Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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February 1998
[For the general scheme of the land claim process under the Aboriginal Land Act 1991 (Qld), and for extracts from the first three reports of the Tribunal, see (1996) 1 (2) AILR 265-283. For extracts from subsequent reports, see (1996) 1(2) AILR 633-642.]
The claim had been lodged by the Wuthathi people, represented by the Cape York Land Council. It was referred to the Tribunal in December 1993. After notifications and so on, hearings were held at Lockhart River, at places on and near the islands, and at Cairns. The total area of land claimed was approximately 56.7h. There was no history of any dealings with the land before the islands were declared to be claimable under the Act in 1992.
The claimants and the Tribunal were unable to find one of the unnamed islands declared by the Government to be claimable [paras 44-72]. In response to inquiries, the Department of Natural Resources referred to a 1973 Admiralty report and related map which indicated that there was such an island, and went on to say that 'it appears that one island has been eroded away, is not distinguishable and is covered by the sea' (para 45).
The claimants, however, persevered with their claim on the basis that there was claimable 'land' at that location at the relevant date, and that even if the land was under water, the superjacent air space remained available. After learned consideration of the law and the facts the Tribunal concluded:
64 ... unless there was, at the relevant date, a part of the earth's surface which was exposed at high tide, there was no claimable land.
The evidence also strongly supported a conclusion that there had never been an island in the area.
As
with previous claims, the claimants indicated that their claim was lodged
without prejudice to any native title rights in the claimed
lands. Again, as
with previous claims, the Tribunal addressed the issue, saying,
inter
alia:
76. It is appropriate to make some observations about the relationship between this claim and any native title proceedings which may arise in the future. First, claims made under the Act, even those made solely on the ground of traditional affiliation, are not native title claims. They are claims made pursuant to a statutory scheme in respect of land which the Governor in Council has declared to be claimable land. The Tribunal has to decide, by reference to statutory criteria, whether each claim has been established. It is not a function of the Tribunal to determine whether particular Aboriginal people have or do not have native title. Claimants who succeed in proving a claim on the ground of traditional affiliation under the Act may also be able to establish that they have native title to the land, but the fact that the statutory claim is established may not be sufficient to prove native title. In any case, the legal issues and the means by which they are resolved are separate from each other.
The claim had been lodged by the Wuthathi people 'on behalf of but not exclusive to' several listed family names. It was made on the grounds of 'traditional affiliation' and 'historical association' [82-84].
Five other parties were accepted by the chairperson of which two subsequently withdrew. The others were:
(a) Cook Shire Council;But(b) Regional Director, Far Northern Region, Department of Environment and Heritage; and
(c) Ports Corporation of Queensland [87].
89. The other three parties took no part in the hearing. Although each party provided documents to the Tribunal, none was represented at Lockhart River or in Cairns.
The report [in paras 90-112] discusses the statutory provisions as to Tribunal proceedings, the location of hearings, representation of parties, group evidence, recording of proceedings, naming of deceased persons, consultation with elders, and expert evidence. There is also detailed discussion of the issue of restrictions on copying and retaining certain exhibits. Appendix D comprises the Tribunal's reasons for decision on applications to impose such restrictions.
Chapter Two of the report considers the claim based on historical association in terms of the statutory requirements, the historical record and the claimants' oral evidence. In its conclusions to the chapter, the Tribunal wrote:
243. Archaeological research shows that Aboriginal people have lived in the district or region of the claimed land for thousands of years. There is evidence of base camps and camp sites used seasonally and for shorter durations near to the islands. European explorers reported an Aboriginal presence in the region as early as 1789 and subsequently, Aboriginal people used canoes in that region and visited and used at least some of the islands claimed. From the late 1890s onwards European researchers recorded that the people in area where the islands are located were Wuthathi. Remembered ancestors of the claimants, and one senior claimant, lived on traditional Wuthathi country. That evidence clearly establishes that the claimants' ancestors, for a substantial period, lived on or used land in the district or region in which the claimed land is located. It may be inferred that for a substantial period, those ancestors used at least some of those islands. From the 1920s, however, most Wuthathi people lived away from that region. Subsequently some claimants visited islands or parts of the mainland within Wuthathi country for short periods.
244. The evidence summarised in this Chapter shows that none of the claimants have lived on or used the claimed land, or land in the region, for a substantial period. The duration of some claimants' visits to or use of the land would not be sufficient to sustain the claim.
