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Editors --- "Simpson Desert National Park - Case Summary" [1996] AUIndigLawRpr 54; (1996) 1(2) Australian Indigenous Law Reporter

Simpson Desert National Park

The second report, dated December 1994, is 179 pages in length with additional material in Appendices. The Tribunal comprised Graeme J. Neate, Chairperson; Robert V. Anderson, Member; and Warren W. McLachlan, Member. The report followed a similar format to that in the first report, subject to the fact that this claim proceeded on grounds both of traditional affiliation and historical association.

The Claim

The claim was to the Simpson Desert National Park in the south-west of Queensland, representing some 7% of the overall Simpson Desert, the rest of which extends across the borders into the Northern Territory and South Australia. The area claimed was approximately 1,012,000 hectares. The desert comprises a series of sand dunes enclosing inter-dune flats and the report described it as "the most arid part of the Australian land mass" (paragraph 22). Nonetheless a tenure history prepared for the Tribunal (summarised in paragraphs 41-78) "shows that one or more leaseholds have been granted in respect of each of the areas which together comprise the land claimed" (paragraph 83).

Native Title

The land claim application was amended to state that it was made without prejudice to any native title rights that the claimants may have. The Tribunal discussed the issue in similar terms to the discussion in its first report.

Again, the tenure history indicated possible extinguishment of any native title.

Although none of the leasehold interests now exist, and although it seems that the declaration of a National Park over the land would not, of itself, have extinguished native title, it may be that native title with respect to the land claimed could not have survived. The Tribunal, however, is not in a position to express a view about whether any of the dealings has extinguished or impaired any native title in respect of that land. (paragraph 83)

The claimants' final written submission referred to 1994 amendments to the Native Title (Queensland) Act 1993 (Qld) which, when operative, would require the Land Tribunal to refer to the Queensland Native Title Tribunal whenever native title issues are raised in proceedings before the Land Tribunal; on such a reference the Native Title Tribunal also becomes the Land Tribunal for the purposes of the land claim. In such an event, the claimants indicated that they should be given leave to adduce additional evidence and make further submissions, in view of the fact that the criteria for native title interests are not synonymous with the criteria for establishing "traditional affiliation" and "historical association" under the Aboriginal Land Act 1991 (Qld) (para 90). The Land Tribunal noted that the provisions of the Native Title (Queensland) Act 1993 (Qld) had not commenced operation, noted that the issues had been raised, and proceeded to deal with the land claim in accordance with the 1991 Act.

Claimants and Grounds of Claim

The claimants were described in the final submission as follows:

The customary landowners of the claim area are people of either Wangkangurru or Wangkamadla descent, who identify as such, and are accepted as such by the senior custodians of custom in the region, and who regard the relevant lands as theirs by Aboriginal law. (paragraph 96)

The claimants made the claim together to all of the claimed land; the claim was not brought by two or more sets of people severally. The claim was based on both traditional affiliation and historical association.

Parties

Other parties to the proceeding were lessees of two pastoral holdings, Diamantina Shire Council and the Director-General, Queensland Department of Environment and Heritage.

Procedures

As in its first report, the Land Tribunal referred to the procedural flexibility provided by the Act. As in the earlier claim, it gave approval for the claimants to give oral evidence in groups, subject to conditions that:

(a) only one witness spoke at any time;

(b) the persons giving evidence be clearly identified; and

(c) where appropriate, the relationship of witnesses to each other be stated so that the reason why one witness may defer to another may be explained (paragraphs 107-109).

Other aspects of procedural flexibility are reported as follows (footnote references have been omitted):

110. Some other procedural aspects of taking evidence merit mention. Although the evidence was given in public session, some arrangements were made to accommodate the wishes of individual witnesses who were particularly shy or nervous about giving evidence in the presence of numerous other people. In two instances the claimants chose to respect the wishes of a witness that only those who were closely connected to her remain in the hall. Relatives of each woman sat with her and, in one instance, the evidence was not recorded on videotape. In all other respects the hearing was in public and was recorded and transcribed. In another instance, a woman who had given evidence in a public session was recalled to give additional evidence before the Aboriginal member of the Land Tribunal and in the presence of some other women. Again the evidence was recorded and transcribed and was given in public session. These were not the usual ways of proceeding. They were voluntary arrangements which were agreed to on the basis that they facilitated the production of evidence in a way in which people felt more comfortable without inhibiting the investigative function of the Tribunal or undermining the public nature of the hearing.

