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By Robynne Quiggin
Boobera Lagoon is a site of particular cultural and spiritual significance to the Goomeroi people of the Toomelah, Boggabilla, Goondiwindi area in northern New South Wales/southern Queensland. The Lagoon is about 16kms south west of Goondawindi, about 7 kms long, up to 150 metres wide and 12 metres deep.[1]
For the past 30 years, the local Aboriginal people have sought to protect their land and water. The main focus of their campaign is preventing the use of power boats and water-skiing on the Lagoon. It is part of a broader struggle for proper recognition of their traditional knowledge and skills. This means effective participation in land and water management including stock access, camping and vehicle access and control over any future irrigation proposals.
Among the strategies employed to protect Boobera Lagoon is the successful application by the Toomelah-Boggabilla Local Aboriginal Land Council (‘the Toomelah-Boggabilla LALC’) for a Declaration under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (‘the Act’).[2] The Declaration was made in 1998 and prohibits the use of power-boats on the Lagoon.
The Declaration was due to commence on 1 July 2000. Two months before it was to take effect, the Environment Minister, the Hon. Senator Hill, announced his decision to review the commencement date. The commencement date of the Declaration was subsequently delayed for a further two years and water-skiing continues on the Lagoon.
The following account of local Aboriginal peoples’ tireless campaign to protect the Lagoon is also an account of the failure of the existing heritage protection system to protect the interests of Indigenous people. Factors which contribute to the inadequacy of this system include the ongoing failure to enact effective heritage protection legislation and the failure to domestically implement international human rights instruments.
Mr Albert Dennison and Ms Julie Whitton are among the local Aboriginal people who have struggled to protect Boobera Lagoon and continue to care for country. They describe the area as a special place, a healing place.[3] The traditional meaning of the place has been passed on to them through the stories told by their grandfather about the nature and importance of the Lagoon.[4]
They explain that the Lagoon is the resting place of the Kurrea. The Kurrea is the ancestral spirit, who travelled across the country, burrowing under the ground to produce channels and waterways. The Kurrea finally came to rest at Boobera Lagoon. As the resting place of this ancestral spirit, the Lagoon is a place of tremendous cultural and spiritual significance.[5]
Ms Julie Whitton describes the significance of the place, and the manner in which it ought to be protected:
Boobera Lagoon is a special place and we are proud of our culture. Boobera Lagoon is like Uluru to the Top Enders. We want to preserve it and share it with people in a proper manner....it’s like going into a china shop. You can look, but if you break it you have to pay for it. You can go there, but you can’t destroy it. [6]
In a submission to the Inquiry into the Declaration Toomelah-Boggabilla LALC described the significance of the Lagoon and the cultural insensitivity of allowing water sports on the Lagoon:
[E]ven our secular culture will generally accord greater significance to sacred responsibilities than to recreational activities. Although sport is now played on Sundays (a relatively recent development) it is not played in churches.[7]
Local Aboriginal people have pursued many legislative and administrative avenues available to protect the area. Attempted protective measures have included:
Water-skiing and the use of power boats on the Lagoon is opposed by the Toomelah-Boggabilla LALC for two reasons. First and most importantly, it is offensive to the cultural and spiritual importance of the Lagoon. Secondly, power-boats and water-skiing contribute to environmental damage to the area.[12] The 1993 environmental impact study of the area implicated water-skiing in the damage to flora and fauna, citing adverse effects of the wave action and vehicle access; fish numbers and water quality were diminished as a result of turbidity; and the soil erosion was the result of wave action.[13]
A recent Draft Land Assessment by the New South Wales Department of Land and Water Conservation recommended prohibiting power boating and water-skiing on the Lagoon to remove the high-energy wave erosion forces.[14]
Water usage by stock and the effect of irrigation for agriculture has resulted in degradation of the area, and significant environmental damage:
[t]he Lagoon's banks are severely eroded; waterweeds[15] and fringing vegetation have virtually disappeared; the shoreline trees, many with roots exposed are dying back and few replacements are growing; except under very favourable conditions (such as exist following heavy rainfall), extensive areas adjacent to the shore are bare; the water is turbid; native bird and animal life is sparse; European carp are probably becoming the dominant fish species and exacerbating the damage. Given time and no remedial action, the Lagoon will eventually silt up. All this is documented in the NSW government's 1993 Environmental Audit...[16]
The Draft Land Assessment recommends excluding livestock from the area to allow establishment of vegetation, particularly ground cover. The Assessment also recommends re-establishing reed beds and overhanging vegetation around the water’s edge, preventing large scale water extraction from lowering the lagoon waters below natural levels and monitoring water quality and riparian vegetation re-establishment.[17]
