Native title - speaking for their country

Martha Koowarta has a compelling case to sue the Queensland Government for taking away her native title right to speak for country when they made the Archer Basin Wild Rivers Declaration.

The Wik and Wik Way peoples (in two determinations in 2000 and 2004) were determined by the Federal Court to hold exclusive native title to areas of Crown land and land held for the benefit of Aboriginal peoples, including the Coen River Pastoral Holding, the Napranum and Pormpuraaw Deeds of Grant in Trust areas and the Aurukun Shire lease. The Court determined that they had rights to:

• “Speak for, on behalf of and authoritatively about the determination area and assert proprietary and possessory claims over the determination area”;
• “Give or refuse, and determine the terms of any, permission to enter, remain on, use or occupy the determination area by others”.

The Wild Rivers Act 2005 (Qld) (WRA) was enacted with the purpose of preserving “the natural values of rivers that have all, or almost all, of their natural values intact”. The WRA declares that its purpose is to be achieved mainly by establishing a framework that includes the declaration of wild river areas, including high preservation areas, preservation areas, floodplain management areas and sub-artesian management areas.

The Archer Basin Wild River Declaration 2009 applies to the catchment area of the Archer, Love and Kirke Rivers, 10 major tributaries and wetland areas, lagoons and Lake Archer. The wild river area includes high preservation areas, a preservation area, floodplain management areas, sub-artesian management areas, a designated urban area and nominated waterways in the preservation area.

The Archer Basin Declaration regulates a vast range of activities in relation to the wild river area, including the taking of water, quarry material and timber. It regulates water works, activities in tidal areas, mining and petroleum activities, residential, commercial and industrial development, management plans under the Nature Conservation Act aquaculture development, release of non-indigenous fish, agricultural activities, animal husbandry, native vegetation clearing and pest control.

There are substantial tracts of High Preservation Area on the coast within the Aurukun Shire and along the courses of the rivers included within the Declaration.

Affected Indigenous communities in the declared areas were not fully informed about the impact and extent of the declaration, nor did they give their consent.

The declaration of a wild river area under the WRA is similar to the creation of a reserve. The High Court in the native title case of Western Australia v Ward said that the effect of designation of land as a reserve for a public purpose is that it is “inconsistent with any continued exercise of a power by native title holders to decide how the land could or could not be used”.

The declaration of a wild river operates as a compulsory acquisition of the native title right to decide how the land can be used. A compulsory acquisition of a native title right is invalid unless done in accordance with the Native Title Act (NTA).

A compulsory acquisition of a native title right, in order to be valid under the NTA, must take place in accordance with the “right to negotiate” procedure under the NTA. That procedure requires that notice be given to the native title party and to the public in the way prescribed by the NTA, and the parties must negotiate in good faith with a view to obtaining the agreement of the native title party to the doing of the act.

That procedure has not been adopted by the Queensland Government before making declarations by way of statutory instrument under the WRA. Thus, such declarations are invalid under the NTA and liable to be declared to be inconsistent with the NTA and invalid pursuant to the Commonwealth Constitution, section 109.

The Queensland Government has argued that a declaration of a wild river does not extinguish native title because it is subject to section 44 of the WRA which provides that “a wild rivers declaration or a wild rivers code, in applying for the purposes of any of the Acts that prohibit or regulate activities or taking of natural resources, cannot limit a person’s right to the exercise or enjoyment of native title”. That statutory protection is limited to the prohibition of activities under legislation other than the WRA and does not apply to the effect on the native title right to decide use of land resulting from a declaration under the WRA.

The Full Federal Court in the case of Western Australia v Ward held that sections of the Conservation and Land Management Act 1984 (WA) and regulations under the Wildlife Conservation Act 1950 (WA), while imposing “very stringent and extensive control over human activities within the nature reserves and wildlife sanctuaries” do not prevent the continued enjoyment of all native title rights and interests in relation to land within them, but do extinguish an “exclusive native title right to control access” and an “exclusive right of possession and occupation”. It follows that, section 44 of the WRA reflects the common law position, that some native title rights to engage in activities may co-exist with the declaration of a wild river. However, section 44 does not prevent the taking of the right to speak for country which occurs upon the declaration of a wild river being made.

I was privileged to have acted as a legal representative for Martha Koowarta’s late husband John Koowarta, a resident of Aurukun, when, in 1982, he took the Bjelke Petersen government to the High Court and established that the refusal of the Queensland government to transfer the Archer River Pastoral lease to the Aboriginal Land Fund Commission for the benefit of the Wynchanam people was an act of racial discrimination. Regrettably, the Bjelke Petersen government converted the pastoral lease into the Archer Bend National Park, preventing it from being vested in the traditional owners of that land.

As solicitor for the late Eddie Mabo, I was also involved in the 10 years of litigation on behalf of the Meriam people which took up where John Koowarta left off and created the precedent which enabled the Wik and Wik Way peoples to be declared native title holders of their traditional lands.

It flies in the face of the progress that has been made in recognising the rights of Indigenous peoples for the wild rivers regime to take away the important right of native title holders to speak for their country without following the statutory procedures laid out in the NTA.