111. There were instances where a knowledgeable senior woman was apprehensive about speaking about certain matters because they were traditionally men's matters and she thought that some men (including her adult sons) might have objections to her speaking about them. One way of overcoming the potential for embarrassment was for the women to pass to her son the responsibility for speaking about those matters, and for women who were present at the hearing to move away for the duration of that evidence. In a similar vein, there were matters which the claimant felt uncomfortable speaking about to an all male Land Tribunal but which she was willing to convey by way of her female European agent. On other occasions, it was apparent that a witness felt ill at ease when talking about certain traditional matters in the presence of an elder who was the most appropriate person to speak or identified another person who was the appropriate person to ask about certain matters relating to Aboriginal tradition.

The Tribunal held most of its hearings at Birdsville as the most convenient location to some of the claimants and other parties. Some claimants travelled to the hearings from inter-state. Some witnesses gave evidence from Adelaide by telephone. Field visits by motor vehicle and helicopter were commenced from Birdsville.

As to legal representation, Mr. Keim, at the directions hearing, rejected applications by the claimants and the lessees of the two pastoral holdings to be represented by lawyers. But he indicated that there is nothing in the Act to prevent a party from appointing in writing an agent who happens to be a counsel or solicitor. In the event, the claimants Tjilpata Aboriginal Land Claim Association appointed Ms. Pamela Ditton, a N.T. lawyer, as the claimant's agent at the hearing.

The Tribunal permitted the claimants to record some of the proceedings on video tape. It attempted in various ways to avoid offence through the naming of deceased persons. It accepted evidence in various forms including photographs and film from a 1934 expedition and significant Aboriginal objects. It made orders applying restrictions in respect of certain information and documentary material. It also consulted with elders as required by the Act.

Land Tribunal's Functions

Chapter One of the report concluded with an analysis of the Tribunal's functions under the Act, similar to that provided in the first report.

Statutory Criteria

Chapter Two addresses statutory criteria for claims. The material relevant to claims based on traditional affiliation is similar to the material in the first report. The second report adds an analysis of the criteria for a claim based on historical association:

155. The individual criteria in section 4.10(1) are:

(a) the claim must be made by "a group of Aboriginal people";

(b) the claim must be for "an area of claimable land";

(c) the group must have an "association with the land" based on:

(i) the group for a "substantial period" having "lived on...the land"; or

(ii) the group for a "substantial period" having "lived on...land in the district or region in which the land is located"; or

(iii) the group for a "substantial period" having "used...the land"; or

(iv) the group for a "substantial period" having "used...land in the district or region in which the land is located"; or

(v) the ancestors of the group for a "substantial period" having "lived on...the land"; or

(vi) the ancestors of the group for a "substantial period" having "lived on...land in the district or region in which the land is located"; or

(vii) the ancestors of the group for a "substantial period" having "used...the land"; or

(viii) the ancestors of the group for a "substantial period" having "used...land in the district or region in which the land is located."

A claim may be established whether or not all of the members of the group (or even a majority of the members of the group) have themselves lived on or used such land.

The Tribunal also needed to deal with the fact that the claim was based on grounds both of traditional affiliation and historical association.

167. Of more significance to these proceedings is the operation of section 4.17(2)(a). The relevant parts of the subsection provide that if a claim is established on more than one ground and if the claim is established on the ground of traditional affiliation, a recommendation must not be made to the Minister based on other grounds. The present claim is made on the grounds of traditional affiliation and historical association. Consistently with the requirements of the Act, if the claim based on traditional affiliation is established it is not necessary to determine whether the claim based on historical association is established. In these proceedings, however, it is necessary to have an understanding of the history of Aboriginal occupation of the region in order to assess the claim based on traditional affiliation. As evidence was given in support of both grounds, and as section 4.17(2) contemplates that a claim might be established on more than one ground, the most practicable approach in these proceedings is to consider the historical evidence and then turn to the evidence relating to traditional affiliation.

The remainder of Chapter Two offers a learned analysis of the meaning and scope of the statutory criteria.

Evidence and Conclusions

Chapter Three sets out a wide range of evidence on the issue of historical association and concludes as follows:

394. The archaeological and historical information available to the Land Tribunal establishes that:

(a) Aboriginal people lived on or used different parts of the claim area for hundreds or, in some places, thousands of years;

(b) Wangkangurru and Wangkamadla people lived on and used the claim area for substantial periods up to the end of the nineteenth century;

(c) Aboriginal people who were identifiable as members of other neighbouring groups also may have used or occupied parts of the claim area during that era;

(d) the last Aboriginal people to live on the claim area left in about 1899 following a severe drought and the area has been unoccupied by people since then;

(e) the claimants identified as Wangkangurru or Wangkamadla in lists provided to the Land Tribunal, together with other Aboriginal people identified as Wangkangurru or Wangkamadla in the genealogical material and other documents provided to the Land Tribunal, are descended from Wangkangurru and Wangkamadla people who lived on or used the claim area for substantial periods.

