Nettheim, Garth --- "Land Rights in the 'Deep North': Queensland's Scheme" [1982] AboriginalLawB 23; (1982) 1(4) Aboriginal Law Bulletin 4

• Land Rights In The 'Deep North': Queensland's Scheme
• Integrity Of Boundaries
• Secure Tenure
• Self-Management
• Consultation
• Conclusion

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Land Rights in the 'Deep North':
Queensland's Scheme

by Garth Nettheim

More than 50,000 Aboriginals and Torres Strait Islanders live in Queensland. They make up about 2 per cent of the State's population. Half or more of them live on over one hundred parts of the State gazetted as Reserves under the Land Act. Thirteen of the mainland reserves and twelve of the Torres Strait Island reserves contain major communities with elected councils. But some thousands of people also inhabit the other island reserves and the country reserves. The reserves are home to these Australians. But they don't own them.

Queensland is the only part of Australia that still retains a system which was once prevalent throughout Australia. Under this system, Aboriginal communities, located on Government owned reserves, were 'managed' by Government officials or by church missions. In most other parts of the country, communities have been given ownership of the land in one form or another, and the bureaucracies of Native Affairs Departments have been dismantled.

The much-criticised Queensland system has been moderated over the years. Significant problems remain, however, and some of them represent violations of international standards of human rights.

But the central aspiration of Aboriginal people, in Queensland, as elsewhere, is for land rights. The Queensland Government's assimilation philosophy, in contrast to Federal Government policy, opposes that concept.

Towards the end of 1980, Queensland premier, Mr Bjelke Petersen, promised to repeal the State's special Acts for Aboriginals and Islanders. This pledge placed the future of the reserves in considerable doubt.

To meet widespread concern, the Premier in 1981 proposed giving to Aboriginal and Islander Councils fifty year leases over reserve lands. But many of the communities insisted on greater security than that. Many others agreed with them, including some members of the Queensland Government, and significantly, the Federal Government.

So, on 1 March 1982, the Queensland Government decided that Aboriginal and Islander Councils would be given grants in trust to their reserves, under the Land Act. To meet criticisms of some provisions of the Land Act, several amendments . were rushed through the Queensland Parliament on 31 March 1982.

In the meantime, in July last year, the former Federal Minister for Aboriginal Affairs, Senator Baume,stated four principles as needing to be satisfied by Queensland:

1. The integrity of reserve boundaries to be maintained.
2. Secure tenure for occupants and preservation of their rights to use the land.
3. Local communities to play a significant role in the management of the reserves.
4. Full consultation with Aboriginals and Torres Strait Islanders before any decision is made.

The question is: does the new Queensland scheme meet these conditions?

Integrity of boundaries

It seems that the new arrangements are to apply only to those larger reserves with elected councils. The remaining reserves numbering sixty or so will, presumably, continue as reserves which can be altered at any time. As to the major reserves, the Queensland Government says that the boundaries will remain intact. But the Land Act contains a number of provisions under which areas can be excluded. So the integrity of boundaries is not assured.

Secure tenure

Currently, any reserve can be terminated by the Government at the stroke of a pen - the signing and gazettal of an Order-in-Council. Precisely this happened in April 1978 to the Aurukun and Mornington Island reserves.

The Land Act provides that grants in trust can be revoked at any time, and this makes them as insecure as reserves. One of the amendments passed on 31 March provided that such a revocation could be disallowed by Parliament. But this offers very little extra security. For one thing, the Queensland Parliament has only one House, in which the Government will always 'have the numbers'. In addition, if Parliament was not in session when a revocation order was made, weeks or months might elapse before the power of disallowance would arise; bulldozers could have come and gone by then. So the new arrangements will offer no more security than applies to existing reserves.

Self-management

The Queensland Government promises to enhance the role and responsibility of community councils.

But under the Land Act, a community council appointed as trustee of the land can be removed by the Government. Various powers of the councils are subject to various governmental controls. So the degree of self-management will continue to be limited.

Consultation

The Queensland Government has declared that the new proposals are in keeping with the wishes of the Chairmen of the two Aboriginal and Torres Strait Islander Advisory Councils who had been fully consulted. However, there are strong grounds for questioning the extent of consultation and the extent of Aboriginal and Islander acceptance.

For one thing, Aboriginal and Islander organisations have, in recent times, organized their own surveys of indigenous opinion which strongly indicate a desire for freehold, or something comparable. For another thing, the arrangements are so new - and so complex - that few people would have been able to make much sense of them.

More significantly, since the decisions were made, Aboriginal and Islander organizations, and Queensland church leaders, have described the new proposals as inadequate.

Conclusion

It is therefore not established that any of Senator Baume's four principles are satisfied. Senator Baume, himself, on I April, stated that the Commonwealth Government had major reservations. He gave the Government's 'unequivocal guarantee' that it would intervene `if there were actions which transgressed these principles or which indicated an unreasonable use of the discretion in the legislation'. This suggests that the Federal Government proposes simply to keep a close watch on the way the new proposals are applied in practice.

The Federal Government should certainly refrain from endorsing the new Queensland scheme until the four principles are satisfied. It may be unwilling to Intervene' by enacting its own provision for land rights in Queensland. But in the meantime, Senator Ryan's private members' Bill making specific provision for the Commonwealth to do so was passed by the Senate on 18 March. If the Government chose, the Bill could be rapidly enacted in the House of Representatives.

The problem with the new Queensland scheme is that its provisions are subject to a wide range of administrative discretions, whereby the ostensible objects of the scheme can be subverted at any time. Aboriginals and Islanders in Queensland have good reason to be sceptical of the State government's commitment to such ideals as land rights and self-management.

If the Queensland Government could be persuaded to provide unequivocally for security of tenure, integrity of boundaries, self-management, and consultation in an Act of Parliament, this would provide considerable reassurance to Aboriginals, islanders, their supporters, and to the Federal Government. It might even mean that the Commonwealth Games could proceed in peace.