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Editors --- "Land Adjoining Rokeby National Park - And In The Vicinity Of Birthday Mountain - Case Summary" [1996] AUIndigLawRpr 47; (1996) 1(2) Australian Indigenous Law Reporter 265

Land Adjoining Rokeby National Park And In The Vicinity Of Birthday Mountain

The third claim heard and reported was much smaller than the first two. The report itself is only 14 pages long with additional material in Appendices, and was delivered to the Minister on 20 February 1995. The Tribunal comprised Clive F. Wall QC, Deputy Chairperson; Gary D. Ward, Member; and James V. Wharton, Member.

The Claims

The claims were to two contiguous areas of vacant Crown land totalling approximately 2,386 hectares, about 42 kms. north of Coen. The two areas are divided by a gazetted public road. Past use was generally for pastoral purposes.

The first claim in respect of the land was made on the grounds of traditional affiliation and historical association by or on behalf of the descendants of a named person including specified members of the Creek family and their descendants. It was amended to indicate that it was made without prejudice to any native title rights.

A subsequent claim to the claimable land, on both grounds, was lodged by or on behalf of "the Kaanju people and their descendants, including the descendants of T. in accordance with Aboriginal tradition" (T., who was named in the application, was the deceased ancestor of the claimants). The hearing proceeded as a hearing of both claims, mostly at Cairns. Cook Shire Council became a party to both claims.

The Evidence

18. The evidence established that the first claimants were part of the subsequent claimant group, notwithstanding that they initially indicated that they did not wish to be included as members of the subsequent claimant group, but wished to pursue their own claim separately and to the exclusion of the subsequent claimant group. In fact, the man T. referred to in the subsequent claim was the father of the named person referred to in the first claim.

Eventually both claimant groups reached a settlement in a document tendered to the Tribunal and accepted by it as consistent with the evidence.

21. All of the parties took the view that our recommendations, being in accordance with the recommendations proposed in Exhibit 131, and the evidence, need not be accompanied by detailed findings on material questions of fact and detailed references to the evidence and other material on which those findings are based. Such an approach is analogous to that provided for in Section 8.21. Suffice it to say that we are satisfied that the totality of the evidence more than establishes a traditional affiliation claim on behalf of the southern Kaanju, being those people traditionally associated with the estates which comprise the southern Kaanju linguistic area (hereinafter called "the southern Kaanju").

22. This report is, therefore, with the agreement of all parties concerned, brief, in view of the agreement reached as embodied in Exhibit 131. In our view, the recommendations proposed in that agreement are amply supported by all of the evidence and in view of the attitude of the parties it is not necessary to refer to all of the evidence which supports the recommendations agreed to by the parties.

23. The effect of the settlement reached by the parties is that members of the first claimant group be recommended as grantees/trustees to hold the claimable land on behalf of the southern section of the subsequent claimant group, which section includes the members of the first claimant group.

Public Road and Grave Site

The Tribunal reported that the road dividing the two areas should remain a public road. A problem concerning access to the grave site of a white miner on the land should be resolved, according to the Tribunal, in accordance with a proposal advanced by Cook Shire Council, namely that it should be set aside as a Cemetery Reserve under trusteeship of the Council, subject to appropriate provision being made for access via the public road.

Matter of Advice

43. Our advice is:

(a) A significant number of Aborigines will be advantaged by the grant of the land. They include all of the members of the group on whose behalf the land would be held and those who are related by marriage to the people with traditional affiliations to the land.

The traditional owners will be able to use the land.

There will be a strengthening of traditional affiliations with the land, maintenance of Aboriginal culture and enjoyment of the land by the southern Kaanju. Responsibilities and obligations which the people have under their traditions will be exercised in relation to matters such as site protection and more generally caring for the country. Advantage will accrue from being able to look after particular sites and places and being able to play a central role in the management of other cultural and ecological aspects of the land. Hunting and gathering in accordance with Aboriginal tradition will be an indicator of traditional rights and cultural identity. Social and psychological advantages will flow from the legal recognition of ownership and the right to be involved in decisions in relation to the use of the land. There will be an associated, if somewhat unquantifiable, sense of pride and community spirit.