245. A claim may be established whether or not all or a majority of the members of the claimant group have themselves lived on or used the relevant land. It is sufficient that the claimants' ancestors, for a substantial period, lived on or used the islands or land in the district or region of them.
246. We are satisfied that:
(a) Aboriginal people, for a substantial period, lived on or used land in the district or region in which the claimed land is located, and used some of the claimed islands;Accordingly, we are satisfied that the claim made on the ground of historical association has been established.(b) those Aboriginal people identified themselves and were recognised by others as comprising the Wuthathi people with links to identifiable tracts of land (including the claimed islands); and
(c) those Aboriginal people included ancestors of the group of Aboriginal people who are claiming the islands.
Chapter Three deals with the alternative basis for the claim - traditional affiliation. Again, the Tribunal considered the statutory criteria - the existence of a 'group', spiritual associations with the land, traditional rights in relation to the land, traditional responsibilities for the land, other traditional associations with the land, the preservation and continuance of traditional associations, and common connections. As in previous reports, the Tribunal drew considerable guidance from the jurisprudence of the High Court, the Federal Court and the Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Act).
The conclusions were as follows:
323. Various senior claimants have demonstrated that they have strong connections with the land based on spiritual and other associations with rights in relation to, and responsibility for, the land under Aboriginal tradition. But what of the others who, on the evidence before us, comprise the majority of the claimants?
324. This is not a case where, in the words of Justice Brennan, 'the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs'. [1] Rather, various historical currents and eddies have taken or drawn some people away from the land, differentially causing a lessening or diffusion of some components of the links which the ancestors of some families or sub-groups once had to the land.
325. Having regard to the specific terms and the general purpose of the legislation, we are satisfied that the claimants constitute a group and that they have a common connection with the claimed islands based on the claimants' spiritual and other associations with rights in relation to, and responsibilities for the land under Aboriginal tradition. Consequently, we are satisfied that the claim on the ground of traditional affiliation has been established.
Chapter Four of the report sets out the Tribunal's conclusions and recommendations. Although they had found the claim supported on both grounds - historical association and traditional affiliation - the Tribunal's recommendation was that the basis of the grant should be traditional affiliation [337].
The grant should be to the nine islands (excluding the claimed island which proved not to exist!). The grant should be made to the following group of people:
339. ... The group of Wuthathi people who have traditional affiliations with the land and who include the descendants, including descendants in accordance with Aboriginal tradition, of the following named persons: [a list followed].
The recommendation has been expressed in specific but inclusive terms to ensure, as far as is practicable, that the land is held for the benefit of all Aboriginal people with traditional affiliations to the land. If there are Wuthathi people with traditional affiliations to the land whose ancestors' names are not on the list, acceptance by Wuthathi elders that such people are members of the group may be sufficient, in a practical sense, to establish their beneficial interest in the land.
Specifically, the Tribunal considered who should be the body to receive and hold title. After considering submissions, it recommended:
354. ... that the Wuthathi Council Aboriginal Corporation be appointed to be the grantee of the land as trustee for the group of Aboriginal people concerned.
The Tribunal is also required to accompany its recommendation to the Minister with its advice on various matters. This advice was the subject of Chapter Five. It is also summarised in Chapter Six entitled 'Summary of Findings, Recommendations and Advice':
436. Approximately 480 Wuthathi people would be advantaged by the grant.
437. The advantages would include the following:
(a) There would be social and psychological advantages from the legal recognition of Wuthathi ownership and the right to be involved in decision-making in relation to use of the land. Wuthathi people would experience the satisfaction of having their traditional rights and interests in land legally recognised.438. The extent of the advantage that will accrue from a grant of the islands claimed will differ from claimant to claimant, influenced by such factors as each person's age, health, employment status and place of employment, and the proximity of his or her usual place of residence to the lands claimed.(b) Wuthathi people would be legally entitled to visit, camp on and use their traditional lands, and some would do so. Given the physical features of the islands, however, it is unlikely that anyone would live permanently on any of the claimed land.
(c) By gaining title and access to their lands, Wuthathi people could reacquaint themselves with the land and continue or revive traditional practices which would help to strengthen and maintain their traditional links to the land.
(d) Wuthathi people would be able to control access to and activities on their land and could look after and protect it in ways deemed appropriate by them. Legal ownership of the land may strengthen their commitment to look after the islands and beyond, and may also enhance their ability to attract funding for environmental management, monitoring and protection.