395. No claim was made by any other group of Aboriginal people to any part of the claim area. There is insufficient evidence to suggest that any other extant group of Aboriginal people has historical associations with the land. Some individuals who can trace links back to members of other groups who used or occupied the claim area can also demonstrate that they have Wangkangurru or Wangkamadla ancestors from the claim area.

396. We are satisfied that the land comprising the Simpson Desert National Park was lived on and used, for a substantial period, by Wangkangurru and Wangkamadla people who were the ancestors of the claimants. Accordingly, we are satisfied that the claim made on the ground of historical association has been established.

Chapter Four sets out the evidence on traditional affiliation and concludes as follows:

523. The claim based on traditional affiliation should be considered, and can be best understood, in light of the history of the Wangkangurru and Wangkamadla people. Earlier in this report we concluded that the claim on the ground of historical association was established even though all claimants live away from the subject land. The claimants acknowledged that most see each other infrequently and others did not know each other at all before the preparation of the land claim. We also concluded that the fact that so many of the claimants live so far from the land and from each other has had a profound effect on their knowledge of their ancestors' traditional land and the Aboriginal traditions relating to that land. Much of the knowledge has been lost.

524. In the claimants' submission, no inferences adverse to them should be drawn because inevitably there are gaps in their knowledge. Rather, they submitted, the inference that should be drawn is that it is remarkable how complete, consistent and coherent the evidence was that was given by many claimants. The Tribunal was asked to accept the sincerity and straightforwardness of the witnesses and to note the importance of the land claim process to them as providing a valued opportunity to rebuild their scattered networks and knowledge. It was argued that a wide range of claimant witnesses subscribe, at some level, to "Aboriginal law" and, in that sense, are qualified to inherit traditional affiliation consciously and respectfully, even where they only know fragments of its content.

525. We have summarised in some detail, and have quoted from, the evidence relating to the claim on the ground of traditional affiliation. In our opinion, many of the claimant witnesses have spiritual and other associations with the claimed land of the type specified in section 4.09(1) of the Act. Those people are recognised as knowledgeable elders who have, and who exercise, a traditional responsibility to pass on to others in the group the remaining knowledge of their Aboriginal traditions. Some claimant witnesses are aware of their Wangkangurru or Wangkamadla identity but have only a limited knowledge of aspects of their group's tradition. They are, however, actively engaged in acquiring more knowledge about those traditions. It was apparent that others who are listed as claimants, and on whose behalf the claim was presented, have little knowledge of their family's connections with the land claimed. For the majority of the claimants, the claim can be described as a claim on the ground of historical association to the traditional land of their ancestors.

526. Having considered the evidence and submissions in light of our understanding of the legislative requirements, we are not satisfied that the claim has been established on the ground of traditional affiliation.

527. Our conclusion does not depend on any one factor, such as the physical absence of people from the land. Each land claim must be assessed having regard to the evidence available at the time when the claim is determined. A claim cannot succeed in reliance on the strength of the ancestors' traditional associations with the land. Nor can the Land Tribunal make a determination in reliance on what might happen in the future as people rediscover and reaffirm their traditional heritage. The claim can only be determined in light of current circumstances. In our opinion, the totality of the evidence strongly indicates that, for a range of reasons, many of the 800 or so people listed as claimants do not have common connections with the land based on spiritual and other associations with, rights in relation to, and responsibilities for, the land under Aboriginal tradition.

528. We accept the sincerity and straightforwardness of the witnesses. It was apparent that those who worked on the preparation and presentation of the claim are enthusiastic and dedicated to restoring and maintaining as much as possible of the Aboriginal tradition of the region. The process which appears to be under way has been encouraged by the land claim process and would be further advanced by the grant of the land. If that process continues, many more of those who identify as the rightful heirs of their ancestors' connections with the land may be able to demonstrate their traditional affiliations with the land in the future.

Recommendations

Chapter Four concluded with the recommendations required by the Act.

529. We are satisfied that the claim to the land has been established on the ground of historical association. In accordance with section 4.16(1) of the Aboriginal Land Act 1991 we recommend that the claimed land be granted in fee simple to the following group of Aboriginal people:

The group of Aboriginal people who are the descendants, including descendants under Aboriginal tradition, of Wangkangurru and Wangkamadla people who lived on or used the land, and land in the region or district of the land.