(b) The responsibilities in relation to the land agreed to be assumed include looking after the land in accordance with Aboriginal tradition, protecting sites and places on the land and acting in accordance with appropriate contemporary management practices and lawful restraints and requirements, including the town planning scheme of the Cook Shire Council.

An appropriate statement of responsibilities to be included in the Deed of Grant in relation to the land would be to the effect that "the grantees undertake to care for and preserve the land in accordance with Aboriginal tradition".

(c) All of the parties are agreed that no detriment to persons or communities, including other Aboriginal groups (and Torres Strait Islanders) will result from the grant of land, subject to some reservations on the part of the Cook Shire Council, but we do not consider that those reservations are established on the evidence.

(d) The effect, if any, that a grant of land is likely to have on the existing and proposed patterns of land usage in the region of the land is negligible and in fact may be non-existent, the only exception being the fact that previously vacant Crown land will become freehold land subject to the provisions of the Town Planning Scheme of the Cook Shire Council. That, however, is not sufficient to preclude a grant in accordance with our recommendations.

Outcome

According to the Land Tribunal's report for the year ending 30 June 1995 the Ministry accepted the Tribunal's recommendation that most of the claimed land be granted in fee simple to the following group of Aboriginal people:

The southern Kaanju, being those people traditionally associated with the estates which comprise the southern Kaanju area.

Title to the land had not issued as at 30 June 1995.

Other Claims

Other claims under the Aboriginal Land Act 1991 (Qld) had been heard but not reported as at 30 June 1995 or had not yet been heard. A report was published in November 1995 on a further claim: Aboriginal Land Claim to available Crown land near Helenvale: Wunbuwarra-Banana Creek. The Tribunal comprised Carmel A. MacDonald, Deputy Chairperson; Gary J. Martin, Member; and John W. Stewart, Member. The tribunal was satisfied that the claim by the Kuku-Nyungal people to some 6,220 hectares of unallocated State land south of Cooktown was established on the ground of traditional affiliation. The Minister for Lands recently accepted the Tribunal's recommendation that the land be granted in fee simple.

Comment

The reports resulted in success to the Aboriginal claimants. This must be seen as encouraging to those indigenous Queenslanders who are able to utilise the legislation. To some extent, of course, claims that might cause difficulties for non-indigenous interests are precluded from the outset by the provision that the Government must first gazette the land as available for claim.

In all claims the claimants reserved their entitlements under the common law doctrine of native title. A native title claim in respect of the Simpson Desert would have had to contend with the tenure history of the past grant of leaseholds over the area; in that respect, the Land Act process offered positive advantages. It also offered the advantage, in the same claim, that, whereas the claim based on traditional affiliation was not upheld, there was the fall-back claim based on historical association, which was successful.

On the other hand, claimants in both the Cape Melville National Park claim and the Simpson Desert National Park claim were clearly unhappy that a grant under the Aboriginal Land Act 1991 would require them to lease the land to the State in perpetuity. Clearly, if Queensland wishes to encourage Aborigines and Torres Strait Islanders to work within the Aboriginal Land Act 1991 and the Torres Strait Islander Land Act 1991 rather than through Native Title, there is a strong case for improving the statutory provisions for combining indigenous ownership with national parks along the lines of the successful arrangements operating in the Northern Territory and being emulated in other jurisdictions. See generally S. Woenne-Green, R. Johnston, R. Sultan and A. Wallis, Competing Interests. Aboriginal Participation in National Parks and Conservation Reserves in Australia. A Review, Australian Conservation Foundation, 1995.

Amendments to the Aboriginal Land Act 1991 and the Torres Strait Islander Land Act 1991 and to the Native Title (Queensland) Act 1993 (Qld), as reported in the Tribunal's reports for the year ended 30 June 1995, indicate some movement towards the harmonisation of statutory land claims with native title rights and processes.

Copies of the annual reports of each Land Tribunal for the years ending 30 June 1992, 1993, 1994 and 1995 may be obtained from the Land Tribunal, PO Box 127, Brisbane Roma Street, Qld 4003. Tel: (07) 3247 9273. Fax: (07) 3247 9276.

Copies of the Land Tribunal's land claim reports can be purchased ($15 each) from Land Service Centre (Woolloongabba), Lands Department, Locked Bag 40, Coorparoo DC, Qld 4151. Tel: (07) 3896 3216. Fax: (07) 3896 3510.