(e) Wuthathi people could use the natural resources of the islands and the surrounding seas, and may be able to use the islands as a base for other activities in the surrounding region, including diving in the seas. As well as having the benefit of being able to enjoy traditional activities of hunting, gathering and fishing, the claimants may gain economic advantages from such things as employment and involvement in cultural and eco-tourism and other enterprises.
(f) Some Wuthathi people may wish to be buried on their traditional land.
439. Potential advantages of a grant of the land may also flow to the wider Aboriginal community of Cape York Peninsula, as well as the European residents and visitors.
440. Section 60(5)(b) of the Act provides that when the Tribunal makes a recommendation that land be granted, the Tribunal must advise the Minister, in writing, in relation to the responsibilities in relation to the land that the group of Aboriginal people concerned agree to assume if the land is granted because of the claim, and how those responsibilities should be expressed in any deed of grant or lease granted in relation to the land.
441. The claimants submitted that no responsibilities need be expressed in any deed of grant, and that the deed of grant should be free from any reference to responsibilities other than any that would be recorded in a deed of grant of fee simple to any other Australian persons.
442. Having regard to the land claim application, the evidence from the claimants and the final submission by the claimants we advise that the claimants have agreed to assume responsibilities under Australian law and responsibilities of the types set out in para 364 of this report.
The grantees and beneficiaries of the land agree to assume the responsibilities for the land that are imposed by Australian law and agree to carry out their responsibilities to look after and use the land in accordance with the Aboriginal tradition of the Wuthathi people.
444. Section 60(5)(c) of the Act requires the Land Tribunal to advise the Minister in relation to the detriment to persons or communities (including other Aboriginal groups and Torres Strait Islanders) that might result from a grant of the land.
445. None of the parties raised any issues of detriment and there was no evidence that detriment to persons or communities might result from a grant of the land.
446. Section 60(5)(d) of the Act requires the Land Tribunal to advise the Minister in relation to the effect (if any) that a grant of the land is likely to have on the existing and proposed patterns of land usage in the region of the land.
447. Most of the claimed islands are surrounded by the Great Barrier Reef Marine Park and all are surrounded by areas proposed to be included within a State marine park. Neither of those parks extends or can extend above the high water mark, which is the outer limit of the area of each claimed island.
449. In a letter dated 28 March 1994, an officer of the Great Barrier Reef Marine Park Authority advised the Land Tribunal that the Authority did not need to be a party to the proceedings as the islands are not located in the park. The letter stated that the claims 'appear to have no impact on the management of the marine park and there are no matters of detriment that the Great Barrier Reef Marine Park Authority wishes to have reviewed by the Tribunal'.
450. Information provided to the Tribunal by the Department of Environment and Heritage indicated that the entire far northern section of the Great Barrier Reef Marine Park would be rezoned in 1994-95 and that traditional land owners and other interested parties will be closely consulted during the rezoning process.
452. Although the land claimed does not include areas which are part of the Great Barrier Reef Marine Park, or a State marine park, the evidence shows that the claimants do not draw neat distinctions between land above high water mark, tidal land and land below the low water mark.
453. Some Wuthathi people have formal qualifications and are employed as marine inspectors in the Great Barrier Reef Marine Park. They take their duties seriously and consider that there are benefits in having Wuthathi people, and members of neighbouring Aboriginal groups, present in the region to monitor activity and perform their functions. Claimants generally consider that Wuthathi involvement in the management of areas on and off the claimed islands is very important. Concerns were expressed about the lack of adequate resources for marine inspectors to carry out their roles.
454. It is reasonable to assume that Wuthathi people will seek to be involved formally (and may have an informal role) in the management and use of marine parks, as well as an active role in the management of the claimed islands.
455. Ports Corporation of Queensland: The Ports Corporation of Queensland is responsible for the non-trading port of Margaret Bay. Sunday Island and Ethel Islet fall within the limits of Margaret Bay. Although no development plans have been completed for Margaret Bay, the Ports Corporation wishes to ensure that all possible development options remain available for Margaret Bay. In light of statements made on behalf of the Ports Corporation and in the absence of evidence about how the Ports Corporation may exercise its powers in relation to Margaret Bay, there is no basis for advising that the grant of Sunday Island and Ethel Islet as Aboriginal land would have any effect on land usage in the region of that land.
1 Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 at 60.
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