The Tribunal recommended that five named people be appointed to be the grantees of the land for the benefit of the group of Aboriginal people concerned.

Matters for Advice

Chapter Five addresses the separate matters on which the Land Tribunal is required to advise the Minister.

(a) Advantage

The issues of advantage are summarised in Chapter Six as follows:

656. Number advantaged: It appears that there are more than 800 Aboriginal people who are direct descendants of the Wangkangurru and Wangkamadla ancestors who had links to the mikiri country of the Simpson Desert. They would be potentially (or at least notionally) advantaged by the grant of the land.

657. Nature of advantage: Among the advantages which claimants identified as possibly resulting from the grant of land are:

(a) recognition that Aboriginal people have lived in the area for centuries;

(b) enhanced opportunities to visit (and possibly live on) the land of their ancestors, with the associated benefits of learning about and keeping alive their cultural heritage in that region and possibly relocating mikiris:

(c) possible employment of claimants on the National Park land as rangers or in other positions;

(d) the ability to exercise responsibility to preserve their land in accordance with traditional values for the benefit of future generations, including by involvement in the management of the National Park land in a range of significant ways such as the control of access to certain areas, the protection of significant places, the regulation of the location of roads and the sharing of cultural knowledge with visitors;

(e) other contract work on the National Park, such as fencing of significant areas;

(f) re-establishment of links between people and continued contact with related people;

(g) possible cultural joint management of the land in association with the joint management of other land in South Australia and the Northern Territory.

658. Extent of advantage: The extent of the advantage that will accrue to Aborigines because of the grant will vary from person to person, influenced by such factors as each person's age, health, employment status and place of employment, and the proximity of their usual place of residence to the land claimed. Some of the claimants currently live in (or near to) Birdsville. Those who live near to the land or have ready access to it would presumably be more directly advantaged by the grant. Most claimants, however, live a greater distance from the land, some as far away as Adelaide, Port Augusta, Oodnadatta, Alice Springs, Katherine, Mount Isa, Cairns and Gladstone. They may be less directly advantaged by the grant, although some would be likely to visit the land and participate in activities aimed at teaching people about the land and associated cultural matters.

659. To the extent that knowledge about the land is shared with other Aboriginal people, including those who visit the land, then other Aboriginal people may be advantaged by the grant. If cultural information is shared with others, the degree to which those others come to understand and respect the Aboriginal owners of the land may produce a broader social benefit.

(b) Responsibilities

Chapter Six summarises the Tribunal's advice as follows:

661. The land claim application for the Simpson Desert National Park described, in the following terms, the responsibilities that the claimants agree to assume:

"To look after and use the land in accordance with Aboriginal tradition.

To manage the cultural values of the National Park and in particular to oversee and take part in the preparation of specific sites, cultural interpretation of the landscape and managing and controlling visitor access to the area.

Subject to arrangements satisfactory to the appropriate family groups, to engage in management and conservation of natural values of the National Park."

662. That statement needs to be considered in light of the nature of the land and the evidence concerning traditional responsibilities for the land, the status of the land as National Park land, and the relevant statutory provisions. The statement of responsibilities accords with the requirements of the Act. We make no suggestions to change it for the purposes of any deed of grant issued in relation to the claimed land.

(c) Detriment

663. 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.

664. None of the other parties raised any issues of detriment. The Department of Environment and Heritage supported the land claim and did not have any matters of detriment which it wished to have considered. The matters raised in submissions by the Department and other parties relate more to the possible effect of a grant of land on land usage in the region and are considered in that context.

(d) Land Usage

The Tribunal reported that the evidence showed little likely increase in demand for access to the National Park subsequent to a grant. Adjacent pastoral lessees had expressed possible concerns about eradication of brucellosis and tuberculosis from cattle, the possibility of being required to erect boundary fencing, and access to the National Park through Adria Downs, but the report indicated that there was little basis for such concerns.

The required leaseback of the land, if granted, as a National Park was itself of concern to the claimants, coupled with the uncertainty as to the degree of control they might have. These matters were the subject of negotiation between the claimants and the Department of Environment and Heritage.

Whether the land would be rateable under the Local Government Act 1993 (Qld) was another issue (as in the first claim) on which the Tribunal was unable to make any determination.

The Tribunal also reported concerning a Vegetation Monitoring Site and also the protection of significant Aboriginal places.

Outcome

The Land Tribunal's Annual report for the year ended 30 June 1995 indicated that the Minister had accepted the Tribunal's recommendation for the grant of the land and that title would issue once the relevant management plan for the National Park and the leaseback arrangements were in place.