kenbi claim process have also exacerbated differences in the Larrakia community, giving rise to division among the Larrakia as to who are rightful claimants. Under the native title legislation, it is possible for more than one claimant group to claim the same area of land. Competing claims from different Larrakia families have been submitted over at least one such area.
Currently, the claim is within the two month period of public notification in the National Native Title Tribunal. Mediation among appropriate parties will then begin and may continue for months or even years. In the meantime, the breakdown in relations between the Larrakia and the NT Government is putting a brake on development in the claimed area. Darwin cynics suggest that the government may be more amenable to negotiation after the forthcoming election, in the leadup to which they may well be tempted to play the racist card for political gain once more. Meanwhile, the rest of the country awaits with interest the outcome of the Larrakia claim, set to become a test case for future urban claims.
by Jackie Morris
In April, the Queensland government settled a Federal Court action in which six Palm Island Elders alleged that the government had unlawfully discriminated against them by failing to pay them award wages between 1975 and 1984. The government published an apology expressing 'its regret for the personal hurt suffered by each of the complainants as a result of the discrimination'. The Elders were also paid $7,000 each.
The Elders originally lodged complaints with the Human Rights and Equal Opportunity Commission (HREOC) in 1985. Eleven years later, a HREOC inquiry conducted by Commissioner Bill Carter found that the government had 'intentionally, deliberately and knowingly discriminated against' the complainants.
The Minister for Families, Youth and Community Care, Mr Kev Lingard MLA, initially refused to abide by Commissioner Carter's recommendations that the government apologise to the complainants and compensate them. The complainants, with the assistance of the Foundation for Aboriginal and Islander Research Action (FAIRA), took their case to the Federal Court. The Minister reconsidered his position after justice Doug Drummond recommended the parties pursue further mediation.
FAIRA has estimated that thousands of Aboriginal people who were Queensland government employees suffered similar discrimination even after the Racial Discrimination Act 1975 (Cth) made this discrimination unlawful. The Queensland government has not admitted that its actions were unlawful, and argues that similar claims will be prevented by statute of limitations laws.