Vehicle Access and Camping is also damaging. Ms Julie Whitton describes the effect of recreational water users on the surrounding land: ‘[c]ampers build pit-toilets and stay for a few days. They leave rubbish which we have to clean up’.[18] The adverse effect of the activities of campers and other recreational users was also noted by Hal Wootten.[19]
Toomelah-Boggabilla LALC support the Department of Land and Water Conservation’s recommendation to stop the use of power boats. But the LALC is critical of the report’s support for swimming, canoeing and sailing because:
The most recent report of the Department of Land and Water Conservation ignores the Land Council’s Draft Management Plan, which locates facilities more than 100 metres from the Lagoon.[21]
Toomelah-Boggabilla LALC have continued to seek support for their Draft Management Plan. They are determined to achieve more than token participation in the management of the area:
We want to look after it our way, not white people's way.[22] We want respect and protection. The Moree Plains Shire Council says they understand. We don't want understanding. We want respect and protection for our culture and for Boobera Lagoon. It is important to us. It has to be passed on to our grand-kids and our great-grand-kids.[23]
The Draft Management Plan of the Toomelah-Boggabilla LALC includes provision for Aboriginal people with a connection to Boobera Lagoon to have a controlling interest in a Trust Board which would manage the area.[24]
This structure is not supported by the Departmental Draft Land Assessment. The report recommends less participation of Aboriginal people in favour of what it describes as ‘fair’ representation of stakeholders and other parties.[25]
Toomelah-Boggabilla LALC prefers
a majority of local Aboriginal people with traditional ties to Boobera as the controlling body... All interests are to be represented but they should accept that it is appropriate to have an Aboriginal majority. This is no doubt a difficult point for some of the non-Aboriginal interest groups of Boggabilla and Goondawindi districts to accept, but there are several examples of joint management committees operating successfully in such a manner, such as Kakadu, Uluru Kata Tjuta and Mutuwinji.[26]
Applications can be made under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), which gives the Minister:
the power to protect significant areas and objects when they are under threat of injury or desecration. ‘Under threat’ means they are at risk of being used or treated in a manner inconsistent with Aboriginal tradition.[27]
The Act requires the Minister for Aboriginal Affairs to request and consider a report under section 10(4). Mr Hal Wootten was nominated by the then Minister, Hon. Senator Tickner to provide a report.[28]
The traditional owners first applied for protection under the Act nearly ten years ago.[29] On 24 December 1998, six years after the original application was made, the Minister made the declaration. It states in part:
5(1) For the preservation and protection from injury or desecration of Boobera Lagoon, a person must not use a boat powered by an engine, or water-ski on the waters of Boobera Lagoon.
(2) Subsection (1) does not apply to a person acting reasonably to prevent loss of life or injury to persons or livestock, or to prevent loss of or damage to property.
The commencement date was set for 1 July 2000.
The delay between the issue of the declaration in 1998 and the proposed commencement of its provisions in 2000 was partly to allow
[r]elevant State and Local Government agencies to establish an alternative water-skiing site... The period of two years will provide an opportunity to monitor progress with the development and implementation of effective protection management arrangements.[30]
In May 2000, just two months before the Declaration was due to commence, Senator Hill (now Minister responsible for Indigenous heritage matters under the Act) notified Toomelah-Boggabilla LALC of his decision to review the commencement date of the Declaration. Mr Peter Hastie was nominated by the Minister to prepare a fresh report on the issue of the commencement date.
Senator Hill’s decision to review the Declaration reflects the unfulfilled interests of the recreational water users despite provision for development of an alternative site in the original declaration. Senator Hill stated:
... the lagoon has been extensively used for water skiing for 50 years... Water-skiing has become a significant family based activity in an area of regional Australia where there are few such opportunities.[31]
Mr Peter Hastie reported to the Minister concluding:
...I am inclined to recommend that the commencement date of the declaration be postponed until May 2002; but on the understanding that no further extensions would be granted, and that the declaration commence whether or not any development of an alternative site is approved or concluded.[32]
The Minister has observed this recommendation and the Declaration has been delayed again.
The struggle to protect Boobera Lagoon received international attention shortly after the Minister’s decision to delay. In July 2000, Australia’s compliance with the International Covenant on Civil and Political Rights was considered by the Human Rights Committee in Geneva.[33]
Boobera Lagoon was seen as an important example of the detriment caused to Indigenous people by the failure to implement international Covenant rights within the municipal law of the State Party.
