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Torres Strait lands at risk due to backflip by government

11 July 2003 - Erub Island Council - Media release - Torres Strait Islanders are in danger of having large areas of their lands swept out from under them by efforts of the Queensland Government in a case presently in the Full Federal Court.

Five islands in the Torres Strait are anxiously awaiting the decision of a Test Case involving the tiny island of Erub in the furthest north eastern corner of Australian waters, concerning the interpretation of 'public works' under the Native Title Act 1993.

The case arose after their Native Title Determinations were stopped only weeks before the scheduled Court date late last year, as a result of an unexpected Queensland Government back flip on how they chose to enforce the definition of 'public works' under the Native Title Act.

The Queensland Government, joined in force by the Northern Territory Government, various commercial Fishers (and a late failed attempt by the Western Australian Government), are arguing for interpretations under the Act that would see Traditional Inhabitants lose all Native Title rights to their ancestral lands where any construction, fixture or a range of works have occurred by the Local Government Authority or by other statutory authorities of the Crown, or on or by the Crown.

"Despite the High Court's ruling in the Mabo Case in 1992 that overturned the myth of 'terra nullius', what the Government is trying to do here is to wipe out our birth rights that have been handed down to us for so many thousands of years on the basis of construction works that have happened so very recently and which will not last long at all. Even down to the installation of a power pole or pipe in the ground," said Mr Kapua Gutchen, an Erub Traditional Landowner and Local Government Deputy Chairperson.

"We have occupied these lands continuously throughout human history, so why is the Government in 2003 trying to steal our home away from us? This is like living out a re-enactment but without the guns, of those very acts of the first Europeans who entered the land and assumed 'terra nullius'.

"When in 1992 with the Mabo Case we thought the Australian Nation had finally recognised our right for us to control our traditional lands after so much denial, death and pain, we had no idea that we would very soon wake up and realise that was all but a brief dream and the denial was to continue for generations to come," said Mr Gutchen.

"If the Queensland Government is successful in its aim in the Court, they will have the right we are told by our legal advice and will use that, to go back and similarly extinguish Native Title on areas under the same land use on the other 14 islands in the Torres Strait which have already received their Determinations. What type of Native Title recognition is that for Indigenous people here and elsewhere around this great Nation?

"That within one year following the outcome of the Mabo Case the Commonwealth Government would legislate in a way that could now extinguish Native Title on housing and other sites other where works are done to help the Traditional Inhabitants of those places to achieve a better standard of living, is to us the most oppressive and discriminating act ever carried out in modern history by a western Nation on its Indigenous Peoples," said Mr Gutchen.

With precedence in this case set to affect Indigenous Peoples throughout the country, the outcome of the decision expected to be handed down in the coming months by mid August, is expected to have ramifications on the same scale as the Waanyi and Wik decisions of the late 1990's.

BACKGROUND

It is now 11 years since the Late Mr Eddie Mabo and those who struggled with him 'turned the tide' of modern Australian history when for the first time the rights of Australian Indigenous Peoples to their traditional lands was upheld. When the myth of terra nullius was overturned by the Australian Legal system. Or so we thought.

Yet at this present time whilst most Indigenous and non-Indigenous Australians remain 'conveniently' unaware, there is a case in the Federal Court concerning the interpretation of the 1993 Native Title Act that will have most significant effects on the rights of Indigenous Peoples living on their Traditional Lands throughout the nation. That case may well have the outcome - when taken together with the significant watering down effect of the Commonwealth 1993 Native Title legislation - of cutting right across what remnants are now left of the justice that was attained at that time in the courts in June 1992; And making what we thought was a 'turning of the tide' only but a brief dream.

The case involves the people of Erub (also known since contact with Europeans in the region as Darnley Island), a tiny little island of some 400 population tucked away in the furthest north eastern corner of Australian waters in the Torres Strait. These people at present await the outcome of their case in the Full Federal Court held on 15 May 2003, when their fate will again be decided by the Australian Legal System.

The case initially involved the people of Erub (known locally as the 'Erubam Le') and the Queensland State Government, although both the Northern Territory Government and various Commercial Fishers (represented by Queensland Seafood Industries Assoc) joined as parties as the court date became close. The Western Australian Government also attempted to join forces but was too late. So that in the court on May 15th 2003 there was one Barrister representing the Erubam Le and their assisting Lawyer with those representing the Queensland and N.T. Governments and QSIA totalling a 16 person legal team.

Erubam Le as they are locally known, have lived continuously on their traditional lands without interruption since a time so well before Europeans first occupied Australia. In more recent history there has commenced a local Indigenous Council - a local government authority - that holds the land in DOGIT (Deed of Grant in Trust) from the Government. The definition of 'Public Works' under the Native Title Act 1993 is so incredibly broad and captures amongst other things, all buildings and other structures that are fixtures constructed or established by a local government body or statutory authority of the Crown or by or on behalf of the Crown.

Up until September 2002 the State Government - in spite of this very broad definition under the Commonwealth legislation that flies in the face of the Mabo case outcome - allowed Native Title Determinations to go ahead under the Commonwealth Native Title Act 1993, without demanding extinguishment on many of the sites where these so called 'public works' have been located. The Erubam Le were always aware that sites where say Ergon or the Education Department had carried out works would be very much at risk of extinguishment. However all these years since 1993 Councils throughout the Torres Strait and elsewhere, have been constructing homes for Traditional Inhabitants and their extended families, on their own traditional lands and for their own exclusive use, yet no-one has raised a whisper to suggest that they could face extinguishment of Native Title by that very Act.