Human Rights Committee member from Mauritius, Mr Lallah, took the unusual step of asking for an opportunity to speak again at the end of proceedings. He said ‘...in all the years I have been on the Committee, I don't think I have been as puzzled as I have been in the light of some of the answers given by the [Australian] delegation...’.[34]
Mr Lallah expressed concern that Article 27 of the Covenant is not given legislative form in Australian domestic law.[35] He continued:
Let us take the example that was given about the lagoon. If the right under article 27 had legislative authority, had been legislatively ordained, then people could have asked for a remedy and that remedy would have entitled them, to have a direct and primary say in what constitutes their culture and traditions, and would have enabled the court to make a judgment about the priority, for example, of water-skiing over cultural and religious rights...[36]
...As I understand, the water-skiing is going to continue until alternative sites are found. I would not have thought since this is a Covenant right and water-skiing is not as such a right, then maybe the reverse should have happened. I'm not taking this as a light matter. It may well be that water skiing is related to property rights guaranteed under the constitution. It may well be. I do not know. But in this case, the court could have had the opportunity of deciding on these priorities, cultural rights of certain minorities guaranteed under the Covenant and property rights not guaranteed under the Covenant but guaranteed elsewhere.[37]
The Committee considered the situation of Indigenous people with regard to Covenant articles, especially Articles 1 and 27. Regarding article 1, which sets out the right to self-determination, the Committee noted the Government’s preference for terms such as ‘self-government’ and expressed concern that insufficient action had been taken by the Government to ensure self-determination. The Committee recommended the State Party take steps
in order to secure for the indigenous inhabitants a stronger role in decision-making over their traditional lands and natural resources (article 1, para 2).[38]
Domestic implementation of Articles 1, with reference to the Committees recommendations, would strengthen Toomelah-Boggabilla LALC’s position to have its Draft Management Plan adopted by State land managers, and provide.
After considering Australia’s compliance with Article 27, the Human Rights Committee commented on the proposed amendment of the Aboriginal and Torres Strait Islander Heritage Protection Act. The Committee recommended that sufficient weight should be given to values such as securing continuation and sustainability of traditional forms of economy, and protection of sites of religious and cultural significance when determining land use issues.[39]
Clearly, domestic implementation of Article 27 could have far-reaching effects for protection of Indigenous cultural heritage.
The local community had planned a celebration on the foreshore of the Lagoon to commemorate commencement of the Declaration. The Community, making the best of the situation, turned disappointment to a protest.
Toomelah-Boggabilla LALC continues to pursue protection of spiritual and cultural heritage despite the many forms of opposition it has encountered. The LALC continues to press for proper recognition of knowledge, experience and rights, and for effective participation in decision-making over land and resource management of the area.
Currently members of the LALC are closely involved with preparation of the new areas for recreational water sports. The Serpentine is the area identified as the alternative venue.
Mr Albert Dennison states:
The Serpentine is another important area for us, but not as important as Boobera. That’s where the water-skiers will go. There are sites there, at the Serpentine, and I am working with the Council to protect them as they prepare the area for use. There are important sites all over this country. There are bora grounds on the cotton fields out there. You can see them from the air, because nothing will grow there.[40]
The area and its people are determined to achieve protection of this extremely important site. They have been involved in this struggle for many years. They seek to care for country in their own way, they seek recognition of their unique knowledge and position as the custodians of the place.
Ms Julie Whitton states:
I got involved with things in the late sixties, about 1968-1969. I did my best for the people and at times I used to feel down and feel that time was running out. But I used to see the face of my mother and her cousin Aunty Anna Duncan, and another old lady, Aunty Suzie, three people. I’d see their faces, saying ‘You can’t give it up, you’ve got to go on and finish what we started out.’
Aboriginal people, we belong to the bush and the bush belongs to us, we know what we have to do in the bush and that’s the way we want to keep that place, any part of it, wherever we live, and I think to do those sorts of things you have to have total control over them, without any interference from the local Shire, or any government bodies.[41]
For further information contact Albert Dennison, Julie Whitton, Merve McGrady or Carl McGrady at Toomela-Bogabilla LALC.
Robynne Quiggin is an Indigenous lawyer with Terri Janke & Company Entertainment, Cultural Heritage and Media Lawyers and Consultants.
[1] Richard Buchorn, Boobera Lagoon: A Focus for Reconciliation, (1997) Catholic Social Justice Series, No 30, 10.