This changed position of the Queensland State Government is despite the unquestionable and opposite position of that Local Governing Authority the Indigenous Council - which owns many of these 'public works' assets - that holds the Native Title rights of the Traditional Landowners should be upheld in every instance. All works carried out on the island are for the direct benefit of the Indigenous Traditional Landowners and their extended families. Yet the Qld State and N.T. Governments and QSIA argue for an interpretation of the Act that concludes that these were works for the wider general public and qualify as 'public works' under the Native Title Act 1993.

If the Erubam Le lose the case, there is the power under the Native Title Act 1993 for at least the Queensland Government to turn around and then also extinguish on all such sites in other DOGIT communities in the State where Native Title Determinations have already been given. It is expected that this is most likely to occur in the case that the Erubam Le lose the case. This of course throws the net of potential extinguishment much wider. So much for the recognition of Native Title under those Determinations!

The legal argument in the case is about interpretations of sections of the Native Title Act 1993. There are beneficial provisions within that Act which if the court interprets broadly, could rescue these lands of our Traditional Inhabitants even if they are ruled to be sites on which that catch-all definition of 'public works' as defined by the Act have been located. The Queensland State and N.T Governments and QSIA are of course pushing for a narrow interpretation of these provisions by the court.

Many of the other Queensland Indigenous Local Governments in the north of the State also hold their lands in DOGIT. For the purposes of the Native Title Act 1993, these are regarded as 'Reserves' for the 'benefit' of Aboriginal and Torres Strait Islander Peoples, just as are the countless and many large Reserves set aside also for that purpose in the N.T. and W.A and in other parts of Australia. That fact is very telling as to why there is such an interest from not only the Queensland but also other State and Territory Governments in this case concerning a largely unknown tiny island and its Indigenous inhabitants. The efforts of those Governments and Fisheries to deprive the Erubam people of the prime area of land on their island is not surprising in that they are an easy target. The real prize clearly lies in the large areas of Reserves on the mainland, particularly in the north of our Nation. (Although at the same time one cannot help wondering whether this is not also part of a bigger plan to at the same time disempower the Traditional Inhabitants of the Torres Strait towards any consideration of self government.)

If the court decision favours the Queensland State and N.T. Governments and QSIA and if the High Court will not accept an appeal, then due to legal precedence the door is closed once and for all in the face of Indigenous Peoples across the Nation on such Reserve Lands for the significant areas where such works have occurred.

The Court in 1992 may have overturned the myth of terra nullius. However it seems that those whose interests and ambitions were threatened by that outcome, if they achieve what is their present aim in this case against the people of Erubam, will have effectively watered down what was recognized as a legal right back at that date; And this will have been done through an Act of the Australian Parliament that we had thought was to represent all Australian people, Indigenous and non- Indigenous alike.

The face of Indigenous Australians has been seen alongside those of non-Indigenous Australians at so many national and international events in Australia these last years, in response to so many Australians' desire to see the Nation and its people reconciled to its' Indigenous Inhabitants. Yet what is the meaning we thought these events spoke of if on one hand we acknowledge our Indigenous Peoples as the Traditional Inhabitants of this great country, whilst Governments with their other hand behind their backs search for ways they can use or change the Australian Legal system to trample underfoot the justice that was finally won after so many years by the court's decision in the Mabo case in 1992? Is what we are seeing becoming a reality not just another form of 'terra nullius' - not by guns but by these Governments' actions that imply no respect or true acceptance of the validity of Traditional Inhabitants' rights to the land passed down by their Ancestors and on which they have resided continuously to date? Is not the extinguishment of these Peoples' Native Title rights to control their own traditional lands but a re-enactment in a different form of the denial of their rights that initially occurred so many years ago when this Nation saw its first arrivals from so far across the seas?

Source: Erub Island Council

related links :

• Unsustainable hunting practices in the spotlight
  May 8, 2003 - Leaders in the Torres Strait, in far north Queensland, have unveiled plans to tackle unsustainable hunting practices of protected species under native title legislation.
• Islander soldiers no longer our forgotten heroes
  25 April 2003 - They were not citizens of Australia, nor did they have the right to vote. But in 1942, when enemy forces were on Australia's doorstep and the government looked to the Torres Strait for help, the islanders answered in their hundreds, leaving families and jobs to protect the country's vulnerable northern gateway.
• The Torres Strait housing and infrastructure revolution
  26 March 2003 - The Torres Strait Regional Authority (TSRA) today highlighted how a housing and infrastructure revolution is improving the basic standard of living in Torres Strait island communities and boosting the North Queensland economy.
• Mediation of Native Title in Queensland – A Torres Strait Experience
  September/October 2002 -The people of the Torres Strait were to be bitterly disappointed when only three weeks before the determinations were set to take place, the Federal Court was forced to abandon the dates following a change in position by the Queensland government which advised the Court that it now required the determinations to contain finding that native title does not exist over land on which public works are situated.
• Aboriginal Islanders reunited with their 'stolen' ancestry
  August 8, 2001- The Independent (UK) - More than a century ago, a leading British anthropologist visited the Torres Strait Islands, off the northern tip of Australia, and stole away with more than a thousand of the inhabitants' most important artefacts.

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