[2] Negotiations over amendments to the Act continue between Government and Indigenous spokespeople. The Evatt Review of the Act remains a significant benchmark for reform: Hon Elizabeth Evatt AC, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act (1996). At www.austlii.edu.au/au/other/IndigLRes/1996/1/8/html.
[3] Telephone Interview with Ms Julie Whitton, 16 February 2001.
[4] Ibid.
[5]The history of the Kurrea is told by Ms Julie Whitton in Carol Kendall (Producer), Inard Oongali (Video) (NSW National Parks & Wildlife Service Aboriginal Heritage Division). Copyright in this video vests with the senior Gamilaroi women whose stories are documented. The story of Kurrea is also documented by Richard Buchorn, above n 2.
[6] Whitton, above n 3.
[7]Hon Hal Wootten QC AC, Report to the Minister for Aboriginal Affairs Re: Boobera Lagoon (DATE) 120, quoting John Basten QC submission to the Inquiry on behalf of Toomelah-Boggabilla Local Aboriginal Land Council.
[8] Buchorn, above n 1, 24. The National Parks and Wildlife Service anthropologists’ report recommended exclusion of the Aquatic Water Sports Club from the area. Mr Hal Wootten AC, QC described the declaration as a ‘worthless piece of paper’, criticising the National Parks and Wildlife Service for it’s failure to provide protection for the area, describing it as evading opportunities to support or assist the community: Wootten, ibid 3-4.
[9] The detrimental effect of irrigation was reported in 1985 by the State Pollution Control Commission.
The report noted that Endosulphin - an insecticide widely used in the cotton industry - was found in unacceptable concentrations, especially after heavy rains: Buchorn, above n 1, 25.
[10] Human Rights and Equal Opportunity Commission, The Toomelah Report (1988).
[11] Buchorn, above n 1, 26.
[12] Wootten, above n 7, 58.
[13] Ibid 58-59.
[14] Department of Land and Water Conservation, Draft Land Assessment: Boobera Lagoon (2001) 24.
[15] Mr Albert Dennison recalls a particular species of waterweed which grew like huge trees under the water of the Lagoon: Telephone Interview with Mr Albert Dennison 15 February 2001.
[16] Wootten, above n 7, 2. The 1993 Environmental Audit identifies the effect of stock use, irrigation and the flow of contaminated water into the Lagoon from the surrounding cotton fields as damaging to the area. Department of Lands Environmental Audit, 1993 ibid at 57
[17] Department of Land and Water Conservation, above n 14, 24.
[18] Whitton, above n 3.
[19] Wootten, above n 7, 66-67.
[20] Toomelah-Boggabilla LALC Response to the Department of Land and Water Conservation Draft Assessment of Crown Lands (YEAR) 1.
[21] Ibid.
[22] Whitton, above n 3.
[23] Ibid.
[24] Toomelah Boggabbilla LALC, above n 20, 1.
[25] Department of Land and Water Conservation, above n 14, 30.
[26] Toomelah Boggabilla LALC, above n 20, 1-2.
[27] Above n 1, Chapter 2 page 3. ‘Under threat’ is defined in section 3(3) of the Act.
[28] Mr Wootten delivered his Report in 1996.
[29] A number of applications have also been made for emergency protection available under the Act. The first application for a declaration under the Act was made in 1992. A second application was made in 1994.
[30] Hon. Senator John Herron, Statement of Reasons, January 1999
[31] Senator the Honourable Robert Hill, Decision on the Future of Boobera Lagoon, Media Release (28 June 2000)
www.environment.gov.au/minister/env/2000/me28jun00.html.
[32] Ibid.
[33] See Neva Collings, ‘Australian Government Exposes Itself Before the UN’ [2000] IndigLawB 73; (2000) 5(4) Indigenous Law Bulletin 11-15.
[34] Mr Lallah, Transcript of Human Rights Committee 69th Session, 21 July 2000, <www.faira.org.au/hrc/articles/hrc_21_7_00_story.html> 48.
[35] Article 27 states: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
[36] Mr Lallah, Transcript of Human Rights Committee 69th Session, 21 July 2000, <www.faira.org.au/hrc/articles/hrc_21_7_00_story.html> 48.
[37]Ibid.
[38] CCPR/CO/69/AUS Concluding Observations of the Human Rights Committee, 28 July 2000, para 9
[39] Ibid para 11.
[40] Dennison, above n 15.
[41] Whitton, above n 3.
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